U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

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

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

29–625 PDF 2006

S. HRG. 109–545

UNDERSTANDING THE BENEFITS AND COSTS OF

SECTION 5 PRE-CLEARANCE

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MAY 17, 2006

Serial No. J–109–76

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

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 24

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 13

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

prepared statement .......................................................................................... 194

WITNESSES 

Days, Drew S., III, Alfred M. Rankin Professor of Law, Yale Law School, 

New Haven, Connecticut ..................................................................................... 5

Derfner, Armand, Derfner, Altman and Wilborn, Charleston, South Carolina .. 9

Gray, Fred D., Gray, Langford, Sapp, McGowan, Gray and Nathanson, Montgomery, Alabama .................................................................................................. 2

Persily, Nathaniel, Professor of Law, University of Pennsylvania Law School, 

Philadelphia, Pennsylvania ................................................................................. 11

Thernstrom, Abigail, Senior Fellow, The Manhattan Institute, New York, 

New York .............................................................................................................. 7

QUESTIONS AND ANSWERS 

Responses of Drew S. Days III to questions submitted by Senators Cornyn, 

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

Responses of Armand Derfner to questions submitted by Senators Cornyn, 

Coburn, Leahy, Kennedy, and Schumer ............................................................. 71

Responses of Fred D. Gray to questions submitted by Senators Cornyn, 

Leahy, Coburn, and Kennedy .............................................................................. 90

Responses of Nathaniel Persily to questions submitted by Senators Cornyn, 

Coburn, and Kennedy .......................................................................................... 105

Responses of Abigail Thernstrom to questions submitted by Senators Cornyn 

and Coburn ........................................................................................................... 138

SUBMISSIONS FOR THE RECORD 

American Enterprise Institute, Project on Fair Representation, Edward Blum, 

Visiting Fellow, and Lauren Campbell, Research Assistant, Washington, 

D.C., prepared statement .................................................................................... 150

Days, Drew S., III, Alfred M. Rankin Professor of Law, Yale Law School, 

New Haven, Connecticut, prepared statement .................................................. 163

Derfner, Armand, Derfner, Altman and Wilborn, Charleston, South Carolina, 

prepared statement .............................................................................................. 174

Gray, Fred D., Gray, Langford, Sapp, McGowan, Gray and Nathanson, Montgomery, Alabama, prepared statement .............................................................. 184

Lewis, Hon. John, a Representative in Congress from the State of Georgia, 

letter ...................................................................................................................... 196

Persily, Nathaniel, Professor of Law, University of Pennsylvania Law School, 

Philadelphia, Pennsylvania, prepared statement .............................................. 198

Thernstrom, Abigail, Senior Fellow, The Manhattan Institute, New York, 

New York, prepared statement ........................................................................... 204

(1)

UNDERSTANDING THE BENEFITS AND COSTS 

OF SECTION 5 PRE-CLEARANCE 

WEDNESDAY, MAY 17, 2006 

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

The Committee met, pursuant to notice, at 9:28 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch presiding. 

Present: Senators Hatch, Leahy, and Durbin. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Good morning. As you can see, we have had 

some changes in the schedule today because of immigration on the 

floor, and I apologize to all of you. I am not Arlen Specter. He is 

a dear, good friend of mine for 35 years, but he has more hair. 

We are marking the anniversary today of the Supreme Court’s 

landmark decision in Brown v. Board of Education, one of the most 

remarkable decisions in the Supreme Court’s history. It took a couple years to get it through. The Chief Justice at the time realized 

that he had to take a disparate group of Justices to get a unanimous opinion. The country was going to have a difficult enough 

time with it as it was, but would have even more had it been a 5–

4 decision or less than unanimous. Now that we are reauthorizing 

the Voting Rights Act, I think it is appropriate to recognize the 

great civil rights struggle which led to it. Like Brown v. Board of 

Education, which began to bring to an end America’s sorry history 

of racial segregation, the Voting Rights Act is helping bring equal 

participation in voting to all Americans, something we probably 

took for granted in my State of Vermont but a lot of other States 

did not, something that assume is guaranteed today, but we have 

generations to come, our children and grandchildren, who may not 

have it, be able to take it for granted, unless we reauthorize this. 

I am encouraged that we have moved forward with the hearings 

and the introduction of our bipartisan, bicameral bill. I hope we 

can finish this before we recess for the Memorial Day break. I 

would hope this would be the major issue on the floor as soon as 

we come back. The House Judiciary Committee has been moving 

ahead. They reauthorized the Voting Rights Act by a vote of 33–

1. If you look at the House Committee, it goes across the political 

spectrum in both parties. I think that is pretty amazing. 

Here we are focusing on Section 5, required covered jurisdictions 

to pre-clear changes. We will hear more about the benefits of SecVerDate 0ct 09 2002 10:59 Aug 30, 2006 Jkt 029625 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29625.TXT SJUD4 PsN: CMORC
2

tion 5. The chief benefit of it is that it furthers the very legitimacy 

of our Government, which is dependent on the access to the voting 

booth. 

We have a distinguished panel. Mr. Gray, it is always good to see 

you here. He is one of the Nation’s pioneering civil rights lawyers. 

He spent a lifetime fighting for those who were denied the rights 

to equal protection and equal dignity under the law. After graduating law school, he immediately went to work defending Rosa 

Parks and Dr. Martin Luther King, Jr., in the Montgomery bus 

boycott. Starting in the late 1950’s, he brought landmark voting 

rights cases like Gomillion v. Lightfoot to the Supreme Court, paving the way for the expansion of voting rights that culminated in 

the Voting Rights Act of 1965. 

Armand Derfner has had a distinguished career as a voting 

rights litigator and author. He began his career in 1965 working 

with the first Federal examiners under the Voting Rights Act to 

register citizens to vote in Greenwood, Mississippi, and he has 

worked with Congress each time Section 5 has been extended—in 

1970, before I came to the Senate; in 1975, shortly after I came to 

the Senate; and in 1982. 

Of course, Professor Drew Days is well known to all members of 

this Committee. He is one of the country’s top constitutional lawyers. He was the Solicitor General of the United States from 1993 

to 1996—I voted on your confirmation—and he has argued 23 cases 

before the Supreme Court of the United States. He also formerly 

served with distinction as the Assistant Attorney General for Civil 

Rights. 

We have Abigail Thernstrom, a Senior Fellow at the Manhattan 

Institute in New York, a member of the Massachusetts State Board 

of Education, the Vice Chair of the U.S. Commission on Civil 

Rights, of course, written numerous books including ‘‘America in 

Black and White: One Nation, Indivisible,’’ ‘‘No Excuses: Closing 

the Racial Gap in Learning.’’ She has a Ph.D. from Harvard. 

And Professor Nate Persily from Penn Law School, from the 

Chairman’s home State, nationally recognized expert on election 

law, frequent practitioner, media commentator. I, like others, have 

seen you in that area. He was recently appointed by courts to help 

draw legislative districting plans for Georgia, Maryland, and New 

York, and by the California State Senate as an expert in their redistricting litigation. He wrote a Supreme Court amicus brief for 

the prevailing party in Utah v. Evans, published articles on legal 

regulation of political parties; B.A. from Yale, M.A. from Berkeley, 

J.D. from Stanford, Ph.D. in clinical science from Berkeley. 

So I am glad we are here. I do regret—I have only one regret. 

We have given short shrift to the extension of Section 203 in the 

protection of language minorities. We may have to supplement our 

record before that. But, Mr. Gray, as I said, you are no stranger 

to this place. You are not shy. Why don’t you go ahead? 

STATEMENT OF FRED D. GRAY, GRAY, LANGFORD, SAPP, 

McGOWAN, GRAY AND NATHANSON, MONTGOMERY, ALABAMA 

Mr. GRAY. Thank you very much, Mr. Leahy. 

To Senator Leahy, to my Senator, Jeff Sessions, in his absence, 

and other members of the Committee, as you know I am Fred 

3

Gray. I am honored today to testify in support of reauthorizing 

what many have called ‘‘the most important civil rights legislation 

in history.’’ 

I probably bring a little different perspective to this Committee. 

I testify from a perspective as a civil rights lawyer who has been 

in the trenches for over 50 years in the Deep South, particularly 

in Alabama. I am still a trial lawyer, and as a matter of fact, I am 

in the middle of a trial but felt it was important enough to come 

to be here today. 

I worked with African-Americans in Alabama in an effort to obtain—and then maintain—the right to vote. Some of these people, 

such as Dr. C.G. Gomillion, who is the lead plaintiff in Gomillion

v. Lightfoot, and William P. Mitchell, these persons were filing lawsuits as early as 1945 in an effort to obtain the right to vote for 

African-Americans in Tuskegee, Alabama, the home of Tuskegee 

University where Dr. Washington did his work, Dr. Carver did his 

work, and the home of the Tuskegee Airmen. 

This struggle culminated in the Supreme Court’s decision in 

Gomillion v. Lightfoot. In direct response to increased voter registration, the Alabama Legislature passed a law in 1957, changing 

Tuskegee’s city limits from a square to 28 sides, excluding substantially all of the African-American voters and leaving all the white 

voters in. The Supreme Court unanimously held that the boundary 

change violated the 15th Amendment. 

The Voting Rights Act, passed in 1965, was the direct result of 

the Selma-to-Montgomery March. The first attempt to march was 

aborted on March 8, 1965, in what has become known as ‘‘Bloody 

Sunday,’’ when now-Congressman John Lewis and others were 

beaten back after they crossed the Edmund Pettus Bridge in 

Selma, Alabama. Within 24 hours of the time they were beaten 

back, I filed the of Williams v. Wallace to compel the State of Alabama to protect those marchers. 

As a civil rights lawyer practicing both before and after enactment of the Voting Rights Act, I can and I do attest to its profound 

impact on the full participation of African-Americans in our society. 

On a more personal note, it was enforcement of the Voting Rights 

Act in redistricting cases that allowed me in 1970 to become one 

of the first two African-Americans to serve in the Alabama Legislature since Reconstruction. 

I understand the question has been asked whether there is still 

a need for Section 5. Let me answer that question with a resounding ‘‘Yes.’’ 

We all recognize the substantial improvements that have occurred because of the Voting Rights Act. African-American registration in Alabama indeed is higher now than it was. I knew the time 

when we had no elected officials in Alabama; now we have approximately 870. 

