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VOTING RIGHTS ACT: THE JUDICIAL EVOLUTION

OF THE RETROGRESSION STANDARD

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 9, 2005

Serial No. 109–74

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

STEVE KING, Iowa 

TOM FEENEY, Florida 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

CHRIS VAN HOLLEN, Maryland

PAUL B. TAYLOR, Chief Counsel 

E. STEWART JEFFRIES, Counsel 

HILARY FUNK, Counsel 

KIMBERLY BETZ, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

NOVEMBER 9, 2005

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Member, Subcommittee on the Constitution, and Ranking Member, Committee on the Judiciary .......................................................... 2

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 3

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

of Virginia, and Member, Subcommittee on the Constitution .......................... 3

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

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

The Honorable John Lewis, a Representative in Congress from the State 

of Georgia .............................................................................................................. 6

The Honorable David Scott, a Representative in Congress from the State 

of Georgia .............................................................................................................. 7

The Honorable Sanford D. Bishop, Jr., a Representative in Congress from 

the State of Georgia ............................................................................................. 8

The Honorable Steve King, a Representative in Congress from the State 

of Iowa, and Member, Subcommittee on the Constitution ............................... 9

WITNESSES 

Mr. Theodore M. Shaw, President and Director-Counsel, NAACP Legal Defense and Educational Fund, Inc. 

Oral Testimony ..................................................................................................... 12

Prepared Statement ............................................................................................. 14

Ms. Anne W. Lewis, Attorney, Strickland Brockington Lewis LLP 

Oral Testimony ..................................................................................................... 30

Prepared Statement ............................................................................................. 31

The Honorable Tyrone L. Brooks, Sr., Member, Georgia General Assembly, 

and President, Georgia Association of Black Elected Officials 

Oral Testimony ..................................................................................................... 37

Prepared Statement ............................................................................................. 38

Mr. Laughlin McDonald, Director, Voting Rights Project, American Civil Liberties Union, Fnd. 

Oral Testimony ..................................................................................................... 49

Prepared Statement ............................................................................................. 50

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable John Lewis, a Representative in Congress from the State of Georgia .......................................................................... 80

Material Submitted for the Record by Mr. Chabot on November 18, 2005: 

Prepared Statement of Theodore S. Arrington, Professor and Chair, Department of Political Science, University of North Carolina at Charlotte ................................................................................................................ 82

Letter from MALDEF, NCLR, NALEO, and LULAC to the Honorable 

Steve Chabot regarding Georgia v. Ashcroft and the Latino community . 133

Page

IV

Material Submitted for the Record by Mr. Chabot on November 18, 2005—

Continued

Prepared Statement of Robert A. Kengle, former Deputy Chief, Voting 

Section, Civil Rights Division, Department of Justice ............................... 134

Georgia v. Ashcroft (539 U.S. 461, 123 S.Ct. 2498) ....................................... 147

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VOTING RIGHTS ACT: THE JUDICIAL EVOLUTION OF THE RETROGRESSION STANDARD 

WEDNESDAY, NOVEMBER 9, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 2:03 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Steve Chabot 

(Chair of the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. 

I’d like to thank the witness panel for being here, and the Members. We’ll have a number of Members coming here shortly. 

We understand that we’re going to have votes here sometime relatively soon, so we’re going to try to get started as quickly as possible and as on time as possible. 

We want to welcome and thank everyone for being here this 

afternoon. This is the Subcommittee on the Constitution. I’m Steve 

Chabot, the Chairman of the Committee. 

It’s the seventh in a series of hearings on the Voting Rights Act 

that’s been held, and the fourth examining section 5 and the 

preclearance requirements the section imposes on covered States 

and counties. Section 5 is one of several temporary provisions set 

to expire in 2007 if Congress does not act to reauthorize. 

This afternoon, we will continue our examination of recent Supreme Court decisions. In particular, we’ll focus on the impact that 

these cases have had on section 5’s ability to protect minority voting rights. 

I’d like to thank our very distinguished panel of witnesses for 

being here today. I know that this is a topic of interest to many, 

and look forward to today’s discussion. 

Congress enacted section 5 in response to efforts by certain covered States and counties to undermine advances made by minorities in seeking equal treatment under the law. Section 5 prevents 

covered jurisdictions from enacting any voting or election change 

until it has been precleared by the Department of Justice or by the 

U.S. District Court for the District of Columbia. 

To successfully preclear a change, a covered jurisdiction must establish that the change ‘‘does not have the purpose and will not 

have the effect of denying or abridging a citizen’s right to vote on 

account of race, color, or language minority status.’’

2

As we’ve discussed in prior hearings, voting changes submitted 

under section 5 are evaluated under the retrogressive standard, as 

set forth in the 1976 case Beer v. United States, which ensures that ‘‘the ability of minority voters to participate in the political process 

and to elect candidates of choice is not diminished by the voting 

change.’’ This was the standard until 2003, when the Supreme Court deviated from the straightforward retrogressive application in Georgia 

v. Ashcroft. Upholding the State of Georgia’s state senate redistricting plan, the U.S. Supreme Court determined that a retrogression analysis requires a ‘‘totality of the circumstances’’ evaluation, 

including examining a number of factors; not just the ‘‘comparative 

ability of minorities to elect candidates of their choice,’’ when determining whether a plan is retrogressive under section 5. 

Subsequent attempts to administer Georgia’s retrogressive analysis have proven to be inconsistent. Moreover, the Georgia decision 

raises questions as to what voting and election changes Congress 

intended section 5 to prohibit. 

This hearing will continue to focus on the purpose of section 5; 

specifically, the impact of the 2003 Georgia v. Ashcroft decision on 

minority voters and the enforcement of section 5 by the Department of Justice and the U.S. District Court. 

Again, we will look forward to the panel’s testimony this afternoon and the questioning that we’ll have an opportunity to do. 

That concludes my statement. I’ll now yield to the gentleman 

from New York, the Ranking Member of this Committee, Mr. Nadler. 

Mr. NADLER. The Honorable Ranking Member of the full Committee, the gentleman from Michigan, first. 

Mr. CHABOT. Okay. Without objection, the distinguished Ranking 

Member of the full Judiciary Committee, Mr. Conyers, is recognized. 

Mr. CONYERS. Thank you, Chairman Chabot. I’m so happy that 

we have these four witnesses here. And I agree with you that this 

is a very important discussion that we’re embarking upon. 

Georgia v. Ashcroft: can it be made workable? In the Texas congressional redistricting plan, we packed in four and we dismantled 

four influence districts. We tried this. And now the people that are 

behind the plan are holding up the Voting Rights Act of 1965, of 

all things, to justify what they did. 

Now, what happened in the Georgia case is that it was remanded 

before we could get it ended. This other Georgia case came in, and 

they held everything that they were doing moot until then. And so 

we ended up with an independent finding. 

And so what I’m here to suggest to you is that we’re tossing 

around the standard way we’ve looked at this question, with opportunity districts, versus the new way that we’re looking at it, with 

influence districts. And we’re going to have to come to some conclusion here. 

And your contribution to this discussion is going to be very important, because we’ve seen what happened in Texas; we’ve seen 

what’s happened in Georgia. We realize there was some untimely 

procedural intervention that prevented Ashcroft, the Ashcroft case, 

from coming to a full resolution. 

3

So we want you to be giving us the advantage of your thinking 

about the future of the Voting Rights Act of 1965, not from hindsight, but where we’re going in the future. And that’s what we’ve 

got to examine here today. 

There are those who think that we can work out a compromise 

on this. There are others who tell me that we’ve got to—that this 

is the fork in the road; that we’ve got to come together and try to 

decide which way we go. And so I’m hopeful that your thinking and 

discussions on this will help lead us into a result that will stand 

the historic test of time. 

Does anybody want me to yield to them? Mr. Scott? Oh, unless 

everybody is going to take their own time. Then I’ll turn my time 

back in. I thank you very much, Mr. Nadler and Mr. Chabot, for 

allowing me to go first. 

Mr. CHABOT. Thank you very much, Mr. Conyers. We appreciate 

your statement. Mr. Nadler, did you want to make a statement? 

Mr. NADLER. Yes, thank you, Mr. Chairman. Mr. Chairman, I 

want to join you in welcoming our distinguished panel of witnesses. 

I look forward to their important testimony. 

The question of retrogression, especially as raised in Georgia v. 

Ashcroft, is of paramount importance. It goes to the heart of how 

we measure the ability of voters to express their will at the polls 

in a meaningful and effective manner. 

The Supreme Court’s decision has met with a great deal of criticism. Ultimately, Congress must decide on language that will in 

some concrete manner provide minority voters with the tools they 

need to extract from voting officials in the Federal Government a 

meaningful result. 

Applying a retrogression standard is, in the final analysis, a very 

fact-based exercise. Generalities will be of little help if we cannot 

provide clear guidance that will protect voters from being deprived 

of the ability to have their voices heard and to affect the outcome 

of elections. 

It is my hope that today’s witnesses can give us some concrete 

guidance as to how the Georgia v. Ashcroft decision has been applied, what its limitations and consequences have been, and how in 

a really practical sense Congress should deal with the problem of 

devising a meaningful retrogression analysis. 

I look forward to the testimony. I yield back the balance of my 

time. And I must add, unofficially, I am delighted to see a sign 

here that says ‘‘Representative Brooks.’’ I recall a time when Representative Brooks was Chairman of this Committee—not perhaps 

the same Representative Brooks. Thank you, Mr. Chairman. 

Mr. CHABOT. Thank you very much. The gentleman from Virginia, Mr. Scott, is recognized. 

Mr. SCOTT OF VIRGINIA. Thank you, Mr. Chairman. Mr. Chairman, American’s long and deliberate misadventure with segregation was ended by many things, including the civil rights movement sparked by Rosa Parks. But nothing dismantled the ‘‘Jim 

Crow’’ South and created true opportunities for equal political participation more than the Voting Rights Act of 1965. 

By tearing down barriers to equal opportunity for minorities at 

the ballot box, the Act removed the essential political mechanism 

that maintained the legal structure of segregation. As the Supreme 

4

Court has said, the equal right to vote is fundamental because it 

is ‘‘preservative of all rights.’’ Mr. Chairman, the genius of the Voting Rights Act is not only 

that it abolished literacy tests and other schemes which had been 

used to deny Blacks and other minorities the right to vote, it also 

prohibited—under section 5 of the Act, it prohibited the jurisdictions with a history of discrimination from implementing new voting practices without first having those practices precleared by 

Federal officials. 

This important provision eliminated the incentive that covered 

jurisdictions would have from coming up with new schemes to dilute minority voting strength, and benefitting from their illegal activity while the victims file lawsuits or go through the legal process. Sometimes that takes many years; sometimes those groups, 

the victims, can never come up with the funds necessary to vindicate their rights. 

More than 10 years after the passage of the Voting Rights Act, 

the Supreme Court has interpreted ‘‘discriminatory effect’’ to mean 

retrogression and that the minority community is made worse off 

by the change. 

The Beer decision, Beer v. U.S., went further, to define retrogression as a failure to preserve the ability of minority voters to elect 

candidates of their choice. This standard was ratified when the 

Congress extended section 5 in 1982, and was consistently applied 

by the courts and the Department of Justice for more than a quarter century. 

Recent cases have raised questions about exactly what the standard is now, and so several questions need to be addressed. And one 

is whether or not you can trade a district where the minority community has an ability to elect a candidate for influence districts 

where they do not have the ability to elect candidates. And another 

is, if you slightly dilute a district’s minority population, but it still 

has the ability to elect, can you consider the establishment of influence districts? 

Mr. Chairman, I look forward to the testimony of our witnesses. 

Section 5 and other expiring provisions are essential to ensuring 

fairness in our political process and equal opportunity for minorities in American politics. And so I think it’s essential that we 

strengthen section 5 and clarify its meaning, so that we do not go 

backwards in enforcement of minority voting rights. 

So I look forward to the testimony, and thank you, Mr. Chairman. And before I yield back, I would yield to the gentleman from 

Michigan. 

Mr. CONYERS. Thanks for a great statement, Mr. Scott. The question of whether the elimination of influence districts could serve as 

the grounds for a section 5 objection is a very important one. It 

seems to follow from Georgia v. Ashcroft. 

We’ve seen that very situation in the Texas congressional redistricting plan that, according to one of our witnesses, eliminated 

four minority influence districts to create a district that elected an 

Hispanic candidate who did not have the support of Latino voters. 

Thank you. 

Mr. SCOTT OF VIRGINIA. Yield back. 

Mr. CHABOT. Okay. The gentleman yields back. 

5

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

5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. And today is the seventh 

hearing on the Voting Rights Act. And as I have at all of the hearings that I’ve attended, I want to start by thanking Chairman 

Chabot and, in his absence, thanking Chairman Sensenbrenner for 

convening this hearing and for a commitment to building the kind 

of record that we need going forward to sustain whatever extensions we do to the Voting Rights Act. 

In addition to examining the purpose, effect, and continuing need 

for the expiring provisions of the Voting Rights Act, the reauthorization process also demands that we analyze judicial interpretations of the Act that may have undermined the essential purpose 

and effectiveness of the Act’s provisions. 

So today we focus on the impact recent Supreme Court decisions 

have had on section 5 and the obligation of covered jurisdictions to 

demonstrate that changes in voting policies and practices will not 

deny or abridge a citizen’s right to vote on account of their race, 

color, or language minority status. 

In 1976, the Supreme Court decided the Beer v. U.S. case, decided that an election change should not be precleared under section 5 if ‘‘the ability of the minority groups to elect their choices 

to office is diminished.’’ After Beer, the Supreme Court and the Department of Justice defined ‘‘retrogression’’ in the context of section 

5 as a change in voting or election practices that resulted in an adverse effect or a backsliding in the opportunities of a minority 

group to elect the candidate of their choice. 

This touchstone, relatively clear ‘‘ability to elect’’ standard was 

accepted without modification by Congress in 1982, when Congress 

amended section 2 and extended section 5 for 25 additional years. 

In 2003, the Supreme Court deviated from the recognized retrogression standard, and replaced it with a more amorphous approach in determining whether a redistricting plan made minority 

voters worse off. 

Although there are parts of the Court’s decision for which there 

is widespread support, the Court’s suggestion that the effective exercise of the franchise can be achieved by spreading minority voters 

over a greater and greater number of districts to enhance their influence has raised some important concerns. 

Nine justices agreed, as do I, that section 5 does not prohibit the 

reduction of super majority minority voting age population percentages from that in a benchmark plan. Where the majority in Georgia v. Ashcroft strayed, however, losing four justices in the process, 

was in its failure to enunciate an articulable standard under which 

the opportunities to elect are preserved. 

To the extent that Georgia v. Ashcroft depreciates the role of minority groups’ ability to elect plays in the retrogression analysis, it 

invites the potential for an erosion of the protections embodied by 

section 5. To paraphrase one professor, Professor Pam Karlin, there 

is a retrogression of the retrogression standard when you do that. 

The ability to elect has always been the cornerstone of section 5, 

and should remain. Of course, the devil is in the details. And that’s 

what we’ve got all these excellent witnesses here for today: to give 

us the details on how we ought to be addressing what I think we 

6

all agree have been some missteps on the part of the Supreme 

Court in playing out what the Congress’ intent was. But I think 

there’s general agreement—or there seems to have been in prior 

hearings—on that proposition. 

The more important question is: how do we correct them in the 

renewal or extension process, going forward? And we need to be 

very careful about that. And I couldn’t think of a more elite and 

distinguished and deserving and qualified panel of witnesses than 

the ones we have today, to tell us how to navigate those waters 

going forward. 

I yield back, and thank the gentleman again for holding the 

hearing. 

Mr. CHABOT. I thank the gentleman. 

I’d also like to recognize three additional Members of the House 

who are not actually Members of this Committee, but nonetheless 

are very active and distinguished Members that I would like to ask 

unanimous consent that the three Members be able to fully participate in the hearing today, both to make opening statements, should 

they choose to do so, and also question the witnesses. And without 

objection, so ordered. 

And I’d like to first recognize—and all three gentlemen happen 

to be from the State of Georgia. I’d first like to recognize Mr. 

Lewis, who of course is an inspiration to so many Members of the 

House, because he is one person who lived and shed blood during 

these years that we’re discussing and marched in the front lines of 

the Civil Rights Movement. And so we have much to learn from 

him. And so I would recognize him for the purpose of making an 

opening statement. 

Mr. LEWIS OF GEORGIA. Well, thank you very much, Mr. Chairman, for allowing this non-Member of this Committee to be here. 

And thank you for your kind words. 

I’m delighted to see such a wonderful panel; three members of 

this panel being from the State of Georgia, from my district. And 

it’s good to see you. You’re so well qualified to testify and speak 

on Georgia v. Ashcroft. Good to see Ted Shaw. 

I’ve said in the past, and I’ll say it again today, Mr. Chairman, 

I would like to maybe submit a statement for the record. 

Mr. CHABOT. Without objection, so ordered. 

Mr. LEWIS OF GEORGIA. The Voting Rights Act, and section 5, 

was good in 1965, is good in ’05, and I think it’s still good in years 

to come. Some of you may notice from Georgia v. Ashcroft that so 

many people have used my statement—there was an affidavit, I 

then testified in the Court—have used it in a number of occasions 

and taken it out of context. I still believe we made a lot of progress. 

We’ve come a distance. But we still have a great distance to go. 

I will be eager to listen to what each one of you has to say, because the right to vote and the right to be able to fully participate 

in the election process and to have an opportunity to select a candidate of your choice, to have influence, I think is precious. It’s almost sacred. 

And I want to commend each and every one of you for all the 

hard work that you all have done over the years to bring us to 

where we are. Some of you have been in this field for a long time, 

for years. So I welcome you. 

7

Thank you, Mr. Chairman. I yield back. 

Mr. CHABOT. Thank you very much. 

The gentleman from Georgia, Mr. Scott, is also recognized for the 

purpose of making an opening statement. I would once again note 

that his attendance during the course of these hearings has been 

pretty extraordinary for a non-Member of this Committee. So thank 

you very much for your interest. 

Mr. SCOTT OF GEORGIA. Thank you very much, Mr. Chairman. 

And again, it’s a delight to be here. And I thank you for your courtesies, and the entire Committee. 

This is indeed a very extraordinary day. It’s so good to see all 

of our home people from Georgia here. Representative Tyrone 

Brooks, we served in the legislature together there, in the House 

and the Senate, for over a quarter of a century together; been 

through many battles, and certainly through the reapportionment 

battles of 1980, 1990, 2000. And as a result of all of that, the history books are clear that, without any question, Georgia is indeed 

the poster child for the greatest reaffirmation of need for the Voting Rights Act of any State in this Nation. 

And to you, Mr. McDonald, it’s so good to see you. And your reputation certainly precedes you in all that you have done, all the 

sterling legal leadership you’ve provided in each of these cases in 

Georgia. This Committee is certainly in for a treat, and we’re proud 

to have you and Ms. Anne Lewis. You represented those plaintiffs 

for each of the cases, all the way stretching back to the early 

’90’s—I think 1991, as well, and all of those. And certainly to you, 

Mr. Shaw; I don’t want to leave you out. But I’m sure that we’re 

glad to have you. 

This is very important, because Georgia v. Ashcroft, I think, really presents to us an excellent opportunity to show why we definitely need to have section 5 extended, and all of the parts extended. 

This whole issue with the case of Georgia v. Ashcroft shows clearly this schizophrenic, dichotomized mindset that this Nation has 

historically had in terms of extending voting rights, and then taking them back. It sort of starts out right from the foundation of this 

country, when we had those very eloquent words that, ‘‘We hold 

these truths to be self evident, that all men are created equal,’’ and 

‘‘...endowed by their Creator with certain inalienable rights; among 

these, life, liberty, and the pursuit of happiness.’’ At the same time, 

that individual that wrote those magnificent words owned slaves; 

was the father of slaves. 

We come on down to the year of 1870, when men and women of 

color sat right here in Congress; were given that right to vote and 

participate. Then it was snatched away. We even had the 15th 

amendment to come and to say nothing would abridge that right—

race, creed, or color, or servitude. And still, it was snatched away. 

And not until—largely through the works of John Lewis and 

Martin Luther King and Rosa Parks and all of those—we were able 

to get the 1965 Voting Rights Act—a hundred years, over 200 years 

since we were founded. And here we are today, just 40 years later 

after the Voting Rights Act. 

