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

28–753 PDF 2006

S. HRG. 109–569

THE CONTINUING NEED FOR SECTION 5

PRE-CLEARANCE

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MAY 16, 2006

Serial No. J–109–77

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

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 10

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 1

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

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

statement .............................................................................................................. 196

WITNESSES 

Arrington, Theodore S., Chair, Department of Political Science, University 

of North Carolina-Charlotte, Charlotte, North Carolina .................................. 8

Earls, Anita S., Director of Advocacy, University of North Carolina Law 

School Center for Civil Rights, Chapel Hill, North Carolina ........................... 3

Gaddie, Ronald Keith, Professor of Political Science, University of Oklahoma, 

Norman, Oklahoma .............................................................................................. 6

Karlan, Pamela S., Kenneth and Harle Montgomery Professor of Public Interest Law, and Associate Dean for Research and Academics, Stanford University School of Law, Stanford, California ............................................................. 4

Pildes, Richard H., Sudler Family Professor of Constitutional Law, New York 

University School of Law, New York, New York ............................................... 10

QUESTIONS AND ANSWERS 

Responses of Theodore S. Arrington to questions submitted by Senators 

Cornyn, Coburn, Leahy, Kennedy, and Kohl ..................................................... 24

Responses of Anita S. Earls to questions submitted by Senators Coburn, 

Cornyn, Leahy, and Kohl ..................................................................................... 41

Responses of Ronald Keith Gaddie to questions submitted by Senators Kohl, 

Cornyn, and Coburn ............................................................................................. 72

Responses of Pamela S. Karlan to questions submitted by Senators Leahy, 

Kennedy, Kohl, Cornyn, and Coburn ................................................................. 90

Responses of Richard H. Pildes to questions submitted by Senators Specter, 

Cornyn, Coburn, and Kohl .................................................................................. 105

SUBMISSIONS FOR THE RECORD 

Arrington, Theodore S., Chair, Department of Political Science, University 

of North Carolina-Charlotte, Charlotte, North Carolina, prepared statement ...................................................................................................................... 127

Earls, Anita S., Director of Advocacy, University of North Carolina Law 

School Center for Civil Rights, Chapel Hill, North Carolina, prepared statement ...................................................................................................................... 140

Gaddie, Ronald Keith, Professor of Political Science, University of Oklahoma, 

Norman, Oklahoma, prepared statement ........................................................... 153

Karlan, Pamela S., Kenneth and Harle Montgomery Professor of Public Interest Law, and Associate Dean for Research and Academics, Stanford University School of Law, Stanford, California, prepared statement ......................... 174

Pildes, Richard H., Sudler Family Professor of Constitutional Law, New York 

University School of Law, New York, New York, prepared statement ............ 198

(1)

THE CONTINUING NEED FOR SECTION 5 PRECLEARANCE 

TUESDAY, MAY 16, 2006 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:32 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Edward M. Kennedy 

presiding. 

Present: Senators Kennedy and Feingold. 

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

SENATOR FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. The Committee will come to order. 

If you are seeing a Democrat up here, you may be in disbelief, 

but it is the real thing. 

[Laughter.] 

Senator KENNEDY. I had forgotten what it feels like, but it is beginning to feel pretty good. Eternally hopeful in terms of the future. 

Our Chairman, Senator Specter, had a previous meeting at 8:30 

this morning on our immigration bill, and we have a judge that is 

going to be voted on at 10 o’clock, so he is necessarily detained over 

on the floor, as I imagine, in dealing with that Ninth Circuit. So 

we will move ahead with this morning’s hearing. It is enormously 

important, and we are very grateful—I am—for him to have this 

hearing today. I will make a brief opening comment. I will include 

his statement in the record, introduce the witnesses, and then we 

will get started. 

I commend our Chairman for calling this hearing on the key 

question of whether Section 5 is still needed today. President Johnson said these words in his message to Congress in the 1965 voting 

rights bill: ‘‘In our system, the first right and the most vital of all 

of our rights is the right to vote.’’ Jefferson described the elective 

franchise as ‘‘the ark of our safety. Unless the right to vote be secured and undenied, all other rights are insecure and subject to denial for all of our citizens.’’ 

Section 5 of the Voting Rights Act has been one of the most effective defenses of that right. For over 40 years, this provision has 

helped to sustain the progress that was made by those who risked 

their lives and livelihoods in the civil rights movement. It is an essential protection against back-sliding by jurisdictions with a history of discrimination in voting. It prevents these jurisdictions from 

2

changing their voting rules without first showing that the proposed 

changes have neither a discriminatory purpose nor effect. 

As the Supreme Court stated in upholding Section 5 in South 

Carolina v. Katzenbach, ‘‘After enduring nearly a century of systematic resistance to the 15th Amendment, Congress might well 

decide to shift the advantage of time and inertia from the perpetrators of the evils to its victims.’’ 

The issue of whether Section 5 is still needed today has come up 

many times in these hearings, and although we bring different perspectives to this issue, each member, the Committee wants to ensure that any legislation passed in this area gets it right. We are 

mindful that the Supreme Court will carefully review the legislation we are considering under the standards it has applied in reviewing other civil rights laws in the past. In recent years, the 

Court struck down a key part of the AIDS discrimination in employment because it found the Congressional Record insufficient, 

Board of Regents of Florida v. Kimel. It also struck down one part 

of the Americans with Disabilities Act, University of Alabama v. 

Garrett. The Court based its decision in both these cases on the 

sufficiency of evidence in the hearing record. Both of those legislations were out of my Committee, the Human Resource Committee, 

and we thought we had met the standard in terms of the record 

in both of those areas. But this we want to make sure we are going 

to meet that requirement. 

Congress has a special role in enforcing the 15th Amendment 

that prohibits racial and ethnic discrimination in voting. As the Supreme Court has noted, we have broader leeway in this area than 

in others because of the close link of the need to prevent discrimination in voting and the special goals of the 14th and 15th Amendments. In 1999, in Lopez v. Monterey, which was decided after the 

Court made clear the need for a specific record to support legislation under the 14th and 15th Amendments, the Court acknowledged that the Voting Rights Act by its nature intrudes on State 

sovereignty but noted that the 15th Amendment permits this intrusion to remedy discrimination in voting. 

Despite having greater latitude in this area than in others, there 

is no question we must make a clear record on any legislation to 

extend the expiring provisions of the Act. So I thank the panel in 

advance for their help in evaluating this. 

We have a very distinguished panel, and we want to thank them. 

This is enormously important. These are very distinguished individuals who have spent an enormous amount of time in this area 

and developed a great expertise, and we are very grateful to them 

for being with us today: Anita Earls is the Director of Advocacy, 

University of North Carolina Center for Civil Rights, Chapel Hill; 

Pamela Karlan, the Kenneth and Harle Montgomery Professor of 

Public Interest Law and Associate Dean for Research and Academics, Stanford School of Law; Keith Gaddie, Professor, Department of Political Science, University of Oklahoma; Theodore 

Arrington, Chair, Department of Political Science, University of 

North Carolina; and Richard Pildes, the Sudler Family Professor of 

Law at NYU. 

[The prepared statement of Senator Kennedy appears as a submission for the record.] 

3

So, we thank all of you. We will start in that order. We would 

prefer if you can keep your remarks to 5 minutes so we can get 

some questions in before the break for the vote on the floor. Thank 

you. 

STATEMENT OF ANITA S. EARLS, DIRECTOR OF ADVOCACY, 

UNIVERSITY OF NORTH CAROLINA LAW SCHOOL CENTER 

FOR CIVIL RIGHTS, CHAPEL HILL, NORTH CAROLINA 

Ms. EARLS. Thank you, Mr. Chairman. I am honored to have this 

opportunity to testify concerning the continuing need for Section 5 

pre-clearance. Throughout the Section 5 covered jurisdictions, minority voters continue to face intentional and unconstitutional barriers to full and equal participation in the political process. There 

are at least five main sources of evidence documenting continued 

intentional discrimination in voting in the covered jurisdictions. I 

will list these sources and then summarize what they show. 