But these successes that are directly attributable to a civil rights 

law should not and cannot provide a foundation or an excuse for 

those persons who would say now that you have obtained it, there 

is no need for the law to continue. If it was necessary in order to 

obtain these rights, to have that law and to have proper interpretations of it, certainly it is equally important or more important that 

4

the law continues in effect so that these great successes which we 

have had will continue. 

Unfortunately, Alabama still suffers from severe racially polarized voting. Only two African-Americans have ever been elected to 

statewide office: the late Oscar Adams and Ralph Cook to the Alabama Supreme Court. However, today, I am sad to tell this Committee we have no statewide office holders of African-Americans. 

There are two running in the primary now, but I am afraid that 

after June 6th we may—or after November, we still may have 

none. 

Racial discrimination in voting has persisted in Alabama since 

the reauthorization of the Act. Let me give you a few examples. 

In Selma—the birthplace of the Voting Rights Act—the Department of Justice objected to redistricting plans as purposefully preventing African-Americans from electing candidates of choice to a 

majority of the seats on the city council and county board of education. 

Another example: The Department objected to Alabama Legislature’s 1992 Congressional redistricting plan on the ground that 

fragmentation of black populations was evidence of a ‘‘predisposition on the part of the State political leadership to limit black voting potential to a single district.’’ 

Another example: In 1998, the Department objected to a redistricting plan for Tallapoosa County commissioners on the ground 

that it impaired the ability of black voters to elect a candidate of 

choice in order to protect a white incumbent. 

In 2000, the Department objected to annexations by the city of 

Alabaster which would have eliminated the only majority black district, demonstrating that the boundary manipulations of Gomillion

are not a relic of the past, but is still presently in existence in our 

State. 

Since 1982, Federal courts have found violations of the Voting 

Rights Act across Alabama’s electoral structures. Dillard v. 

Crenshaw County led to changes from an at-large to single-member 

district for dozens of county commissioners, school boards, and municipalities. You will also find in my report the other instances in 

which we set out these various conditions. 

Finally, Section 5 provides a powerful deterrent force in preventing discrimination. As a civil rights practitioner, I have worked 

with countless office holders, and based on my experience, I strongly believe that the continued Section 5 coverage in Alabama is not 

only necessary but it is imperative if we are to continue to have 

these good successes. 

Thank you, Mr. Chairman. 

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

the record.] 

Senator LEAHY. Thank you, Mr. Gray. 

Chairman Specter and I received a letter from Congressman 

John Lewis this morning. I am going to make it a part of the 

record, but I first would like to read a short excerpt from it, and 

this is Congressman Lewis speaking: 

‘‘I regret that some witnesses, as well as Senators, continue to 

quote a few words of my testimony’’—this is from his testimony before this Committee—‘‘in the case of Georgia v. Ashcroft and take 

5

them out of context and improperly imply that I do not favor reauthorization of Section 5 of the Voting Rights Act or that my words 

justify their opposition to Section 5. I take issue with the use of my 

name to justify opposition to the renewal of Section 5 and assure 

you that I am a strong supporter of this provision.’’ 

I was here for the testimony, and nobody could be stronger in a 

statement than Congressman Lewis, and without objection, that 

will be part of the record. 

Professor Days, again, welcome. Thank you for being here. 

STATEMENT OF DREW S. DAYS III, ALFRED M. RANKIN PROFESSOR OF LAW, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT 

Mr. DAYS. Thank you, Senator Leahy, and thank you for your 

vote. I want to thank— 

Senator LEAHY. You kind of earned that one. 

[Laughter.] 

Mr. DAYS. I want to thank you and the Committee for inviting 

me to participate in these hearings concerning the reauthorization 

of the Voting Rights Act of 1965. As my colleague Fred Gray pointed out, and, of course, it comes as no surprise—I think everybody 

understands this—it is one of the most important pieces of legislation in our entire Nation’s history. 

I have become very enamored of a quotation from the opinion 

written by Chief Justice Warren in the South Carolina v. Katzenbach case upholding the constitutionality of the Voting Rights Act. 

He focused on Section 5 and described it, in essence, as a way in 

which Congress shifted ‘‘the advantage of time and inertia from the 

perpetrators of the evil to its victims.’’ 

I don’t know whether I want to call people ‘‘perpetrators of evil’’ 

these days, but I really think the central issue before this Congress 

is at heart whether 40 years after the Act’s passage, the time has 

come to shift this advantage of time and inertia back to the jurisdictions covered by Section 5. My answer is that it has not. Instead, the Voting Rights Act and Section 5, in particular, should be 

reauthorized in order to promote further progress in achieving 

truly equal participation in the political process free of racial discrimination and exclusion or to prevent backsliding that may result 

in undermining what success the Act has already achieved. 

Now, I have not had a chance to review all of the testimony and 

statements of witnesses or the studies that have been submitted to 

the Committee and to the House Committee with respect to reauthorization, but based upon my 4 years administering Section 5 

and other provisions of the Act, I believe that this record offers 

ample evidence of contemporaneous and continuing problems of 

electoral practices discriminatory in both purpose and effect sufficient to support renewal. I have in mind especially the reports prepared by the National Commission on the Voting Rights Act and 

by the Voting Rights Project of the American Civil Liberties Union. 

Of course, there has been evidence of progress since 1965. I think 

it would be hard to deny that. But I have noted that some others 

who have been appearing before the Committee and the House 

Committee have pointed to, for example, the small number of objections lodged by the Attorney General in the pre-clearance process 

6

to support their contention that Section 5 is no longer needed. Apparently, their view is that jurisdictions have simply stopped discriminating on their own. But relying once again on my experience 

in administering that regime, I believe those same figures can be 

explained in a number of different ways. One that I think is most 

significant is that it reflects vigorous enforcement of Section 5 in 

the past, and more recent active informational efforts by the Department with respect to the pre-clearance process have resulted in 

a higher level of compliance. During my time at the Justice Department, compliance was increased markedly to the extent that a covered jurisdiction anticipated that there would be a forceful response 

if pre-clearance was not sought and to the degree that they expected fair, prompt, respectful, and constructive treatment of their 

submissions, which we certainly tried to afford them. 

It is also not surprising that members of this Committee and 

some witnesses have also expressed concern that a reauthorized 

Section 5 might be open to successful challenge in the Supreme 

Court. For the Court has, over the last decade, found several civil 

rights laws unconstitutional—that is the Boerne case and its progeny—because they failed to satisfy what the Court has described as 

a ‘‘congruence and proportionality’’ standard. 

You are familiar with that case and the standards that have 

been set out, but I would like to make several points with respect 

to this line of cases and their potential impact on any challenges 

to reauthorization of Section 5. 

First, the Court has pulled back in recent years from what for 

a time appeared to be its unwillingness to uphold any civil rights 

legislation providing private damage remedies in suits brought 

against States. We have now seen in Tennessee v. Lane under the 

ADA and Hibbs with respect to the Family and Medical Leave Act 

that the Court can actually identify and uphold constitutional exercises of Congress’ Section 5 powers. In so doing, the Court has recognized that Congress has to have wide latitude in determining between remedial legislation, which it is authorized to do, and substantive redefinition. 

Second, unlike the earlier laws struck down by the Court, these 

latter two have involved both a suspect classification—women in 

the workplace—and a fundamental constitutional right—access to 

the courts. And given this new interpretation, I think that the 

Court should view what Congress does in reauthorizing Section 5 

with a certain amount of deference. It is directed at eradicating racial discrimination, a suspect classification, and is addressed to voting, one of the most basic rights. 

Third, it is supported further by the fact that the Court has 

upheld the enactment of the Voting Rights Act and Section 5 as 

model examples of Congress’ exercise of its prophylactic and remedial constitutional powers. I think given this background, Congress 

should approach what Congress—the Court should be doing, I 

think, a deferential review of what Congress achieves in this regard. 

I have some brief comments and perhaps I can answer those in 

connection with questions. 

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

the record.] 

7

Senator LEAHY. On that, Professor Days, I get concerned because 

of the Supreme Court, City of Boerne and others, where they question whether we have overstepped. I understand and I accept that 

the Congressional power to enact anti-discrimination remedies to 

enforce the 14th and 15th Amendments is at its highest level when 

addressing racial discrimination, protecting fundamental rights 

such as voting. Is that your understanding? 

Mr. DAYS. Exactly right, yes. 

Senator LEAHY. And with the current standard of review by the 

Supreme Court, what do they have to—what kind of a standard are 

they going to apply if there is litigation? Assuming we renew the 

Voting Rights Act, what kind of standard are they going to apply? 

Mr. DAYS. Well, they might well start because it is a racial classification, in effect, as the need to show a compelling interest. But 

we have seen in the past that the Court has recognized that what 

Congress is doing in addressing discrimination in voting as responding to a great, great threat to the country, to the democracy, 

and, therefore, a compelling interest justifying what Congress is 

doing. And I do not see any reason why that should not carry over. 

For one thing, this legislation is a continuation of what Congress 

has been doing for many, many years. The record has been developed over that time. Without sanctioning in any way, even if I had 

the power to do so, what the Supreme Court has done in some of 

these other cases, because I think they are basically wrong, Congress was dealing with a number of issues that were unfamiliar to 

the Court, had not had the same type of long-term, very rich development of congressional understanding of what is and is not a 

threat to the democratic process. 

Senator LEAHY. Thank you. Well, I asked that question because 

I just got handed a note that we may have a vote in the next 10 

to 15 minutes, and we have these things that interfere, like having 

to actually vote on matters, in this case the immigration bill, and 

we will probably do some tag team. I assume Chairman Specter 

will be able to come back here after I go there. 

But, Ms. Thernstrom, let’s go to your testimony, and then Mr. 

Derfner’s and Mr. Persily’s, and if we can keep somewhat within 

the time—your whole statement, of course, will be part of the 

record, and then we can go back to questions. But thank you for 

being here. 

STATEMENT OF ABIGAIL THERNSTROM, SENIOR FELLOW, THE 

MANHATTAN INSTITUTE, NEW YORK, NEW YORK 

Ms. THERNSTROM. Senator Leahy, I am delighted to be here. 

Thank you for the opportunity to allow me to testify. Does that 

turn it on? 

Senator LEAHY. The little button should show red. Try go. Every 

one of these Committee rooms has a different set of things. 

Ms. THERNSTROM. Well, I started out by thanking you for allowing me to testify today. I am delighted to be here. And given the 

time constraint, I am going to focus only on one issue: the pernicious impact, in my view, of the pre-clearance provision as it has 

come to be interpreted and enforced—not the original provision but 

as it has come to be interpreted and enforced, or more precisely, 

8

the pernicious impact of race-based districting on America’s racial 

fabric. 