Even with the threat of this Act not being renewed, presents the 

height of hypocrisy of our country; especially when we have men 

8

and women dying on the battle fields of Iraq to bring democracy 

there; and we have these efforts to overturn the one basic legislative instrument we have that guarantees and enforces our rights 

here. 

So I’m looking forward to this. It’s set very, very strongly. And 

let us hope that we will be able to overturn this influence district 

phenomenon, and make sure we make plain the purposeful intent 

of discrimination, which we need to have made today, the strength 

of the Constitution that stands behind this Act; and then how we 

can practically excise Georgia v. Ashcroft out of the law, so that we 

can get the Voting Rights Act back and section 5 back, without this 

great threat to it inside of it. 

I look forward to the discussion. Thank you very much, Mr. 

Chairman. 

Mr. CHABOT. Thank you. The gentleman yields back. 

The gentleman from Georgia, Mr. Bishop, is recognized for 5 

minutes. 

Mr. BISHOP. Thank you very much, Mr. Chairman. I, too, would 

like to thank you for holding this hearing, and certainly for allowing me, as a non-Member, to join this distinguished panel. 

I’d like to join my colleagues in welcoming my friends of longstanding: my former colleague, Representative Tyrone Brooks, who 

has been a friend of longstanding; Mr. Teddy Shaw, with whom I’ve 

been affiliated with the NAACP Legal Defense and Education Fund 

for many, many years; Ms. Lewis; and of course, Mr. McDonald, 

who I’ve had occasion to have a relationship with, both personally 

and professionally, in these reapportionment battles that we’ve 

been involved in over the years. 

I, of course, served in the State senate on the Reapportionment 

Committee, and of course we collaborated a great deal, and of 

course I was involved when I was in the State House for 14 years 

in three or four redistricting battles there. And of course, one of 

them resulted in, of course, my being able to come to this body. 

And so I certainly welcome you, and I’m delighted that you are 

here, because all of you are certainly experts in this field and have 

a great deal to bring. 

I am particularly interested in this because four of our colleagues—I should say, seven of our colleagues from Georgia, on the 

other side of the aisle, have made it a point that in the debate on 

extension of the Voting Rights Act this year they intend to do one 

of two things: to either repeal section 5, which requires extensive 

oversight; or to have section 5 extended to all 50 States. 

I feel very strongly against either and both of those proposals. I 

can see very well that being—Reconstruction revisited, if the Justice Department no longer has to oversee and has to review and 

preclear, or Federal courts preclear, the actions of the State legislatures of the covered jurisdictions. 

Particularly, I’m brought to mind the picture ID bill that passed 

in the last session of the Georgia general assembly, which was approved by the Justice Department, only to be, fortunately, enjoined 

in its application by the United States Circuit Court of Appeals. 

I’d like to know at some point during your testimony if you could 

touch on the legal principles and the legal peril that the constitutionality of the Voting Rights would face in the event that the law, 

9

section 5, is extended to all 50 States; and also, what you portend 

the effect would be if section 5 were not extended at all, if it were 

repealed; what you, based on your experience, would believe would 

be the outcomes. 

Thank you for coming, and I look forward to your sharing your 

advice, your counsel, your wisdom with this Committee as a part 

of the record of these hearings, which will be a part of the records 

of this Congress, so that we can, hopefully, be enlightened as we 

face this very, very important and significant issue. 

Mr. CHABOT. Thank you. The gentleman yields back. 

I might note that there are votes on the floor, but what we’re 

going to do is finish up opening statements here. And we’ve been 

joined by two additional colleagues: the gentleman from Arizona, 

Mr. Franks, who I understand is not going to make an opening 

statement at this time; and the gentleman from Iowa, Mr. King, 

who will. So the gentleman from Iowa is recognized for 5 minutes— or less, whatever he takes up. 

Mr. KING. Hopefully, less, Mr. Chairman. I thank you for recognizing me, and I thank all the panelists and look forward to your 

testimony subsequent to our vote. 

And as I listen to the opening statements here, a number of 

things come to mind. And one of them is, as I look at some of the 

language here and some of this case law and some of the opinions, 

that I’m a very strong believer in individual rights, and I’ve never 

believed that there was such a thing as group rights in this country; and that we ought to do everything we can to protect the sovereign rights of every individual in America; and in fact, that the 

people themselves are sovereign. 

In the end, we’re the ones, as the voices of the people, that 

should make the decision on whether in fact we have voting districts that represent the voices of Americans, or whether we don’t. 

And I come from a State that has a unique approach to this, in 

Iowa. And we have had for a long time a redistricting law in Iowa 

that requires that three non-partisan people go behind into a room, 

close the doors, and draw districts in Iowa that are compact, contiguous, and balanced in population as possible. And if they draw 

that district and it can be challenged by the language, we can then 

vote that down. If we vote it down a second time, then it goes to 

the courts, and the judges then write the district. 

Well, I think what happened in Ohio last night was an opinion 

that—I have come to the conclusion in Iowa that nobody really 

wants the judges to write the districts in America. 

And I’ll say another thing is that it’s really not possible to find 

three non-partisan people, anywhere in America. So I don’t know 

how you end up with a qualification that lets us get maybe where 

we’d like to go with this, because we’re all built in with inherent 

biases of one kind or another. And so, you know, I listen to this 

with great interest. 

Another point that I would bring up is that, under the Beer decision, no voting procedure changes would be made that would lead 

to retrogression in positioning of racial minorities with respect to 

their effective exercise of the electoral franchise. That presumes 

that there are groups in America who have more than their fair 

share of representation. Should the progression of voting rights not 

10

end in some point some retrogression, one would logically think 

that there would be a point when minorities had more leverage, as 

well. And would that mean then that the Beers [sic] case would 

still stand? Or where do we get this point of balance? 

When do we finally say: America is where we need to go; we are 

assimilated; we’re all one people; we love each other; we work together; and we don’t see each other in the eyes of being a member 

of a group, but instead individual Americans with individual sovereignty; and the people the sovereign? 

Thank you, Mr. Chairman. 

Mr. CHABOT. Thank you. Would the gentleman yield for a moment, while he still has 30 seconds? The gentleman referred to the 

vote in Ohio last night. I would just note that the plan that failed 

by 70 to 30—70 percent of the people voted against it; 30 for it— would have been what the gentleman indicated: two retired judges 

would pick three other people, and they would pick the district 

lines. 

There was a sense of this same thing that the Governor of California, Governor Schwarzenegger, failed at passing out in California last night, as well. So it was a trend last night, at least in 

two of the two States that it was up in. 

We have a series of three votes, it’s my understanding, on the 

floor. So we will go into recess at this time. And I’d ask Members 

to come back as quickly as we can, and we’ll begin right after the 

three votes. And if you’ll bear with us, we’re probably looking at 

a half hour or so before we’ll be back. We’re in recess. 

[Recess, 2:37 p.m.-3:17 p.m.] 

Mr. CHABOT. The Committee will come back to order. 

Members will be arriving as they get back from the votes on the 

floor. Without objection, all Members will have 5 legislative days 

to submit additional materials for the record. 

And I’d now like to introduce our very distinguished panel of witnesses here this afternoon. Our first witness will be Mr. Theodore 

Shaw. Mr. Shaw currently serves as the Director-Counsel and 

President of the NAACP Legal Defense and Educational Fund. Mr. 

Shaw joined the NAACP in 1982, directing LDF’s education docket 

and litigating school desegregation, capital punishment, and other 

civil rights cases throughout the country. 

In 1987, he established LDF’s Western Regional Office in Los 

Angeles, and served as the Western Regional Counsel. In 1990, Mr. 

Shaw left LDF to join the University of Michigan Law School faculty, where he taught constitutional law, civil procedure, and civil 

rights. During that time, Mr. Shaw played a key role in establishing the law school’s admission policy. 

Mr. Shaw rejoined LDF as Associate Director-Counsel in 1993. In 

2003, Mr. Shaw was the lead counsel in a coalition that represented African-American and Latino student intervenors in the 

University of Michigan undergraduate affirmative action case, 

Gratz, et al. v. Bollinger, et al., in which the Supreme Court held 

in favor of diversity as a compelling State interest. Mr. Shaw also 

serves as an adjunct professor of law at Columbia Law School. We 

welcome you here this afternoon, Mr. Shaw. 

Our second witness will be Ms. Anne Lewis. Ms. Lewis currently 

serves as a partner at the Georgia law firm Strickland Brockington 

11

Lewis LLP, where her practice focuses on regulatory matters involving public utilities before the Georgia Public Utility Commission. 

In addition, Ms. Lewis represents clients in various public policy 

and legislative matters, including redistricting. During the 2000 redistricting cycle, Ms. Lewis, together with her partner Frank 

Strickland, represented four intervenors in the State of Georgia’s 

section 5 preclearance case, Georgia v. Ashcroft. Ms. Lewis also represented the plaintiffs in the Fulton County 

School Board redistricting case, Markham v. Fulton County School 

Board; and served as counsel to former Speaker Newt Gingrich and 

Congressman John Lewis, amicus curiae in the 1990 Georgia redistricting case, Johnson v. Miller. Ms. Lewis is a certified mediator, and is a volunteer with Hands 

on Atlanta and a truancy intervention program. And we welcome 

you here this afternoon, Ms. Lewis. 

Our third witness will be Georgia State Representative Tyrone 

Brooks. Congressman Brooks currently represents the 47th District 

in the State of Georgia, as well as serves as the President of the 

Georgia Association of Black Elected Officials. 

Mr. Brooks has a long and distinguished career as a civil and 

human rights activist, beginning his career at the Southern Christian Leadership Conference, SCLC, where he worked as a volunteer and was eventually hired by Dr. Martin Luther King, Jr. 

During his 19 years at the SCLC, Representative Brooks held 

several positions, including National Communications Director, National Field Director, and Special Assistant to the President; and 

served under three very distinguished Presidents, Dr. Martin Luther King, Jr., the late Rev. Ralph Abernathy, and Dr. Joseph E. 

Lowery. 

Representative Brooks has continued his efforts in the State legislature, where he advocates for legislation ending discrimination, 

racism, illiteracy, and injustice. Representative Brooks was co-author of the ‘‘max black plan,’’ used to create more majority-Black 

districts, which resulted in the election of 3 African-Americans to 

Congress and 44 to seats in the general assembly. 

Representative Brooks is a member of the Georgia Black Legislative Caucus, and is co-founder of the Coalition for the People’s 

Agenda. He is also active in many other organizations dedicated to 

equality and justice. We welcome you this afternoon, Mr. Brooks. 

And our fourth and final witness will be Mr. Laughlin McDonald, 

current Director of the ACLU Voting Rights Project. As Director, 

Mr. McDonald has played a leading role in eradicating discriminatory election practices and protecting the progress made by racial 

minorities in voting since the passage of the original Voting Rights 

Act back in 1965. 

In 1972, Mr. McDonald joined the Southern Regional office of the 

ACLU as Executive Director, and won some of the most precedentsetting cases, including those that secured the ‘‘one person, one 

vote’’ principle, established the right of women to serve on juries, 

and ended discriminatory at-large elections. 

Prior to his work at the ACLU, Mr. McDonald served on the faculty of the University of North Carolina Law School and in private 

practice. We welcome you back again, Mr. McDonald. 

12

For those of you who may not have testified before the Committee, I’ll just familiarize you with the 5-minute rule. You have 

5 minutes to testify. We have a lighting system. There are two 

boxes there in front of you. For 4 minutes, the green light will be 

on; 1 minute, it will be yellow, and let you know that it’s time to 

wrap up; but when the red light comes on, your time is up. And 

we’d appreciate your trying to stay within that time frame as much 

as possible. 

I would also encourage my colleagues, who are also limited by 

the 5-minute rule, to try to keep as close to the 5 minutes as we 

can, because we have another hearing on the Voting Rights Act 

that’s been scheduled for 4. We’ll probably have to push that back 

a little bit, but we have another distinguished panel to testify. We 

don’t want to keep them waiting too long. So if we can stay within 

the 5 minutes, that would be much appreciated. 

It’s also the practice of this Committee to swear in witnesses 

prior to their testimony, so we’d ask you all to please stand and 

raise your right hands. 

[Witnesses sworn.] 

Mr. CHABOT. Thank you. Each witness has indicated in the affirmative. 

We’re now ready to hear from the panel. And Mr. Shaw, if you’re 

ready, we’ll hear you for 5 minutes. And you’ll have to turn on the 

mike there. Thank you very much. 

TESTIMONY OF THEODORE M. SHAW, PRESIDENT AND DIRECTOR-COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC. 

Mr. SHAW. Thank you, Mr. Chairman. Members of the Committee and distinguished Representatives, counsel, as President 

and Director-Counsel of the NAACP Legal Defense and Educational Fund, I welcome the opportunity to testify before the Committee regarding the judicial interpretation of the retrogression 

standard as it relates to the renewal of section 5 of the Voting 

Rights Act. 

The Voting Rights Act is widely regarded as one of the greatest 

achievements in the Civil Rights Movement. It reflects Congress’

meaningful and lasting embrace of equal protection of the law and 

equal political opportunity. 

The context for the current renewal debate is one in which LDF’s 

perspective reveals two truths that shape the current debate: First, 

we must recognize that we’ve made a great deal of progress, a lot 

of change for the better, since 1965, due in large part to the existence of strong, effective civil rights laws, such as the Voting Rights 

Act. Second—and LDF’s experience bears this out—any accurate 

description of the situation within covered jurisdictions illustrates 

that in significant respects, a great deal remains to be done, if we 

are to achieve the political equality to which the Reconstruction 

constitutional amendments unequivocally commit us. 

The ability for minority communities to elect candidates of their 

choice has been at the core of the Voting Rights Act. Typically, a 

section 5 assessment of the ability to elect occurs in the context 

characterized by, one, the national preference for single-member 

electoral districts and, two, the continued existence of racially-poVerDate 0ct 09 2002 14:48 Feb 28, 2006 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6601 G:\WORK\CONST\110905A\24504.000 HJUD1 PsN: DOUGA
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larized voting patterns—and that’s really key; I will underscore 

that, and come back to that, if need be, again and again in the few 

minutes I have—and three, the persistent efforts to dilute minority 

votes by depriving their communities of the benefits of fairly drawn 

redistricting plans. 

Against this backdrop, and in the wake of the Supreme Court’s 

reconceptualization of section 5 preclearance in Georgia v. Ashcroft, I wish to direct the remainder of my remarks to explaining several 

of the reasons why Congress should act to restore protection for the 

ability of minority voters to elect candidates of their choice as a 

touchstone of retrogression analysis. 

Let me turn then to judicial development of the retrogression 

standard, Beer v. U.S., and then talk about Georgia v. Ashcroft. In 

Beer v. United States, the Supreme Court held that section 5 required the denial of preclearance to changes in voting practices and 

procedures if ‘‘the ability of minority groups to elect their choices 

to office is diminished.’’ The relatively clear standard established in 

Beer, accepted without modification by Congress when it amended 

section 2 and extended section 5 in 1982, was significantly weakened by Georgia v. Ashcroft in 2003. 

According to the Supreme Court’s majority opinion, as compared 

to the benchmark 1997 plan, the post-2000 Census enactment ‘‘unpacked’’ the most heavily concentrated majority-minority districts 

in the benchmark plan and created a number of new ‘‘influence’’ districts. 

The three-judge court found the plan to be retrogressive. The Supreme Court reversed, in an opinion by Justice O’Connor which reconceptualized the test to allow jurisdictions to choose to protect 

the ability to elect or, in the alternative, to pursue an increase in 

minority influence by dispersing voters, even if existing opportunities to elect are sacrificed. 

We believe that there is a need for clarification of the retrogression standard. There are several reasons that Congress ought to 

engage in this clarification and restore the emphasis on protecting 

minority voters’ ability to elect. 

One is that Georgia v. Ashcroft permits tangible minority gains 

to be sacrificed. Contrary to the purpose of section 5, the new retrogression standard allows a jurisdiction to decide whether it will 

protect hard-won gains and opportunities to elect. It permits a jurisdiction to choose among different theories of representation and 

introduces a substantial uncertainty for minority communities into 

a statute that was specifically intended to block persistent and 

shifting efforts to limit the effectiveness of minority political participation. 

The benefit of minority communities choosing the candidates who 

represent them is clear to those communities, as it was to any 

other community. And the Nation’s commitment to representative 

democracy is at issue. 

Two, we believe that Georgia v. Ashcroft invites and shields vote 

dilution. ‘‘Cracking’’ and ‘‘unpacking’’ could be a problem; but clearly, this invites the ‘‘cracking of minority districts.’’ We believe the 

standard is difficult to administer. We don’t know what ‘‘influence 

districts’’ really mean. And we also believe that it undermines the 

section 5 benchmark analysis. 

14

My testimony is more full, and addresses this and it’s submitted 

in writing. Five minutes doesn’t allow me to talk about this issue 

in all the detail. I hope that we can do so in some questions and 

answers. 

At bottom, Mr. Chairman and Members of the Committee, I 

think that we have to remember that section 5 is—it was a standard that we could administer, under Beer. And we need to restore—not only extend, but restore—the Voting Rights Act and section 5 to full strength. I invite questions. 

[The prepared statement of Mr. Shaw follows:]

PREPARED STATEMENT OF THEODORE M. SHAW


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Mr. CHABOT. Okay. Thank you very much. All the written statements will be made part of the record. And if you don’t get into everything during the question period, we’ll probably get into those 

items. You may not have had time. Thank you very much for your 

testimony. 

Ms. Lewis, you’re recognized for 5 minutes. 

TESTIMONY OF ANNE W. LEWIS, ATTORNEY,

STRICKLAND BROCKINGTON LEWIS LLP 

Ms. LEWIS. Thank you, Mr. Chairman and Members of the Committee. I appreciate this opportunity to provide testimony regarding the important issue of the renewal of section 5 of the Voting 

Rights Act. I believe that it’s imperative that that section be renewed, and that it is also imperative that in renewing that section 

Congress give great consideration to a revision of the Ashcroft test, 

so that we go back to the former standard of judging whether or 

not there was retrogression. 

My practice is primarily devoted to redistricting, and that’s my 

experience with respect to section 5 generally. During the 1990’s, 

I represented a group of citizens in a redistricting case called Jones 

v. Miller. And then I did have the distinct pleasure of, along with 

my co-counsel, representing Congressman Lewis and Former 

Speaker Newt Gingrich, in the case of Abrams v. Johnson. In the 2000 redistricting cycle, I served as counsel for four minority citizens, two Democrats and two Republicans, in the case of 

Georgia v. Ashcroft. In that case, the voters we represented opposed the congressional plans and the State legislative redistricting 

plans, on the ground that the plans were all retrogressive. 

The district court precleared the congressional and state house 

plans, but denied preclearance of the State senate plan. As you 

know, the Supreme Court reversed and remanded and sent back 

the case to the district court, and in the process redefined ‘‘retrogression’’ and added an additional method by which a jurisdiction 

might prove there was no retrogressive effect with respect to minority voting rights. 

While the district court was in the process of attempting to apply 

the Supreme Court’s instructions—which, I will suggest to you, 

would be basically impossible to do—we were also litigating the 

case of Larios v. Cox in Georgia, in which we represented a group 

of 29 Georgia voters who contended that the State legislative and 

congressional plans violated the constitutional guarantee of one 

person, one vote. 

Because we were ultimately successful in that case with respect 

to the State and legislative redistricting plans, and the senate plan 

at issue in Ashcroft was one of those plans, the Ashcroft district 

court decided that the case was moot. And so ultimately, that district court never applied the standard that had been issued by the 

Supreme Court. 

In my testimony, I have described the evolution of the judicial interpretation of section 5 through the years since the last renewal 

of the Voting Rights Act. I want to focus in my remaining couple 

of minutes on the fact that in the Ashcroft case, the Court agreed 

with the State’s new theory that a jurisdiction could show that, in 

addition to the traditional form of retrogression which asked the 

31

question, ‘‘Is the minority community still able to elect the candidate of choice?’’, retrogression, or a lack thereof, could also be 

proven by answering the question, ‘‘Is the minority group’s opportunity to participate in the political process diminished?’’ I’ll suggest to you that, both from the perspective of an attorney 

practicing in this area and, more importantly, from the perspective 

of a voting rights issue, this standard is impossible to apply. 

