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VOTING RIGHTS ACT: AN EXAMINATION OF THE

SCOPE AND CRITERIA FOR COVERAGE UNDER

THE SPECIAL PROVISIONS OF THE ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

OCTOBER 20, 2005

Serial No. 109–68

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 

OCTOBER 20, 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 Jerrold Nadler, a Representative in Congress from the State 

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

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

State of Michigan, and 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 .......................... 4

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

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

WITNESSES 

The Honorable Michael S. Steele, Lieutenant Governor of the State of Maryland 

Oral Testimony ..................................................................................................... 8

Prepared Statement ............................................................................................. 11

Mr. Jose Garza, Voting Rights Attorney, League of United Latin American 

Citizens 

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

Prepared Statement ............................................................................................. 15

Mr. Armand Derfner, Voting Rights Attorney, Derfner, Altman & Wilborn 

Oral Testimony ..................................................................................................... 79

Prepared Statement ............................................................................................. 81

Mr. J. Gerald Hebert, former Acting Chief, Civil Rights Division, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 87

Prepared Statement ............................................................................................. 89

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Linda T. Sa ́nchez, a Representative 

in Congress from the State of California, and Member, Subcommittee on 

the Constitution ................................................................................................... 111

Prepared Statement of the Honorable David Scott, a Representative in Congress from the State of Georgia .......................................................................... 112

Appendix to the Prepared Statement of Armand Derfner: United States v. 

Charleston County (316 F.Supp.2d 268) ............................................................. 113

Appendix to the Prepared Statement of Armand Derfner: United States v. 

Charleston County (365 F.3d 341) ...................................................................... 147

Appendix to the Prepared Statement of Armand Derfner: United States v. 

Charleston County (125 S.Ct. 606) ...................................................................... 157

Appendix to the Statement of J. Gerald Hebert: Revised Prepared Statement . 158

Materials for the Hearing Record submitted by the Honorable Steve Chabot 

on October 27, 2005

Presentation on Behalf of Merced County, California, Concerning Reauthorizations of Sections 4 and 5 of the Voting Rights Act ......................... 171

Supplement to November 4, 2005 Presentation on Behalf of Merced County—Information re Yuba County, California and Why the Bailout Criteria are Unduly Onerous for California Counties ..................................... 238

Page

IV

Materials for the Hearing Record submitted by the Honorable Steve Chabot 

on October 27, 2005—Continued

Prepared Statement of Chellie Pingree, President and CEO, Common 

Cause ............................................................................................................. 249

(1)

VOTING RIGHTS ACT: AN EXAMINATION OF 

THE SCOPE AND CRITERIA FOR COVERAGE 

UNDER THE SPECIAL PROVISIONS OF THE 

ACT 

THURSDAY, OCTOBER 20, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10:04 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Steve 

Chabot (Chair of the Subcommittee) presiding. 

Mr. CHABOT. The Committee on the Constitution will come to 

order. 

I am Steve Chabot, the Chairman of the Subcommittee on the 

Constitution. We appreciate everyone for being here this morning, 

and I especially appreciate some of our Members for being so 

prompt. This is the second in a series of hearings that the Subcommittee on the Constitution will be holding examining the Voting Rights Act. 

On Tuesday, we had a very productive hearing. And I want to 

thank both Ranking Member Nadler, the Ranking Member of this 

Committee, and also the Ranking Member of the full Committee, 

the distinguished gentleman from Michigan, Mr. Conyers, and all 

of the Republican and Democratic Members of this Committee, for 

their contributions to this process. I know we all appreciate the bipartisan effort being made to make these hearings successful. 

This morning, the Subcommittee will focus on one of the most 

important provisions of the Voting Rights Act, section 4, the provisions it triggers, and the impact that section 4 has had on protecting minority voting rights. 

We will also examine the usefulness of the so-called ‘‘bailout’’ process available to States and counties that allows them to remove 

themselves from covered status. 