I understand how tough it is for Members of Congress to come 

out against a civil rights bill. Race is still the American dilemma, 

our great unhealed wound. Nevertheless, I am here to suggest that 

a vote to support a renewal of the temporary emergency provisions 

of the Act is a vote against racial progress and racial equality. 

The original Voting Rights Act was about disenfranchisement. 

This bill is not. It aims instead to maximize minority office holding 

by protecting minority candidates from white competition, for that 

is precisely the point of safe black and Hispanic districts. And, inevitably, providing such protection involves racial sorting, racial 

classifications, which have had such a long and ugly history. 

Today, by numerous measures, blacks and Hispanics are becoming integrated into mainstream American life, and yet simultaneously our Federal Government has signed on to what Justice 

Sandra Day O’Connor and others on the high Court have called 

‘‘political apartheid.’’ 

Just a bit of evidence on black integration. Today, 88 percent of 

whites, 82 percent of blacks say they have good friends of the other 

race. That is a remarkable change. Moreover, less than a third of 

African-Americans live in census tracts that are over 80 percent 

black, and the rate of black suburbanization in recent decades has 

significantly outpaced that for whites. And yet blacks who move up 

the economic ladder and escape inner-city neighborhoods are not 

necessarily allowed to join their new friends and neighbors in a legislative district defined by common economic and other non-racial 

issues. For political purposes, they are stuck in the putative community they have worked so hard to leave. Their old district lines 

more likely than not chase them, the result being those familiar, 

bizarrely shaped, race-driven districts. 

American law contains important messages about our basic values, and these race-conscious maps send the wrong message. Implicitly, they seem to say: Blacks are different than whites; it is OK 

for the State to label them as such. Statements that say, in effect, 

blacks are X or blacks believe Y. They pose no problem. 

It is these messages that Justice Anthony Kennedy so strongly 

rejected in expressing concern that the State was assigning voters 

on the basis of race and, thus, engaging in ‘‘the offensive and demeaning assumptions that voters of a particular race, because of 

their race, think alike, share the same political interests, and will 

prefer the same candidates at the polls.’’ In part he was quoting 

Justice Sandra Day O’Connor. 

The point can be put slightly differently. When the State treats 

blacks as fungible members of a racial group, they become, in 

Ralph Ellison’s famous phrase, ‘‘invisible men whose blackness is 

their only observed trait.’’ But that view, the view that racial identity is defined by race, that group racial traits override individuality, is precisely what the civil rights movement fought so hard 

against. 

Race-based districts amount to a form of political exclusion 

masquerading, of course, as inclusion, and the overwhelming majority of Americans don’t like them. 

9

In 2001, a national poll contained the following question: In 

order to elect more minorities to political office, do you think race 

should be a factor when boundaries for the U.S. congressional voting districts are drawn? Seventy percent of blacks, 83 percent of 

Hispanics said race should not figure into map drawing. 

I urge distinguished members of this Committee to be careful 

what they wish for. This bill may bring champagne on the day it 

is passed, but tears down the road. Racial classifications, however 

prettily they are dressed up, are and always will be the same old 

classifications that have played such a terrible role in this great 

and good Nation. They separate us along lines of race and ethnicity, reinforcing racial and ethnic stereotypes, turning citizens 

into strangers. Haven’t we as a Nation had enough of that miserable stuff? 

One final word. Yesterday, the NAACP filed a suit in Omaha to 

block the creation of racially identifiable school districts. Explaining the purpose of the suit, an NAACP representative told the Associated Press, ‘‘Segregation is morally wrong, regardless of who 

advocates it.’’ 

Senator LEAHY. Ms. Thernstrom, I am not trying to cutoff your 

testimony, but either Mr. Derfner or Mr. Persily will not get to testify if— 

Ms. THERNSTROM. OK. I have got one more sentence, Senator 

Leahy. 

Senator LEAHY. All right. 

Ms. THERNSTROM. Let’s remember this applies to the way we 

draw our voting districts as well. Thank you for the opportunity to 

present these views. 

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

Senator LEAHY. Thank you very much, and your full statement 

will be made part of the record because you— 

Ms. THERNSTROM. Well, I just— 

Senator LEAHY. You raise a strong point of view that we— 

Ms. THERNSTROM. Yes, I have got a much fuller statement in the 

record. 

Senator LEAHY. This Committee wanted it to be heard. 

Mr. Derfner? 

STATEMENT OF ARMAND DERFNER, DERFNER, ALTMAN AND 

WILBORN, CHARLESTON, SOUTH CAROLINA 

Mr. DERFNER. Senator Leahy, thank you for the opportunity to 

testify here and thank you for your kind words about my participation in earlier times. 

Yes, I have been involved with the Voting Rights Act since its beginning, and so I guess I have had a lot of experience with it, not 

only with litigating under it but also with living under it. I have 

lived in the South for most of the past 40 years and in Charleston 

for about 35. I live there. I love my city. I love my State. I have 

married there. I have raised my children there. I belong to a congregation there. I play cards there. I root for baseball, football, and 

basketball teams there. And I know that we are good people. This 

Act is not a statement that the people in the covered States are evil 

people. They are friends of mine. 

10

The problem is that all too often people in power, the elected officials, the elected bodies, the legislatures, the city councils, take the 

opportunity, which is given them often, to rig elections and to deal 

with voting in discriminatory ways. All too often, they cannot resist 

the temptation to look back to the old ways to achieve certain political purposes and racial purposes. 

What I know from living in the South this long time is that the 

Voting Rights Act has made it better. There has been enormous 

progress. The Voting Rights Act has been an important part of that 

progress. I want to see my State, my city, and our surrounding 

areas be the best that they can be, and I think that the Voting 

Rights Act plays an important part in having that happen. 

We are here today to talk about the benefits and the burdens, 

and I understand that in that, in particular, you are going to be 

interested in recent times, not in ancient history. 

I wish I could say that it was all ancient history. If that were 

true, we would not be here today. We would not be here suggesting, 

as I do suggest, that the Act and the temporary provisions do need 

to be extended. 

What are the benefits? I think the prime benefit is one—and 

here I have to disagree with Dr. Thernstrom—one of reaching the 

hearts and minds of our people. I think many people in the covered 

States, certainly in my State and my city, many people have internalized the idea that voting discrimination is wrong, that voting 

should be available in every way to all people in a fully equal way. 

And that is a lesson, a civics lesson, that comes through because 

of the Voting Rights Act, because Section 5 is something that does 

not just come up when there is a lawsuit now and then over some 

crisis issue, but it does come up whenever a governmental body 

wants to make some changes. It is reminded again—and I know 

from talking to officials, with lawyers, with city attorneys, with Attorneys General, it reminds them that that is a constant requirement that they think of it. So in that sense, that is the first benefit. 

The second benefit is that when that does not happen, when as, 

unfortunately, all too often the opposite happens, and elected officials take the opportunity to make a change that is discriminatory, 

that there is a remedy, a swift and effective remedy under Section 

5 of the Voting Rights Act. And I will come back a little bit later 

on and talk about some examples. The one most often cited—and 

it is in my testimony—has to do with the Charleston County School 

Board, which is almost a textbook case of the value of Section 5. 

I want to talk about burdens for a minute. The administrative 

burden is not great. I know this because I have had the job of preparing submissions. I know very well lawyers, people in the Attorney General’s office, in the city attorney’s office who prepare submissions, it is not a burdensome task. It is a task that is typically 

a tiny reflection of the work, thought, planning, and effort that had 

to go into making the change to begin with. 

For example, even a polling place change, it is a small change, 

but the submission is also small, and typically the work involved 

in submitting a polling place change is less than the work it took 

to find a new polling place to begin with. 

The administrative process is swift. A change has to be precleared within 60 days, and in some cases, it can be pre-cleared alVerDate 0ct 09 2002 10:59 Aug 30, 2006 Jkt 029625 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29625.TXT SJUD4 PsN: CMORC
11

most overnight. For example, if there is a sudden need for a new 

polling place, that can be pre-cleared very swiftly if there is an 

election coming up. So the administrative burden is not great. 

I do not minimize the philosophical burden. I am not going to get 

into that debate because, obviously, that is what this whole Act is 

about. We are talking about a remedy that is an unusual remedy, 

brought on by unusual circumstances. 

I do want to talk about the burden, very briefly— 

Senator LEAHY. Mr. Derfner, I have 5 minutes and 38 seconds 

to get to the floor. I would like to hear Professor Persily before I 

leave, and somebody else will come back to continue, and I have 

questions which I am going to submit for you. 

Mr. DERFNER. OK. If I could have just one sentence, I would 

say— 

Senator LEAHY. Of course. 

Mr. DERFNER. Thank you. 

Senator LEAHY. And we will take it out of Professor Persily’s 

time. 

[Laughter.] 

Mr. DERFNER. One sentence. I would like to respond to Dr. 

Thernstrom in one way, that the idea that the Act causes division 

to my mind is backward. And Professor Everett Carll Ladd, a noted 

political scientist, was asked that very question in testifying in a 

redistricting case some years ago, and what he said—and he was 

quite a conservative person philosophically and politically. He said, 

‘‘It is backward. The division is already there, and to say that districting causes division is like saying that a fever causes a cold.’’ 

I think he had it right. 

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

for the record.] 

Senator LEAHY. Professor Persily? 

STATEMENT OF NATHANIEL PERSILY, PROFESSOR OF LAW, 

UNIVERSITY OF PENNSYLVANIA LAW SCHOOL, PHILADELPHIA, PENNSYLVANIA 

Mr. PERSILY. Thank you for inviting me here today. I will keep 

to my 5 minutes, and I want to give you the perspective of someone 

who works under the Voting Rights Act and who draws lines. If 

you have questions about the constitutionality of the Act, I can 

speak as a law professor, or about the politics of this, I can speak 

as a political scientist. But specifically I want to talk about three 

things: the first is where I think that Section 5 has been most successful, and that is at the local level; the second is what does the 

‘‘ability to elect’’ standard that is part of this law mean; and then, 

finally, I want to urge some broad thinking on the Voting Rights 

Act or see this Act as an opportunity for a more substantive discussion about the right to vote. 