The sources of evidence are: one, Section 5 objection letters; two, 

unsuccessful Section 5 declaratory judgment actions; three, reported opinions in Section 2 litigation; four, Section 2 cases resolved by consent decrees or unreported opinions; and, five, Section 

5 submissions that are withdrawn by the submitting jurisdiction. 

First, Section 5 objections since 1982 demonstrate that purposeful discrimination continues to occur in matters affecting voting. In 

the nine States that are substantially covered, there were a total 

of 682 objections from 1982 to 2004. Many of these objections included evidence that the change was motivated by a discriminatory 

purpose. One study of these objections reports that in the 1990’s, 

fully 151 objections were based on purpose alone; another 67 objections relied on a combination of purpose and retrogression; and 41 

on both purpose and the need to comply with Section 2. Thus, the 

intent prong was involved in a remarkable 74 percent of all objections in that decade. 

The numerous objection letters from every covered jurisdiction 

document an extensive record of local officials seeking to change 

dates of election, change election district boundaries, change city 

boundaries, and make other changes in election procedures out of 

a desire to suppress, diminish, or negate the effect of minority voters. 

The first appendix to my testimony summarizes the number of 

objection letters issued by the Department of Justice from the nine 

States since 1982, and the second appendix summarizes the legal 

grounds for those objections. It is important to note that many of 

the objections since 1982 have been to statewide changes, essentially affecting all of the voters in the State. 

Second, declaratory judgment actions where jurisdictions were 

denied pre-clearance are evidence of discriminatory voting laws. 

Since 1982, there have been a total of 25 cases in which a threejudge panel considered the proposed change on the merits and denied pre-clearance. 

Third are judicial findings of intentional discrimination in litigation brought under Section 2. Unfortunately, many of these findings are in unreported decisions. Indeed, the discrepancy between 

the number of reported opinions finding Section 2 violations and 

the total number of successful Section 2 cases is huge. In the nine 

4

States that are substantially covered by Section 5, since 1982 there 

have been 66 reported cases finding a violation of Section 2 and 

587 unreported cases. Thus, any review of reported cases along seriously understates the findings. 

Nevertheless, while limited to only reported cases of published 

opinions, Katz’s study concluded that 24 lawsuits since 1982 identified more than 100 instances of intentionally discriminatory conduct in voting. Eight of these 24 lawsuits were in jurisdictions covered by Section 5; 14 were in non-covered jurisdictions. 

Many cases involving allegations of unconstitutional discrimination are resolved on the more narrow statutory grounds because 

courts always avoid constitutional questions if at all possible. Similarly, frequently there are allegations of unconstitutional conduct 

in litigation under Section 2 that is resolved by a consent decree. 

While defendants in such cases often must admit liability, typically 

they are not willing to admit to unconstitutional conduct. Thus, the 

fact that there have been so many Section 2 cases resolved in favor 

of plaintiffs is also relevant evidence that unconstitutional discrimination has occurred. 

Fifth, Section 5 submissions withdrawn by the submitting jurisdiction before the Department of Justice has had a chance to issue 

its determination are further evidence of discrimination. From 1982 

to 2004, 501 proposed changes affecting voting were withdrawn by 

jurisdictions after receipt of a ‘‘more information’’ letter. In these 

instances Section 5 review resulted in the abandonment of potentially discriminatory changes. Section 5 has opened the door for minority political participation, but the gains are recent and fragile. 

Levels of registration of minority voters do not begin to tell the 

complete story. Congress and the Supreme Court have long recognized that the Voting Rights Act is intended to guarantee that minority voters get a ballot and have that ballot counted equally. Renewal of Section 5 is essential to protect that guarantee. 

[The prepared statement of Ms. Earls appears as a submission 

for the record.] 

Senator KENNEDY. Thank you very much. 

Professor Karlan? 

STATEMENT OF PAMELA S. KARLAN, KENNETH AND HARLE 

MONTGOMERY PROFESSOR OF PUBLIC INTEREST LAW, AND 

ASSOCIATE DEAN FOR RESEARCH AND ACADEMICS, STANFORD UNIVERSITY SCHOOL OF LAW, STANFORD, CALIFORNIA 

Ms. KARLAN. Thank you very much, Mr. Chairman, and thank 

you for the opportunity to testify today. You have my written remarks, and I want to highlight in my oral testimony today three 

points that come out of them. 

The first is I know that you have heard from lots of witnesses 

about the Boerne line of cases, and as I explained in my written 

testimony, I think that the most relevant cases for our purposes 

here are Tennessee v. Lane and Nevada v. Hibbs because they recognize that Congress’s power is at its apogee when it is dealing 

with fundamental rights or where it is dealing with suspect or 

semi-suspect classifications, and both of those are true of the Voting Rights Act. The Supreme Court has recognized that voting is 

5

a fundamental right, and it has recognized that race discrimination 

is subject to the highest form of scrutiny. 

What I think people have not discussed with you perhaps as 

much as they ought to is the two other sources that come out of 

the Constitution and the Supreme Court’s recent cases that suggest 

that your power is at its apogee in dealing with the Voting Rights 

Act. The first of these is the Elections Clause—Article I, Section 4 

of the Constitution—which the Supreme Court has recognized in 

post-Boerne cases, including Cook v. Gralike and U.S. Term Limits

v. Thornton, as giving Congress absolutely plenary power over any 

election in which Federal officials are selected. And the Court has 

made clear in Foster v. Love that this includes protecting the right 

to register, protecting the right to vote, protecting the methods of 

election and the like. 

And so when you are dealing with elections at which Federal officials are being selected or registration practices that deal with 

where Federal officials are being selected, Congress has more 

power and there is no federalism concern on the other side. The 

Supreme Court has rejected the idea that the Tenth Amendment 

has any role to play there. 

Finally, in Vieth v. Jubelier— Senator KENNEDY. Just on that point, I guess in your statement 

you talk about a mixed election, too. Could you just— 

Ms. KARLAN. Yes, any election at which any Federal officials is 

covered. It does not matter that there are also State officials on the 

ballot, and I talk there a little bit about the criminal prosecution 

cases as ones where an uncontested House race is on the ballot and 

someone is prosecuted for vote fraud connected with a sheriff’s race 

or the like. 

Finally, on this point, in Vieth v. Jubelier, Justice Scalia, writing 

for a plurality of the Court, recognized that there are cases where 

there is a 14th Amendment violation that the courts cannot alone 

deal with because there is not a manageable judicial standard. And 

he points to figuring out what a fair and effective process of representation is there as something that Article I, Section 4, gives 

you the power to deal with even if the Court can’t. And I think that 

is quite relevant to the Georgia v. Ashcroft fix. 

My second point—so my first point is your power is at its apogee 

here. My second point is this case, unlike all of the previous Boerne

line of cases that have come before the Court, deals with a renewal 

of an act that is already in place, and this has important consequences of two kinds. Let me give an analogy and then let me 

talk about the consequences. 

The analogy is if you have a really bad infection and you go to 

the doctor, they give you a bunch of pills, and they tell you, ‘‘Do 

not stop taking these pills the minute you feel better. Go through 

the entire course of treatment because, otherwise, the disease will 

come back in a more resistant form.’’ And the Voting Rights Act is 

strong medicine, but it needs to finish its course of treatment, and 

that has not yet happened for reasons that you have heard from 

other witnesses. 

Now, some people have pointed to the fact that the number of objections has gone down over time, and they say, well, this shows 

that there is no necessity for the Act. To the contrary. If the Act 

6

worked perfectly, there would be no objections, because if the Act 

worked perfectly, local- and State-level officials would be deterred 

from proposing changes that they cannot show have neither a discriminatory purpose nor a discriminatory effect. 

I know from my own experience doing compliance in California, 

dealing with covered jurisdictions there, that the Voting Rights Act 

has a huge deterrent effect, and it has a huge effect in telling jurisdictions that the concerns of racial minorities should not be at the 

bottom of the list. 