We have a distinguished panel with us today. And I would very 

much like to thank them all for being here and taking their time, 

because I know every one of these gentlemen has very busy schedules, and we appreciate their willingness to participate in this important hearing. 

After the Civil War and the passage of the 13th, 14th, and 15th 

amendments, our Nation had high hopes that each and every citizen would be afforded an equal opportunity to participate in our 

2

democratic form of Government. Unfortunately, this was not to 

be—at least, for a very long, long time. 

Rather, certain States and counties made it a priority to undermine the ability of minorities to participate in the political process. 

These States and counties relied on various tests and devices—

most often, literacy tests—to prevent many of our fellow citizens 

from exercising their fundamental right to vote. 

In 1965, Congress pushed back against these invidious practices, 

using section 4 and the additional provisions it triggers. Knowing 

the primary offenders, and the discriminatory patterns and practices that were being implemented in these jurisdictions, Congress 

took steps to target discrimination in these States and localities. 

Through section 4, a set of criteria was established to prohibit 

States and counties that had a history of discrimination from administering a literacy test as a prerequisite to voting. Specifically, 

those States and counties that maintained a test or device on November 1, 1964, 1968, or 1972, and in which less than 50 percent 

of the voting age population was registered to vote on November 

1 of 1964, 1968, or 1972, or participated in the Presidential elections held in November 1964, 1968, or 1972, were impacted by the 

prohibition. 

Congress—our predecessors—did not stop there. Recognizing that 

these States and counties had a history of circumventing Congress, 

section 4 automatically subjected these newly covered jurisdictions 

to additional Federal review, including the preclearance requirements of section 5, which we will discuss in greater detail next 

week, and the assistance of Federal examiners and observers set 

forth in sections 6 through 8. 

Section 4 has also been used to extend the protections of the Voting Rights Act to other minority citizens who have been denied the 

opportunity to participate in the political process. Presented with 

similar patterns of discrimination against language minority citizens, Congress brought language minorities under the protection of 

the VRA in 1975, expanding the number of jurisdictions subject to 

section 4 coverage. Presently, 16 States are either covered in their 

entirety or partially under section 4. 

In extending section 4 on three occasions, Congress has weighed 

the federalism issues raised by section 4 and the provisions it triggers against the continued need to address racial discrimination. In 

upholding the Voting Rights Act, the Supreme Court has consistently recognized Congress’ broad authority under section 2 of the 

15th amendment to remedy discrimination. 

Over the last 40 years, section 4 has played an important role 

in increasing the participation of minorities in the voting process; 

as witnessed by record voting registration levels. However, we 

must remain vigilant in our efforts to stop discrimination and ensure that every citizen is given a fair opportunity to exercise his 

or her right to vote. 

The Voting Rights Act will continue to help protect these important freedoms, until the day that we can proudly say that discriminating in voting no longer exists. 

We look forward to today’s hearing and the testimony presented 

by our very distinguished panel at this time. And I would now yield 

3

5 minutes to the gentleman from New York, the distinguished 

Ranking Member of the Committee, Mr. Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. I will be brief. I won’t 

take anything near the 5 minutes. 

I want to warmly welcome our distinguished witnesses today. We 

are now getting to the core issues of the renewal of the Voting 

Rights Act. As we have all acknowledged, Congress needs to make 

a strong factual record supporting its remedies, given recent Supreme Court decisions. 

The witnesses today will provide much-needed information to 

guide our actions to make that record and to support—I presume, 

to support our actions in reauthorizing the Voting Rights Act. 

I look forward to the testimony, and I yield back. 

Mr. CHABOT. I thank the gentleman for yielding back. The Ranking Member of the full Committee, Mr. Conyers, would you like to 

make a statement? 

Mr. CONYERS. Mr. Chairman, I would, just briefly, please. And 

I thank you for this opportunity. 

When we enacted the Voting Rights Act in 1965, we determined 

that racial discrimination in voting has been more prevalent in certain areas of the country, and so section 4(a), which we are examining today, established a formula to identify those areas and to 

provide more stringent remedies where appropriate. 