First, the Supreme Court asks, in determining whether or not a 

minority group had the opportunity to participate in the political 

process, one might examine factors including the likelihood that 

candidates selected without decisive minority support would be 

willing to take minority groups’ interests into account; and the 

question of whether it’s better to risk having fewer minority representatives in order to achieve greater overall representation of a 

minority group by increasing the number of representatives sympathetic to the interests of minority voters. I suggest to you that 

would be almost impossible to apply and to prove with respect to 

section 5. 

In looking at the issue of influence districts, the Court also concluded that a section 5 reviewer might look at ‘‘the comparative position of legislative leadership, influence, and power for representatives of the benchmark majority-minority districts,’’ and also 

whether the representatives elected from the very districts created 

and protected by the Voting Rights Act supported the redistricting 

plan. 

Well, as you all know, there is a measure of support for legislative acts that varies; and the motivation varies for that support. 

And so I think, again, that would be a very subjective inquiry, and 

impossible to apply, and detrimental to the very purpose of section 

5. 

I think that, in addition to the fact that it’s difficult to apply 

those, what came from Ashcroft was that a very real diminishment 

of voting rights, minority voting rights, was seen in the very next 

elections. In the 44th Georgia House of Representatives District, 

Billy McKinney, a longtime incumbent, lost to a relatively unknown White challenger in the primary. Similarly, in a senate district which we had challenged in the Ashcroft case, there was the 

senate majority leader who was defeated by a White challenger in 

a highly polarized election. 

I firmly believe that section 5 remains an important component 

of election law, and should be renewed in some form. However, the 

alternative test announced in Ashcroft should be eliminated. From 

a practical perspective, it’s impossible to apply; and from a voting 

rights perspective, it’s a disaster. Thank you. 

[The prepared statement of Ms. Lewis follows:]

PREPARED STATEMENT OF ANNE W. LEWIS

Mr. Chairman and members of the committee, thank you for this opportunity to 

provide testimony regarding the very important issue of renewal of certain sections 

of the Voting Rights Act. While I recognize that the question of renewal extends to 

Section 5, 6 and 8, my focus today is on Section 5 and to some extent its interplay 

with Section 2, as my experience with the Voting Rights Act has involved those two 

Sections primarily, in the context of redistricting. In my testimony, I would like to 

cover four areas. First, I will provide a short description of the important role the 

Voting Rights Act has served in bringing about increased fairness in the composition 

of election districts at every level of government in Georgia, and hopefully dispel a 

32

couple of pernicious myths that have developed regarding the Act’s enforcement. 

Second, I will address the Supreme Court’s decision in Ashcroft and why the holding 

in this case threatens to result in districts that are less fair for minority voters. 

Third, I will discuss why a failure to renew Section 5 will result in election districts 

at most levels of government that will not only be less fair for minorities, but for 

most other segments of our electorate is well. Fourth and finally, I will touch on 

the need to consider which jurisdictions and what conduct is covered by Section 5. 

By way of background, I am an attorney in Atlanta, Georgia with the law firm 

of Strickland Brockington Lewis LLP. During the 1990s redistricting cycle, I was 

one of the attorneys representing a group of citizens in the case called Jones v. Miller. In that case, the citizens sought court intervention in the redistricting process 

when the State of Georgia’s 1991 redistricting plans were not precleared. Later in 

that decade, I served as one of the attorneys to former speaker Newt Gingrich and 

Congressman John Lewis in the case of Abrams v. Johnson, which later became 

known as Johnson v. Miller. In that case, my co-counsel and I had the distinct and 

rather rare privilege of representing both Congressman Gingrich and Congressman 

Lewis. 

In the 2000 redistricting cycle, I served as one of the counsel for four minority 

citizens—two Republicans and two Democrats—in the case of Georgia v. Ashcroft,

in which the State of Georgia sought Section 5 preclearance from the District Court 

for the District of Columbia. The voters we represented opposed Georgia’s Congressional and state legislative redistricting plans on the ground that the plans were 

retrogressive. The District Court precleared the Congressional and state House 

plans but denied preclearance of the state Senateq plan. As you know, the case went 

to the Supreme Court and was reversed and remanded. In essence, the Supreme 

Court added an additional method by which a jurisdiction might prove there was 

no retrogression with respect to minority voting rights. Although retrogression had 

always been measured by whether the new redistricting plan so decreased minority 

voting strength in majority-minority districts that the plan resulted in a backsliding 

in minority voting rights, in Ashcroft, the Supreme Court determined that retrogression might also be measured by whether, despite the decrease in minority voting 

strength in majority-minority districts, there were additional ‘‘influence’’ or 

‘‘coalitional’’ districts formed sufficient to compensate for the losses in minority voting strength in majority-minority districts. In reversing and remanding, the Supreme Court directed the District Court to consider whether the State, although not 

meeting the traditional test of retrogression, had, in fact, met the new test. 

While the District Court was in the process of attempting to apply the Supreme 

Court’s instructions—including whether to hold a new trial, what new discovery was 

required, what new evidence would be allowed and the like—we were litigating the 

case of Larios v. Cox in Georgia, in which we represented a group of 29 voters who 

contended that the state legislative and Congressional plans violated the constitutional guarantee of one person, one vote. We were ultimately successful on the state 

legislative plans, and they were redrawn by the federal court; that decision was 

summarily affirmed by the Supreme Court. Subsequently, the District Court in 

Ashcroft dismissed that case, and so it never applied the new Section 5 test of 

Ashcroft. As I will discuss later, it is both a mystery to me as to how that test would 

have been applied and how it would not ultimately result in a retrogression in minority voting rights—the very evil that Section 5 is designed to remedy. 

While Ashcroft muddies the Section 5 waters, I firmly believe that Section 5 remains an important component of election law and should be renewed in some form. 

In the two decades since the Voting Rights Act was last amended and renewed in 

1982, a revolution has occurred in American election law that has resulted in representation that more accurately reflects the composition of the American electorate 

than any previous time in our history. The Voting Rights Act has been an important 

factor in that progress and remains necessary today. 

A. THE ROLE OF THE VOTING RIGHTS ACT IN BRINGING ABOUT FAIR DISTRICTS AND THE

ROLE OF THE DEPARTMENT OF JUSTICE IN ADMINISTERING SECTION 5

In 1982, when the Voting Rights Act was last amended and renewed, America’s 

congressional and legislative districts, as well as those in many of its local jurisdictions, were gerrymandered in a fashion that denied fair representation to most African-Americans and other ethnic minorities; oddly enough, the same gerrymandering 

tactics denied fair representation to a majority of white (non-Hispanic) voters. These 

gerrymanders would have been permanent, absent a case-by-case judicial remedy or 

a broad-scale legislative remedy. In amending the Voting Rights Act in 1982, Congress provided that legislative remedy. 

33

By 1994, little more than a decade later, African-Americans and Hispanics in Congress had more than doubled, with almost all of these representatives coming from 

majority-minority districts. Those districts were drawn for one reason: because the 

Voting Rights Act required them to be. 

However, the extension and application of the Voting Rights Act has not simply 

made election districts fairer for minority voters. The Act has also made the election 

districts fairer for all voters. For instance, the current national congressional map 

more accurately reflects the votes cast for Congress than any congressional map in 

the last four decades. Likewise, the Georgia legislative map more accurately reflects 

the votes cast for the Georgia General Assembly than any map in the last three decades. Drawing fair districts for minority voters has a complementary effect of making it more difficult to gerrymander other voters. When the drawing of majority-minority districts is coupled with other neutral districting criteria, such as a strict oneperson one-vote requirement and geographic compactness, gerrymandering becomes 

much more difficult. 

Despite the great strides that have been made under the Voting Rights Act, particularly those that have resulted from the application of Section 5, the need for the 

Section remains, as the political will to gerrymander minority communities is still 

prevalent in most of the jurisdictions covered by Section 5, and, perhaps, in some 

jurisdictions that are not currently covered by Section 5 but should be. Perhaps the 

reason for the gerrymandering has changed to some degree, in that gerrymandering 

minority communities may be less the result of racial animus than the result of a 

political effort to help incumbents retain their power. However, the effect is the 

same—a lessening of voting strength in minority communities as incumbents try to 

hold onto power. 

As Judge Kozinski noted in Garza vs. County of Los Angeles, ‘‘the record before 

us strongly suggests that political gerrymandering tends to strengthen the grip of 

incumbents at the expense of emerging minority communities. Where, as here, the 

record shows that ethnic or racial communities were split to assure a safe seat for 

an incumbent, there is a strong inference—indeed a presumption—that this was a 

result of intentional discrimination.’’ Judge Kozinski drew an analogy to housing 

discrimination to illustrate his point that whether the action was motivated by racial animus or not, the intent was still to discriminate against minorities. His example: ‘‘Assume you are an Anglo homeowner who lives in an all-white neighborhood. 

Suppose, also, that you harbor no ill feelings toward minorities. Suppose further, 

however, that some of your neighbors persuade you that having an integrated neighborhood would lower property values and that you stand to lose a lot of money on 

your home. On the basis of that belief, you join a pact not to sell your house to minorities. Have you engaged in intentional racial and ethnic discrimination? Of 

course you have. Your personal feelings towards minorities don’t matter; what matters is that you intentionally took actions calculated to keep them out of your neighborhood.’’

While the positive results that have come from Section 5 cannot be doubted, critics have alleged that the increase in majority-minority districts that occurred in the 

1990 round of redistricting occurred were not the natural result of the application 

of Section 5 but resulted from an improper application of the Section by the Department of Justice. Those critics contend that the increase in majority-minority districts occurred because the Department of Justice (1) incorporated Section 2 into the 

Section 5 analysis and (2) adopted a commensurate policy of proportional representation or minority maximization. Neither of these allegations is true. During the 

1990 redistricting cycle the Department of Justice issued only one objection letter 

based on the incorporation of Section 2 into the Section 5 analysis. That objection 

letter was issued to the Bossier Parish school board, and the error was corrected 

by the Supreme Court in Bossier I. 

Instead, the overwhelming majority of objection letters issued during the 1990 redistricting cycle was directed at violations of the purpose prong of Section 5 and 

cited the Garza case. Garza required that during the redistricting process, the jurisdiction had been made aware that the redistricting map ultimately adopted would 

discriminate against a minority community. Opponents had to take the criteria 

enunciated by the jurisdiction and construct an alternative redistricting map which 

(1) had a lower population deviation than the plan’s, (2) better met the jurisdiction’s 

stated criteria and (3) created an additional majority-minority district(s). Discriminatory intent could be shown by eliminating any excuse for not drawing the majority-minority district (other than the protection of non-Hispanic white incumbents). 

Jurisdictions therefore were faced with a choice: they could subordinate the personal political demands of their white incumbents, adhere strictly to stated criteria 

and construct a geographically compact majority-minority district or they could 

abandon their stated criteria and draw a geographically tortured configuration of 

34

the majority-minority district in an effort to ameliorate the negative political effects 

on non-Hispanic white incumbents. Most jurisdictions, including Georgia, unfortunately chose the latter. 

As a result, advocates for minority voters, as well as other participants in the redistricting process, could then use the stated criteria, or, often, the absence of any 

criteria, to determine if the construction of even more majority-minority districts 

was possible. Typically, such was possible, and the plans would not be precleared. 

In trying to remedy the situation, a jurisdiction would draw even more majority-minority districts but would still typically draw unnecessarily tortured configurations 

of the majority-minority districts in order to minimize the negative political effects 

on non-Hispanic white incumbents. 

Once the gerrymandering tool of refusing to draw naturally occurring geographically compact majority-minority districts was eliminated by the enforcement of the 

Voting Rights Act, more cartographically obvious methods had to be employed to 

draw more majority-minority districts. In his dissent in the first Shaw decision, Justice Stevens correctly noted that the bizarre shapes of the districts were caused by 

political gerrymandering and not by racial gerrymandering. 

The state House and Senate plans produced by the special master in the Georgia 

one person, one vote case—Larios—illustrate that the convoluted and bizarre shapes 

previously employed in Georgia’s congressional and legislative redistricting maps 

were completely unnecessary in order to draw majority-minority districts. The special master’s map did not retrogress, either in the number of majority-minority districts or the minority voting strength in those districts. However, these districts 

were far more compact than the districts that had been used in Georgia since 1992, 

while still complying with traditional redistricting criteria. As a result, the special 

master’s map offers the protection of the Voting Rights Act while, at the same time, 

more accurately reflects the political preferences of all of the voters than any map 

of the Georgia General Assembly in the past 30 years. 

B. THE ASHCROFT DECISION: WHAT DOES IT MEAN FOR THE CONTINUED

VITALITY OF SECTION 5?

Although the Supreme Court in Bossier II ultimately disagreed with the application of the Garza standard because the Court decided that Section 5 purpose prong 

is different from the ‘‘purpose’’ of the 14th Amendment, as it is limited to ‘‘retrogressive’’ intent, i.e., discriminatory intent vs. retrogressive intent. Although after Bossier II, it did not appear that our clients prove the required ‘‘retrogressive purpose’’

without proving the requisite effect, clearly they could have shown the discriminatory intent described by Judge Kozinski in Garza in the 2002 redistricting map for 

the Georgia General Asssembly. Through a combination of a reduction of minority 

voting strength in existing majority-minority districts, multimember districts, and 

bizarrely drawn districts, non-Hispanic white Democrats attempted to maintain 

their control over the Georgia General Assembly at the expense of minority voters 

and Georgia’s Republican voters. This was the basic motivation that caused the 

General Assembly to produce the redistricting plans that were litigated in Georgia 

v. Ashcroft. 

Although proving intent alone would not be sufficient, we did not suspect that we 

would have difficulty proving the requisite effect under existing case law—until the 

Supreme Court changed the definition of retrogression and the effects test in 

Ashcroft. As noted previously, we represented a bipartisan group of four minority 

citizens who intervened in that case. Our principal argument was that the Voting 

Rights Act was not intended to protect the incumbents of any political party or, for 

that matter, the incumbents of any particular race. Instead, the purpose of the Voting Rights Act is to protect the rights of voters in minority racial and language communities, who have historically been denied the opportunity to elect candidates of 

their choice. By reducing the minority voting strength in existing majority-minority 

districts to a level at which the minority community no longer constituted majority 

in those districts or to a level at which the minority community was barely a majority, there was clearly an effect of backsliding or retrogression in the rights of minority voters to elect candidates of their choice. This occurred in two basic ways. First, 

the most immediate and identifiable way: the minority voting strength in the districts was so significantly reduced that the minority candidate of choice would lose. 

The other is a type of retrogression that is more subtle and more dangerous. By 

judging retrogression primarily from the perspective of whether the incumbent in 

the majority-minority district thinks the district is satisfactory, the focus is on the 

incumbent’s desires, rather than the rights of the voters. Minority incumbents share 

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tricts with lower minority voting strength than would be insufficient to elect any 

other minority candidate of choice once the incumbent leaves office. While such districts might be sufficient for minority incumbents, they fail to protect minority voters who will be left in the same situation that existed prior to 1982 once the incumbent leaves. 

Oddly enough, when the four minority voters we represented attempted to intervene, the State vigorously objected to their participation in the case. The State argued that the Department of Justice would adequately protect our clients’ interests, 

and therefore, they had no place in the case. We responded that it certainly seemed 

that minority voters would have an interest in the Section 5 preclearance of redistricting plans and that had the State not taken the rare route of litigation to obtain 

preclearance, we would have had the right to file objection letters with the Department of Justice. If the State’s position were to be adopted, then a Section 5 jurisdiction could simply squelch any minority opposition to Section 5 preclearance by filing 

a declaratory judgment action in the District Court for the District of Columbia and 

leave minority voters out in the cold. While the District Court struggled somewhat 

with the issue of intervention, the Supreme Court did not. In its appeal, the State 

again raised the question of whether minority voters should be allowed to intervene. 

The Supreme Court devoted one paragraph of its opinion to state unequivocally that 

such intervention was appropriate. 

The rest of the Supreme Court’s opinion is much more dramatic, as it changed 

both the definition of retrogression and the effects test. After the District Court 

precleared the House and Congressional plans but refused to preclear the Senate 

plan, the State appealed to the Supreme Court. By a five to four margin, the Court 

agreed with the State’s new theory that a jurisdiction could show that there had 

been no retrogression in one of two ways. The first is the traditional method of 

maintaining both the number of majority-minority districts as well as effective minority voting strength in those districts, with the relevant question being, ‘‘Is the 

minority community still able to elect a candidate of choice?’’

The second is a new method whereby the number of majority-minority districts 

is reduced and the minority voting strength in other majority-minority districts is 

also reduced, with the relevant question being, ‘‘Is the ‘‘minority group’s opportunity 

to participate in the political process’’ diminished?’’ The Court concluded that there 

were several measuring sticks for answering that question, all of them, in my opinion, extremely vague and, in practice, impossible to apply. 

The first measuring stick focuses on whether additional ‘‘influence’’ or ‘‘coalitional’’

districts are created in which the minority community may or may not be capable 

of electing a candidate of choice but can play a ‘‘role’’ in the electoral process. The 

Court concluded: ‘‘Thus, a court must examine whether a new plan adds or subtracts ‘‘influence districts’’—where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process.’’ Georgia v. Ashcroft, 539 U.S. 461, 482 (2003). To determine whether there was 

such a role, the Court offered that one might examine various vague factors, including:

• ‘‘the likelihood that candidates elected without decisive minority support 

would be willing to take the minority’s interests into account;’’ and

• whether it ‘‘is better to risk having fewer minority representatives in order 

to achieve greater overall representation of a minority group by increasing 

the number of representatives sympathetic to the interests of minority voters.’’

Ashcroft, 539 U.S. at 482–83. 

In addition to examining influence districts, the Court also concluded that Section 

5 reviewer might look at ‘‘the comparative position of legislative leadership, influence, and power for representatives of the benchmark majority-minority districts’’

and ‘‘whether the representatives elected from the very districts created and protected by the Voting Rights Act support the new districting plan.’’ Ashcroft, 539 U.S. 

at 483–84. 

In addition to the fact that any of those inquiries are extremely subjective and 

appear to focus on incumbents rather than voters, the more distressing fact is that 

the 

decision of the Ashcroft court had real and immediate retrogressive effects. In the 

44th Georgia House of Representatives district, Billy McKinney, a long-time incumbent African-American legislator and the father of one of your colleagues, Congresswoman Cynthia McKinney, saw his African-American voting strength in the 

precleared plan reduced by approximately 17 percentage points. In the next Democratic primary, he faced a white challenger, a relative unknown, and was defeated. 

36

Similarly, in a Senate district in Augusta, the minority voting strength was reduced to a level at which it was doubtful that minority voters still constituted a majority of the actual electorate in the district and could re-elect the African-American 

Senator; we objected to the district in the Ashcroft case on those very grounds. The 

Department of Justice did not. Subsequently, the Senator, who was the Majority 

Leader in the Georgia Senate, lost his seat to a white challenger in a highly racially 

polarized election. 

Because the 2002 legislative map was only used for one election and all of the 

African-American incumbents in the weaker minority districts ran for reelection, 

there was no opportunity to see actual retrogressive effects due to retirement of minority incumbents as I described earlier. However, the immediate loss of minority 

incumbents to white challengers as a direct result of the decision in Ashcroft indicates that if the Supreme Court’s interpretation of Congressional intent with respect 

to Section 5 is allowed to continue without modification, then I believe we will see 

a steady reduction of African-American officeholders at all levels of American government as current African-American incumbents retire from office. 

With respect to the Congressional Districts, the voters we represented objected to 

the plan; the Department of Justice did not. Two highly racially polarized elections 

conducted in the congressional districts—which were constructed in a manner similar to many of the districts in the state legislative plans—illustrate the factual fallacy of the Ashcroft decision. The 12th Congressional District was touted by the 

State as a district which could be won by an African-American, despite the fact that 

it was not a majority-minority district. In 2002, the African-American candidate was 

defeated by a white candidate in the general election in a racially polarized contest. 

In 2004, in that same district, an African-American candidate was defeated by white 

candidate in the primary. 

In 2002, Congresswoman Cynthia McKinney saw the minority voting strength in 

her district diminished. She was defeated in one of the most highly racially polarized elections in Georgia history, even though her opponent in the Democratic primary was also an African-American. 