The third point I want to point to is about the evidentiary record 

in front of you. Some people have said that effects test cases are 

irrelevant to what is going on here. I want to give you two reasons 

why that is untrue. 

The first comes out of the hearings and the legislative history of 

the 1982 amendments in which Congress explained one of the reasons for the results test in Section 2 is to avoid the difficult problem of having to call people racists in order to solve the exclusionary of minorities from the political process. So when courts decide cases on effects test reasons, they don’t reach the question 

whether there is also a discriminatory purpose. But let me tell you 

from my own experience that if we had to show discriminatory purpose in lots of these cases, we could do it. But it would be damaging to the political system for minority voters who are seeking 

inclusion to call the officials they are then going to have to deal 

with racists in the future. And, therefore, I think the effects evidence is quite relevant to you. 

I thank you very much for listening and look forward to questions. 

[The prepared statement of Ms. Karlan appears as a submission 

for the record.] 

Senator KENNEDY. Professor Gaddie? 

STATEMENT OF RONALD KEITH GADDIE, PROFESSOR OF POLITICAL SCIENCE, UNIVERSITY OF OKLAHOMA, NORMAN, 

OKLAHOMA 

Mr. GADDIE. Mr. Chairman, my thanks for the invitation to appear today. My written testimony deals mainly with the summary 

of analysis performed by myself and my colleague, Charles Bullock, 

at the University of Georgia funded by the American Enterprise Institute. This set of studies is an effort to document progress, or lack 

of progress, in voting rights in States covered by Section 5 of the 

Voting Rights Act. 

To that end, in my oral statement what I would like to do is illuminate and highlight in summary fashion the findings of those reports and also point out some areas of concern with regard to what 

a renewed Section 5 should look like. No one can deny that there 

is a continuing need for Section 5 of the Voting Rights Act. The 

question that arises is: In what form should Section 5 appear? 

What should it be applied? To that end, what I hope to do is to illuminate these questions a bit further. 

We have seen dramatic changes in American politics over the 

past 40 years. Minority voter participation has increased substantially. Descriptive representation of racial and ethnic minorities 

has never been so widespread. Southern blacks register and vote 

7

at rates as high or higher than African-American and white voters 

in the rest of the Nation. 

There is a two-party system in the South which fosters black political empowerment and office holding, but this empowerment is 

realized as the party of choice for most African-Americans, the 

Democratic Party, has been relegated to minority status in legislatures in five Section 5 States of the South. 

When we look at the Section 5 States in the South and we consider them in the context of two other Southern States, Arkansas 

and Tennessee, what progress do we see in terms of minority participation in office holding? Well, first, Southern blacks have made 

dramatic gains at both the mass and the elite level. However, if the 

objective of the Voting Rights Act is proportional representation, 

that is an elusive goal, more easily achieved through voting than 

through elite participation. 

In 2004, African-Americans registered at higher rates than 

whites in three Section 5 States and voted at higher rates in four 

Section 5 States. Of all the Southern States except Virginia, African-Americans registered and voted at rates at least 80 percent of 

that of white voters in the same States. 

Overall, in terms of success in voter participation and also elite 

office holding, Alabama and Mississippi emerge as States in which 

African-Americans have been more successful politically, followed 

by North Carolina, and then Georgia, Louisiana, and South Carolina—all of which cluster closely together. Mississippi ranks first in 

black registration and turnout and for the proportionality of black 

mayors. Alabama ranks first in terms of African-American elected 

officials in general and in electing African-Americans to county 

commissions, city councils, and school boards. Mississippi ranks 

second in elected officials and city council members. On no dimension does Mississippi place worse than eighth among the 11 Southern States. Alabama, which scored second in terms of registration, 

State House members, and Senators, fares very poorly in terms of 

African-American representation in statewide offices, including 

statewide judicial offices. 

The top six States in terms of overall progress are the ones that 

were caught by the initial trigger mechanism of the Voting Rights 

Act. The two States brought in later, Florida and Texas, place seventh and ninth in an 11-State South, respectively, in terms of voting rights progress. 

The States never required to comply with Section 5, Arkansas 

and Tennessee, rank last and eighth, respectively. Of the States 

covered by pre-clearance since 1965, Virginia has the poorest performance, placing tenth on the composite scale. 

Now, with regard to Section 5, what other questions do I have 

of concern as an empirical social scientist? 

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

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

The progress of some States makes one wonder why the State continues to be covered in toto by Section 5. 

Two, has Section 5 been altered by politics and the tool with 

which to advance party causes? Certainly political motives for the 

implementation of the Voting Rights Act are evident in the record 

of behavior of national and State actors and the implementation of 

8

Section 5, especially in the redistricting process. There are partisan 

political consequences that arise from these political motivations. 

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

of the Voting Rights Act led to problematic or even illegal representative maps? Yes. 

Fourth, has the standard for satisfying retrogression been altered 

by practice and the interpretation of the Supreme Court to possibly 

result in unintended consequences? Again, the answer is yes. The 

Ashcroft decision presents to me as a testifying expert and a political scientist a particular empirical challenge when making assessments of retrogression. 

Thank you. 

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

for the record.] 

Senator KENNEDY. Thank you. 

Professor Arrington? 

STATEMENT OF THEODORE S. ARRINGTON, CHAIR, DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF NORTH 

CAROLINA-CHARLOTTE, CHARLOTTE, NORTH CAROLINA 

Mr. ARRINGTON. Thank you, Mr. Chairman, for this invitation to 

speak before the Committee. Let me begin by stating that the Voting Rights Act is still needed and, therefore, should be reauthorized 

with some clarifications made necessary by the Supreme Court decisions in Georgia v. Ashcroft and Bossier Parish II. I will focus my 

comments on Georgia v. Ashcroft and the continuing impact of racially polarized voting on minority participation. 

There is no question that we have come a long way since 1965. 

The Voting Rights Act, National Voter Registration Act, and other 

statutes have removed many barriers to voter registration by minorities. However, we still have a long way to go. Substantial disparities in both registration and turnout remain for many minorities, particularly Asian and Hispanic voting-age citizens. Even 

where those disparities may not be present, such as African-American voters in some areas, minority vote dilution is still a problem. 

It is still a problem because voting throughout the country is still 

strongly racially and ethnically polarized, as I have discovered in 

my expert testimony in voting rights cases throughout the country. 

When the candidates chosen by minority voters and those chosen 

by a majority group differ, election systems and arrangements 

must be able to provide equal opportunity for the minority voters 

to elect representatives of their choice. Section 5 of the Voting 

Rights Act requires covered jurisdictions to consider whether minority voters have such an equal opportunity. Section 2 of the Voting Rights Act provides a mechanism for assuring such equal opportunity throughout America. Both parts of the Voting Rights Act 

are still needed because seemingly racially neutral election procedures such as at-large voting, major vote requirements, and antisingle-shot provisions may combine with racially polarized voting 

to erect effective barriers to the ability of minority voters to have 

an equal opportunity to participate in the political process and an 

equal opportunity to elect representatives of their choice. 

Georgia v. Ashcroft is an unworkable standard that undermines 

the ability of minority voters to have an opportunity to elect repVerDate 0ct 09 2002 14:48 Sep 15, 2006 Jkt 028753 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28753.TXT SJUD4 PsN: CMORC
9

resentatives of their choice. In that case, a narrow 5–4 majority of 

the U.S. Supreme Court concluded that a jurisdiction could satisfy 

Section 5—and perhaps, by implication, Section 2—by substituting 

what are called influence district to provide substantive representation instead of creating or maintaining districts in which minority 

voters have a reasonable opportunity to elect representatives of 

their choice. 

There are a number of problems with this. There are no clear 

guidelines for measuring influence districts or substantive representation. Like the Court’s decisions about district shape in 

Shaw v. Reno and its progeny, we are left with no clear guidelines 

for drawing districts. There is no way to know how to comply with 

the Court’s mandate. This is quite unlike the one-person/one-vote 

standard, which can be mathematically determined as the districts 

are being drawn. 

At what level of minority concentration, short of a reasonable opportunity to elect representatives of their choice, does a district 

provide influence? Do minority voters have influence over a representative they voted against and whose policies they oppose? 