First, I don’t think there has been enough testimony here in the 

Senate about the effect of the Voting Rights Act and the pre-clearance process on local jurisdictions, which is what most of the DOJ 

pre-clearance submissions are about. And I think here of the inglorious issues like annexations and the small things that happen—

which are not notorious and where the partisan stakes are seen as 

relatively low. Often those are the areas where the Section 5 preVerDate 0ct 09 2002 10:59 Aug 30, 2006 Jkt 029625 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29625.TXT SJUD4 PsN: CMORC
12

clearance process is most important. When you get to issues such 

as statewide redistricting plans, then the potential for partisan infection of the pre-clearance process grows and the overhanging deterrent of Section 2 often proves to be more important. 

Second, let me talk a little bit about this ‘‘ability to elect’’ standard that is in the bill, what is known in the business, I guess, as 

the Ashcroft fix. 

First of all, let’s just review for a moment what Georgia v. 

Ashcroft was about. It was about the cracking of the minority community into several districts, or at least that was the way that the 

DOJ perceived it. In particular, you had districts that were hovering around 50 percent minority that were then reduced and, 

therefore, the Supreme Court said that you could tradeoff influence 

districts with ‘‘ability to control’’ district. The risk of Georgia v. 

Ashcroft is that it would not then apply just to evenly balanced districts that are around 50 percent but, rather, under the cloak of influence districts, a jurisdiction would then break up a cohesive minority community into much smaller districts in which they really 

had no influence at all. 

One point that I want to make sure is clear in the legislative history here is that the Ashcroft fix, what is known as the ‘‘ability to 

elect’’ standard, prevents both cracking of the minority community, 

retrogression by the way of dispersing them among too many districts, as well as packing them, because I think that over the 25-

year proposed tenure of this bill, actually packing and overconcentration of the minority community are actually going to prove 

to be tactics which are more often used to dilute the effect of minority voting. And so let’s just make sure that the legislative record 

is clear that the bill prevents overconcentration as well as excessive 

dispersion of the minority community. 

And then, second, what do we mean by the words ‘‘ability to 

elect’’? They are not code for something like majority-minority districts. In some areas of the country, in order for the minority community to elect its candidate of choice, it is going to be substantially more than 50 percent; in some areas it is going to be substantially less. 

What is going to be required of the Department of Justice or the 

U.S. district court when they are reviewing these pre-clearance 

submissions is to make a pretty sensitive inquiry that looks at each 

region that is at issue in the pre-clearance process and find the extent of racially polarized voting in the jurisdiction. They will need 

to ask: To what extent are whites willing to vote for the minority 

candidate of choice? What is the incumbency status of the district? 

Because what is meant by the ability to elect will depend on 

whether the district is an open seat or whether it is one in which 

there is an incumbent already there. 

They are going to have to know the rates of registration and 

turnout and citizenship and eligibility in these districts, as well as 

whether the minority community is going to be able to control the 

primary, and what the potential for cross-racial coalition building 

is. 

I mention these factors so that we are not under the illusion that 

for some reason this bill is going to freeze the minority percentages 

in districts for the next 25 years. It prevents both, as I was saying 

13

before, the excessive dispersion or cracking of the community as 

well as the overconcentration or packing of them. But you cannot 

make generic conclusions about how it is going to operate in the 

abstract. It requires a very sensitive inquiry on the ground. 

Let me conclude, though, with just a plea that this Act really be 

the first step toward eliminating what are the major barriers to enfranchisement and participation for voters of color in the U.S. This 

Act, for either political reasons or the constitutional overhang that 

always hangs over these laws, does not deal with issues such as 

felon disenfranchisement or partisan administration of elections or 

the voter ID controversy, and I understand why. But this discussion over voting rights in this country would be anemic if we did 

not at least talk about those issues and try to solve those as well. 

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

for the record.] 

Senator LEAHY. Thank you very much. You did do it on time. 

Each of you could spend an hour or more with your expertise and 

the issues involved. I am going to just recess until the Chairman 

or someone else comes back. And as I said earlier, I also want to 

get into the question—not here, but at another hearing—on the 

problems of languages, which has become of a significant one. 

Thank you. We will stand in recess for a few minutes. 

[Recess 10:10 a.m. to 10:35 a.m.] 

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 

THE STATE OF UTAH 

Senator HATCH [presiding]. We will resume. I apologize. I hadn’t 

planned on coming to this hearing, but I didn’t want to leave such 

a distinguished panel without an opportunity for all of you to express your viewpoints on this very important set of issues. They let 

me know if I didn’t come, we might not get all of the things in that 

we should. 

Mr. Gray, I have such respect for you, as you know, and for all 

you have gone through in your life. I just want you to know we are 

honored to have you here. 

And Drew Days, one of the most respected civil rights lawyers 

in the country and a wonderful professor. 

Mr. DAYS. It is good to see you, Senator. 

Senator HATCH. I remember the days when you were here and 

I was kind of a difficult person for you. I kind of feel badly about 

that, but you are a good man. Even though we may differ from 

time to time, I think a lot of you and your honesty and your opinions. 

There is no question that Abigail Thernstrom is one of my favorite people. She is an honest, very tough, smart and good human 

being who really has tried to resolve problems in these areas, but 

who is a true intellectual in these areas, as are you, Professor 

Days. 

Ms. THERNSTROM. Thank you so much, Senator Hatch. 

Senator HATCH. We are grateful to have you here. I don’t know 

you other two, but we are grateful that you have taken time out 

of, we know, busy schedules to be here and to help us to understand this. 

Mr. DERFNER. Thank you, Senator. 

14

Senator HATCH. You have all given your statements, so let me 

just ask some questions. We will start with you, Mr. Gray, and go 

across in each case, unless I have specific questions to one or more 

of you. 

I might just preface it with this. I think, Drew, you would remember—if you don’t mind me calling you by your first name from 

time to time. 

Mr. DAYS. Not at all, Senator. It is a pleasure to see you. 

Senator HATCH. Yes, a pleasure to see you. I think you remember 

back—and I know Ms. Thernstrom will remember this—when we 

fought these battles back before, I was very concerned about putting the effects test in Section 5 and I made every argument I could 

against doing that. And when I lost, I voted for the bill because I 

consider the Voting Rights Act the most important civil rights bill 

in history. There are others that are certainly very, very important 

and maybe just as important, but not in my eyes. In my eyes, it 

is the bill that enfranchised African-Americans in this country, and 

other as well. 

I won’t go into all the arguments that I made then, but I have 

to say that some of the arguments I made then have come true. I 

am very concerned about this. I am going to vote for the bill, no 

matter what it is in the end, because I do consider it so important, 

but this issue about Article 5 is important to me. 

No one can dispute the fact that Section 5 has been tremendously successful in preventing discriminatory behavior in covered 

jurisdictions. Indeed, minority voter registration and turn-out rates 

in covered jurisdictions meet or exceed nationwide rates and those 

in non-covered jurisdictions as a whole. 

Given the tremendous progress that Section 5 has produced—I 

am asking this of each of you—do you support expanding its scope 

to other localities where racial discrimination or racial block voting 

are proven to be problems? 

Mr. Gray? 

Mr. GRAY. I didn’t quite hear your— 

Senator HATCH. Given the tremendous progress that Section 5 

has produced, do you support expanding it to other communities or 

localities where racial discrimination or racial block voting are 

proven to be problems? Would you expand it over what the current 

law is? 

Mr. GRAY. Well, what I believe, Senator—and what I set out in 

my statement didn’t go into all the detail, but it is there. I gave 

about seven or eight examples of situations which have occurred in 

Alabama from, say, 1990 through 2000 where we are still having 

real serious problems, where there have been objections. 

I am the first to say that we have made a tremendous amount 

of progress. We had no elected officials before. We now have over 

800 elected officials, but the only reason we have them is because 

of the Voting Rights Act in the first place, and, second, proper 

courts interpreting the Act. 

I don’t think we should use the successes that we have obtained 

under the Act and then say that we don’t need it. I believe that 

the deterrent, the fact that it is there and the fact that I think it 

works both ways—for the persons who would like to have something pre-cleared or like a new procedure to come into effect, they 

15

can have someone who would objectively review and if, based on 

the law, there are no problems with it, then they are protected not 

legally, but it would mean that a person may think two or three 

times before suing if they know the Justice Department has approved it. 

On the other hand, for those persons who need some help—and 

we still have a majority of the African-Americans in Alabama relying upon white persons basically for their livelihoods, and there are 

still some areas where they really still have some real problems 

about raising issues themselves for what may be reprisals. 

So if there is some other thing or some mechanism where you 

must go and let an objective person look at it, it protects both parties. And I just think that the deterrent is so important, and what 

we would lose if we discontinue it as to what we have gained and 

what we still stand to gain outweigh the other and I think we 

should continue to have it. 

Senator HATCH. Well, thank you, Mr. Gray. 

Mr. Days. 

Mr. DAYS. Senator, I don’t think that extending Section 5 beyond 

the covered jurisdictions at this point can be justified. As we all 

know, Section 5 is very strong medicine, and it was medicine that 

Congress thought was necessary, given the long and really terrible 

history of discrimination against blacks with respect to voting. 

Section 2 is available to deal with other parts of the country, but 

I think for our purposes in thinking about the reauthorization of 

Section 5, the fact that there is evidence, based upon what I have 

seen of the record already before you and before the House, of discrimination based upon race in those very jurisdictions that were 

covered by Section 5 to begin with—it seems to me that that is one 

of the core problems that Congress has to really grapple with this 

time around. 

Senator HATCH. Would you reduce the number of jurisdictions in 

any way? Would you find some where Section 5 would no longer 

apply? 

Mr. DAYS. Well, there is a bail-out provision and I think there 

is some question about why the existing bail-out provision has not 

been utilized. I am not sure I know, but if I think back to the 

school desegregation situation, there were circumstances where the 

court would perhaps give school districts more latitude in student 

assignment. 

And I would go to the superintendent or the lawyer for the school 

district and she would say, no, no, no, we like what we are doing; 

we like the fact that we have a court order that requires us to do 

this and that because it provides stability. Maybe that is an explanation for why the current bail-out provision is not being utilized. 

As you know far better than I do, in 1982 that was a matter that 

occupied a great deal of time of the Congress trying to figure out 

what would be a fairer way of dealing with this particular issue. 

Senator HATCH. Thank you. 

Ms. Thernstrom. 