C. WHY FAIR REDISTRICTING REQUIRES RENEWAL OF SECTION 5

The goal of fair redistricting, and indeed of fair elections in general, should be 

that the political distribution of the representatives is within acceptable margins, 

approximately similar to the political preferences expressed by the voters in the 

election. These representatives can and should be elected from geographically compact communities of interest, including minority racial and language communities 

of interest. Minority racial and language communities have historically been ignored 

or worse actively fractured in order to prevent these communities from electing candidates of choice. For far too long it has been falsely asserted that majority-minority 

districts and geographically compact districts that accurately reflect the jurisdiction’s various communities of interest are antithetical. The redistricting plan of the 

special master in the Larios case illustrates that this is not true. In fact, providing 

fair representation to minority racial and language communities is complementary 

and a critical part of producing a fair redistricting plan. 

The 2002 redistricting maps in Georgia prove what will happen if Section 5 of the 

Voting Rights Act is not renewed and the Ashcroft decision not modified. Minority 

racial and language communities will be fractured in order to protect white incumbents. The slices may be small at first but it will be a death by a thousand cuts. 

A few minority officeholders will be defeated, even more will retire and not be replaced. This loss of officeholders will make it even more difficult to prevent further 

fracturing of minority racial and language communities, which will result in an ultimate downward spiral that minimizes the number of minority officeholders at all 

levels of American government. To allow this result is particularly unacceptable 

when one realizes that preventing it—as illustrated in the plans of the special master in the Larios case—does not have to and should not conflict with the other basic 

precepts of fair redistricting. 

D. WHAT SHOULD THE SCOPE OF SECTION 5 RENEWAL BE?

While I do not pretend to have an answer to the question what the scope of renewal should be, I think, as I am sure that you have discussed at length, that the 

two important issues are which jurisdictions should be covered and what conduct 

should be covered. I believe that it is clearly the case that since the measuring time 

of November 1, 1964, the jurisdictions that should be covered may have changed. 

One concept is to renew only those that are covered, another is to cover all jurisdictions and a third is to reevaluate what constitutes a jurisdiction that should be covered. Only covering those that are covered now ignores the fact that times have 

37

changed. Some still probably need to be covered, others probably do not. Covering 

all jurisdictions raises constitutional questions concerning Congress’ power to intrude so drastically upon states’ rights without a demonstrated need for the same. 

Re-evaluating the jurisdictions that should be covered is the best and, naturally, the 

most onerous solution. 

An easier question is what should be covered. While no one would debate that redistricting decisions should be covered, it seems less plausible that a decision to 

move a polling place in a voting precinct from one public building to another or to 

hold a special election when one is required should be the subject of preclearance. 

I would like to thank the committee for its consideration of my comments. I will 

attempt to answer your questions, and I would request, given the constraints on 

time, that I be allowed to revise and extend my remarks where appropriate.

Mr. CHABOT. Thank you very much. 

Representative Brooks, you’re recognized for 5 minutes. 

TESTIMONY OF THE HONORABLE TYRONE L. BROOKS, SR., 

MEMBER, GEORGIA GENERAL ASSEMBLY, AND PRESIDENT, 

GEORGIA ASSOCIATION OF BLACK ELECTED OFFICIALS 

Mr. BROOKS. Thank you, Mr. Chairman. And certainly, we want 

to thank Chairman Sensenbrenner for the invitation to appear 

today to offer some advice as to how you should proceed in addressing the issue of section 5 and renewal of the Voting Rights Act. 

You do have my written testimony, so I will not belabor you with 

going through that. I will point out that in my testimony I do mention one of my colleagues, Representative Bob Holmes, who preceded me in the House, along with David Scott and Sanford Bishop, 

my colleagues from Georgia. 

I will say to you that my life has been one of working in civil 

rights and voting rights, and the introduction that you gave me indicated that. But I want to say to you today that as we come back 

to this great, august body to talk about saving the Voting Rights 

Act in some respect, we have to remember that in this country 

where African-Americans may comprise between 12 and 15 percent 

of the U.S. population, we’re still less than 2 percent of the body 

politic. And in my home State of Georgia, where we are 30 percent 

of the population, we comprise less than 6 percent of the body politic, in terms of elected officials. 

So that tells you that we need these protections afforded to us 

under section 5. As long as we live in a society where we have racially-polarized voting, it is imperative that we have the protections 

of section 5. 

In my State of Georgia, where we’ve made an awful lot of 

progress, we continue to make progress, without those protections, 

we know that we will have retrogression and dilution. 

I’m just happy to know, as we come today as a panel, that there 

is great sentiment among you to consider our testimony. But I 

want to say to you that, as last week, Congressman Conyers, as we 

funeralized and memorialized Rosa Parks for her great contributions and touching off the modern-day Civil Rights revolution, the 

greatest tribute we could pay to Rosa Parks is to extend the Voting 

Rights Act. Because she was not sitting down just to be on the 

front of the bus; she was sitting down to vote. She had tried to register to vote on numerous occasions in Montgomery, and been denied. So when she sat down on the front of the bus, it was a message to America, ‘‘I want to cast a ballot. I want to be a registered 

voter.’’

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So as we come today before you as a panel, hopefully, at the end 

of the day, you will understand the importance of extending the 

Voting Rights Act and section 5. The most important law that this 

Congress has ever adopted, since our Nation was founded, since the 

Emancipation Proclamation, is the 1965 Voting Rights Act. 

Section 5 is the meat of the act. We need those protections. We 

must have those protections, unless we want America to live in a 

society where we would have a legal apartheid in our political system. We can’t go back. We must go forward. 

So my testimony today will speak to the issue of Ashcroft and 

Georgia. But also, it will speak to the need for us to be sensitive 

to the idea of inclusion in the body politic, by allowing for the creation of majority-Black districts. We have to have that protection. 

Influence districts can never be the substitute for majority-Black 

districts, can never be. 

So at the end of the day, we hope and pray that this Committee 

will understand the importance of extension, but also the protections afforded to us under section 5. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Brooks follows:]

PREPARED STATEMENT OF THE HONORABLE TYRONE L. BROOKS, SR. 

I want to thank the committee for giving me an opportunity to express my views 

on the important issues facing the Congress as it considers extending the special 

provisions of the Voting Rights Act scheduled to expire in 2007. As a 25 year member of the Georgia legislature (House District 63) that passed the redistricting plans 

that were the subject of the Georgia v. Ashcroft litigation, I am especially pleased 

to address and try to clear up some misconceptions about the role of the black legislative caucus in the enactment of those plans. 

Much progress has indeed been made in recent time in minority voting rights and 

office holding in my state, and in the South, but it has been made in large measure 

because of the existence of Section 5 and the other provisions of the Voting Rights 

Act. Had there been no federal intervention in the voting and redistricting process, 

it is unlikely that most southern states would have ceased their practices of denying 

and diluting the black vote. The fact that Section 5 has been so successful is one 

of the arguments in favor of its extension, not its demise. 

As important, the temptation for manipulation of the law in ways that will disadvantage minority voters is as great and irresistible today as it was in 1982, when 

Congress last extended Section 5. Removal of the federal oversight that Section 5 

provides would doubtlessly result in a significant erosion in minority voting rights. 

That is evident, I think, from the fact that Georgia has received a total of 80 objections under Section 5 since the last extension of the preclearance requirement. A 

list of the state’s Section 5 objections is attached. 

And just this year, the state enacted a photo ID requirement for voting in person 

that will without doubt deter or prevent a disproportionate number of minorities 

from voting, as well as the elderly and the disabled. It is not only difficult for many 

people to get a photo ID, but it costs $20 and is in essence a fee for voting. Fortunately, the federal court recently issued an injunction prohibiting use of the photo 

ID requirement, which it said was in the nature of a poll tax. 

Many people have asked me, ‘‘what new strategies and schemes do you think the 

states will come up with to suppress the minority vote?’’ My state didn’t bother to 

come up with anything new, but reenacted one of the most blatant measures adopted after Reconstruction to suppress the black vote—the poll tax. I want to add that 

there was no evidence whatever presented to the legislature of the need for a photo 

ID requirement for in-person voting. 

The arguments that the state recently made in the Supreme Court in Georgia v. 

Ashcroft are also very disturbing. They demonstrate a continuing disdain for the 

Voting Rights Act and a willingness to disregard the interests of minority voters. 

The state argued that Section 5 as applied by the federal court was unconstitutional. It said the retrogression standard of Section 5 should be abolished, that majority black districts were no longer needed, and that minorities should never be allowed to participate in the preclearance process. 

39

As a long time member of the Georgia legislature and current chair of the Georgia 

Association of Black Elected Officials, I can confidently say that if we abolished the 

majority black districts for the state legislature, we would do away with most of the 

black legislators. The same would be true of black elected officials at the county and 

local levels. The argument that the state made in its Ashcroft brief failed to take 

into account how extensive racial bloc voting is, and that when a district is changed 

from majority black to majority white it depresses the level of black political activity. The enthusiasm, the spirit, the sense that blacks have a chance are all diminished. A formerly majority black district, particularly one without a black incumbent, would have a different voting pattern after it became majority white. Abolishing majority black districts would cause a significant reduction in the number of 

black office holders. The state’s advocacy of such a position is, alone, a compelling 

reason for extending Section 5. 

The most notable exception to the pattern of blacks losing in majority white districts, and which the state relied upon in its Ashcroft brief, have been judicial elections. Judicial elections, however, are unique in that they are subject to considerable 

control by the bar and the political leadership of the state. Candidates are essentially preselected through appointment by the governor to vacant positions upon the 

recommendation of a judicial nominating committee dominated by the bar. The chosen candidate then runs in the ensuing election with all the advantages of incumbency. Judicial elections are low key, low interest contests in which voters tend to 

defer to the choices that have previously been made. Robert Benham, elected to the 

court of appeals in 1984 and the state supreme court in 1990, and Clarence Cooper, 

elected to the court of appeals in 1990, were preselected in this manner. 

Benham received special treatment in other ways. The governor felt they could 

sell Benham in the white community, with the support of the bar and the Democratic leadership, because nobody knew he was black. The plan was to get out the 

vote in the black community in the traditional way, but to ignore race in the white 

community. Benham’s picture could appear only on brochures distributed in the 

black community and there could be no endorsements of Benham by Maynard Jackson, Julian Bond, Jesse Jackson, or anybody in the civil rights community. The ability of preselected blacks to win low key judicial elections does not, however, translate into the ability of blacks to elect candidates of their choices in majority white 

state house and senate districts. 

Georgia argued strenuously that its 2002 senate plan could not be deemed to dilute minority voting strength because black legislators supported the plan. But the 

support of the plan by black legislators should not be confused with their support 

of the state’s arguments in the Supreme Court that majority black districts could 

be abolished, or that the retrogression standard should be abandoned, or that minority ‘‘influence’’ could be a substitute for the ability to elect. 

Most of the members of the Legislative Black Caucus voted for the senate plan 

as a way of maintaining Democratic control of the legislature and holding onto committee chairs, and because any reductions made in their own districts did not compromise their reelection or the ability of minority voters to elect candidates of their 

choice. The overriding goals of the Democrats were to protect incumbents and increase the number of Democratic seats by not wasting the black votes in existing 

majority black districts. And while black caucus members agreed to the population 

reductions, they would never have agreed to the abolition of majority black districts. 

Black caucus member Bob Holmes, who has served in the Georgia house almost as 

long as I have, has said that ‘‘No one would have gone for that. There would not 

have been a black vote for that.’’

Notably, the black civil rights leadership of the state, including NAACP, Southern 

Christian Leadership Conference, RAINBOW/PUSH, Concerned Black Clergy, Georgia Association of Black Elected Officials, Georgia Coalition of Black Women, and 

Georgia Coalition for the Peoples’ Agenda, filed an amicus brief in the Supreme 

Court urging it to affirm the decision of the lower court rejecting the state’s senate 

redistricting plan. They asked the Court to reject the state’s arguments for repeal 

of the retrogression standard, the abolition of majority-minority districts, and excluding minorities from the preclearance process. 

Most tellingly, black members of the legislature who had voted for the state’s plan 

gave their full support to the filing of the amicus brief and said that it was the correct position for the civil rights community to take. I made a statement at the time 

that:

We fully supported the filing of the amicus brief by the civil rights groups. 

We voted for the state’s plan for political reasons, but we were appalled by 

the arguments the state made in its brief in Georgia v. Ashcroft. There is 

no question that abolishing the majority black districts would turn the clock 

40

back. The preservation of the majority black districts is critical to minority 

office holding and minority political participation. As its president, I can 

speak for the Georgia Association of Black Officials and say that we strongly disagreed with the state’s arguments in the Supreme Court.

I would urge this committee to support legislation restoring the protection lost 

under Section 5 as a result of the Georgia v. Ashcroft decision, by making clear that 

the retrogression standard of Section 5 protects the ability of minority voters to elect 

representatives of their choice. The ability to influence the election of candidates is 

not an acceptable substitute for the ability to elect. I also want to echo the sentiments of my colleagues that Georgia v. Ashcroft provides an extremely vague and 

difficult standard to administer.

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Mr. CHABOT. Thank you very much, Representative Brooks. And 

before we get to our last witness, you mentioned Rosa Parks and 

the reauthorization of the Voting Rights Act. At the funeral in Detroit—where I think just about every Member of this Committee 

was present, at least that’s present here now—that came up again 

and again by many of the very distinguished speakers at the funeral, how important it was that the Voting Rights Act be reauthorized. 

Now, there is some, I would say, misinformation that the right 

to vote is going away after 2 years if this isn’t reauthorized. There 

are only sections of this that need to be reauthorized. It’s not the 

entire—some of those things are permanent, of course; although 

these things here are very important, as well. 

But I just did want to acknowledge that what you’re saying, we 

heard time and again at Rosa Parks’ funeral last week. 

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

TESTIMONY OF LAUGHLIN McDONALD, DIRECTOR, VOTING 

RIGHTS PROJECT, AMERICAN CIVIL LIBERTIES UNION, FND. 

Mr. MCDONALD. Chairman Chabot and Members of the Committee, it’s indeed a pleasure to appear before you, before so many 

colleagues and friends. 

I agree with what some of the prior—all of the prior panel members have said, that the opinion of the majority in Georgia v. 

Ashcroft introduces new and vague and difficult to apply and contradictory standards. According to the Court, the ability to elect is 

important, it’s integral; but a court must now also consider the 

ability to influence and elect so-called ‘‘sympathetic representatives.’’

The Court took a standard that was intelligible, easy to apply; 

and it’s turned it into something that’s subjective, abstract, and impressionistic. 

The danger in the Court’s opinion is that it will allow States to 

turn Black and other minority voters into second-class voters who 

can influence the election of White candidates, but who cannot 

elect their preferred candidates, including candidates of their own 

race. And that’s a result, I think, that the Voting Rights Act should 

not allow to exist. 

The inability of Blacks to exercise the franchise effectively in socalled ‘‘influence districts’’ is apparent, I think, from the lack of 

electoral success of Black candidates in majority-White legislative 

districts in Georgia. As of 2002, of the ten Blacks elected to the 

State senate in Georgia, every single one was elected from a majority-Black district. And the districts, by the way, had populations of 

54 to 66 percent Black. 

And of the 37 Blacks elected to the State House, 34 were elected 

from majority-Black districts. And of the three who were elected 

from majority-White districts, two were long-term incumbents 

whose Black percentages were in excess of 45 percent, and the 

third was elected from a three-seat district; every voter could elect 

three members to the House. 

I’d also want to comment that the brief which the State of Georgia filed in the Supreme Court in Georgia v. Ashcroft I think is a 

present-day example of the willingness of one of the States that’s 

50

covered by section 5 to manipulate the law to diminish the protection afforded to racial minorities. 

You should read the brief, because it resurrects the language 

that some White elected officials in the State had historically used 

to denounce the Voting Rights Act. In the brief filed in 2003, the 

State says that section 5 is an extraordinary transgression of the 

normal prerogatives of the States; that State legislatures were 

‘‘stripped of their authority to change electoral laws in any regard 

until they first attained Federal sanction’’; the statute was ‘‘extraordinarily harsh, and intrudes upon the basic principles of federalism.’’ And the Court even made the argument that section 5, 

as construed by the three-judge court, was ‘‘unconstitutional.’’

Now, the rhetoric is one thing, but the arguments that the State 

advanced on the merits I think were far more hostile to minority 

voting rights even than its rhetoric was. Because one of the State’s 

principal arguments was that the retrogression standard of section 

5 should be abolished altogether, in favor of what it said was a coin 

toss—50–50 chance of winning or losing—standard. Well, by definition, if that were the standard that was adopted, you’d do away 

with half—or more than half—of the Black elected officials. 

And the State also made the extraordinary argument, directly 

contrary to case law and to the intent of Congress when it extended 

the Voting Rights Act, that racial minorities—the very group for 

whose protection section 5 was enacted—should never be allowed 

to participate in the preclearance process. 

The minority influence theory, moreover, is frequently nothing 

more than a guise for diluting minority voting strength. The White 

members of the Georgia legislature, for example, opposed the creation of a majority-Black congressional district in 1981, on the 

grounds that it would diminish minority influence. It would cause, 

it said, White flight and the disruption of harmonious working relationships between the races. 

Well, the three-judge court said that the so-called diminution of 

minority influence was actually a pretext, and that the refusal of 

the State legislature to create a majority-Black district in the Atlanta metropolitan area was ‘‘the product of purposeful racial discrimination.’’

Well, I would close by saying that because the decision in Georgia v. Ashcroft runs counter to the intent of Congress, it is crucial 

that Congress utilize the reauthorization process as an opportunity 

to restore the protection of section 5 and to clarify the retrogression 

standard as articulated in Georgia v. Ashcroft. Thank you very 

much. 

[The prepared statement of Mr. McDonald follows:]

PREPARED STATEMENT OF LAUGHLIN MCDONALD

Chairman Chabot, Ranking member Nadler and Members of the Constitution 

Subcommittee: 

I am pleased to appear before you today and appreciate the opportunity to share 

my views on the need for Congress to restore the protection of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, eroded by the decision in Georgia v. Ashcroft, 539 

U.S. 461 (2003). 

As you know, Section 5 of the Voting Rights Act requires certain jurisdictions with 

a history of racial discrimination in voting to obtain preclearance from the U.S. Department of Justice or the U.S. District Court in D.C. before they can implement 

any changes to their voting practices or procedures. To obtain preclearance, jurisdicVerDate 0ct 09 2002 14:48 Feb 28, 2006 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6621 G:\WORK\CONST\110905A\24504.000 HJUD1 PsN: DOUGA
51

1 1 42 U.S.C. δ1973c. 

tions must prove that the proposed voting change is not retrogressive, i.e. does not 

have a discriminatory purpose and will not have the effect of denying or abridging 

a person’s right to vote because of their race or color or membership in a language 

minority group.1

Prior to the decision in Georgia v. Ashcroft, 539 U.S. 461 (2003), the Supreme 

Court in Beer v. United States, 425 U.S. 130 (1976) held that the failure to preserve 

the ability of minority voters to elect candidates of their choice is retrogressive and 

that such voting changes are objectionable under δ5 of the Voting Rights Act. This 

standard was also ratified when Congress extended Section 5 in 1982. 

The Georgia v. Ashcroft decision, however, represents a significant departure from 

the retrogression standards applied in Beer and other voting rights cases. The Court 

created a new standard for retrogression and allows states to relegate minority voters into second-class voters, who can ‘‘influence’’ the election of white candidates, 

but who cannot amass the political power necessary to elect a candidate of their 

choice who they believe will represent their interests. 

The Decision of the District Court 

Georgia v. Ashcroft was an action instituted by the State of Georgia in the District 

Court for the District of Columbia seeking preclearance under Section 5 of its congressional, senate, and house redistricting plans based on the 2000 census. The district court precleared the congressional and house plans, but objected to three of the 

districts in the senate plan because ‘‘the State has failed to demonstrate by a preponderance of the evidence that the reapportionment plan . . . will not have a retrogressive effect.’’ Georgia v. Ashcroft, 195 F. Supp. 2d 25, 94 (D.D.C. 2002). Although 

blacks were a majority of the voting age population (VAP) in all three senate districts, the district court concluded that the state failed to carry its burden of proof 

that the reductions in BVAP from the benchmark plan would not ‘‘decrease minority 

voters’ opportunities to elect candidates of choice.’’ Id. at 89. The standard for retrogression applied by the district court was the one articulated by the Court in Beer 

v. United States, 425 U.S. 130, 141 (1976). In Beer, quoting the legislative history 

of the 1975 extension of the Voting Rights Act, the Court held that the standard 

under Section 5 is ‘‘whether the ability of minority groups to participate in the political process and to elect their choices to office is augmented, diminished, or not affected by the change affecting voting.’’ 425 U.S. at 141 (emphasis in original). The 

state enacted a remedial senate plan, which was precleared by the district court, 

and appealed the decision on the merits to the Supreme Court. 