How many influence districts are equal to one opportunity to elect 

district to provide equal participation? The right to vote is not 

based on substantive representation, but an equal and meaningful 

right to participate and elect representatives of choice as the Congress has recognized in Section 2 of the Voting Rights Act. 

Expert witnesses in voting rights cases are an essential part of 

the process because litigation involving Section 2 and the pre-clearance process of Section 5 are fact-intensive efforts. In the Gingles

case, the United States Supreme Court specifically authorized the 

use of bivariate ecological regression analysis to measure the extent of racially polarized voting. The Court authorized this technique and the plurality opinion specifically rejected what is called 

‘‘multivariate analysis’’ because the probative questions in voting 

rights litigation involve the extent to which minority and majority 

voters differ in their choice of candidates to represent them. 

Racially polarized voting continues to be a pervasive feature of 

American politics. Race, ethnicity, and partisanship are inextricably intertwined, as every student in an introductory American 

politics course knows. Some experts for defendants in voting rights 

cases argue that partisanship or some other variable related to 

race or ethnicity is the ‘‘true cause,’’ but the truth cause can always 

be traced back to race or ethnicity. The reauthorization of the Voting Rights Act should make it clear that influence districts and 

substantive representation are not acceptable substitutes for districts in which minority citizens have a reasonable opportunity to 

elect representatives of their choice. 

Thank you, Mr. Chairman. 

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

Senator KENNEDY. Thank you very much. 

Professor Pildes? 

10

STATEMENT OF RICHARD H. PILDES, SUDLER FAMILY PROFESSOR OF CONSTITUTIONAL LAW, NEW YORK UNIVERSITY 

SCHOOL OF LAW, NEW YORK, NEW YORK 

Mr. PILDES. Thank you very much, Mr. Chairman. I consider it 

a great honor and a great responsibility to testify on renewal of the 

Voting Rights Act. I also consider it a somewhat painful moment 

for me because I have three concerns in particular I want to raise 

here. 

First, I am concerned that the evidence in the record does not address an essential issue to the constitutionality of the proposed bill, 

and I am not aware that this concern, though I think it may be 

essential, has been addressed in the House hearings or in the previous hearings before this Committee. 

The assumption so far of all of the evidence I have seen, or most 

of the evidence at least, is that it is sufficient to document continuing instances of problems in the area of race and voting rights 

in the covered jurisdictions. But I am very concerned that under 

the congruence and proportionality test that the Court now applies 

in this area, the Court is going to insist that there be some account 

of systematic differences between the covered and the non-covered 

areas of the United States. 

There is very little evidence in the record on this, and, in fact, 

the evidence that is in the record suggests that there is more similarity than difference. For example, Professor Arrington has discussed racially polarized voting findings. The National Commission 

on the Voting Rights Act Report, which is an essential study and 

is part of this record, documents 23 cases from 16 States, since 

1982, of polarized voting in statewide redistricting cases. Half are 

from covered States. Half are from non-covered States. So the racial polarization problem is not unique to the covered areas of the 

South, at least in this set of cases. 

The Report also quotes judges making findings in various cases 

on discriminatory voting practices, but the language, which is very 

identical in these cases, comes from States like Maryland and Massachusetts and Florida, as well as the covered States. In fact, there 

are 24 cases reporting findings of intentional discrimination since 

1982, 13 in non-covered States, 11 in covered States. 

Now, I want to be clear about why I raise this point. It is not 

to assert that the bill as proposed is unconstitutional. But I look 

at this record as a lawyer concerned about how the courts will respond to it, trying to determine how best to ensure the constitutionality of a renewed Section 5, and I think this is an essential 

issue that has been neglected until now. 

The second point I want to make is related to this issue. For the 

most part, national legislation in the voting rights area since the 

1980’s, in fact, has been a broad, uniform national type of legislation, whether in the Help America Vote Act or in the National 

Voter Registration Act, as two examples. And though not widely 

recognized, these statutes are very different models of how to protect voting rights through national legislation than is reflected in 

Section 5. 

Section 5 has never protected the right to vote as such, and I 

think we tend to forget that. Section 5 is narrowly targeted in two 

11

respects: it is geographically targeted, and it is targeted to the 

problem of racial discrimination in voting. 

The more recent models of legislation from Congress, such as 

HAVA or the NVRA, are not selectively targeted in either of these 

ways. These statutes provide an alternative model that ought to be 

part of the discussion when we think about voting rights policy 

going forward in the important context provided by this renewal 

discussion and debate. 

And the third point I want to make is about Georgia v. Ashcroft

and the comments Professor Arrington mentioned about that case. 

The bill proposes to overrule Georgia v. Ashcroft. I consider that to 

be a mistake, one that will harm the long-term interests of minority voters, frustrate the formation of interracial political coalitions 

in the South, and be damaging to American democracy. And let me 

just remind the Committee of the facts of this case, which also powerfully illustrate and concretely demonstrate the changes even 

since 1982 in the Voting Rights Act in the South. 

At the time of the Georgia redistricting at issue there, 20 percent 

of the State legislators were black, and with their virtually unanimous support, a coalition of white and black Democrats sought to 

unpack slightly three safe minority districts that the Act had been 

thought to require in the 1990’s. 

This was done because of the rise of robust two-party competition 

in the south, which was not present in 1982. This coalition of white 

and black Democrat legislators agreed that to maximize the possibility that the Democrats would retain control of the Senate in 

Georgia, a few seats would be put marginally more at risk for the 

prospect of minority legislators and Democratic legislators having 

Committee chairmanships and the like, and the power to effectively 

represent their constituents’ interests. 

The DOJ argued that the plan violated the Voting Rights Act. 

The Supreme Court, had it not rejected that view, would have, in 

my view, adopted or endorsed a policy that would have inverted the 

basic purposes of the Voting Rights Act. After all, here were black 

and white legislators willing to make their seats more dependent 

upon interracial voting coalitions. Here was a large contingent of 

black legislators, having entered the halls of legislative power, who 

now determined that they and their constituents would have more 

effective power as part of a Democratic Senate. Here was Congressman John Lewis, his life risked in the Selma march to help get the 

VRA enacted, his seat not at stake, testifying that this plan was 

in the interest of minority voters. And here were black legislators 

taking risks, cutting deals and exercising political agency to forge 

a winning coalition. 

Yet the Act, under the interpretation of the Justice Department, 

would have denied these political actors the autonomy and the 

agency to make the hard choices at issue—and they were hard 

choices—even with partisan control of a major institution of State 

government in the south at stake. 

The Court’s decision permitting this deal instead recognizes room 

in the statewide redistricting context for some modest flexibility in 

Section 5, given the changes between 1982 and today. Indeed, the 

Georgia plan involved a modest amount of flexibility in a circumstance about as compelling as one can envision. If Congress 

12

overturns Georgia v. Ashcroft, it will make even this limited 

amount of flexibility illegal. 

More generally, I hope that debate over Section 5 does not remain locked within the models of the past. I suggest that much of 

the work of the Voting Rights Act that began in 1965 is most effectively taken up today by building on the models of HAVA and the 

National Voter Registration Act, and protection of the right to vote 

as such. 

Thank you very much. 

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

for the record.] 

Senator KENNEDY. Thank you very much. Let me ask you just 

what is your response to the fact that the test is rather vague in 

the Georgia v. Ashcroft? 

Mr. PILDES. I think I would have three things I would say in response to that, Senator. First, the decision is only from 2003. It has 

never been applied, as far as I am aware, in any court case or in 

any DOJ objection. It is simply too early to know how the courts 

or the Justice Department will apply it on a case-by-case basis, No. 

1. 

No. 2, remember, Section 2 is always present, so the worst-case 

scenarios that people describe or worry about will be protected 

against by virtue of Section 2. It is not possible to go back to a situation of 30 percent minority voters spread across every district in 

Alabama, given section 2 of the Act. 