Ms. THERNSTROM. Well, in the first place, Senator Hatch, I still, 

as I have done before, want to thank you for your role in 1982, very 

heroic. And the arguments you made there turned out to be very, 

very prescient. You got the picture right, and your basic point was 

16

that the results test which, of course, is different than the effects 

test in Section 5—the results test in Section 2 was going to turn 

into a mandate for proportional racial and ethnic representation. 

You were right. 

My old friend here, Armand Derfner, on my left, said at those 

hearings, as you will recall, that it would be the very unusual jurisdiction, the jurisdiction in which racial considerations absolutely 

overrode any other considerations in the political process; only that 

kind of outlier, as it were, would be affected by Section 2. Indeed, 

that has not turned out to be the case. We were also promised that 

Section 2 would be hard to win. In fact, they are hard to lose. 

I think both Section 2, as originally envisioned, and Section 5, 

the pre-clearance provision, have been horribly distorted in the intervening years. When people talk about the transformation, the 

number of black office-holders today, the level of black political participation, in general, well, yes, that is due in part to the original 

Voting Rights Act. I very much celebrate that original Act. 

But we have lived in the last 40 years through an incredible 

transformation in racial attitudes in this country, and so what you 

are looking at in terms of race and politics throughout the country 

reflects that transformation in racial attitudes in a broader sense, 

not simply the impact of the Voting Rights Act. 

Pre-clearance was an emergency provision. It was really analogous to a curfew put in place after a riot and, you know, when the 

emergency was over, it was supposed to be lifted. And, of course, 

originally it was for 5 years only. It was considered so constitutionally extraordinary that nobody envisioned in 1965 even having 

it extend for ten years. 

That emergency was over a long time ago. As Rick Hazen elects 

to say, who is on the political left, I should say, Bull Connor is 

dead. And it seems to me it is extremely hard today to say that 

there is—in terms of minority political participation or by any 

other measure, extremely hard to say there is a distinction between 

the covered jurisdictions and the non-covered jurisdictions and the 

real voting problems are in the covered jurisdictions. 

I mean, even in the 2000 election when there were a lot of 

charges about black disfranchisement and Spanish 

disfranchisement in Florida, they were not in the Florida counties 

that were covered by the Voting Rights Act. In 2004, the complaints were not about covered jurisdictions, the complaints about 

Ohio, and so forth. 

I think the distinction between the covered and non-covered jurisdictions in terms of the problems that we have had have long 

ago been erased. And, no, I would not extend Section 5, particularly 

because of the way it has been distorted, to the whole country. I 

would sunset Section 5, as the original framers of the Act envisioned. I know that is not going to happen, but my role here is to 

say—I am not a politician and my role is to say what I believe 

should happen. 

Senator HATCH. Well, thank you. 

Mr. Derfner. 

Mr. DERFNER. Senator Hatch, I am happy to be here. I agree that 

Bull Connor may be dead, but I think unfortunately some of his 

relatives live on. Mr. Gray talked about the recent history of SecVerDate 0ct 09 2002 10:59 Aug 30, 2006 Jkt 029625 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29625.TXT SJUD4 PsN: CMORC
17

tion 5 in Alabama. I think maybe it is the same in South Carolina. 

My testimony talks about we have had nine separate objections 

under Section 5 to discriminatory enactments in South Carolina 

just in the last 5 years. Most of those have been State legislation, 

not simply some city or county or school board doing something. 

I had the opportunity to debate with you a little bit back in 1982 

about purpose versus effect. 

Senator HATCH. Yes, you did. 

Mr. DERFNER. Most of the objections have really dealt with situations which, when you look at them, really are purposeful. Our 

Governor not long ago made a statement that he didn’t expect to 

see a statewide black office-holder ever. Then he backtracked a little bit and said, well, not in the foreseeable future. That is our 

Governor, former Congressman Mark Sanford. 

One of the objections just took place less than 2 years ago to the 

Charleston County School Board. We had just won an arduous case 

against the Charleston County Council in which not only the district court, but the Fourth Circuit, in an opinion by Judge J. 

Harvie Wilkinson, found discrimination in the Charleston County 

Council system. 

As soon as that case was over, the State legislature adopted a 

bill to change the county school board to the same system that had 

just been condemned in the county council. The reason they did 

that, frankly, was because under the former, or still in existence 

system, five blacks had been elected out of nine seats in the years 

1998 to 2000. So the legislature decided it was not going to have 

that anymore. That bill was objected to by the Justice Department—probably the clearest showing of why Section 5 is needed. 

Let me just add one last thing. One of the things that tells me 

that we still have too much of a disease is an exhibit I attached 

to my testimony. This is an ad that a white candidate for probate 

judge in 1990 published showing a picture of his opponent. I know 

as a politician you don’t typically do that, but he wanted to make 

sure that everybody could see that his opponent was black. We still 

see that routinely. 

Congressman James Clyburn had that happen to him in 1992 

and 1994. It happened in another election that I know of in the 

year 2000. Race sells in South Carolina, and that is why we need 

something like the Voting Rights Act, Section 5. 

I would like to give you a specific answer to your original question. There is a provision in the Voting Rights Act—I think it is 

in Section 3—that does allow a court, under a sufficient showing 

in a particular case, to say that as one of the remedies it will order 

a pre-clearance type remedy for that jurisdiction as a remedy for 

that particular case. So that may be a way of expanding a Section 

5 type remedy in the specific case where it is called for without a 

wholesale expansion. 

Senator HATCH. Thank you. 

Mr. Persily. 

Mr. PERSILY. I do support expanding Section 5, in theory, to 

other jurisdictions. The difficulty is with the cost, then, that the 

structure would impose on the newly covered jurisdictions. But also 

there is a hydraulic relationship between the coverage formula and 

18

the other parts of the bill with respect to the constitutional analysis. 

So I think there is real concern that the broader the coverage formula, the more likely the Supreme Court might end up striking it 

down. So we are in a sort of difficult position right now. It is abundantly clear that there are voting problems in non-covered jurisdictions of the type that Professor Thernstrom was talking about. In 

many ways, the most notorious national problems have been outside the covered jurisdictions. So that calls for national legislation 

to address those problems. 

Now, that to some extent is a separate argument than whether 

the covered jurisdictions should be expanded or not, and then we 

have to think of what would be the trigger, and what would be the 

kind of inquiry that we would go through as to which jurisdictions 

should be covered. 

It has historically been the case that the trigger in Section 5 has 

been this dual-pronged trigger where Congress has been providing 

some measure of the probability that a racially disparate impact 

with respect to voting is going to develop. It is very difficult right 

now to figure out what that sort of neutral trigger is going to be. 

In my testimony, I try to go through a little bit of this, but just 

adding jurisdictions sort of willy nilly is not going to cut the mustard, and so we have to think of what kind of formula would capture those types of jurisdictions that we think are most likely to 

erect these kinds of barriers. 

Ms. THERNSTROM. Senator Hatch, can— 

Mr. GRAY. Senator Hatch, may I mention one other thing, speaking of change of attitudes, but I yield to— 

Senator HATCH. No. We will go to you first, Mr. Gray, and then 

we will go to Ms. Thernstrom. 

Mr. GRAY. I would really like to believe that there has been a 

change of attitudes, but let me give you three examples of long-running cases in Alabama which are still there. 

We celebrate the 52nd anniversary of Brown v. Board of Education. Under those cases, in 1963 I filed the case of Lee v. Macon, 

which was a single school district expanded to all of the school districts in Alabama not then under court order, 99 of them. My boys 

were very small then. We still have some elementary and secondary school districts in Alabama that have not reached a unitary 

system. Fred, Jr. was in Dothan a week or so ago dealing with one. 

A second example: Back in 1985, they had a test for teachers and 

the test was found to discriminate against African-Americans. The 

State of Alabama decided, rather than to come up with a test that 

would be fair to everybody, not to have teacher testing. They didn’t 

have it until the Congress passed what is known as the No Child 

Left Behind Act. Then we had to all come back, and the case is still 

going on. They are now designing a teacher testing that is non-discriminatory. 

Alabama still has the case of Knight v. State. It has been going 

on since 1985. All of the institutions of higher learning in the State 

still have not gotten to the point where all the vestiges of racial 

discrimination are done away with. 

I think with that kind of record that is still here, it is compelling 

that the Voting Rights Act be extended. 

19

Senator HATCH. Thank you. 

Ms. Thernstrom. 

Ms. THERNSTROM. Thank you. I wanted to answer, but I will add 

something to it, as well. I want to talk about the trigger that Professor Persily raised. The trigger for coverage today rests on voter 

registration and turn-out, and it is really turn-out that counts, 

since it trumps registration. 

Voter turn-out in 1972—that is absurd in terms of identifying the 

jurisdictions that today require coverage, if any. In 1965, that trigger of less than 50 percent total registration and turn-out was designed to precisely hit the States that everyone knew needed to be 

covered, and it worked. The 50-percent figure would have been 

changed if it hadn’t so precisely targeted the right jurisdictions. To 

be relying as a trigger today for coverage on 1972 turn-out figures 

makes no sense at all. And if we were to use the turn-out figures 

for 2004 today, I believe only two States would be covered—California and Hawaii. 

People are coming up with anecdotes. I am a social scientist. I 

am sure a lot of their anecdotes are right. Anecdotes don’t tell me 

what I need to know. I want rigorous data, and that is what any 

consideration should rest on. 

In terms of things like teacher testing, well, yes, teacher testing 

has a disparate impact on minority applicants. Do we want teachers in our schools who really do not know their subject? The answer to teacher testing is to start in kindergarten. I mean, we are 

talking here about the racial gap in academic achievement. The answer to that is not to abolish tests, is not to do away with No Child 

Left Behind or State teacher tests. It is to start in kindergarten 

teaching the kids. That is really not so hard to do. We are not 

doing it. It is not so hard to do; it is doable. 

Finally, those who worry about the disappearance of Section 5—

there is Section 2, which is the permanent. There is the 14th 

Amendment, obviously permanent. They aren’t going away. Plaintiffs can rely on them. I cannot understand the argument against 

simply trusting that the permanent provisions of the Voting Rights 

Act will stop anything that remotely resembles disfranchisement. 

Mr. DAYS. Senator Hatch, I want to make a couple of brief comments. To call examples that are quite concrete of violations of the 

Voting Rights Act or failure to comply with the Voting Rights Act 

as anecdotes, I think, is really to miss the point that I think Congress should be focused on, and that is that these jurisdictions 

were properly identified and covered in 1965, and the question is 

what is going on now. 