The State’s Brief in the Supreme Court 

The brief filed by the state of Georgia in Georgia v. Ashcroft provides a dramatic, present day example of the continued willingness of one of the 

states covered by Section 5 to manipulate the laws to diminish the protections afforded racial minorities. The state’s brief resorted to the kind of rhetoric 

that it had used countless times in the past to denounce the Voting Rights Act. 

In April 1965, Carl Sanders, the governor of Georgia, wrote to president Lyndon 

Johnson urging defeat of the pending voting rights bill. He argued that states had 

exclusive power to prescribe voter qualifications, and that the abolition of literacy 

tests in the southern states and the federal registrar system was ‘‘an extreme measure . . . not even attempted during the vengeful days of the Reconstruction Period.’’

LBJ Library, LE/HU 2–7, Box 70, p. 2. 

In 1970, in testimony before the U.S. Senateq, Georgia’s governor Lester Maddox 

railed against the Voting Rights Act as an ‘‘outrageous piece of legislation,’’ that was 

‘‘illegal, unconstitutional and ungodly and un-American and wrong against the good 

people in this country.’’ Hearings before the Subcommittee on Constitutional Rights 

of the Committee on the Judiciary, United States Senate, Ninety-first Congress, 

First and Second Sessions, on S. 818, S. 24556, S. 2507, and Title IV of S. 2029, 

Bills to Amend the Voting Rights Act of 1965, July 9, 10, 11, and 30, 1969, February 

18, 19, 24, 25, and 26, 1970, p. 342. 

The state essentially boycotted the 1975 congressional hearings on extension of 

the Voting Rights Act, but Georgia Attorney General Arthur Bolton advised Senator 

John Tunney in a terse letter that ‘‘in a number of litigated cases my position with 

respect to the law in this matter is well established, and I do not at this time have 

anything further to add in this matter.’’ Extension of the Voting Rights Act, Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, Ninety-fourth Congress, First Session, on S. 407, S. 

903, S. 1297, S. 1409, and S. 1443, April 8, 9, 10, 22, 29, 30, and May 1, 1975, Arthur Bolton to Sen. John Tunney. In one of the cases referred to by Bolton, the state 

52

2Section 2 is a permanent, nationwide prohibition on the use of any voting practice ‘‘which 

results in a denial or abridgment of the right to vote on account of race or color [or membership 

in a language minority].’’

argued that the Voting Rights Act was unconstitutional. See Georgia v. United 

States, 411 U.S. 526, 530 (1973). 

When Congress considered extension of the Voting Rights Act in 1981–1982, one 

of those who testified in opposition was Freeman Leverett, a former state assistant 

attorney general. He proudly recalled that he had argued on behalf of Georgia in 

South Carolina v. Katzenbach, 383 U.S. 301 (1966), that the Voting Rights Act was 

unconstitutional and renewed his attack on the act. Disparaging the civil rights 

movement, he said the Voting Rights Act had been passed in 1965 ‘‘to appease the 

surging mob in the street,’’ and that Section 5 should be repealed because ‘‘there 

is no longer any justification for it at all.’’ Voting Rights Act, Hearings before the 

Subcommittee on the Constitution of the Committee on the Judiciary, United States 

Senate, Ninety-seventh Congress, Second Session, on S. 53, S. 1761, S. 1975, S. 

1992, and H.R. 3112, Bills to Amend the Voting Rights Act of 1965, January 27, 

28, February 1, 2, 4, 11, 12, 25, and March 1, 1982, pp. 942, 950. 

In its brief in Georgia v. Ashcroft, the state continued its tradition of bashing the 

Voting Rights Act. It argued that Section 5 ‘‘is an extraordinary transgression of the 

normal prerogatives of the states.’’ State legislatures were ‘‘stripped of their authority to change electoral laws in any regard until they first obtain federal sanction.’’ The statute was ‘‘extraordinarily harsh,’’ and ‘‘intrudes upon basic principles of federalism.’’ As construed by the three-judge court, the state said, the statute was ‘‘un- constitutional.’’ Brief of Appellant State of Georgia, pp. 28, 31, 40–1. But the arguments the state advanced on the merits were far more hostile to minority voting 

rights even than its anti-Voting Rights Act rhetoric. 

One of the state’s principle arguments was that the retrogression standard of Section 5 should be abolished in favor of a coin toss, or an ‘‘equal opportunity’’ to elect, 

standard based on Section 2 of the Voting Rights, 42 U.S.C. § 1973, which it defined as ‘‘a 50–50 chance of electing a candidate of choice.’’ Georgia v. Ashcroft, 195 

F.Supp.2d at 66.2 The state also made the extraordinary argument, and in contrast 

to well established law, that minorities, the very group for whose protection Section 

5 was enacted, should never be allowed to participate in the preclearance process. 

Had the state’s proposed coin toss standard been adopted, it would have had a 

severe negative impact upon minority voting strength. A 50–50 chance to win is also 

a 50–50 chance to lose. If the state were allowed under Section 5 to adopt a plan 

providing minority voters with only a 50–50 chance of electing candidates of their 

choice in the existing majority black districts, the number of blacks elected to the 

Georgia legislature would by definition be cut essentially in half, or reduced even 

further. 

The Decision of the Supreme Court 

The majority opinion of the Supreme Court in Georgia v. Ashcroft is the proverbial 

mixed bag. As an initial matter, the Court rejected two of the anti-Voting Rights 

Act arguments made by the state, i.e., that private parties should never be allowed 

to intervene in preclearance actions, and that the retrogression standard of Section 

5 should be replaced with the ‘‘equal opportunity’’ standard of Section 2. According 

to the majority: ‘‘Private parties may intervene in Section5 actions assuming they 

meet the requirements of Rule 24, and the District Court did not abuse its discretion in granting the motion to intervene in this case.’’ 539 U.S. at 477. The Court 

further held that: ‘‘Instead of showing that the Senate plan is nondilutive under 

Section 2, Georgia must prove that its plan is nonretrogressive under Section 5.’’

Id. at 479. 

The Court, however, vacated the decision of the three-judge court denying 

preclearance to the three senate districts because, in its view, the district court ‘‘did 

not engage in the correct retrogression analysis because it focused too heavily on 

the ability of the minority group to elect a candidate of its choice in the majorityminority districts.’’ 539 U.S. at 490. The Court held that while this factor ‘‘is an important one in the Section 5 retrogression inquiry,’’ and ‘‘remains an integral feature 

in any Section 5 analysis,’’ it ‘‘cannot be dispositive or exclusive.’’ Id. at 480, 484, 

486. The Court held that other factors which in its view the three-judge court 

should have considered included: ‘‘whether a new plan adds or subtracts ‘influence 

districts’—where minority voters may not be able to elect a candidate of choice but 

can play a substantial, if not decisive, role in the electoral process;’’ and whether 

a plan achieves ‘‘greater overall representation of a minority group by increasing the 

number of representatives sympathetic to the interest of minority voters.’’ Id. at 

482–83. 

53

The Court held ‘‘that Georgia likely met its burden of showing nonretrogression,’’

but concluded that: ‘‘We leave it for the District Court to determine whether Georgia 

has indeed met its burden of proof.’’ 539 U.S. at 487, 489. But before the district 

court could reconsider and decide the case on remand, a local three-judge court invalidated the senate plan on one person, one vote grounds, Larios v. Cox, 300 

F.Supp.2d 1320 (N.D.Ga. 2004), aff’d 124 S. Ct. 2806 (2004), and implemented a 

court ordered plan. Larios v. Cox, 314 F.Supp.2d 1357 (N.D.Ga. 2004). As a consequence, the preclearance of the three senate districts at issue in Georgia v. 

Ashcroft was rendered moot. 

The Dissent 

The dissent in Georgia v. Ashcroft, relying upon Beer, argued that Section 5 

means ‘‘that changes must not leave minority voters with less chance to be effective 

in electing preferred candidates than they were before the change.’’ 539 U.S. at 494. 

The dissenters also argued that the majority’s ‘‘new understanding’’ of Section 5 

failed ‘‘to identify or measure the degree of influence necessary to avoid the retrogression the Court nominally retains as the Section 5 touchstone.’’ Id. at 495. 

Problems with the Majority Decision 

The opinion of the majority introduced new, vague and difficult to apply, and contradictory standards. According to the Court, the ability to elect is ‘‘important’’ and 

‘‘integral,’’ but a court must now also consider the ability to ‘‘influence’’ and elect 

‘‘sympathetic’’ representatives. The Court took a standard that focused on the ability 

to elect candidates of choice, that was understood and applied, and turned it into 

something subjective, abstract, and impressionistic. The danger of the Court’s opinion is that it may allow states to turn black and other minority voters into second 

class voters, who can ‘‘influence’’ the election of white candidates but who cannot 

elect their preferred candidates, including candidates of their own race. That is a 

result Section5 was enacted to avoid. As the Court held in Beer, ‘‘the purpose of § 5 

has always been to insure that no voting-procedure changes would be made that 

would lead to a retrogression in the position of racial minorities with respect to their 

effective exercise of the electoral franchise.’’ 425 U.S. at 141. 

The inability of blacks to exercise the franchise effectively in so-called influence 

districts is apparent from the lack of electoral success of black candidates in majority white districts. As of 2002, of the ten blacks elected to the state senate in Georgia, all were elected from majority black districts (54% to 66% black population). Of 

the 37 blacks elected to the state house, 34 were elected from majority black districts. Of the three who were elected from majority white districts, two were incumbents. The third was elected from a three-seat district. 2003 House of Representatives, Lost & Found Directory. 

The Expert Testimony in Georgia v. Ashcroft

Despite the lack of success of black candidates in majority white districts, critics 

of the extension of Section 5 have argued, erroneously, that the evidence in Georgia 

v. Ashcroft—specifically the testimony of the state’s expert Dr. David Epstein—

showed that black voters have an equal opportunity to elect candidates of their 

choice in districts with a black voting age population as low as 44%. To the contrary, 

the three-judge court concluded that Dr. Epstein’s analysis was ‘‘entirely inadequate’’ to assess the impact of the state’s plan on the ability of minorities to elect 

candidates of their choice and was ‘‘all but irrelevant.’’ Georgia v. Ashcroft, 195 

F.Supp.2d at 81. 

Among the defects found by the court in Dr. Epstein’s analysis were (a) his erroneous reliance solely on statewide, as opposed to region or district specific, data, (b) 

his failure to acknowledge the range of statistical variation in his estimates of the 

black percent needed to provide an equal opportunity to elect, (c) his use of analyses 

that were marred by errors in ‘‘coding’’ that affected his conclusion, and (d) his use 

of a method of analysis (probit analysis) that failed to account for variations in levels of racial polarization. 195 F.Supp.2d at 66, 81, 88. 

Dr. Epstein also failed to take into account the ‘‘chilling’’ effect upon black political participation, and the ‘‘warming’’ effect upon white political participation, 

caused by the transformation of a majority black district into a majority white district. Once a district is perceived as no longer being majority black, black candidacies and black turnout are diminished, or ‘‘chilled,’’ while white candidacies and 

white turnout are enhanced, or ‘‘warmed.’’ See Colleton County v. McConnell, 201 

F.Supp.2d 618 (D.S.C. 2002), Supplemental Report of Prof. James W. Loewen, p. 2 

(‘‘[s]ocial scientists call the political impact of believing that one’s racial or ethnic 

group has little hope to elect the candidate of its choice the ‘chilling effect’’ ’). A formerly majority black district, particularly one without a black incumbent, would not 

54

be expected to ‘‘perform’’ in the same way after being transformed into a majority 

white district. 

Dr. Epstein presented a similar ‘‘equal opportunity’’ analysis in Colleton County 

v. McConnell, and it was also rejected by the three-judge court. Citing the pervasive 

racially polarized voting that existed throughout South Carolina, the court concluded that ‘‘in order to give minority voters an equal opportunity to elect a minority 

candidate of choice . . . a majority-minority or very near majority-minority black voting age population in each district remains a minimum requirement.’’ 201 F.Supp.2d 

at 643. 

The three-judge court in Georgia v. Ashcroft further found that the United States 

‘‘produced credible evidence that suggests the existence of highly racially polarized 

voting in the proposed districts.’’ Id. at 88. That evidence included the analysis of 

Dr. Richard Engstrom which, unlike the analysis of Dr. Epstein, ‘‘clearly described 

racially polarized voting patterns’’ in the three senate districts in question. 195 

F.Supp.2d. at 69. The Supreme Court did not disturb these findings of the lower 

court on appeal. 

Minority Influence As a Pretext for Vote Dilution 

Minority influence theory, moreover, is frequently nothing more than a guise for 

diluting minority voting strength. White members of the Georgia legislature, for example, opposed the creation of a majority black congressional district in 1981 on the 

grounds that black political influence would be diminished by ‘‘resegregation,’’

‘‘white flight,’’ and the disruption of the ‘‘harmonious working relationship between 

the races.’’ Busbee v. Smith, 549 F. Supp. 494, 507 (D.D.C. 1982). The three-judge 

court, in denying Section 5 preclearance of the state’s congressional plan, found that 

these reasons were pretextual and that the legislature’s insistence on fragmenting 

the minority population in the Atlanta metropolitan area was ‘‘the product of purposeful racial discrimination.’’ Id. at 517. 

Julian Bond, a state senator at that time, introduced a bill at the beginning of 

the legislative session creating a fifth district that was 69% black. The Bond plan 

had the support of two white members of the senate, Thomas Allgood, the Democratic majority leader from Augusta, and Republican Paul Coverdell. Busbee v. 

Smith, Deposition of Thomas Allgood, p. 15–6. In large measure as a result of their 

endorsement, the final plan adopted by the senate contained a 69% black fifth district. 

The house, however, rejected the senate plan. The speaker of the house, Tom 

Murphy, was opposed as a matter of principle to creating a majority black congressional district. ‘‘I was concerned,’’ he said, ‘‘that . . . we were gerrymandering a district to create a black district where a black would certainly be elected.’’ Busbee v. 

Smith, 549 F. Supp. at 520. According to the District of Columbia court, Murphy 

‘‘refused to appoint black persons to the conference committee [to resolve the dispute 

between the house and senate] solely because they might support a plan which 

would allow black voters, in one district, an opportunity to elect a candidate of their 

choice.’’ Id. at 510, 520. Joe Mack Wilson, the chair of the house reapportionment 

committee, and the person who dominated the redistricting process in the lower 

chamber, was of a similar mind and advised his colleagues on numerous occasions 

that ‘‘I don’t want to draw nigger districts.’’ Id. at 501. 

After the defeat of the Bond plan in the house, the fragile coalition in the senate 

in support of the plan broke down. Several senators approached Allgood and said, 

‘‘I don’t want to have to go home and explain why I was the leader in getting a 

black elected to the United States Congress.’’ Allgood acknowledged that it would 

put a senator in a ‘‘controversial position in many areas of [Georgia]’’ to be perceived 

as having supported a black congressional district. He finally told his colleagues to 

vote ‘‘the way they wanted to, without any obligations to me or to my position,’’ and 

‘‘I knew at that point the House plan would pass.’’ Busbee v. Smith, Deposition of 

Thomas Allgood, pp. 42–5. 

Based upon the racial statements of members of the legislature, as well as the 

absence of a legitimate, nonracial reason for adoption of the plan, the conscious 

minimizing of black voting strength, and historical discrimination, the District of 

Columbia court concluded that the state’s submission had a discriminatory purpose 

and violated Section 5. The court also held that the legislature had applied different 

standards depending on whether a community was black or white. Noting the inconsistent treatment of the predominantly white North Georgia mountain counties and 

metropolitan Atlanta, the court found that ‘‘the divergent utilization of the ‘community of interest’ standard is indicative of racially discriminatory intent.’’ 549 F. 

Supp. at 517. 

55

As for Joe Mack Wilson, the court made an express finding that ‘‘Representative 

Joe Mack Wilson is a racist.’’ 549 F. Supp. at 500. The Supreme Court affirmed the 

decision on appeal. Busbee v. Smith, 549 U.S. 1166 (1983). 

Forced yet again by the Voting Rights Act to construct a racially fair plan, the 

general assembly in a special session enacted an apportionment for the fifth district 

with a black population exceeding 65%. The plan was approved by the court. John 

Lewis, one of the leaders of the Civil Rights Movement, was elected from the fifth 

district in 1986 and has served in Congress ever since. 

The Shaw/Miller Decisions 

The fallacy of the notion that influence can be a substitute for the ability to elect 

is apparent from the Shaw /Miller cases, which were brought by whites who were 

redistricted into majority black districts. Rather than relishing the fact that they 

could ‘‘play a substantial, if not decisive, role in the electoral process,’’ and perhaps 

could achieve ‘‘greater overall representation . . . by increasing the number of representatives sympathetic to the[ir] interest,’’ they argued that placing them in white 

‘‘influence,’’ i.e., majority black, districts was unconstitutional, and the Supreme 

Court agreed. See, e.g., Miller v. Johnson, 515 U.S. 900, 919–20 (1995). In addition, 

if ‘‘influence’’ were all that it is said to be, whites would be clamoring to be a minority in as many districts as possible. Most white voters would reject such a notion. 

Clarifying Georgia v. Ashcroft 

Because the decision in Georgia v. Ashcroft runs counter to the intent of the Voting Rights Act, it is important that members of Congress utilize the reauthorization 

process as an opportunity to restore the protection of Section 5 and clarify the retrogression standards as articulated in Georgia v. Ashcroft. Any efforts to address this 

issue should provide that any diminution of the ability of a minority group to elect 

a candidate of its choice would constitute retrogression under Section 5. 

Thank you very much.

Mr. CHABOT. Thank you very much. I would like to thank the entire panel for staying within the 5-minute rule so well. So thank 

you very much for that. 

I now recognize myself for 5 minutes. And I’m going to, again, 

try to encourage Members to keep within the 5 minutes. And I will 

apply that to myself, as well, because we do have another hearing 

after this. 

I’ll address this to all the panel members, and we can just go 

down the line here. And you all touched upon this, obviously, during your testimony; but would you tell us again why Congress 

should be so concerned about the 2003 Supreme Court case of Georgia v. Ashcroft, and how it has impacted minority voters and their 

ability to elect candidates of their choice? Mr. Shaw, we’ll start 

with you, if we can. 

Mr. SHAW. Thank you, Mr. Chairman. The Georgia v. Ashcroft

decision is a substantial weakening of section 5’s standard of review in the preclearance process. What it does is move away from 

the goal of full participation, of pursuing full participation in the 

political process for racial minority groups. What it does is substitute ‘‘influence,’’ which is ill defined, vaguely defined, for the 

ability to represent—or rather, to elect representatives of choice. 

That’s not a close call, in our view at the Legal Defense Fund. 

And it invites dilution. It invites the attempts to spread minority 

voters out under the guise of saying that they can have ‘‘influence.’’

But in the scenario where there is racially-polarized voting—and 

that’s the touchstone here, that’s a key—it means that they will 

not be able to elect representatives of their choice consistently. And 

that is a step backwards. 

That’s what Georgia v. Ashcroft did. That’s what it threatens. 

And we believe that if we’re going to see a restoration of the Voting 

56

Rights Act’s full strength, and of section 5’s full strength, we have 

to undo Georgia v. Ashcroft. Mr. CHABOT. Okay. Thank you very much. Ms. Lewis, is there 

anything you would like to add to that, or expound upon? 

Ms. LEWIS. Well, I agree with Mr. Shaw. I think, also, that what 

we saw in Georgia v. Ashcroft —I think Mr. McDonald alluded to 

it—was that the ability to elect a candidate of choice was reduced 

to a 50–50 chance. Except that really it was reduced to a 44–56 

chance, because the State’s expert testified that at 44 percent 

Black voting-age population, it was an equal opportunity to elect a 

candidate of choice. 

And so I think that in Georgia v. Ashcroft, we don’t have a refutation of that by the Supreme Court. And in fact, when the Supreme Court reversed and remanded to the district court, the Supreme Court ordered the district court essentially to take up the 

case and look at it. But if you read the opinion, I think it’s pretty 

clear what the district court was supposed to do. It was supposed 

to preclear that plan. 