And third, the standard proposed in the bill to overturn Georgia, 

no ‘‘diminished ability to elect’’ itself has a rigidity and a mechanical quality that can lock into place minority districts in the south 

at populations that do not serve minority voters’ interests. I don’t 

know under a ‘‘no diminished ability to elect’’ standard if dropping 

the minority population from 60 percent to 55 percent is a violated, 

dropping it from 55 to 50 percent is a violation, or dropping it from 

50 to 45 is. No ‘‘diminished ability to elect’’ is, in my view, a very 

rigid and very extreme overreaction to a decision which I believe 

is right on the facts, in Georgia v. Ashcroft. I am not sure if everybody agrees with me about that on this panel. 

Senator KENNEDY. We are going to find out. 

[Laughter.] 

Mr. PILDES. But one question is whether Georgia is right on the 

facts, and a second and separate question is, whether the standard 

in the case is a troublesome standard and what to do in light of 

that? 

Senator KENNEDY. And you do not believe that the pre-Georgia

rule has the sufficient kind of flexibility to be able to deal with 

some of those issues? 

Mr. PILDES. Well, if it did not permit the black-white legislative 

coalition and districting plan in Georgia, apparently not. And the 

Justice Department, remember, objected to that plan. 

Senator KENNEDY. Professor Karlan? 

Ms. KARLAN. Well, I think it is worth remembering one critical 

fact about Georgia v. Ashcroft, which is the Department of Justice 

got it right, because after the plan was put into effect, not only did 

one of the black legislators lose his seat, but a number of the black 

voters who were moved into districts where they were supposed to 

13

have influence did in fact elect white Democrats, who turned 

around in the 2-weeks between the election and inauguration and 

became Republicans. Now, I am sure that the Republicans in Georgia are very fair folks, but those black voters have no influence in 

those districts. 

The question about whether you can reduce the percentage of 

black or Latino voters in a district and still meet the retrogression 

standard is a red herring. Districts that were 80 percent after the 

1970 round of redistricting are now 55 percent, and they are precleared consistently by the Department of Justice. So the abilityto-elect standard has always been a standard that works. And this 

idea of being locked in a model of the past, you know, to quote 

Faulkner, ‘‘The past is not dead, it’s not even past.’’ There are still 

people in the Georgia legislature who were found to have engaged 

in racist behavior by a Federal District Court in previous rounds 

of redistricting in Georgia. So the idea that we should start by 

looking at 2001, and ask how things are going there, seems to me 

deeply problematic. 

Senator KENNEDY. Could you comment, Professor Karlan, about 

the concerns about over-coverage and under-coverage? 

Ms. KARLAN. Let me give two answers to that question. One is 

about the law of the Voting Rights Act and the other is about the 

facts. In the law there is a bailout provision which has been available to jurisdictions since 1982, and jurisdictions that ought not be 

covered, but that are brought within the trigger, can get out. 

On the other side there is what is called the pocket trigger, and 

I litigated one of the few cases that actually resulted in a pocket 

trigger. And that is when courts find pervasive intentional racial 

discrimination in jurisdictions that are not covered, they can order 

that those jurisdictions come under pre-clearance, and we actually 

did that in a part of Arkansas, which you heard from, I think, Professor Gaddie’s testimony, is one of the worst States in the south 

because it wasn’t brought within the Voting Rights Act in 1965. 

As a factual matter, if you say, well, half of the examples of racial discrimination since 1982 occurred in covered jurisdictions and 

half occurred in non-covered jurisdictions, it is worth remembering 

the denominator there, which is, there are 9 fully covered States 

that are covered jurisdictions and there are 41 States that are not 

fully covered. So half of the discrimination is occurring in those 9 

States. It suggests that there is actually more of a problem in the 

covered jurisdictions than in the non-covered ones. 

Mr. PILDES. Senator Kennedy, can I just respond to at least that 

last point? 

Senator KENNEDY. Yes. 

Mr. PILDES. It seems to me that legally the right denominator 

would have to be the minority population in different jurisdictions. 

We are not going to have Voting Rights Act issues in Idaho, for example. So when we are comparing the covered and the non-covered 

parts of the country, the fact that 55 percent or so of African-Americans live in the south means that about half of African-Americans 

live in the south in covered areas, half do not. That is a very simple figure. And so the fact that the pattern shows about half of the 

problems are in covered States and half in non-covered States, does 

I think suggest something that is more general in the United 

14

States. I think Professor Arrington’s testimony went to exactly that 

point. You find racial polarization in Boston and Chicago, in Philadelphia, in Cicero. The cases of vote dilution under Section 2 are 

spread out across the country. It seems to me the right denominator has to be where the minority populations are, and how do 

those problems compare across different States that have similar 

minority populations? Number one. 

Number 2. I am more worried than Professor Karlan is about the 

lack of evidence in the record about the differences between covered and non-covered States. I agree, the power of Congress in the 

area of voting rights is at its highest, but the Voting Rights Act in 

Section 5 is also an extremely unusual, indeed unique, provision, 

as you know, in Federal law. It singles out part of the country. 

Now, the constitutional jurisprudence has changed greatly since 

the courts last looked at this singling out of one part of the country. And it seems to me it is one thing, with the Family Medical 

Leave Act and cases like Hibbs, to base national uniform law on 

evidence from a number of States, but not all the States. It seems 

to me, constitutionally, it is a very different question to base geographically selective national law, the only one we have, as far as 

I know, on evidence that does not today show that that targeting 

is congruent to the constitutional violations that are out there. 

That is what I am worried about with the evidence in the record 

so far. 

Senator KENNEDY. I see others have a comment. And then I want 

to get into sort of this block voting. 

But, Professor Arrington, did you want to comment? 

Mr. ARRINGTON. Just that I wanted to point out that nobody says 

that racially polarized voting is in and of itself evidence of discrimination. The question is how that interacts with election procedures, 

with the traditions in the community, with a number of things, and 

so I think just to say that racially polarized voting exists everywhere and therefore there is no difference between the covered and 

uncovered jurisdictions, is simply not true. 

That is all I wanted to add. 

Senator KENNEDY. How do you distinguish this between other 

types of voting? I mean Italians vote for Italians, Greeks vote for 

Greeks, Irish vote for Irish, comment. 

Mr. ARRINGTON. I don’t distinguish it at all. I think it is exactly 

the same thing. The difference is that in some places that racially 

polarized voting has interacted with election procedures to create 

a situation in which minority voters do not have an opportunity to 

elect candidates of their choice. And I suspect that happened way 

back when to Irish voters when they were a minority in certain 

places. So I don’t think it is different in that sense at all. 

But we do have special obligations regarding race and the like 

because of the 15th Amendment. 

Senator KENNEDY. Let me ask Anita Earls, doesn’t the issue get 

at the deterrent effect of Section 5, and shouldn’t we expect less 

discrimination in the covered States? 

Ms. EARLS. Absolutely. Section 5 not only keeps there from being 

so much Section 2 litigation because it stops those changes from 

going into effect to begin with, but it also deters election officials 

15

from enacting and putting in place discriminatory measures to 

being with. 

But I would further suggest that the notion that the standards 

you have to meet is to show systematic differences between covered 

and non-covered jurisdictions is not the correct standard, and with 

all due respect, Professor Pildes is being very pessimistic about the 

evidence that is in the record before you, and in fact, what you 

have is evidence of sustained in transigence in the covered jurisdictions that you don’t see in the non-covered jurisdictions. 

So, for example, in North Carolina, we have recently a pattern 

of local governing bodies going back to at-large election systems, 

something that is not occurring in non-covered jurisdictions. So this 

pattern of continuing to try to either go back to discriminatory patterns or enact new discriminatory measures, is something that is 

unique to the covered jurisdictions. 

Senator KENNEDY. Let me ask Professor Karlan, do you think 

that Section 2 is an adequate substitute for 5, and do you believe 

the presence of Section 2 makes it unnecessary for Congress to 

pass language clarifying the Georgia v. Ashcroft? 