Now, Professor Thernstrom wants to look at registration or actual voting figures, but that doesn’t tell the whole story either. 

Ms. THERNSTROM. I wasn’t suggesting it did. 

Mr. DAYS. I think that to the extent that Congress really wants 

to come to an understanding of what it would mean to lift Section 

5 and release these jurisdictions, I think the so-called anecdotes go 

right to the very heart of the matter. 

The other thing is that the fact that the trigger is not really contemporaneous, if you will, and there are other parts of the country 

that—as she said, California and Hawaii might not make the 

grade, but we are really not talking, I don’t think, about extending 

20

Section 5 to the entire country. I know that was one of your questions, but the issue is what about the current coverage of Section 

5? Does it make sense? Is it constitutional? Will it continue to promote the objectives that the original Section 5 was designed to promote? I think the answer is yes to all of those questions. 

By the way, on the bail-out issue, there are jurisdictions—there 

are apparently 11 jurisdictions in Virginia that have taken advantage of the bail-out provision. Any application that has been submitted has not been denied, and so we do have some evidence of 

it working in real time. The question of whether it can be used 

more often is something that I know the Committee wants to look 

at. 

Senator HATCH. Mr. Derfner. 

Mr. DERFNER. Senator, I would say one thing about the notion 

that a Section 2 case is an adequate substitute for a Section 5 preclearance requirement. I don’t mean to pull rank as a lawyer, but 

I think you were a lawyer back in your earlier life. 

The notion that a Section 2 case, which is a very arduous case 

requiring enormous expert testimony, enormous time, is an adequate substitute—those are not easy cases. In the Charleston 

County Council case, it took over 3 years and the county alone 

spent over $2 million on that case. 

The Administrative Office of U.S. Courts ranks different types of 

cases by complexity and Section 2 cases, and voting rights cases in 

general, have among the highest rating. They are up there with securities cases and antitrust cases in the complexity and time requirements rating. A Section 2 case is not a picnic. It is one of the 

hardest things to do that there is, and Section 5 was designed exactly to avoid that kind of difficulty. 

Senator HATCH. This has been very interesting to me. 

Have any of you read the Stuart Taylor article this last week or 

so? 

Ms. THERNSTROM. I have. 

Mr. PERSILY. Yes. 

Senator HATCH. Stuart is certainly not a Republican, I don’t believe. 

Ms. THERNSTROM. No, he is not. He is a good friend of mine, but 

he is not a Republican. 

Senator HATCH. No, and I mean he is certainly not a conservative, but he is very, very intellectually compelling in his writings. 

I mean, I have really enjoyed them over the years. I have agreed 

with an awful lot of what he says. He comes down pretty hard on 

Section 5. 

If I read it correctly—I am extrapolating from it—I think he believes that some of the current partisanship in Congress comes 

from the fact that they have gerrymandered various districts to accommodate people of color, and that the Congress has gotten more 

and more left because of that. And because they have gerrymandered the districts—and maybe I am misconstruing that—and 

have gotten people to the left, the rest have gone to the right, or 

a lot of them have, to the point where his suggestion, if I read it 

right—I just read it hurriedly a while back—his suggestion was 

that if we didn’t do that, gerrymandered the districts to accommodate African-Americans, in those districts you would have more 

21

moderate people and on the Republican side you would have more 

moderate people coming to the Congress. 

It is a pretty poor explanation, I know, because I can’t remember 

the whole thing, but I suggest you read that and give us your opinions of his article because I think it is a pretty interesting article. 

I personally believe that we have got to do something about the 

total partisanship that is going on here in Congress. I mean, it is 

just awful. The Democrats don’t know how to act in the minority, 

and sometimes Republicans don’t know how to act in the majority. 

We had been in the minority for so many years, and vice versa 

when the switches occur. 

I have been here 30 years and I have seen some real changes. 

In the early years, yes, we had knock-down, drag-out battles, but 

there wasn’t the bitterness and the partisanship. There has always 

been partisanship, but not like it is today, and as somebody who 

has lived through it all, I can truthfully say that. 

Now, he kind of attributes some of that—and you can’t attribute 

all of it, of course—to some of the interpretations of the Voting 

Rights Act. I am not saying he is right. I am just saying it is an 

intellectually interesting article in the National Journal, and you 

might want to read that and write to us and give us your opinions 

on that. 

Look, I want to do what is right. I have always wanted to do 

what is right. I may have missed it a few times in the past, but 

as a general rule I think I have tried to do what is right in these 

areas. I have always tried to do what is right, but I am concerned. 

We all know that Section 5 can be very onerous and burdensome 

to certain States, but you make a pretty good case, and some of the 

rest of you do, that just the fact that it is there keeps things level 

and straight. That may be a compelling argument, but I would like 

you to look at Stuart Taylor’s set of arguments. 

Mr. PERSILY. Could I respond to that, because I did read it? I 

think that is a very important point to raise. 

Senator HATCH. Was I mischaracterizing it? 

Ms. THERNSTROM. No, no. You have got it right. 

Mr. PERSILY. I think that is right, but that is why it is very important that the legislative history on this bill be quite clear that 

it is not sanctioning the over-concentration of minority districts; 

that it does require that for the next 25— 

Senator HATCH. That is what has practically happened, according 

to Taylor. 

Mr. PERSILY. Well, it is sort of an empirical question as to which 

areas of the country we are talking about. 

Senator HATCH. Yes. 

Mr. PERSILY. In a sense, Congress is changing the standard here 

with the ability-to-elect language that it is putting into the law. So 

I think it is important that everyone who is voting on this bill recognize that this is not freezing in place the minority percentages 

that are in these districts for the next 25 years, nor is it giving its 

blessing to the excessive over-concentration of minority districts. 

It is not even code for saying majority/minority districts. Rather, 

it requires a much more sensitive inquiry as to the opportunity and 

the ability of minorities to elect their candidate of choice in these 

covered areas. I think it is important that that be part of the legisVerDate 0ct 09 2002 10:59 Aug 30, 2006 Jkt 029625 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29625.TXT SJUD4 PsN: CMORC
22

lative history because we don’t want this law to be interpreted in 

such a way that for the next 25 years it leads to over-concentration 

and excessive packing, which itself would be detrimental to the interests of minority voters. 

Senator HATCH. Did you want to say something? 

Ms. THERNSTROM. I was just going to say, Senator Hatch, that 

you have got Stuart Taylor’s argument precisely right. 

Senator HATCH. Well, I am concerned about that. 

Ms. THERNSTROM. And, you know, he joins me. I concentrated in 

my testimony earlier today on the whole question of whether we 

are creating a system of what Justice O’Connor called political 

apartheid, whether, you know, we aren’t perpetuating the old, familiar, ugly racial classifications, racial sorting in America. And 

Stuart Taylor very much joins me in that concern. 

As much as I respect Professor Days here, the fact is two things. 

One, on the trigger, my point is simply that the existing trigger 

makes no sense and that if it were revised, if it were updated to 

include turn-out figures for 2004, you would be left with only two 

States covered. I mean, we simply do not have the same problem 

we had in 1965 when the trigger was designed, or in 1972 when—

well, it was the 1975 amendments, of course, but it relied on the 

1972 turn-outs. 

A number of panelists assume that Department of Justice objections indicate something very bad going on. My view is that because the legal standards have become so wacky under Section 5, 

an objection doesn’t necessarily mean that something bad has gone 

on, but simply that a jurisdiction often has failed to draw the maximum number of minority/majority districts that it could have. And 

then the word ‘‘purpose’’ is labeled to that failure to maximize the 

number of safe minority districts. That, to me, is a gross distortion 

of the original Act. 

Mr. DERFNER. That might be a gross distortion of the original 

Act if it were going on, but I challenge Dr. Thernstrom to come to 

South Carolina. I challenged her once to come to Charleston and 

I think she did. 

Ms. THERNSTROM. I did. 

Mr. DERFNER. We found some different answers even then, but 

I challenge her to come to South Carolina and look at these objections and see if the fears that she is expressing really hold up. 

I mean, the trigger was designed to identify jurisdictions that 

had a sickness in those days. The sickness was reflected in literacy 

tests, understanding tests, moral character tests. And the way we 

know that those were working was that the turn-out was so low. 

That is why, for example, at the original time, a State that had a 

literacy test and still had a high turn-out—that was an indication 

that that literacy test— 

Senator HATCH. But do you still think that same sickness exists? 

Mr. DERFNER. The sickness doesn’t exist in that same form, but 

what Mr. Gray and I have been talking about with regard to our 

particular States is that there is too much of a hang-over and that 

is why Section 5 dealing with a new variety of problem or what is 

sometimes called dilution, which I think is really an abridgement, 

is still there. 

23

Let me give you an example about the Charleston County School 

Board. I hate to keep coming back to that one example because we 

have got plenty others, but 2 years ago that was State legislation 

that was clearly discriminatory purpose. Everybody knew it. 

In the Charleston County School Board back in the early days, 

the old days of the 1960’s or around then, blacks couldn’t vote at 

all. Then when blacks started voting a little bit, actually, in the 

late 1950’s and the early 1960’s, what the legislature did was to 

change the rules. At that time, I think there were nine school districts in Charleston. In six, the population was majority white. In 

three, the population was majority black; I think St. James Santee, 

District 20 downtown, and District 9, Johns and Yonge’s Island. 

So what the legislature did was to change the rules so that in 

those three districts, the right to vote was taken away. In those 

three districts, the school board members would be appointed, not 

elected, whereas in the remaining districts, the white-majority 

ones, they still got to elect. That stayed the law until the mid1970’s. 

Once that went away, they went to at-large elections. Those atlarge elections have been disputed back and forth, but they are still 

in existence. But then when blacks in 1998 achieved five members 

out of nine on the school board, that is when the attempt to change 

the school board elections by putting in a majority requirement to 

make basically—I think everybody was clear that it was to make 

certain that blacks could not win a significant number of seats. 

That came in. The legislature passed that in, I think, 2000 or 2001. 

It was vetoed by the then-Governor. They came back again in 

2003. Directly after the Federal courts had thrown out a similar 

system for the county council, they came back and passed it again. 

At that time, then-Governor Sanford, who was the new Governor, 

let it become law. He still refused to sign it. He wouldn’t sign the 

bill. He let it become law. At that point, the Department objected 

to it. So what you have here is a change over a period of years in 

the types of tactics or the types of mechanisms, but the need is still 

there. 

Ms. THERNSTROM. The last I knew, purposeful discrimination 

was forbidden by the 14th Amendment. 