And I think that in the context of section 5, that Ashcroft is definitely a dangerous decision. And I think that one of the perhaps 

unnoticed portions of Georgia v. Ashcroft, that Mr. McDonald also 

alluded to, is there was a concerted effort to keep out minority 

voice in the process. Our clients—four minority citizens; two Republicans, two Democrats—wanted to participate in the Ashcroft

case; as they would have been able to do had the case been administratively precleared. But the State fought us at least ten times on 

that issue. 

So I think that I agree with Mr. Shaw. And I also think that you 

see a tremendous reduction in minority voting. 

Mr. CHABOT. Thank you. Representative Brooks, anything you’d 

like to add to that? 

Mr. BROOKS. Well, Mr. Chairman, I do concur with my colleagues. You know, from 1965 through every renewal or reauthorization, drawing majority-Black districts was our goal, and having 

a majority-Black district was the standard. 

When Ashcroft became the law, then obviously we move away 

from that standard. So that influence districts, less-than-majorityBlack districts, could be drawn. That will reduce our numbers in 

the body politic. We will see a reduction not only in Georgia, but 

across America, in covered States, if we allow this to stand. 

That’s why it’s very, very important for Congress to say, ‘‘We’re 

going to maintain the full enforcement of section 5 as we go forward with reauthorization.’’ Mr. CHABOT. Thank you. I’ve got 27 seconds left, Mr. McDonald. 

Mr. MCDONALD. I would just say that the impact of Georgia v. 

Ashcroft has not been great, for the reason that most of the redistricting after 2000 has already taken place. But how to treat Georgia v. Ashcroft is left up to the individual covered jurisdictions. And 

some could continue to draw districts that provide an equal opportunity to elect, but the real danger is that they will not; that they 

will draw so-called ‘‘influence districts,’’ which will minimize the 

ability of minorities to elect candidates of choice. And that’s the 

very real danger. 

Mr. CHABOT. Thank you very much. And my time has expired. 

57

The distinguished Ranking Member of the full Committee, Mr. 

Conyers, is recognized for 5 minutes. 

Mr. CONYERS. Thank you. I’m so happy to see everybody here. 

What we’re considering is whether influence districts, which some 

consider as a dilution process, and opportunity districts, which is 

a concentration of African-American voters, probably 60 percent or 

more, should both be allowed. 

And so my question to you, Mr. McDonald, is should we allow 

both of them to be allowed in moving forward with this new legislation that will be coming out from the 2005 hearings on the Voting 

Rights Act? 

Mr. MCDONALD. Representative Conyers, I think that there really are three kinds of districts that people talk about. One is the district that provides minorities an equal chance to elect representatives of their choice. And the second is a so-called ‘‘coalition district,’’ in which minorities are not a majority of the population in 

the district, but they nonetheless retain the ability to coalesce, or 

to vote as a block, either with another minority group or with 

White crossover voters, to elect a candidate of their choice. 

And I think if you destroy either one of those kinds of districts, 

that ought to violate the retrogression standard of section 5. 

Then people also talk about so-called ‘‘influence districts.’’ But I 

must say, I think that is a somewhat amorphous and not a very 

meaningful term. For example, there was a political scientist, a 

woman named Lisa Handley, who did a study several years ago to 

try to determine the influence that a given percent of minority voters would have in a district. And I think everybody assumes that 

the relationship is a linear one: that the more minorities you have 

in a district, the more responsive and sympathetic the elected officials will be to the concerns of the minority. 

But what she discovered was that there actually was a curvilinear relationship. Where there were very few minorities in the 

district, the elected officials were relatively responsive; because the 

minorities were no threat. But as the minority population increased, there was a perceived threat from the minority and the 

elected officials were actually less sympathetic; until you reached 

a point where the minority group had an ability to elect candidates 

of choice, and then you saw that there was responsiveness. So I 

think that influence really is not this linear pattern. 

Mr. CONYERS. Mr. Shaw, do you think we should be considering 

how we tweak or modify Georgia v. Ashcroft? And do you agree 

with the assessment of Mr. McDonald? 

Mr. SHAW. I think that, to the extent that Georgia v. Ashcroft

has substituted, or opened the door to substituting, an influence 

district standard for the opportunity to elect representatives of 

choice, that Congress ought to restore the Beer standard of retrogression. And we should not be stepping away from the opportunity 

to elect representatives of choice. 

I think it’s a simple question. If you ask any voter does that 

voter want the ability to be able to influence who may be sitting 

at the table when legislation is made, as opposed to the ability to 

actually have a voice in choosing who’s going to be at the table, I 

think the latter is a clear choice. They want an opportunity to elect 

representatives that they believe will represent their interests. 

58

Mr. CONYERS. Well, gentlemen, remember now, the former majority leader in Texas in the Texas congressional plan relied on the 

majority districts. They said, ‘‘We’re packing this in. This is good 

for you.’’ Well, we ended up realizing it was bad for us. Right, Mr. 

McDonald? 

Mr. MCDONALD. I’m certainly not in favor of packing, Representative Conyers. That’s a traditional form of diluting the minority 

vote. 

Mr. CONYERS. Is it, Mr. Shaw? 

Mr. SHAW. Well, clearly, packing and cracking can be problematic. It’s a very factually intensive analysis that has to be done in 

each instance. So you can see attempts to discriminate by packing 

and over-packing majority-minority districts; but you can also see 

an attempt to dilute voting strength. 

I think all of us who do voting rights litigation know that there 

are two forms of discrimination that may be in play here. And I’m 

also not naive. There is a partisan aspect of what the Committee 

Members may be considering. 

We at the Legal Defense Fund, a 501(c)(3) organization, we have 

to think about the Voting Rights Act, which is focused on voters 

and on protecting minority voters. And that’s a little bit of a different focus; although I understand where those two things sometimes meet. But our interest is in preserving the Voting Rights Act 

and section 5 as a strong protection against discrimination, whether it’s packing or cracking. And what Georgia v. Ashcroft does is 

open a door to cracking, dilution. 

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

The gentleman from Iowa, Mr. King, is recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. And you know, as I listen 

to this testimony, it’s many days of this by this point, and I appreciate the passion that comes to the table. I had an interesting conversation with Mr. Watt on the way over to vote, and I would reflect that we see this from two different viewpoints. 

And one of them is all the things we can do from an affirmative 

standpoint. Some believe that that helps the assimilation process 

and diminishes the resistance, the racism that has been there in 

the past. And at some point, we need to get to that situation where 

we can say, ‘‘We’ve arrived.’’ How do we define—can you define for me, Mr. Shaw, your vision 

for what the, I’ll say, the optimum circumstances might be where 

we could sit here one day, you and I, look at each other, and say, 

‘‘We don’t need the Voting Rights Act any more; America is now assimilated and we are all one people’’? Would you have a definition 

for that? 

Mr. SHAW. Congressman King, I appreciate the question, and understand the sincerity of the question. I answer the question this 

way. When we no longer have, or face, the phenomenon of raciallypolarized voting, in which consistently minority candidates—or 

rather, the candidates of choice of the minority community will lose 

in a majority-White district, then I think we can lay down parts, 

if not more than parts, of the Voting Rights Act. 

Believe me, Mr. Congressman, nobody would like to get to the 

point where we no longer have the need for these protections more 

than those who are protected by these statutes. And it’s nice to 

59

wish that we could get there, and want to get there; but we’re 

clearly not there now. 

Our testimony and my testimony includes a footnote which cites 

instances of section 5 review and the necessity of section 5 review 

for decades now, right on up to the present. So we still need the 

act. 

Mr. KING. Mr. Shaw, I received some good news in my e-mail. 

Actually, it was at 11:07 last night, after the polls closed across 

this country, at least closed in Iowa. And I’ll just read it to you directly. ‘‘I wanted to let you know that I received a call this evening 

from the Dallas County auditor, and Isaiah McGee was the top 

vote-getter in Waukee City Council race. There were three open 

seats, so the top three vote-getters out of five candidates were 

elected. Voters could vote for up to three candidates. Out of 1,365 

voters that voted in the election, Isaiah pulled 1,015 votes.’’ And I 

would submit he may have been the only African-American that 

voted in that election. 

So I mean, that doesn’t prove anything across this Nation from 

an empirical standpoint, but I want to tell you that I believe that 

there are a lot of very successful islands here. And there are other 

things involved. We focus on race in this discussion, but I also 

know that partisan politics are another big part of this. 

And I direct my question to Representative Brooks on that. 

You’ve seen the polarization because of party. And we know polls 

say that 90 percent of African-Americans vote for the Democrat 

candidate, roughly speaking, across this country. It seems to me 

that you have to factor in the partisan politics in any analysis of 

any discrimination or any difficulty of getting representation in the 

body politic. Representative Brooks? 

Mr. BROOKS. Well, to some extent, you do. The reality of competition between the parties is a reality that we will face for many, 

many years in this republic that we live in, as long as we have 

democratic elections. 

But riding on the plane up this morning, I received a call from 

the Mayor of Millersville, Georgia, the Honorable Floyd Griffin, 

who is a four-star general and who came out of Vietnam; worked 

with Colin Powell here at the Pentagon; went back home; became 

mayor; served in the State senate two terms. He said, ‘‘I lost.’’ And 

he said, ‘‘The reason I lost is because I couldn’t get enough White 

crossover votes to be reelected.’’

Also, we discovered that over in Cuthbert, Georgia, Willy Martin, 

the Mayor of Cuthbert, lost. Over in Richland, Georgia, Olin Falk 

lost, who worked for former Senator Sam Nunn. And they all say, 

‘‘We couldn’t get enough crossover votes from the White community.’’ So racially-polarized voting is a reality. Those are municipal, 

non-partisan races; not Democrat-Republican, but non-partisan——

Mr. KING. But don’t we know, Representative Brooks, that we’ve 

got a pretty good idea of the political philosophy of those candidates? And often there’s a partisan undercurrent to that election? 

Mr. BROOKS. Probably so. 

Mr. KING. And could you speak, though, to the partisan races? 

Say, for example, if you were a Black candidate running in a Republican race, how difficult would it be to get the Black crossover 

60

to come from the Democrat Party to come vote for you as a Republican? 

Mr. BROOKS. Well, if I—— Mr. CHABOT. The gentleman’s time has expired. But the gentleman can answer the question. 

Mr. BROOKS. If I could get the Republican Party to return to the 

philosophy of Lincoln and Eisenhower, maybe we’d have a better 

chance. 

But let me tell you, Andrew Young, one of the most popular African-Americans in America, known around the world, who lives in 

Georgia, lives in my neighborhood, wanted to become Governor of 

Georgia. In 1990, he ran, and lost. And he said, ‘‘The only reason 

I lost is because I couldn’t get enough White crossover votes.’’ Everybody loves Andrew Young. You know, he wanted to become a 

U.S. Senator last year. He decided, after testing the waters, that 

he couldn’t get enough crossover votes. 

So the reality of racially-polarized voting is real. And that’s why 

it’s so imperative that you understand—even though you’re from 

Iowa; you’re not a covered State—we have to have the full protection of section 5, in order to create opportunities to elect candidates 

of choice; be they Republican or Democrat, Black or White. 

Mr. KING. Mr. Chairman, I should ask for an opportunity for rebuttal, but I’ll just yield back. Thank you. 

Mr. CHABOT. All right. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes. 

Mr. SCOTT OF VIRGINIA. Thank you, Mr. Chairman. Representative Brooks, one of the compelling reasons to extend section 5 is 

that it eliminates the advantage people might have by implementing—by passing an illegal plan and then benefitting from it 

until such time as it can get thrown out. And one of the real problems is that, even if you get it thrown out, the person who benefitted from the illegal plan gets to run in the legal plan, but as an 

incumbent. 

As a veteran legislator, can you say whether or not an incumbent 

generally has an advantage in an election? 

Mr. BROOKS. Absolutely. Incumbency is a powerful weapon to 

have. When you’re running for reelection, it allows you to compete 

and raise funds at a higher level than those who are challenging 

you. Incumbency carries name recognition, seniority. So, it certainly does; no doubt about it. 

Mr. SCOTT OF VIRGINIA. Thank you. Now, when you talk about 

the ability to elect a minority candidate, is there any bright-line 

number that applies all over the country, or even all over Georgia? 

Or do you have to look at each district individually to determine 

the voting patterns in that district, to determine whether or not a 

minority candidate would reasonably have an ability—a minority 

community would have a reasonable ability to elect a candidate of 

its choice? 

Mr. BROOKS. Well, Congressman Scott, I think that when you 

look at Georgia, since we’re talking about Ashcroft, you look at the 

history of Georgia, which has had some of the most regressive laws 

over the years: poll taxes, literacy tests, the county unit system, atlarge voting, resistance to change. My home State; born there. You 

61

have to look at the fact that racially-polarized voting is probably 

more severe in the State of Georgia than any State in the Union. 

Mr. SCOTT OF VIRGINIA. Yes, but I mean, looking at the district, 

do you have to look at the individual district, or is it something 

that can apply over the State? 

Mr. BROOKS. You have to look at demographic makeup. You have 

to look at racial makeup. You have to look at who’s running, who 

has the ability to compete. You have to look at a lot of factors. 

Mr. SCOTT OF VIRGINIA. And you would have to apply those factors to the specific district? 

Mr. BROOKS. I think you would. But in general, you have to have 

a standard. And till 1965, through every reauthorization, we basically had a standard. Majority-Black district was the standard. 

Mr. SCOTT OF VIRGINIA. Well, in some areas, a simple majority 

would be enough for the minority community to elect a candidate 

of its choice. In other districts, you would need more than just 51 

percent; is that right? 

Mr. BROOKS. You would need—you would look at the voting—— Mr. SCOTT OF VIRGINIA. In that district? 

Mr. BROOKS. Yes. You would look at voter registration. You 

would look at Black voting strength——

Mr. SCOTT OF VIRGINIA. But I’m talking—in that district. 

Mr. BROOKS. In that district. 

Mr. SCOTT OF VIRGINIA. Okay. Now, in your testimony, you quote 

Representative Holmes, who said that the Black Caucus members 

would not have supported the district if it had actually abolished 

majority-Black districts; is that right? 

Mr. BROOKS. That’s correct. 

Mr. SCOTT OF VIRGINIA. Does anybody on the panel agree that 

we ought to allow—however you consider the influence; a coalition, 

anything—whether or not you ought to eliminate existing minoritymajority districts? 

Mr. BROOKS. I do not. 

Mr. SCOTT OF VIRGINIA. Anybody? 

[No response.] 

Mr. SCOTT OF VIRGINIA. Okay. Now, Mr. Shaw, you indicated in 

your testimony a difference between influence and coalition districts. 

Mr. SHAW. Well, I’m not—yes, it’s in my testimony, the written 

testimony. 

Mr. SCOTT OF VIRGINIA. In your written testimony. 

Mr. SHAW. Yes. Yes. 

Mr. SCOTT OF VIRGINIA. Can the coalition—influence is hard to 

pin down. 

Mr. SHAW. Yes. 

Mr. SCOTT OF VIRGINIA. Can you mechanically determine whether or not—with some degree of accuracy, whether or not a district 

is in fact a coalition district, by voting pattern? Is that something 

that is a workable standard? 

Mr. SHAW. Well, I think, Congressman, that, again, it’s a factually intensive question. And we have to look at the district, the degree of polarization in elections in that district. 

Mr. SCOTT OF VIRGINIA. But it’s a standard you can work with. 

Now, you’re not going to trade a majority-Black district or an opVerDate 0ct 09 2002 14:48 Feb 28, 2006 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6601 G:\WORK\CONST\110905A\24504.000 HJUD1 PsN: DOUGA
62

portunity—where you have a real opportunity for a coalition district. We’ve agreed on that. In the abstract, if all you’ve got in the 

area is a possibility for a coalition district, and you have a coalition 

district, should that district be able to be protected under the Voting Rights Act? Can you crack a coalition district and create two 

districts where you go from coalition to nothing? 

Mr. SHAW. It’s a hypothetical question that I can’t answer with 

any specificity. I think that the answer to the question of whether 

I would trade a majority-Black district for a coalition district is—— Mr. SCOTT OF VIRGINIA. We know the answer to that is ‘‘No.’’ Mr. SHAW. Well, I think, Congressman, the question is whether 

you get an opportunity to elect representatives of your choice. 

Mr. SCOTT OF VIRGINIA. Right. Right. That’s fine. Now, if the 

choice is——

Mr. CHABOT. The gentleman’s time has expired. Would you like 

an additional minute? 

Mr. SCOTT OF VIRGINIA. Yes, please. 

Mr. CHABOT. The gentleman is recognized for an additional 

minute. 

Mr. SCOTT OF VIRGINIA. If the choice is coalition district or no coalition district—you’re in an area where you can’t do a majorityBlack district, but you can put together a coalition district where 

you can routinely elect a candidate of choice, but you’ve got to form 

coalitions to do it—should that district be protected under the Voting Rights Act? 

Mr. SHAW. I believe it should be. 

Mr. SCOTT OF VIRGINIA. Okay. And if you have the opportunity 

to create a majority-minority district where you have a reasonable 

opportunity to elect a candidate of your choice—in the Georgia

case, several of the legislators agreed to have their percentage reduced a little bit to create nearby coalition districts. Should that 

be legal? Maintaining the opportunity district. 

Mr. SHAW. Yes. 

Mr. SCOTT OF VIRGINIA. You should be able to consider whether 

or not they are coalition districts? 

Mr. SHAW. I believe that should be legal. 

Mr. SCOTT OF VIRGINIA. Okay. Thank you, Mr. Chairman. 

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

The gentleman from Florida, Mr. Feeney, is recognized for 5 minutes. 

Mr. FEENEY. Well, thank you. And I thank our panelists. 

I want to tell you that I love Justice O’Connor. I had a nice lunch 

with her where the members of the Supreme Court eat lunch. And 

she will probably be retired by the time we deal with the next set 

of Voting Rights Act cases; at least in the redistricting cycle. 

Much as I love her, I have to tell you I’m amazed at the hairsplitting she can do in some of her written opinions. It brings the 

nano-science of hair-splitting to new levels. And I think that the 

Georgia v. Ashcroft case is an example of that, in which she really 

threw out the old retrogression standards as we knew them. 

She did things like say that retrogression inquiries should include the opportunity to participate in the political process. Well, 

that’s only partially true. It’s section 2 that deals with the opportunity to register and to actually vote. Section 5 guarantees a 

63

meaningful vote, where the opportunity to elect a candidate of your 

choice matters. 

And she basically says that we can substitute now a certain 

number of coalition or influence districts, or even other considerations, in her opinion, that are added. How many people do you 

have, for example, that are minorities in leadership positions or in 

chairmanship positions? 

And the point of that is that under her ‘‘totality of the circumstances’’ test—some of you were very kind: you said that that 

was a subjective standard. And what I said in the last hearing is 

that it is totally unintelligible, not only by the next Supreme Court 

who has to follow Georgia v. Ashcroft, but if you happen to be involved in the Justice Department or a lower Federal court, or if you 

happen to be drawing new district lines or deciding on an annexation case or any other policy-making decision, there is absolutely 

no standard whatsoever. 

So if section 5, in my view, is to have any meaning, we are going 

to have to decide here in Congress what it means. And it’s going 

to have to be consistent with the Constitution, the 14th amendment, and other concerns. 

Mr. Shaw, I really appreciated your written testimony. You point 

out the five major problems; the fact that under Georgia v. Ashcroft

tangible minority gains can be sacrificed, point one. Point two: invites vote dilution. 

Ashcroft invites the very thing that happened in Florida for 100 

years. When we had between 14 and 17 percent African-American 

voting-age population, we didn’t have one single Black 

Congressperson elected since Reconstruction was over. Very similar 

to other Southern States. 

And yet, Ashcroft invites that, on the theory that you can influence the outcome of an election. I don’t know what ‘‘influence’’ means. She says voters sympathetic to minority causes. Well, if you 

were able to decide, in a Democratic primary in the early ’60’s, if 

you were a Black American in Alabama, whether you wanted 

George Wallace or ‘‘Big Jim’’ Folsom to be elected governor, I guess 

you had a chance to influence that election. I don’t know what ‘‘influence’’ means. 

And then she talks about sympathy to minority interests. By the 

time their careers were over, at least on the face of it, people like 

George Wallace and Strom Thurmond actually genuinely appeared 

to show some sympathy. But I don’t know how a judge is supposed 

to interpret who has sympathy and who does not have sympathy, 

and at what point in their career they may or may not have sympathy. 