Ms. KARLAN. No, Senator Kennedy, I don’t, for a reason that the 

Supreme Court got at as early as South Carolina v. Katzenbach, 

where there is that line that you read in your opening statement 

about shifting the burden of inertia to the perpetrators of discrimination and away from the victims. 

I did a lot of Section 2 litigation in my prior life before I became 

an academic, and it is costly litigation. I would guess that this 

Committee is going to see in front of it most of the people in the 

country who do the litigation actually testifying. It is a very small 

bar of people who do Section 2 litigation and who have the expertise to do it. 

When you get down to the local level, the national organizations 

often are not involved, they are not aware of what is going on. 

What Section 5 does is it shifts that burden to the Federal Government, which is far better able to bear it than either minority citizens in poor communities or the very small civil rights bar. So Section 2 is not an adequate substitute for Section 5 because it allows 

the changes to go into effect, and that means you can go through 

several election cycles while the litigation is going on where the 

discriminatory change is in effect. It requires the minority community to find a lawyer who will bring these cases. And let me tell 

you, from having litigated the cases and having litigated the attorneys’ fees issues after the cases, this is not a way of getting rich. 

It is not even a way of making a living. And it requires that huge 

amounts of resources in the litigation process be used, both by the 

jurisdictions and by the individual citizens. So I don’t think of it 

as an adequate substitute in any way. 

Mr. PILDES. Senator Kennedy, I want to just say I agree with all 

of that. The point, though, is that Georgia v. Ashcroft is about redistricting, and statewide redistricting, as least in that case, so 

that is the one area in which there is litigation all over the country, not just under the Voting Rights Act, but in partisan gerrymandering and other cases too. This is not the low visibility issue 

of moving polling places or changing voting systems in some county. So while it is generally true that there is a very important difVerDate 0ct 09 2002 14:48 Sep 15, 2006 Jkt 028753 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28753.TXT SJUD4 PsN: CMORC
16

ference between Section 2 and Section 5, the question that is relevant here, I think, with respect to Georgia, is whether that difference is significant enough that the south, the covered States, 

should not be able to make the same deals in the redistricting process that the north can where there are significant minority voting 

populations in the north. That is, I think, the focus. 

Ms. KARLAN. But it is not just— 

Mr. PILDES. Let me just respond to one or two other things. I 

agree also with Anita Earls, that if there are areas we can identify 

of real sustained intransigence and the like, absolutely those areas 

should be covered by Section 5. I simply am saying that in the 

record, where there is some comparison, it suggests more similarity 

than difference, and we ought to build a record that actually shows 

that the coverage that we end up with is congruent to what the 

record shows about where the violations are and where they are 

not. 

The final thing I want to say just so I am not misunderstood—

and I consider it important—I am not in any way saying the problems of race discrimination in the voting area are in the past. I do 

not mean to say that. What I mean to say is the Voting Rights Act 

in Section 5 was created in an era where Congress didn’t believe 

it had power to regulate voting rights as such, but that it had to 

act under the 14th or 15th Amendments, particularly to deal with 

racial discrimination in voting. 

Congress’ss powers now are clearly much broader, not only under 

Article I, Section 4, as Professor Karlan mentioned, but I believe, 

given that the Supreme Court has held that the right to vote is a 

fundamental right in all general elections, Federal, State and local, 

for general governmental bodies, I believe the Congress may well 

have a general power to enforce the right to vote, not just in Federal elections, but in all elections for political bodies that are exercising general governmental powers. 

So what I mean is I want us not to stay locked in the mindset 

of the past, in which we think we can only deal with race discrimination in voting at the national level. We can deal with the right 

to vote as such at the national level, and HAVA and the NVRA reflect that. 

Senator KENNEDY. Let me just ask you. Of course, we did, didn’t 

we, in Congress, specifically on the right to vote on the poll tax, 

didn’t we eliminate for the poll tax, which was an individual issue? 

Mr. PILDES. And the literacy test. 

Senator KENNEDY. And the literacy test. 

Mr. PILDES. Yes, absolutely. 

Senator KENNEDY. I want to give Professor Karlan must a response, and then I would like to ask Professor Gaddie and maybe 

Arrington, if they would talk a little bit about the Hispanic, you 

know, the disparity in terms of the registration, where we are in 

terms of that, and Professor Earls, if you have any kind of comment. And then we are going to be voting shortly, but this has been 

enormously interesting, and helpful. 

Ms. KARLAN. The first point, Senator Kennedy, is that the Georgia v. Ashcroft standard doesn’t just apply to statewide partisan redistricting, but it applies to all cases, and that is what worries me, 

because so much of the discrimination that goes on is under the 

17

radar screen of the national political parties or the national groups. 

So when a school board comes in and says, ‘‘It’s true we have some 

majority black districts right now, but we think black people would 

be better off, they’d have more influence if they were 30 percent of 

each of the districts, rather than actually electing anybody to the 

school board, than charging it against the Ashcroft standard,’’ fine, 

States can pick among theories of representation. 

And I think it is important to understand this is not mostly a 

bill about Congressional redistricting or a bill about State legislative redistricting. It is about what goes on at the local level, and 

that is a really critical place to think. 

The second thing is I think all of us on the panel here would support Congress being more aggressive in protecting the right of 

every American to register, to cast a ballot and to have that ballot 

counted, but there are distinctive problems in the south with regard to the voting rights of blacks and of Latinos, which will not 

be dealt with solely by allowing people to register and vote. That 

is part of what you found out in the move from 1965 to 1970, which 

was, you know, in the 1965 Voting Rights Act you have provided 

for Federal registrars. They went down to the south and in 2 years 

they registered more black people in the south than had been registered in the previous hundred years. A fabulous achievement. 

And what did we see? Almost immediately, jurisdictions started 

changing the electoral rules to make sure that the blacks could register and vote and even have their ballots counted. Those ballots 

didn’t count for very much. Their votes were diluted. 

So I think it is important to recognize that there is both a general voting rights problem and there is a specific voting rights 

problem that deals with the issues of blacks and Latinos in the covered jurisdictions. 

Mr. GADDIE. Senator Kennedy, I am learning today that I need 

to be a bit more assertive. I am used to having lawyers lead my 

questioning. 

[Laughter.] 

Mr. GADDIE. I can speak with firsthand experience about the application of the Ashcroft standard in pre-clearance, having the dubious distinction of having been involved in the Texas redistricting. 

At the time the Texas—if I may have a moment? 

Senator KENNEDY. Yes. 

Mr. GADDIE. As the Texas redistricting was going on, the 

Ashcroft decision came down. And I went to Glen Abbott, the Attorney General of Texas, went to his outside counsel, and said, ‘‘I have 

a strong suspicion that with this decision you’ll see DOJ possibly 

applying a different retrogression standard, a different kind of 

baseline.’’ And indeed what happened, both at trial, in front of 

Judge Higginbotham, down in the Fifth Circuit, and also in the 

pre-clearance process, the argument was made to include any district that appeared to look like a coalition district as part of the minority baseline in the initial assessment by the professional DOJ 

staff. There was disagreement between the DOJ staff and the political staff regarding which position should prevail. The political position prevailed. 

When we get into this issue of baselining retrogression, the challenge for Professor Arrington and I is how do we treat these coaliVerDate 0ct 09 2002 14:48 Sep 15, 2006 Jkt 028753 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28753.TXT SJUD4 PsN: CMORC
18

tion districts? How do we treat a 30 percent minority district where 

there is a 1 in 4 chance the minority voter gets their outcome of 

interest versus a 65 percent district where the outcome is certain. 

At the end of the day it is going to be politics that will guide how 

that standard is applied by the DOJ because they will apply their 

own theory of representation independent of the theory that the 

State chooses to apply. 

Mr. ARRINGTON. I think you asked about the question of Latinos 

and Asians too? 

Senator KENNEDY. Please. 

Mr. ARRINGTON. Often, particularly in places where the AfricanAmerican community has been very well organized for a long time, 

like some places in North Carolina, their rate of voting and turning 

out is pretty good, often not quite up to the same as whites, but 

pretty good. But the disparity between Latinos and Anglos is generally much greater. And in places where you have a mixed population, where you have Anglos and Blacks and Hispanics, the general pattern is that Anglos turn out and register at the highest 

rate, Blacks are close to that in many areas, and then Latinos far, 

far below that. So you have a much more serious problem there. 