Senator HATCH. Well, you are right. 

Let me just say this: I would like each of you to read that article. 

I will put it in the record. It is a May 13th, this last Saturday, 

2006, article, called ‘‘More Racial Gerrymanders.’’ 

One thing he says in here, and then I will yield to my colleague, 

‘‘So effective have other Voting Rights Act provisions been that little evidence exists that most governments in the nine covered 

States are more hostile to minority voters than are governments 

that the law doesn’t cover. Indeed, there is little evidence of systematic discrimination by any State government, despite a huge research effort by the civil rights lobby to find and magnify such evidence.’’ That is just one quote out of here that bothered me. 

He also says on the front page of this, ‘‘Second, many Republicans also believe, perhaps incorrectly, that drawing so-called majority/minority urban districts for black and Hispanic Democrats 

will bleach the surrounding suburban districts and thus help Republicans beat white moderate Democrats there. That was the reVerDate 0ct 09 2002 10:59 Aug 30, 2006 Jkt 029625 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29625.TXT SJUD4 PsN: CMORC
24

sult of the racial gerrymanders of the 1990’s. The number of very 

liberal black and Hispanic Democrats in the House went up. The 

number of more moderate white Democrats went down, and this 

helped Republicans take and keep control of the House. This was 

good for black and Hispanic politicians. It was not so good for black 

and Hispanic voters,’’ at least from Stuart Taylor’s point of view. 

Drew, go ahead. 

Mr. DAYS. I just wanted to say that I have a lot of respect for 

Stuart Taylor, as well. He is a straightforward and I think a very 

honest and incisive reporter. 

Senator HATCH. Yes. I have a lot of respect for him. 

Mr. DAYS. I don’t have the exact figures, but my understanding 

is if we are talking about creating this tension and politicization 

and partisanship, if one looks at the congressional Black Caucus 

members’ districts, one finds that they are not max-black districts, 

that they actually reflect a combination of white and black and perhaps other racial groups in those districts. So they are models. 

That is the good side. 

The bad side is that we have—and I think the record up to this 

point establishes that we have significant problems of racially polarized voting. That is one of the major problems that needs to be 

addressed and continues to bedevil what otherwise would be, I 

think, a very happy and very positive movement toward greater racial interaction and cooperation. 

Senator HATCH. Well, thank you. 

Senator Durbin, I am sorry to take so long. 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you, Mr. Chairman. I want to welcome 

our distinguished panel, and especially Mr. Days and Mr. Gray, for 

being here today. 

Mr. GRAY. Thank you, Senator. 

Mr. DAYS. Thank you. 

Senator DURBIN. I know today is the 52nd anniversary of the 

Brown v. Board of Education decision. That case perhaps more 

than any other in our history demonstrated the power of the Supreme Court in safeguarding civil rights. The Voting Rights Act, 

perhaps more than any other law in our Nation’s history, demonstrated the power of Congress to safeguard the civil rights of all 

Americans. So, Mr. Chairman, this is a particularly important and 

historic set of hearings that we are having. 

Mr. Gray, you have lived in Alabama for many years. We would 

all agree that the State of Alabama has changed. I can recall my 

friend, John Lewis, taking me for a walk across the Edmund Pettus 

Bridge a couple of years ago. It was the first time I had ever been 

in Selma. I recall as a college student wanting to be there, but I 

couldn’t go, and regretting it for the rest of my natural life. 

We talked about what that meant to America and what it meant 

to him. We talked about Judge Frank Johnson, whom Congressman Lewis credits with being one of the heroes of the civil rights 

movement who needs more recognition for giving legal opportunities for the march to even take place. 

25

How do you think the voting rights of African-Americans would 

be affected in Alabama if Congress failed to reauthorize Section 5 

of the Voting Rights Act? 

Mr. GRAY. I think there is a very serious chance of our losing 

some of what we have gained, and I say that because—and in my 

prepared statement, I set about seven or eight specific situations 

that the Justice Department objected to, and as a result of that, 

to have African-Americans serving. 

Incidentally, Senators, we have with us Mr. T.C. Coley, from 

Tallapoosa County. In my statement, I talk about the fact that 

what they did there was to preserve an incumbent white and deny 

African-Americans the right to have a district where they could select persons of their choice. And there was an objection and as a 

result of that, T.C. Coley now serves in that capacity and has 

served on the county commission for 2 years, and even has served 

as chairman. And I think every member of that commission—and 

he is only one of four—feels that he plays a major role. 

I think, and I mentioned it earlier, that what we have been able 

to accomplish is so important that we shouldn’t take those gains 

and now say because you have gained it, we are going to use that 

to say we don’t need it. 

The deterrent effect of it is so important, I think that the administrative details that these local officials and all of the local officials 

now who are familiar with what they need to do as far as pre-clearance is not difficult to do. It is a small administrative act. And if 

you take and weigh the benefits we have obtained by having the 

Act as against the possibilities of what we will lose if we don’t extend it, I am afraid that the great heroes that we have—including 

Frank M. Johnson in my first case, civil rights case, Browder v. 

Gale, he was on that bench. And the State of Alabama—again, to 

show you we have some great things, the State of Alabama Bar Association for its Law Day program on May 4th celebrated all day 

the case of Browder v. Gale which integrated the buses, and the 

chief judges of the three district courts in Alabama were there. 

So we have made progress, but we need to keep the—the Voting 

Rights Act needs to be extended so that we will have a deterrent 

to keep us on the right track. 

Senator DURBIN. Mr. Derfner, your career has included working 

on voting rights cases for 40 years, winning the extensions of the 

Voting Rights Act in 1970, 1975, and 1982. Could you address that 

same issue and also the question about whether or not the extension should be for 25 years? Do you believe this is a reasonable 

amount of time for extension? 

Mr. DERFNER. The first question as to what would we look like, 

I think I would have to agree with Mr. Gray. I think what we could 

go back to is the year 1970 at which time people had registered 

under Section 4 in large numbers, but I think we could backslide 

a lot with the gains that have been made since then. 

And I want to say that the one thing that Dr. Thernstrom and 

I clearly agree on is both our hope—and the hope of everybody 

here, I am sure—that we will get at some point to a fully integrated society in which every citizen plays an important part. I 

think the way we get there is by ensuring that everybody gets to 

26

play a part, that everybody is included. And I think Section 5 has 

been a very important part of that process. 

As to your question about the length of time, the one thing I 

would say there, Senator Durbin, is that the bill has in it a provision for a review by Congress at the end of 15 years. I think Congress will take that very seriously at that point, and, in fact, Congress can take a look at any time—if it reauthorizes for 25 years, 

it can take a look at any time along the way and say, you know, 

I think we have gotten to the point where we do not need it anymore. 

So I do not see any problems with the 25-year extension because 

I think there are available methods if it turns out not to be necessary. But Congress, having found an effective method, should not 

be quick to let it go before it is necessary. In my testimony, I refer 

to the repeal by Congress of most of the civil rights laws in 1894. 

That was done in the hope that equality was there or was coming. 

It turned out to be just a disaster. And so I would urge Congress 

to err on the side of making sure that we all, all of our citizens of 

all races, are included, and that is what Section 5 does. 

Senator DURBIN. Professor Days, we have had academics come 

before this Committee over the past few weeks and say that the 

Voting Rights Act would not withstand constitutional scrutiny. You 

have certainly had quite a background as Solicitor General in serving this country. What is your opinion? 

Mr. DAYS. Well, one can never be absolutely certain, but I think 

that the history of the Voting Rights Act and Congress’ actions 

with respect to discrimination and voting, its special constitutional 

status under Section 2 of the 15th Amendment and the record that 

has been established of Congress addressing this issue would incline, I would say, the Supreme Court to show a high level of deference to determinations that Congress made. It is important, of 

course—and you know this, and that is why we are here—that 

Congress make a record to show not only what it has done before, 

but what it has learned about the current circumstance. And, 

again, one can’t be absolutely certain, but for the United States Supreme Court to substitute its judgment for that of Congress with 

respect to voting rights and the best and most effective way of dealing with continued problems would be unfortunate. I don’t know 

that it would happen, but I think it would certainly be out of character, given what we know up to this point about the way the Supreme Court has pointed to Congress’ work under the Voting 

Rights Act as kind of the gold standard of what Congress should 

be doing pursuant to its powers under Section 5 of the 14th 

Amendment and in dealing with issues of this kind. 

So I think it has to be viewed as occupying a unique place in 

terms of the relationship between Congress and the Court. 

Senator DURBIN. Dr. Thernstrom, my memory of apartheid was 

a segregated society where the majority black population in South 

Africa was denied very basic and fundamental rights to things like 

education. And yet you said today in your testimony, ‘‘at long last, 

blacks are moving towards becoming another American ethnic 

group. No thanks to the Federal Government,’’ you said, ‘‘or I, 

should say specifically, with no help from Congress, the courts, and 

the Department of Justice, all of whom have amended a once-perVerDate 0ct 09 2002 10:59 Aug 30, 2006 Jkt 029625 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\29625.TXT SJUD4 PsN: CMORC
27

fect statute and turned it into a system that’s much too close to political apartheid.’’ 

Do you believe that the desegregation of the schools of America 

in Brown v. Board of Education was a step toward political apartheid? 

Ms. THERNSTROM. No, of course I don’t. Brown v. Board struck 

down a system of political—of apartheid in one region of the Nation, a system that didn’t look that different from what existed in 

South Africa. 

So that question a little bit bewilders me, but let me go back for 

a second— 

Senator DURBIN. The testimony— 

Ms. THERNSTROM. Can I go back for a second to your question 

about the 25 years, the emergency provision? I mean, do we have 

a permanent emergency on our hands? Again, this provision, Section 5, was supposed to be a temporary provision since it does distort our constitutional structure. It did so legitimately in 1965, but 

it is not 1965 today. And as for the deterrent effect, I mean, how 

does one measure the deterrent effect of the Voting Rights Act and 

the deterrent effect of a transformation in American racial attitudes and the fact that blacks are voting, are participating in politics at a very high level? The real deterrent in the South today is 

the fact that every elected official—almost every elected official has 

black constituents. I wish more did and—I mean, I wish everyone 

did, and more would have black constituents if we were not so racially gerrymandering the districts. 