So I guess my question is this, for the attorneys here, Mr. Shaw 

and Ms. Lewis: given the Georgia v. Ashcroft standard, if I were 

deciding whether to do an annexation where section 5 retrogression 

principles would be implicated, or a redistricting process, for example, would you take my case, assuming you were a for-profit lawyer 

and needed to make a profit, and give me a money-back guarantee 

if we had any complex issues—influence versus coalition versus minority-majority districts? Are you confident enough that the standards we have here give you any reasonable guidance whatsoever to 

advise clients that have to make policy decisions at this level? 

64

Mr. Shaw, I really appreciated your written brief, so I will invite 

you first to express your level of confidence, if you can rely on the 

unintelligible—it was my word—standard in Georgia v. Ashcroft. Mr. SHAW. Well, thank you, Congressman. First, I hope that my 

testimony was not opaque—or rather, oblique. I hope that you understand that we could—I agree with your statement that there’s 

a lack of a standard and clarity here. And if I were asked to take 

the case that you put to me, I would not be confident that there 

would be a standard that is intelligible. 

So my short answer is that I agree with you. And that’s why 

we’re saying that we need to restore the pre-Georgia v. Ashcroft

standard of retrogression, defined in Beer. 

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

Mr. FEENEY. Mr. Chairman, with the permission of the Committee, I also asked Ms. Shaw [sic]. She’s got some—Ms. Lewis. 

She’s got some experience in this regard. 

Mr. CHABOT. Yes. Ms. Lewis, you can respond. 

Ms. LEWIS. And I’ll give a very short answer. I would not give 

you a money-back guarantee on that. I think that any plan, redistricting plan, whether it’s a city council plan up to a State legislative or congressional plan, from here on out, is a very difficult process and involves years of work; which means tons of fees, and no 

guarantee. 

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

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

5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. I’m glad to see my friend, 

Mr. King, stayed today, so we can have our dialogue on the record; 

rather than off the record. And I was listening intently to his example from Iowa. And I would just say to him publicly that it 

would be interesting to see what the outcome of that race would 

have been, if it had been a single-Member, Black-on-White race; 

rather than a multi-Member district. 

A number of us—Lani Guinier was at the front of that, until people started shooting her down—have been strong advocates of 

multi-member districts, for the very reason that you are talking 

about. It is clear that in a lot of situations we’ve made enough 

progress that White people will cast one of three votes for a Black 

candidate. That makes them feel good. You know, it’s a sign of 

progress. 

But if they are brought to the choice between casting a vote for 

a Black candidate or a White candidate, racially-polarized voting 

sets in very quickly, and you don’t get the result that you just described in the example you’re talking about. 

I even introduced a bill—until I gave up on it because I couldn’t 

get any support for it—to make it possible for States to go back to 

multi-member congressional districts. There’s nothing in the law 

that prohibits multi-member congressional districts. It is Federal 

statutory law that says there must be single-member congressional 

districts. 

I think we could deal with a lot of racially-polarized voting issues 

if we had multi-member congressional districts. We could create 

more influence districts if we had multi-member districts. And, you 

know, elections might cost more, and that would be a disincentive 

65

to do it—and I recognize that—because you’d be running in larger 

geographic areas. 

But, you know, we’ve explored this in so many different ways. 

And it’s great to be able to create a dialogue with my friend, who 

understands it. And I want to associate myself fully—I told you 

this going across the street—with the comments of Ted Shaw. 

There’s nobody in America who would love to be at this point 

where we have a color-blind society and no need for the Voting 

Rights Act than minorities. I guarantee you. 

But in the meantime, between now and the time we get there to 

that desired goal, we can’t just bury our heads in the sand and say, ‘‘Let time take care of this and take its course.’’ You know, because 

there’s too much to be lost in that meantime while we’re waiting 

on that to happen. We didn’t have the right to vote, and we could 

have said, well, attitudes were changing, so let’s just wait while attitudes change, and we don’t need a Voting Rights Act. So, 

enough—enough already. 

Let me, Mr. McDonald, ask you if you can talk a little bit more 

about this distinction between coalition districts and influence districts, so that we have a better understanding of what that distinction is. 

Mr. MCDONALD. Well, I would define a coalition district as one 

that’s not majority-minority, but in which the minority can join another block of voters, another minority group or White crossover 

voters, to elect a candidate of choice. 

Mr. WATT. That’s kind of like the district that I represent in 

North Carolina. 

Mr. MCDONALD. Yes. 

Mr. WATT. That’s what you’re talking about? 

Mr. MCDONALD. Yes. 

Mr. WATT. Not a majority-Black district, but it’s a coalition district because I can form coalitions with—— Mr. MCDONALD. White voters—— Mr. WATT. Yes. 

Mr. MCDONALD. —or Hispanic voters. 

Mr. WATT. Right. 

Mr. MCDONALD. And whether or not the right to have a coalition 

district is protected by the Voting Rights Act is a matter that has 

not been determined. The U.S. Supreme Court has assumed, but 

expressly without deciding, that you could bring a section 2 challenge, even if the minority group cannot be a majority in a singlemember district, if you could show that the minority could coalesce 

with another group and create a coalition district. 

And I think on four occasions the Supreme Court has assumed 

that, but has not decided it. And the lower Federal courts are split 

on that issue. There are some that say you cannot bring a claim 

for a coalition district; that the Gingles standard requires you to 

show that the minority can be a majority in one or more singlemember districts. But there are other decisions that say that you 

can bring a claim where you can draw a coalition district. 

And I agree with Mr. Shaw that you ought to be able to do that, 

under section 2 of the Voting Rights Act, and that section 5 of the 

Voting Rights Act ought to protect minority voters from the destruction of one of those coalition districts. 

66

Mr. WATT. Mr. Chairman, I know my time is up, but the second 

part of that question was: contrast that to influence districts. 

Mr. MCDONALD. Well, an influence district, I think, is one in 

which the minority doesn’t have the ability to coalesce with other 

groups and elect candidates of choice. 

And I don’t think that concept of influence really has very much 

meaning. I mean, I cited this political science study that said that 

it actually has a negative meaning; that if you have a substantial 

minority population, it often makes the White elected officials even 

more hostile to the interests of the minority voters, because they 

see them more as a threat. I mean, I think that’s the sad reality. 

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

The Chair would extend the same privilege to the gentleman 

from Georgia on this side of the aisle, Mr. Westmoreland, who is 

also from Georgia, to ask questions for 5 minutes, as the Chair has 

already indicated he would extend that opportunity to the Members 

on this side. So the gentleman from Georgia is recognized for 5 

minutes. 

Mr. WESTMORELAND. Thank you, Mr. Chairman. And let me say 

that, Ms. Lewis, Mr. Brooks, and Mr. McDonald, it’s good to see 

you. And Mr. Shaw, I just don’t know you, but I know that the 

other three really believe in the Voting Rights Act and standing up 

for people regardless of their race or political affiliation. 

Mr. McDonald, you read something from the brief, I believe, that 

was filed in the Ashcroft case. Do you know who wrote that brief? 

Mr. MCDONALD. Well, it was signed by the attorney general of 

the State, but my deep suspicion is that the special counsel that 

they hired actually wrote it. But I haven’t talked to—— Mr. WESTMORELAND. But that attorney general would be 

Thurbert Baker? 

Mr. MCDONALD. That is correct. 

Mr. WESTMORELAND. And he is an African-American. 

Mr. MCDONALD. That is correct. 

Mr. WESTMORELAND. Okay. And Mr. Shaw, you made an interesting comment. You said those who are protected don’t want to be 

protected. We all agree with that. We don’t think there needs to be 

any protection. And especially, those people who are under this 

protection don’t want to feel like there’s a need for it. Is that correct? 

Mr. SHAW. Well, I want to be clear. I wasn’t saying that those 

who are protected don’t want to be protected. I was saying that I 

think that they would welcome——

Mr. WESTMORELAND. Right, they would rather not be——

Mr. SHAW. —the commonality that they wouldn’t have to be protected. 

Mr. WESTMORELAND. Right. That’s correct. Right. Thank you. Do 

you think that the very people who are protected under the Voting 

Rights Act should be allowed to get out from under that protection 

if it’s their choice? 

And let me tell you where I’m going with that. And my friend, 

Mr. Brooks, which I served with for 12 years and has been my 

friend—I was on the Georgia Reapportionment Committee, and I 

was there doing the cases. And I listened to all the arguments. And 

I was there when Ashcroft came through. I presented some maps 

67

that gave African-Americans more representation in the State of 

Georgia than the Democratic map. Mr. Brooks voted against that 

map that I presented. He voted for the map that Ashcroft upheld. 

So I guess if somebody’s going to steal your bicycle, and stealing 

is a crime, you can say, ‘‘Well, it’s okay if Billy steals my bicycle; 

but if Bobby steals my bicycle, it’s not right.’’ And if you look at polarized voting in Georgia—ask David Scott, 

my good friend over there, or Sanford Bishop. Thurbert Baker has 

won the attorney general’s seat twice, statewide; Leah Sears on the 

supreme court; Michael Thurmond, labor commissioner; Willy 

Charlton, from Haralson County, a Black Republican elected in a 

majority-White district; Melvin Everson just won a special election 

in Gwinnett County in a majority-White district. Champ Walker, 

on the other hand, an African-American, was beat by Max Burns 

in 2002, because people felt Max Burns was a better candidate, although other Black candidates actually won in that district. 

And so we’re a very candidate-driven State, I think. And I know 

that Mr. Brooks has talked about polarized voting. Would you say 

that all of Georgia is a polarized voting State, Mr. Brooks? 

Mr. BROOKS. I think that, Lynn, Mr. Congressman, my 

friend——

Mr. WESTMORELAND. Thank you. 

Mr. BROOKS. Racially-polarized voting is a reality in Georgia. I 

do think there are aberrations to what we call the electability of 

African-Americans statewide. And you do recall that Leah Sears 

was appointed to the bench first. Thurbert Baker was appointed attorney general. Robert Benham was appointed. Most judges get appointed first, and then run as incumbents. And they have the incumbency with them, they have money with them, and they run. 

Those are not the kind of intensified races, as a U.S. Senate race, 

or a Governor’s race, that you would find the kind of polarization. 

Now, let me say to you, I know we’ve made an awful lot of 

progress in my home State of Georgia. We’ve made an awful lot of 

progress. But we have not made sufficient progress to the extent 

that I would ever want Georgia to be removed from the protection 

of section 5. 

We’re headed in the right direction. I think we’re making 

progress, but I do not believe we can ever say—in any very near 

future, where we could say we don’t need the protection of section 

5. 

I think that what we’re debating here now, as you go through the 

process of reauthorization, we’re debating whether or not section 5 

needs to remain intact and we need to overturn Ashcroft. I think 

what you would find in the State of Georgia is that there are some 

candidates who can and who will win, when they have the opportunity to raise the money, get known, build up the support. They 

may be Black; they may be White. They may run in majority-Black 

districts, or White-majority districts. 

But I can tell you this. African-Americans stand a better chance 

of winning in majority-Black districts, based on the political makeup of our State today, than in majority-White districts. 

Willy Charlton—a fine man, I’ve known him for years, deputy 

sheriff in Haralson County. Mr. Everson, I don’t know very well, 

in Gwinnett County. But I would tell you that if we remove section 

68

5 and all of the protections it affords us, our numbers will drop 

across Georgia and across the South. There’s no doubt in my mind. 

But we are making progress. 

Mr. WESTMORELAND. Could I just ask one follow-up question? 

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

is given an additional minute. 

Mr. WESTMORELAND. Thank you. 

Mr. CHABOT. Including the answer, if possible. 

Mr. WESTMORELAND. Okay. Mr. Brooks, one last question. Do 

you think if—well, we sat on the reapportionment committee together. Was there ever a number that came up that was a number 

of influence, what percentage might be an influence district? And 

do you think that Ashcroft helps or hurts the Voting Rights Act? 

Mr. BROOKS. Well, I think Ashcroft is a detriment. I think 

Ashcroft is a dangerous precedent. I think this Congress has to 

override Ashcroft. And I think we’ve got to move forward for the 

restoration of section 5 in all of its aspects as we’ve known it since 

1965. 

Now, as I voted for the maps that you talked about earlier, your 

maps were broad. And it was more partisan politics than anything 

else. It was more partisan politics than anything else. So I think 

when you bring up your map, and you look at the map that was 

floated by Governor Barnes and the Democratic leadership, we 

were making political decisions at that time. We were in no way 

saying that we did not want the full protections of section 5 of the 

Voting Rights Act. 

Mr. CHABOT. The gentleman’s time has expired. I don’t know if 

he wants to respond to the partisan politics remark or not. 

Mr. WESTMORELAND. Well, I promise you, if you can say that the 

map you voted for was not partisan politics, and my map was, 

then——

Mr. BROOKS. I think it was partisan on both sides. Yes, for sure. 

Mr. WESTMORELAND. Well, I disagree. But thank you, though. 

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

The gentleman from Georgia, Mr. Lewis, is recognized for 5 minutes. 

Mr. LEWIS OF GEORGIA. Thank you very much, Mr. Chairman. I 

think during the exchange, Mr. Brooks, one of the questions that 

I wanted to ask you—and I wanted you to be very candid and very 

open with us and with the Committee—that would you agree that 

the Georgia v. Ashcroft is the result of cold, down-home, partisan 

politics? 

Mr. BROOKS. Yes. 

Mr. LEWIS OF GEORGIA. Okay. You know, Mr. Brooks, there has 

been a great reliance on my testimony and the testimony of other 

Black elected officials in Georgia v. Ashcroft. I think Justice O’Connor cited my testimony. 

Mr. BROOKS. She did. 

Mr. LEWIS OF GEORGIA. Does this new standard in Georgia v. 

Ashcroft give too much deference to State officials? What are the 

dangers of this standard? And maybe Mr. McDonald would like to 

respond to it. 

Mr. MCDONALD. Well, it does. It allows the States to make a 

judgment that they can destroy the districts that provide minority 

69

voters an opportunity to elect candidates of choice in favor of some 

nebulous, difficult to quantify or apply standard. 

And I don’t have much doubt, Congressman Lewis, given the 

anti-Voting Rights Act rhetoric in the State’s brief in Georgia v. 

Ashcroft, the positions that it took on the merits, that you could destroy all the majority-minority districts, consistent with its view of 

what section 5 would provide, I think it would have a devastating 

impact on minority voting strength. 

Mr. LEWIS OF GEORGIA. If you had an opportunity—and you have 

an opportunity—to tell this Committee in extending or renewing 

section 5, would you like to see any changes? 

Mr. MCDONALD. Well, there’s a coalition of civil rights groups 

that supports an extension, and they also support strengthening or 

restoring the Voting Rights Act to its former strength in several 

areas. 

And one of them is to deal with Georgia v. Ashcroft. The other 

is to deal with the Bossier II decision, which provided a retrogressive purpose standard for section 5 which I think is utterly indefensible. It would have—if that had been the standard in effect in 

1980, then that congressional district that the legislature drew purposefully, to keep from drawing a majority-Black district in the Atlanta area, would have been precleared, presumably. 

And then I think that the Supreme Court has ruled that in successful voting rights cases plaintiffs are not entitled to recover attorneys’ fees. That really makes it almost impossible for minority 

communities to bring voting rights lawsuits, because they don’t 

have the ability to hire lawyers, they don’t have the ability to pay 

for experts. And in a typical voting rights case, you need probably 

three experts: a demographer, to draw plans; a statistician, to analyze voting patterns; and a political scientist or historian, to talk 

about what, you know, the present-day impact of race is in a jurisdiction. 

So somebody’s got to eat that expense. And it just makes it much 

more difficult for the minority community to implement the Voting 

Rights Act. And I would suggest that’s a positive thing that Congress ought to look at and address. 

Mr. LEWIS OF GEORGIA. I think each member of the panel would 

agree that, say, in Georgia, and maybe in some of the other covered 

States and political subdivisions, we have made some progress. You 

would agree? 

Mr. MCDONALD. Yes. 

Ms. LEWIS. Yes. 

Mr. LEWIS OF GEORGIA. But we have not created what we used 

to call in the movement ‘‘the beloved community,’’ or a truly interracial democracy. We may not see it in our lifetime. So there may 

be a need for section 5 and other sections in the Voting Rights Act 

for generations yet to come. 

I would like to have some just maybe statements about what do 

you see, our path down the road? Can we take a long, hard look? 

Because there’s some people saying, ‘‘Get rid of the Voting Rights 

Act, get rid of section 5, make it nationwide.’’ I’d like to have your 

feelings about that. 

Mr. MCDONALD. Well, Congressman Lewis, can I respond to 

that? You know, I’ve asked myself that question, and more of late 

70

than before, you know: when will we get beyond the issue of race? 

And I must say, I’m constantly reminded of the words of the great 

modern, contemporary, American poet, Bob Dylan, who asks himself those very questions, you know, in ‘‘Blowin’ in the Wind’’: ‘‘How many years can a mountain exist before it’s washed in the 

sea?’’

‘‘And how many times can a man turn his head and pretend that 

he just doesn’t see?’’ ‘‘The answer my friend, is blowin’ in the wind.’’ And I must say, if Bob Dylan doesn’t know the answer, I don’t 

presume to know it. [Laughter.] 

But I am an optimist. But I also know that we’re stuck with our 

basic humanity; you know, our ego, our biases, our lack of knowledge, and our ambitions. And I think that what we must do as a 

nation is to have strong laws that provide for equal rights for all 

of our citizens, and they must be effectively enforced by the courts. 

Mr. LEWIS OF GEORGIA. I appreciate it. 

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

Mr. LEWIS OF GEORGIA. Thank you, Mr. Chairman. 

Mr. CHABOT. Thank you. And the gentleman has now succeeded 

in getting Bob Dylan in the Congressional Record here. [Laughter.] 

It may be a first. I’m not sure. 

The gentleman from Georgia, Mr. Scott, is recognized for 5 minutes. 

Mr. SCOTT OF GEORGIA. Thank you very much, Mr. Chairman. I’d 

like to focus, if I may, on what it’s going to take for us to excise 

Georgia v. Ashcroft out of the law. I mean, that is our purpose here. 

And I believe, in order to do that, we need to establish a record at 

this hearing of purposeful discrimination. 

Because it is clear that our efforts are going to be held up in 

courts; there’s going to be pleas of unconstitutionality. And before 

these hearings, I wasn’t as concerned about the viability and the 

continuation of the Voting Rights Act; but I certainly am now. I 

think that the Voting Rights Act, especially section 5, is severely 

threatened. 

And probably, the most cancerous part of it is this Ashcroft decision. Because if we’re able to change that retrogression standard 

from Beer to influence, we could see a chilling effect and an unraveling of the progress of African-Americans in the political scheme 

of things. 

And I, too, wish that day would come. I know the answer is blowing in the wind. But maybe we can do a little bit of help to get a 

hurricane behind that wind, so that we can get an answer. 

But I do believe this, and this is what I want to ask each of you. 

We have to show purposeful discrimination. We have to be able to 

show that Ashcroft and Georgia has an intent of discrimination; 

that it does in effect violate either parts of the 14th amendment 

or the 15th amendment; and specifically, the 15th amendment. 

In other words, it must show that Ashcroft intended to discriminate, there was purposeful discrimination in there, and it does in 

fact abridge and deny the ability for African-Americans to vote, or 

for citizens to vote, on the base of race or color; and in the case 

of the 15th amendment, the addition was, and also servitude or 

slavery. 

71

So with that in mind, I’d like to ask—first, let me ask you, because I think, Representative Brooks, you really need to clarify for 

the record what’s going to come up, as a reason of why in the world 

can we show that this had racial intent, when the Georgia Black 

legislators voted for that plan. 

I was there. You were there. Westmoreland was there, Congressman Westmoreland was there. I mean, we were all very much active in that part. And it’s very much important, I believe, for us 

to understand and dissect that the Black legislators’ vote for this 

was not an endorsement or support of the State’s position in their 

argument against the Supreme Court. 

Mr. BROOKS. Absolutely. 

Mr. SCOTT OF GEORGIA. It was a political reality of the situation, 

and did not diminish—and our support of that was not to support 

an influence district away from a majority district. 

But you were very instrumental in that. And I’d like to get your 

comments on the record to show that that vote by the Black legislators was in no way condoning this sliding scale of retrogression. 