What that means in terms of districting is that if you want to 

create a district in which Latinos have a reasonable opportunity to 

elect a candidate of their choice, they have to be concentrated much 

more in that district than would black citizens. Often in States like 

North Carolina, for example, you can create a district in which African-Americans have a reasonable opportunity to win with less 

than 50 percent black population. That is not true generally for 

Latinos. It is a very different situation. It is a much more severely 

difficult situation to solve. 

Mr. GADDIE. And the other challenge is that we can’t count on 

homogeneity within the Latino population. There is tremendous 

variation of participation across Latino populations, even within a 

particular Latino ethnic group within a State. You look at South 

Texas, you see high rates of Latino participation in most of the 

South Valley, outside of the sweep between El Paso and San Antonio; very low Latino participation, relatively speaking, in Metro 

Dallas and Metro Houston. So, it becomes extremely contextual 

with regard to Latino participation throughout the United States. 

Senator KENNEDY. Professor Earls? 

Ms. EARLS. I would just make one final point about the record 

before you. 

Senator KENNEDY. Yes. 

Ms. EARLS. There are so many examples of recent discriminatory 

conduct, it is hard to summarize them in the time we have, but 

just two quick things. 

Recently, 125,000 voters in predominantly African-American precincts, that is, targeting black voters in North Carolina, were sent 

postcards erroneously telling them that they could not vote on election day if they had moved, causing great confusion, discouraging 

them from voting. 

Another example, in 2004, the sheriff of Alamance County in 

North Carolina, took a list of registered voters in his county that 

had Spanish surnames, and said publicly that he would send deputies to the homes of each of those voters to verify that they were 

19

citizens. That type of discouraging of minority voting—those people 

are all registered, but they are still targeted by these types of campaigns. That is the atmosphere that we are dealing with, and those 

types of examples are found in numerous other States. 

Senator KENNEDY. Let me ask you—and others can make a brief 

comment—in the Bossier II case, the Supreme Court ruled that 

Section 5 prohibits the voting changes only if they worsen or intend 

to worsen the position of minorities. In other words, under Section 

5, voting change may not make minorities worse off, for instance, 

if they are already completely shut out of power, it is hard for a 

change to put them in a worse position, but it may still dilute their 

voting power, intentionally discriminate. Would you agree that 

under the Bossier II standard the Department of Justice and District Court for the District of Columbia must pre-clear even an illegal or an unconstitutional voting change so long as there is no 

backsliding in minority voting power? What is your view on the 

case? 

Ms. EARLS. Yes, that is the impact of Bossier II. It is essentially 

a discrimination dividend. As long as you have excluded blacks or 

other minorities effectively, you can keep excluding them, and it 

has—it is a significant impact on the ability of—on the Section 5 

pre-clearance process to truly keep discriminatory practices from 

being put in place. 

Senator KENNEDY. OK. We are voting on a judge just in a few 

minutes, and Senator Feingold, I believe, wanted to come over. So 

we will have a brief recess, and then if it turns out that he is not 

going to, we will recess. 

This has been enormously interesting, and we will ask the staffs 

to submit some questions. I was looking to see whether they had 

some questions because this is a great panel here. So there it is, 

so we will have a brief recess. 

We thank you. Let me just ask you, if there are some areas—we 

gave you very short time and you have got some good written statements. All the written statements will be made a part of the 

record, and my colleagues, Senator Specter’s, Senator Leahy’s 

statements. They, I believe, passed out the House bill 33–1 last 

week in the markup. 

But as a result of these questions, if you want to provide some 

additional information, we would welcome that, and we will ask 

our—I do not know what the rule of the Chair was—two, 3 days 

for questions? Seven. So we will recess at the call of the Chair. 

Thank you very much. 

[Recess.] 

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

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD [presiding]. I am going to reconvene the hearing. I want to thank the Chairman for allowing me to continue and 

perhaps conclude the hearing after I have asked some questions, 

unless another colleague comes. Thank you to the panel. I am sorry 

that I was not able to hear your testimony. 

First, I want to thank you for this important hearing on Section 

5, the pre-clearance provision of the Voting Rights Act. Section 5 

rightfully imposed heightened oversight on some of those jurisdicVerDate 0ct 09 2002 14:48 Sep 15, 2006 Jkt 028753 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28753.TXT SJUD4 PsN: CMORC
20

tions that were the very worst actors in discriminatory voting practices. 

The advances in minority votes and representation in areas covered by Section 5 in the past 40 years have been profound. Although we have made significant advances as a result of the Voting 

Rights Act, there is still more work to do. The goal of the Voting 

Rights Act is not to reduce discriminatory voting practices, but to 

eradicate them entirely. 

Section 5 has been instrumental in bringing about the dramatic 

improvements in voting rights and representation for minorities in 

covered areas. Keeping it in place with a reasonable bail-out provision is the best way to be sure that we don’t lose the progress that 

has taken place. 

Let me just say in response to some comments that were made 

at last week’s hearing that all Members of Congress, regardless of 

whether they represent a covered or non-covered jurisdiction, and 

regardless of their political affiliation, have an interest in ensuring 

the continued effectiveness of the Voting Rights Act. As Federal 

legislators, we have a responsibility to address and eliminate discrimination wherever it is found. The integrity of our elections and 

our very democracy depends on it. 

Now, let me turn to Professor Arrington. Can you talk a little bit 

about racially polarized voting in Section 5-covered jurisdictions? 

Do you have any recent evidence of the concern? 

Mr. ARRINGTON. Senator Feingold, I have attached to my written 

testimony the decision of both the circuit court and also the district 

court on the Charleston County Commission case, and I think that 

is an interesting one because it shows the interaction of Section 2 

and Section 5. 

The United States brought a Section 2 action against the county 

council in Charleston County, and I found there the most extreme 

polarized voting I think I have ever seen, and I have been doing 

this work since 1985. So there was no evidence of any reduction in 

polarized voting, at least in Charleston. 

The interesting thing to me was that the judge found, in accordance with my testimony, that there was legally and substantively 

polarized voting; that because of that and the at-large elections 

that they had there, African-Americans did not have a reasonable 

opportunity to elect candidates of their choice. But he also found 

that in the school board where the elections were non-partisan and, 

as I remember, were not in numbered posts, African-Americans did 

have a pretty good chance of winning. 

Right after the judge’s decision, the State legislature changed the 

school board so it would look like the county commission elections 

that the judge had just said violated Section 2. In turn, of course, 

the Justice Department would not pre-clear that change because it 

was clear from the judge’s decision that that change was in violation of Section 2 and Section 5. 

The racially polarized voting in the school board elections was 

only slightly less than the racially polarized voting in the county 

commission. They were extreme. We are talking about 90 percent 

of the blacks typically voting for black candidates and some similar 

number of whites voting for white candidates. 

21

Senator FEINGOLD. Well, thank you, Professor, for that specific 

answer. I appreciate it. 

Professor Karlan, I wondered if you could expand a bit on the 

point I understand you made earlier about federalism and the distinctive power of Congress in the voting rights area. Does the 

Boerne line of cases apply differently when we are talking about 

voting rights? 

Ms. KARLAN. Yes, Senator Feingold, it does apply differently. The 

major concern in the Boerne line of cases was the sovereign immunity of the States to lawsuits brought by individuals against the 

State. Of course, that specific part of the concern in the Boerne line 

of cases, in cases like Kimel or Garrett or the Florida Prepaid

cases, is totally absent here because Section 5 is not about lawsuits 

by private individuals against States for damages at all. 

Indeed, the only place where private individuals are involved is 

either as defendant intervenors where the State has brought a lawsuit and has waived any sovereignty claim or in cases trying to 

force States actually just to comply with the obligation to seek preclearance. 

Now, that being said, there are a couple of other things about the 

Boerne line of cases that I think are very helpful in explaining why 

I think Congress’s power here is, if anything, at its absolute peak. 