But, look, I do not like—and that was the point of quoting Justice O’Connor, and obviously that phrase has been used by other 

Justices on the Supreme Court. I do not like any form of racial 

sorting, racial classifications. I think they are poisonous. I think 

that has been the history of America, and I do not want to keep 

perpetuating that history. We need to move beyond it. We need to 

move on. It is not doing us any good. It is doing us harm. And that 

is my point. And that phrase ‘‘political apartheid’’ was obviously 

taken from Justice Sandra Day O’Connor’s opinion in Shaw v. 

Reno. 

Senator DURBIN. I can recall as a college student when the 

march on Selma occurred and the passage of civil rights legislation 

and my naive belief, very naive belief, that I would have to describe 

racism to my children and grandchildren because we had achieved 

so much with the passage of law. I believe we have achieved a lot, 

but I believe we have a long way to go. Two hundred and fifty 

years of slavery, a century of racial segregation in full force before 

the Voting Rights Act, and to suggest now that these were temporary measures, we are finished with those, let’s move on, is to 

overlook the obvious. 

Ms. THERNSTROM. But most of the Voting Rights Act is permanent, and I think you are perfectly right to say that the heart of 

the disagreement between the two sides here is the level of racism 

today in America. And I will offer my hard data against anybody 

else’s to show the amazing change that has—and the degree to 

which we are now down to a level which we only dreamed of in 

1965 in terms of real racism in America. 

28

Senator DURBIN. Let me just say, you can offer your hard data, 

and I will offer the hard reality. And the hard reality is that racism, sadly, is still a problem and a challenge for America. I know 

we have made progress. I celebrate that progress. My colleague in 

the United States Senate is an African-American. The State of Illinois, which had never even had the courage to run a woman for 

office until about 20 years ago, has now two statewide elected African-American officials who are the biggest vote-getters in my State. 

Progress is being made, and I am proud of it. I am proud of my 

State for it. 

But to suggest that we can now walk away from this is to ignore 

what has happened recently in elections, not only at the local level 

but at the national level, where not only race but poverty combined 

with it have created some serious inequities, serious challenges, 

going as high as the Supreme Court as to whether people were 

treated fairly in the State of Florida during the Gore v. Bush controversy. 

Ms. THERNSTROM. In non-covered counties in Florida. 

Senator DURBIN. But let me just tell you, that is not the end of 

the story, as you know—I hope you know—because there are issues 

involving voting opportunities and questions being asked and demands on State legislation that I think really make this still a very 

viable and important issue. I think the hard reality requires us to 

reauthorize the Voting Rights Act. 

Thank you, Mr. Chairman. 

Senator HATCH. Well, thank you. 

I can see why some in these covered jurisdictions are very, very 

upset, because we have made such great strides, and especially 

when they compare themselves to other jurisdictions. And just to 

cite Illinois for an illustration, this article documenting discrimination, you know, it says in Boston, Massachusetts, it says the enactment of a redistricting plan in 2001 described by the court as ‘‘a 

textbook case of packing,’’ concentrating large numbers of minority 

voters within a relatively small number of districts devised by the 

House leadership, which knew what it was doing. Now, this is Massachusetts. The manipulation of district lines ‘‘to benefit two white 

incumbents’’ where the State House did not ‘‘pause to investigate 

the consequences of its actions for minority voting opportunities,’’ 

thereby using race ‘‘as a tool to ensure the protection of incumbents.’’ 

I could go through all of them. Let me just take Illinois since it 

has been raised here. The retention and defense—and this is a 

quote. ‘‘The retention and defense in a 1984 lawsuit of a city districting plan that ‘packed’ and ‘fractured’ minority voters to ensure 

the reelection of an incumbent Senator, a plan that exposed how 

‘the requirements of incumbency are so closely intertwined with the 

need for racial dilution that an intention to maintain a safe, primarily white district for Senator Joyce is virtually coterminous 

with the purpose to practice racial discrimination.’’’ 

It goes on to say, documenting discrimination, ‘‘The conduct of 

poll officials in the city of Reading who ‘turned away Hispanic voters because they could not under their names’ or refused to ‘deal’ 

with Hispanic surnames.’’ The county’s imposition of more onerous 

requirements for applicants seeking to serve as translators at the 

29

polls than those applying to be other types of poll officials, a requirement that impeded the court’s order requiring the county to 

hire bilingual poll officials, and boasts by county officials and poll 

workers flaunting their racially discriminatory motivations and 

practices to Federal officials observing elections in May 2001, November 2001, May 2002, and November 2002, including statements 

from poll officials in the city of Reading to Justice Department observers ‘‘boasting of the outright exclusion of Hispanic voters during the May 15, 2001, municipal primary election.’’ 

Now, look, you could go on. The fact is this may make an argument for—you know, this is a comprehensive University of Michigan study. This may make an argument that if you are going to 

apply it to one State, you ought to apply it to all of them, I guess, 

because there is racial discrimination, I believe, because of evil people in most every State. But the question is: Is it fair to single out 

these mainly Southern States? Because there are instances that 

you can point to of discrimination and leave some of these other 

States out where there may be even worse illustrations of discrimination. 

We all know that there is discrimination in our society. We all 

know that people do not act properly. We all know that people are 

misled sometimes into thinking that racism is a good thing. And 

I have seen it in various States that I have been in that are not 

covered by Section 5. 

One of the purposes of this hearing is to establish or not establish whether there is enough reason to continue the Section 5, and 

we have had some interesting comments here today. I respect each 

and every one of you. I personally do not believe we should allow 

discrimination in any way in this country. Then you get into all 

kinds of questions, what is and what is not discrimination. It is a 

very complex area. And I commend each of you for being experts 

in this field because it is a tough field. It is difficult. And in the 

past, I have to say some of the illustrations of discrimination are 

abominable. And true discrimination is abominable. 

Well, I would appreciate you taking this Stuart Taylor article 

just as one illustration and writing to us and giving us your reasons why he is wrong or why he is right, or wrong and right, because I found it to be an intellectually stimulating article, and I 

happen to know Stuart Taylor. I know that he abhors discrimination. But he is very strongly against continuing Section 5, as I read 

that article. 

So I would just like to have your viewpoints on that just for my 

review and hopefully others on the Committee. But you are all 

great people, and we appreciate having all of you here. Like I say, 

I think the Voting Rights Act has been the most important civil 

rights bill in history. That is not to discount the other bills, but I 

just think this is the one that really has enfranchised people who 

before have been treated terribly. 

I am currently in the middle of reading ‘‘A Team of Rivals’’ by 

Doris Goodwin, and it is a very stimulating book to me, and I will 

continue to read that until I finish it. It is not a short book. But 

I am used to reading not short books. 

30

But you all are interesting and good people, and I have known 

Abigail Thernstrom for years, and I have known you two for years, 

Mr. Derfner, I have known you for—I guess since 1982. 

Mr. DERFNER. Right. 

Senator HATCH. When you beat me up way back then. 

Mr. DERFNER. Oh, no, no, no. 

[Laughter.] 

Ms. THERNSTROM. Oh, yes, yes, yes. 

Senator HATCH. Oh, yes, yes, yes. And I am not easy to beat up, 

I got to tell you. And, Professor Persily, we are aware of your work 

in a variety of States, and we are just honored to have you all here. 

I did not intend to keep you so long, but this has been stimulating 

to me, and hopefully we can arrive at doing what is right and just. 

And so I want to congratulate all of you and thank you for being 

here. 

With that, we will recess until further notice. 

[Whereupon, at 11:39 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

31


29625.001
32


29625.002
33


29625.003
34


29625.004
35


29625.005
36


29625.006
37


29625.007
38


29625.008
39


29625.009
40


29625.010
41


29625.011
42


29625.012
43


29625.013
44


29625.014
45


29625.015
46


29625.016
47


29625.017
48


29625.018
49


29625.019
50


29625.020
51


29625.021
52


29625.022
53


29625.023
54


29625.024
55


29625.025
56


29625.026
57


29625.027
58


29625.028
59


29625.029
60


29625.030
61


29625.031
62


29625.032
63


29625.033
64


29625.034
65


29625.035
66


29625.036
67


29625.037
68


29625.038
69


29625.039
70


29625.040
71


29625.041
72


29625.042
73


29625.043
74


29625.044
75


29625.045
76


29625.046
77


29625.047
78


29625.048
79


29625.049
80


29625.050
81


29625.051
82


29625.052
83


29625.053
84


29625.054
85


29625.055
86


29625.056
87


29625.057
88


29625.058
89


29625.059
90


29625.060
91


29625.061
92


29625.062
93


29625.063
94


29625.064
95


29625.065
96


29625.066
97


29625.067
98


29625.068
99


29625.069
100


29625.070
101


29625.071
102


29625.072
103


29625.073
104


29625.074
105


29625.075
106


29625.076
107


29625.077
108


29625.078
109


29625.079
110


29625.080
111


29625.081
112


29625.082
113


29625.083
114


29625.084
115


29625.085
116


29625.086
117


29625.087
118


29625.088
119


29625.089
120


29625.090
121


29625.091
122


29625.092
123


29625.093
124


29625.094
125


29625.095
126


29625.096
127


29625.097
128


29625.098
129


29625.099
130


29625.100
131


29625.101
132


29625.102
133


29625.103
134


29625.104
135


29625.105
136


29625.106
137


29625.107
138


29625.108
139


29625.109
140


29625.110
141


29625.111
142


29625.112
143


29625.113
144


29625.114
145


29625.115
146


29625.116
147


29625.117
148


29625.118
149


29625.119
150


29625.120
151


29625.121
152


29625.122
153


29625.123
154


29625.124
155


29625.125
156


29625.126
157


29625.127
158


29625.128
159


29625.129
160


29625.130
161


29625.131
162


29625.132
163


29625.133
164


29625.134
165


29625.135
166


29625.136
167


29625.137
168


29625.138
169


29625.139
170


29625.140
171


29625.141
172


29625.142
173


29625.143
174


29625.144
175


29625.145
176


29625.146
177


29625.147
178


29625.148
179


29625.149
180


29625.150
181


29625.151
182


29625.152
183


29625.153
184


29625.154
185


29625.155
186


29625.156
187


29625.157
188


29625.158
189


29625.159
190


29625.160
191


29625.161
192


29625.162
193


29625.163
194


29625.164
195


29625.165
196


29625.166
197


29625.167
198


29625.168
199


29625.169
200


29625.170
201


29625.171
202


29625.172
203


29625.173
204


29625.174
205


29625.175
206


29625.176
207


29625.177
208


29625.178
209


29625.179
210

Æ


29625.180