Mr. BROOKS. Well, you’ve stated it very well. You’ve stated it 

very well. We made a political decision to vote for maps that would 

shave off percentages of African-American districts, so that we 

could create opportunities to elect Democrats. It was a political decision. 

Our voting for those maps were in no way an endorsement of retrogression or dilution. We wanted to maintain the premise of having majority-Black districts going forward, but we saw a political 

opportunity that was before us. And of course, as you recall, our 

former Governor Barnes, and others in the Democratic Party, we 

made a decision, Majority Leader Charles Walker from Augusta 

and others. We decided that we would take this chance. 

But as I’ve said over and over, even in the case that Laughlin 

filed on our behalf, I am quoted as saying this was a political decision that we made, but this was not an endorsement of dilution or 

retrogression. This was an aberration in the old political scheme. 

This is not to say that we would go forward and ever consider 

across-the-board, carte blanche, drawing minority districts and 

shaving off percentages that would put African-Americans in those 

majority districts at risk. We wanted to maintain majority-Black 

districts going forward. 

Mr. SCOTT OF GEORGIA. Thank you very much, Mr. Brooks. 

My time is short, but Mr. McDonald, can you pinpoint and give 

us your own opinion that Georgia v. Ashcroft had purposeful discrimination intent? 

Mr. MCDONALD. Well, we filed an amicus brief on behalf of 

GABEO, of which Tyrone Brooks is the President, and others, and 

we never raised that argument. But I think that you’re absolutely 

right that the civil rights community and others in Congress who 

want to, you know, strengthen and extend the Voting Rights Act, 

must establish a record of the need to do so. 

And I think that it is clearly possible to do that. I mean, the office that I’m involved in alone, since 1982, since the last extension, 

has been involved in some 300 lawsuits, voting rights lawsuits. 

And we’re in the process now of summarizing all of those, so that 

we can make a report to give to the Committee and Congress. 

72

And I must say, I’m really sort of—I had almost forgotten, you 

know, how the pattern of purposeful discrimination is evident in 

my review of all of these cases. I think that we plainly will be able 

to do that. 

Mr. CHABOT. The gentleman’s time has expired. The Chair would 

recognize—excuse me. 

Mr. SCOTT OF GEORGIA. I just wanted to get one more point in 

that I think would help us—— Mr. CHABOT. Go ahead. 

Mr. SCOTT OF GEORGIA. —establish facts, from Mr. Shaw. 

And I think that you established a pattern here. In your opposition to it, in your statement, you said that—you gave four counts: 

the national preference for single-member electoral districts, principally based upon geographic consideration; the continued existence of racially-polarized voting patterns; the persistent effort to dilute minority votes by depriving the minority communities of the 

benefit of fairly-drawn redistricting plans; and that you had stated 

that you wished to direct the remainder of your remarks to explaining several reasons why Congress should act to restore protection 

for the abilities of minority voters to elect candidates of their choice 

as a touchstone of the retrogression analysis. 

Would you say that the Ashcroft plan denied that ability, and 

therefore did abridge, on the base of race or color, the ability of 

that community to elect a person of their choice? 

Mr. SHAW. I think Georgia v. Ashcroft opened the door to that, 

and I also think it’s very important to add that. I think that while 

we have to lay a record here for the need of the extension of the 

Voting Rights Act, that all Congress has to do—and I don’t mean 

to in any way diminish the task—but all Congress has to do with 

respect to section 5 is to restore Beer. I don’t think you were suggesting that we need to introduce an 

intent standard with respect to retrogression. I think you’re just 

talking about going back to what Beer said; which was retrogression was prohibited. 

Mr. SCOTT OF GEORGIA. Right. But I am saying that those who 

would be in opposition to this will take it to court, will probably 

move to the Supreme Court. We all know what is happening with 

the Supreme Court. It’s getting a more restrictive manner. 

Mr. SHAW. Yes. Yes, sir. 

Mr. SCOTT OF GEORGIA. And I think that, wherever we can, we 

must understand that that’s going to be the case. And we have to 

specifically show where Ashcroft, Georgia v. Ashcroft, does impact, 

run square into——

Mr. SHAW. Yes, sir. 

Mr. SCOTT OF GEORGIA. —that 15th amendment. 

Mr. SHAW. I agree, sir. 

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

The Chair would recognize himself for just a point of clarification. Mr. Brooks, I just wanted to follow up on one of your statements. 

The Voting Rights Act—the purpose of the Voting Rights Act, 

was to protect people, specifically African-Americans, in this country from being discriminated against in their ability to vote. Now, 

you stated before, to paraphrase what you said, something along 

73

the lines that you all had made a partisan decision to basically protect Democratic districts, or the Democratic Party. And do you believe that that’s an appropriate use of the Voting Rights Act? 

Mr. BROOKS. No, I do not. I do believe that in the context of the 

political environment in which we all serve—whether you’re in 

Congress or whether you’re in a general assembly or a county commission or a city council—from time to time, you have to make 

tough political decisions. 

And what we had before us during the last reapportionment in 

Georgia was a plan that would afford those of us who happened to 

be Democrats, the Democratic Party, an opportunity to elect more 

Democrats. We took a chance, voting for a plan that really, in my 

opinion, was not really in the best interests of what the Voting 

Rights Act stands for and what we fought for; what John Lewis 

and I and Hosea Williams and others marched across the Edmund 

Pettus Bridge for. 

So it was a political decision. But in hindsight, it was the wrong 

decision as it relates to upholding what the Voting Rights Act was 

intended for. 

Mr. CHABOT. I thank you. 

I think the gentleman from New York, Mr. Nadler, had a question? 

Mr. NADLER. Yes. Thank you, Mr. Chairman. Since I was on the 

floor on the motion to instruct on the Patriot Act, I missed most 

of the testimony, which is why I haven’t been taking my normal 

turn of asking 5 minutes of questions. But I do want to ask Representative Brooks a question, based on the statement that you 

made a moment ago with regard to this political decision on that 

Georgia reapportionment. 

Is your testimony—or maybe it’s not your testimony. Is your belief—you said that you made a—you and others, I presume—made 

a political decision to vote for a plan because you thought it was 

better for political reasons, etcetera, etcetera; even though on Voting Rights Act grounds, you might have had a problem with it. 

That’s essentially what you said, right? 

Mr. BROOKS. It was a political decision. 

Mr. NADLER. Okay. You made a political decision for political 

reasons that you thought politically the right thing to do was ‘‘X,’’

even though you thought on voting rights grounds it might be ‘‘Y,’’

something might be better. 

Mr. BROOKS. Well, when we were making that decision, the issue 

of retrogression, dilution, maintaining section 5, was not even on 

the table. It was a matter of plans before us. 

Mr. NADLER. I understand. 

Mr. BROOKS. Plans that would help either party. 

Mr. NADLER. Okay. Now, my question is——

Mr. BROOKS. The Democratic or the Republican Party. 

Mr. NADLER. My question is, do you believe that the Voting 

Rights Act should be amended to prohibit you from making that 

decision if it came up again? In other words, do you think that, 

whether that decision was right or wrong in retrospect, it should 

be illegal? 

74

Mr. BROOKS. I do believe this. I do believe that those of us, particularly African-Americans, who are the beneficiaries of the Voting 

Rights Act—— Mr. NADLER. I’m sorry? 

Mr. BROOKS. I do believe this, that those of us who happen to 

be African-Americans and minorities who are chief beneficiaries of 

the Voting Rights Act—because I wouldn’t be sitting here as a legislator, talking to you, were it not for the Voting Rights Act; my 

colleagues wouldn’t be in Congress, were it not for the voting—I 

think we have to be very, very sensitive, going forward, as we 

make these political decisions, that we do not ever send the wrong 

messages, as it relates to the protections afforded us under 2 and 

5 of the Voting Rights Act. I mean, we have to be very sensitive 

and very careful. 

Mr. NADLER. Of course. Of course, and I——

Mr. BROOKS. This is a lesson for us. 

Mr. NADLER. I certainly would agree with you. But the question 

I’m trying to get is, do you think that the Voting Rights Act should 

be amended so that that decision would not be discretionary with 

a very sensitive legislator, but the decision that you made would 

be prohibited? And I’d like to ask each of the members that question. 

Mr. BROOKS. Not at the expense of the full protections of section 

5, no, I do not. 

Mr. NADLER. Okay, and the other members of the panel? 

Mr. MCDONALD. I would just underscore that the plan that Tyrone voted for did not destroy any of the majority-Black districts. 

Mr. NADLER. Any of the what? 

Mr. MCDONALD. Any of the majority-Black districts. The three 

senate districts that were denied preclearance, the three-judge 

court simply ruled that the State had not carried its burden of 

showing that the reductions——

Mr. NADLER. So you do not believe that we should amend the law 

to make that illegal? 

Mr. MCDONALD. To make what illegal, Congressman? 

Mr. NADLER. Voting for that plan. 

Mr. MCDONALD. Well, my own feeling is that the Supreme Court 

ought to do its duty and establish standards for partisan gerrymandering. I mean, we had the Davis v. Bandemer decision, in 

which the Court for the first time said that you stated a claim. But 

there is no decision that I’m aware of that has ever ultimately 

struck down a plan on the grounds that it was a partisan gerrymander. 

Mr. NADLER. You’re misunderstanding my question. I’m not asking you if it should be illegal because it was partisan. I’m asking 

if you think that, given the impact it did or didn’t have on retrogression, or whatever the implications were—which I’m not really 

that familiar with because I didn’t hear most of it—that that 

should be—it was obviously a legal decision to vote for that plan. 

Should we amend the Voting Rights Act so that what that plan did 

would be illegal under the new Voting Rights Act? 

Mr. MCDONALD. Because it was driven by partisanship? 

Mr. NADLER. No, not because of that. Because of whatever problems or concerns that we have, or that you had, with regard to the 

75

Voting Rights Act implications, because it took some districts below 

50 percent. 

Mr. MCDONALD. I thought the decision of the three-judge court 

was entirely proper; that even though it didn’t destroy any majority-Black district, that it simply found that the State had not carried its burden of showing that there was no retrogression, that the 

reductions would not interfere with the ability of Blacks to elect 

representatives of its choice. And I think that was an entirely appropriate decision. 

Mr. NADLER. Ms. Lewis——

Mr. CHABOT. The Chair would just make a point. I’m not sure 

how much time you’re going to use, but we didn’t put you on the 

clock——

Mr. NADLER. I just wanted to get an answer from Ms. Lewis, Mr. 

Chair, on the same question. 

Mr. CHABOT. If they could make it relatively quick. We’ve got another hearing at 4. So if we could make the brief responses, the 

Chair would appreciate it. 

Mr. NADLER. I see. 

Ms. LEWIS. Well, I can make my response very brief. I think, although I don’t have the answer for you in how you would prohibit 

that problem from occurring again, I think in reauthorizing section 

5, you have to focus on minority voters’ rights, versus the preferences of incumbents. 

And I think in Georgia the problem came down to exactly that. 

In fact, one of the incumbents, who thought that lowering his district to 51 percent Black voting-age population was just fine for 

him—he had been there a long time; he was the majority leader 

in the State senate; he wouldn’t get beaten. That was an error in 

two respects: one, he did get beaten; and two, it doesn’t look out 

for the next person coming along, which should be the focus of the 

minority voting. 

Mr. NADLER. I was told he was running when he was under 

criminal indictment. That may affect his judgment somewhat. 

Ms. LEWIS. Well, no, he actually won when the indictment came 

out. 

Mr. NADLER. Mr. Shaw? 

Mr. SHAW. Well, I agree, with respect to drawing a distinction 

between incumbents and Black voters. That’s an important distinction. It’s one to which I referred earlier, I think. Perhaps you 

weren’t in the room at the time. And I just want to underscore that 

again. 

I also want to say that what we want, with respect to your question about what ought to be illegal and what ought to be legal—

what we want is a restoration of section 5 to the Beer standard, 

the retrogression standard. And if we get that——

Mr. NADLER. That’s the pre-Ashcroft v.-whatever? 

Mr. SHAW. Pre-Ashcroft, that’s right. If we get that, we will be 

satisfied that we are protecting the interests of minority voters. 

Mr. NADLER. Thank you very much. 

Mr. CHABOT. The gentleman’s time has expired. If the gentleman 

from Georgia would bear with us, I think that this gentleman from 

Georgia wanted to make a very quick point here. 

76

Mr. WESTMORELAND. I just wanted to ask one question. I know 

Mr. Brooks, that he voted for the map for political reasons. If you 

saw an opportunity for Ms. Pelosi to be Speaker of the House, for 

Mr. Conyers to be Chairman of the Judiciary, for Steny Hoyer to 

be the Majority Leader, would you think that it would be okay to 

reduce the numbers in majority-Black congressional districts to 

produce that result? 

Mr. BROOKS. It depends on how far you reduce them. If you are 

putting the African-American community in a position where they 

can no longer determine—— Mr. WESTMORELAND. But Mr. Brooks, we’ve already determined 

there is no number. 

Mr. BROOKS. Well, you know, when we passed the Voting Rights 

Act in ’65 and the reauthorization——

Mr. WESTMORELAND. And I’m not trying to interrupt you, but a 

simple ‘‘Yes’’ or ‘‘No.’’

Mr. BROOKS. It just depends. It’s a hypothetical that you are——

Mr. WESTMORELAND. Do you think that it would be the wise political move to do that, even if it retrogressed majority-Black districts? 

Mr. BROOKS. Well, retrogression would be something I could 

never accept. I would not ever sacrifice the full protections of section 5—— Mr. WESTMORELAND. Okay. 

Mr. BROOKS. —simply to promote a particular candidate or a political party. And I think that’s basically what it came down to in 

2001 in Georgia. We were putting political decisions ahead of what 

the Voting Rights Act really is all about, and I think we made a 

mistake. 

Mr. WESTMORELAND. Thank you. 

Mr. CHABOT. Thank you. The gentleman yields back. 

The gentleman from Georgia, Mr. Bishop, is recognized for 5 

minutes. 

Mr. BISHOP. Thank you very much. I was really wanting to ask 

Mr. Brooks if he would put into the context what was actually happening. Because as I understand it—although I was not there at 

the time, I tried to keep my ear pretty close to the ground there—

there were very strong feelings by White Democrats, led by the 

governor, with regard to the partisan outcome of redistricting. And 

there were very strong concerns within the Georgia legislative 

Black caucus with regard to protecting the non-retrogression standards. 

And those two issues were tugging against one another. And as 

a consequence, the political and the voting rights ended up with a 

compromise in the plans that ultimately were voted on, which resulted in Ashcroft. 

It’s my understanding—and correct me if I’m wrong—that the 

governor at the time, who was very aggressive and very bold and, 

unlike many governors before him, decided to get involved in redistricting up-front——

Mr. BROOKS. He did. 

Mr. BISHOP. —and personal, he was responding to what he perceived as good precedent from the Supreme Court that political gerrymandering was okay within the bounds of the Supreme Court, as 

77

long as it didn’t violate the Voting Rights Act. And he was trying 

to stretch that standard to the point that he could, to accomplish 

both the incumbency protection, the party protection, and to get as 

few squeaks or cries from the Black caucus in terms of retrogression. Would you say that’s a fair statement? 

Mr. BROOKS. I think you summarized it very well, Congressman 

Bishop. I think the governor was relying on the Shaw v. Reno decision. I think he was reading it as a lawyer, as you are, reading it 

very well, and he was trying to hold onto a Democrat-majority general assembly. The African-American legislators, who were all 

Democrats, were trying to hold onto their chairships, and were 

looking at going forward to the next election cycle, to elect more 

Democrats. So it was strictly a political decision. And you’ve summarized it very well. 

Mr. BISHOP. So then, with respect to Ashcroft, it’s the consensus 

of all the panelists, as I understand it, that effective enforcement 

under section 5 would be better without the Ashcroft standard, 

back to Beers [sic]. 

Mr. BROOKS. Yes. 

Mr. BISHOP. And that, as I heard from Mr. Shaw, if we were to 

just go back to pre-Ashcroft law in our renewal of the Voting Rights 

Act, that we’ll be where we need to be with regard to better and 

more effectively having standards for enforcing section 5 and the 

Voting Rights Act. Is that a fair statement? 

Mr. SHAW. Yes. 

Ms. LEWIS. Yes. 

Mr. BISHOP. I appreciate very much all of your contributions to 

this discussion. I have some questions that bother me with regard 

to the abolition of the expiration of section 5, or the application of 

section 5 to all 50 States. Could I just get what your reactions 

would be to either of those consequences? 

What do you think? What do you view the enforcement of the 

Voting Rights Act and of voting rights and the progress that has 

been made thus far, if, one, section 5 is allowed to expire or, two, 

if section 5 is expanded to all 50 States? 

Mr. SHAW. If section 5 is allowed to expire, we will lose what has 

been part of this crown jewel civil rights legislation. We will find 

that there will be much less protection on behalf of minority voters 

against schemes that dilute their voting strength. 

If it is extended to all 50 States, it will lay the groundwork for 

a Supreme Court decision which will strike down the Voting Rights 

Act, or at least section 5, as unconstitutional; because the Court 

has made it clear that there has to be a record that supports the 

extension of this kind of legislation to jurisdictions. And to extend 

it would be a terrible mistake. It would be a Trojan horse. 

Mr. CHABOT. The gentleman’s time has expired. Did the gentleman want to respond, very briefly? 

Mr. BISHOP. Would you foresee any trends such as occurred postReconstruction, if the Voting Rights section 5 were not extended? 

For example, most recently, in Georgia the picture ID. If there 

were other pieces of legislation such as that that impacted on voting and the ability to vote, that had no oversight from the Justice 

Department or no cause of action in court to review that particular 

78

action as is provided in the Voting Rights Act, do you foresee a recurrence of that pattern from 100 years ago? 

Mr. SHAW. I think that, just as there were numerous Black Congressmen and Senators in the Reconstruction era, and we lost that 

in the post-Reconstruction era after the redemption, I think that 

there would be a threat of diminished representation. 

I don’t think we’ll go back to where we were before. I don’t think 

we’ll ever do that. But I think there could be a lot of damage that 

could be done. 

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

The Chair has several announcements to make here. First of all, 

we do have a ninth hearing scheduled for next week. The staffs are 

aware of this. It’s on Tuesday at 12:30. It’s on sections 6 and 8 of 

the Voting Rights Act, the Federal Examiners and Observer provisions. 

We want to thank very much this panel for their very helpful 

testimony here this afternoon. This is, as we know, a very important topic. And we want to thank all the Members for their attendance. 

I would also note that we have another hearing that was supposed to start at 4. We’re obviously a little behind that. We apologize to the witnesses, who are probably here waiting. 

We’re going to take a 2-minute break, just to reset up the tables, 

and then we’re going to begin right away. And it’s been brought to 

our attention that we have votes coming up relatively soon—— Mr. CONYERS. Mr. Chairman? 

Mr. CHABOT. —so we’re going to try to get along as quickly as 

we can. 

Yes, the gentleman from Michigan. 

Mr. CONYERS. I wanted to indicate for the record that there is 

Lawrence Guyot, Esquire, in the chambers. And I met him in Mississippi, when I was a lawyer and he wasn’t a lawyer. And I’m very 

glad that he is covering these hearings at this moment. 

Mr. CHABOT. Excellent. Would the gentleman like to stand and 

be recognized here? [Applause.] 

Mr. CONYERS. Civil rights leader. 

Mr. CHABOT. Thank you. Okay, if there is no further business to 

come before the Committee, we are adjourned. We’ll be back in 2 

minutes. 

[Whereupon, at 5:03 p.m., the Subcommittee was adjourned.] 

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PREPARED STATEMENT OF THE HONORABLE JOHN LEWIS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF GEORGIA


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PREPARED STATEMENT OF THEODORE S. ARRINGTON, PROFESSOR AND CHAIR, DEPARTMENT OF POLITICAL SCIENCE, UNIVERSITY OF NORTH CAROLINA AT CHARLOTTE


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LETTER FROM MALDEF, NCLR, NALEO, AND LULAC TO THE HONORABLE STEVE

CHABOT REGARDING GEORGIA V. ASHCROFT AND THE LATINO COMMUNITY


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PREPARED STATEMENT OF ROBERT A. KENGLE, FORMER DEPUTY CHIEF, VOTING

SECTION, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE


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GEORGIA V. ASHCROFT (539 U.S. 461, 123 S.CT. 2498)


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Æ


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