One of them is even the post-Boerne cases all cite the Voting Rights 

Act of 1965 as the example of a statute that meets the Boerne test 

of being congruent and proportional. 

That is true as late as Lopez v. Monterey County, the California 

partially covered State case, where Justice O’Connor wrote for the 

Court that the Voting Rights Act by its nature intrudes on State 

sovereignty, but the 15th Amendment permits that intrusion. Indeed, I think because the enforcement clauses of both the 14th and 

15th Amendments tell Congress to enforce that, it almost demands 

that Congress intrude on State sovereignty when States are denying blacks or Latinos the right to vote. 

Now, on top of that, as I suggested in my testimony this morning, the one concrete suggestion I would have for the Committee 

in the drafting of Section 5 is to make it clear that you are not just 

relying on the enforcement clauses of Section 5 of the 14th Amendment and Section 2 of the 15th Amendment, but that you are also 

relying on Article I, Section 4, of the Constitution, which is the socalled Time, Place and Manner, or Election Clause. 

That is the clause that says, in the first instance, States decide 

how to conduct the time, place and manner of the elections for the 

House of Representatives, but Congress may override. And the Supreme Court has made clear since 1917 at the latest that that 

means Congress can override any determinations the States made 

about that. 

In the Foster v. Love case, the Supreme Court says—and let me 

just quote a little bit here—‘‘The clause gives Congress comprehensive authority to regulate the details of elections, including the 

power to impose the numerous requirements as to procedures and 

safeguards which experience suggests shows are necessary to enforce the fundamental right involved.’’ 

And in other cases, they have said that includes registration, day 

of election protection, protection against fraud. And since 1842, as 

22

you probably know, Congress has required that States elect members of the House of Representatives by district. That is not something the Constitution requires. The Congress requires it, and that 

overrides. 

So if a State said tomorrow, well, we want to elect our members 

of the House of Representatives at large, the answer would be you 

can’t. There is no Tenth Amendment reserved power for the States 

at all when it comes to the regulation of Federal elections, and 

much of what the Voting Rights Act does is to regulate people’s 

participation in Federal elections. And as Senator Kennedy was 

saying when he was here earlier, that includes mixed elections. So 

if you have any Federal candidate on the ballot, it counts as a Federal election for Article I, Section 4, purposes. 

Senator FEINGOLD. Thank you very much, Professor. 

Finally, Ms. Earls, what would happen in covered jurisdictions in 

the absence of Section 5? 

Ms. EARLS. I think that actually the North Carolina experience 

is very instructive on that question because 40 of the State’s counties are covered. There are 100 counties in the State as a whole, 

so we really have a basis for comparison. There are at least three 

examples I can give of current things that are happening in noncovered counties that are protected in the covered counties. 

For example, several counties non-covered under Section 5 sued 

under Section 2, required by court order to put in place single and 

redistrict systems, are now passing laws to go back to at-large election systems. Under Section 5, that would be retrogression and it 

is prohibited. It is not happening in the covered counties. 

Another example is the deterrent effect of Section 5. In preparation for the report that we prepared on North Carolina and Virginia, we had hearings and local residents came and talked about 

how in the covered counties local officials will consult with them 

if they want to move a polling place or when they are enacting new 

districting plans. That doesn’t happen in the non-covered counties. 

So there is real evidence of a deterrent effect that currently means 

that minority voters have a greater involvement in decisions about 

election procedures as they are being made. 

A third example is the whole question of annexations. We are 

dealing in North Carolina with a number of traditionally minority 

communities that are left out of town boundaries. They don’t get 

public services and they don’t have the right to vote. 

In Rocky Mount, a covered city, in the late 1990’s, that city annexed Battleboro, a predominately black neighborhood, because 

under Section 5 they couldn’t continue to annex white areas and 

not annex that black neighborhood. In Pinehurst, not a covered jurisdiction, there are four or five African-American communities 

that are outside the town boundaries that still don’t have water 

and sewer and still can’t vote for local officials. So there is really 

a difference in the experiences of covered versus non-covered counties. 

I would finally just say the impact of Section 5 being removed—

in North Carolina, we have under cases decided in the past few 

years in the State courts a whole-county provision that requires 

legislative districts to be drawn from whole counties. If Section 5 

is removed, we are at risk of losing from 5 to 11 of our current legVerDate 0ct 09 2002 14:48 Sep 15, 2006 Jkt 028753 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28753.TXT SJUD4 PsN: CMORC
23

islative districts that elect candidates of choice of black voters. So 

we really will see a huge impact if Section 5 is lost. 

Senator FEINGOLD. I thank you for all of your answers. I don’t 

think there is any more important subject than the subject of voting rights, so we thank you. 

I understand it is appropriate for me to adjourn the hearing. 

Thank you very much. 

[Whereupon, at 11:12 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

24


28753.001
25


28753.002
26


28753.003
27


28753.004
28


28753.005
29


28753.006
30


28753.007
31


28753.008
32


28753.009
33


28753.010
34


28753.011
35


28753.012
36


28753.013
37


28753.014
38


28753.015
39


28753.016
40


28753.017
41


28753.018
42


28753.019
43


28753.020
44


28753.021
45


28753.022
46


28753.023
47


28753.024
48


28753.025
49


28753.026
50


28753.027
51


28753.028
52


28753.029
53


28753.030
54


28753.031
55


28753.032
56


28753.033
57


28753.034
58


28753.035
59


28753.036
60


28753.037
61


28753.038
62


28753.039
63


28753.040
64


28753.041
65


28753.042
66


28753.043
67


28753.044
68


28753.045
69


28753.046
70


28753.047
71


28753.048
72


28753.049
73


28753.050
74


28753.051
75


28753.052
76


28753.053
77


28753.054
78


28753.055
79


28753.056
80


28753.057
81


28753.058
82


28753.059
83


28753.060
84


28753.061
85


28753.062
86


28753.063
87


28753.064
88


28753.065
89


28753.066
90


28753.067
91


28753.068
92


28753.069
93


28753.070
94


28753.071
95


28753.072
96


28753.073
97


28753.074
98


28753.075
99


28753.076
100


28753.077
101


28753.078
102


28753.079
103


28753.080
104


28753.081
105


28753.082
106


28753.083
107


28753.084
108


28753.085
109


28753.086
110


28753.087
111


28753.088
112


28753.089
113


28753.090
114


28753.091
115


28753.092
116


28753.093
117


28753.094
118


28753.095
119


28753.096
120


28753.097
121


28753.098
122


28753.099
123


28753.100
124


28753.101
125


28753.102
126


28753.103
127


28753.104
128


28753.105
129


28753.106
130


28753.107
131


28753.108
132


28753.109
133


28753.110
134


28753.111
135


28753.112
136


28753.113
137


28753.114
138


28753.115
139


28753.116
140


28753.117
141


28753.118
142


28753.119
143


28753.120
144


28753.121
145


28753.122
146


28753.123
147


28753.124
148


28753.125
149


28753.126
150


28753.127
151


28753.128
152


28753.129
153


28753.130
154


28753.131
155


28753.132
156


28753.133
157


28753.134
158


28753.135
159


28753.136
160


28753.137
161


28753.138
162


28753.139
163


28753.140
164


28753.141
165


28753.142
166


28753.143
167


28753.144
168


28753.145
169


28753.146
170


28753.147
171


28753.148
172


28753.149
173


28753.150
174


28753.151
175


28753.152
176


28753.153
177


28753.154
178


28753.155
179


28753.156
180


28753.157
181


28753.158
182


28753.159
183


28753.160
184


28753.161
185


28753.162
186


28753.163
187


28753.164
188


28753.165
189


28753.166
190


28753.167
191


28753.168
192


28753.169
193


28753.170
194


28753.171
195


28753.172
196


28753.173
197


28753.174
198


28753.175
199


28753.176
200


28753.177
201


28753.178
202


28753.179
203


28753.180
204


28753.181
205


28753.182
206


28753.183
207

Æ


28753.184