As you said, it has been amended three times, to broaden the 

scope of the act’s coverage to language minorities, and to cope with 

the changing nature of voting discrimination. In 1975, we expanded 

the coverage formula to include the practice of providing in any 

election information, including ballots, only in English, in States or 

political subdivisions where members of a single language minority 

constituted more than 5 percent of voting age. This affected the 

coverage in Alaska, Arizona, Texas, in their entirety; parts of California; Florida; even in my State of Michigan, two townships; New 

York; Carolina [sic]; and South Dakota. 

Significantly, section 4, in adding to defining the scope coverage, 

contains a bailout provision that allows jurisdictions to terminate 

or bail out from coverage under the act’s special provisions; originally enacted as a means to remedy any possible over-inclusiveness 

resulting from application of the trigger formula. So we amended 

the procedure in 1982 so jurisdictions that meet the statutory 

standards can obtain relief. 

Bailout, though stringent in its terms, has been realistically 

available as an option to covered jurisdictions. For example, when 

the act was reauthorized in 1970, enhancements in the coverage 

formula resulted in the partial coverage of 10 States. 

After 1982 modifications to the bailout provision, the City of 

Fairfax, Virginia, filed the first bailout action, and the United 

States consented to the declaratory judgment entered in October 

1997. And since that time, several other jurisdictions have obtained 

similar judgments. It is a quick way to get out from under it. 

Thus, the act’s bailout provision serves as a self-adjusting mechanism that enables jurisdictions in which the right to vote is no 

longer threatened to remove themselves from preclearance requirements from section 5. 

4

I look forward in particular to Mr. Hebert’s discussion on this 

issue; as I believe that bailout is an important area for this Committee to understand in detail as we move forward. 

And so in this reauthorization process, it is vital that we understand the evolution of the act, to ensure that we build a record adequate to insulate this important legislation from constitutional 

challenge. 

This hearing is an important one because it provides a benchmark to our inquiry. And I appreciate the Chair’s and the Members’ great detail in going through these hearings, because it is 

very critical that we leave a record showing that we understand 

that these discussions will be gone back into. And I thank you for 

the time, and yield back, Mr. Chairman. 

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

I understand the gentleman from North Carolina, Mr. Watt, 

would also like to make an opening statement. 

[Discussion off the record.] 

Mr. CHABOT. Mr. Scott, did you want to make a statement? 

Mr. SCOTT OF VIRGINIA. Thank you, Mr. Chairman. And Mr. 

Chairman, in the 40 years since its passage, the Voting Rights Act 

has guaranteed millions of minority voters a chance to have their 

voices heard and their votes counted. The number of Black elected 

officials has increased from just 300 nationwide in 1964, to more 

than 9,100 today. Poll taxes, literacy tests, and other discriminatory barriers that once closed the ballot box to Blacks and other minorities have been dismantled. 

The process also opened the political process for nearly 6,000 

Latinos who now hold public office, including more than 250 who 

serve at the State or Federal level. 

When Congress enacted the Voting Rights Act in 1965, it determined that racial discrimination in voting had been more prevalent 

in certain areas of the country. To address this problem, section 4 

of the act established a formula to identify those areas and to provide more stringent remedies where appropriate. 

The first of these targeted remedies was a 5-year suspension of 

a test or device, such as a literacy test, as a prerequisite to registration. 

Second was a requirement for a review and preclearance under 

section 5 of any change affecting voting made by the covered area, 

either by the United States District Court in the District of Columbia or by the Attorney General. 

Third was the ability of the Attorney General to specify that 

specified jurisdictions also required the appointment of Federal examiners. These examiners would prepare and forward lists of persons qualified to vote. 

And the final remedy was special provisions giving the Attorney 

General authority to send Federal observers to those jurisdictions 

that had been certified for Federal examiners. 

In the past years, Congress has recognized the tenacious grip of 

discrimination in voting, and we have continued to reauthorize the 

sections we will discuss today. These provisions are essential to ensure fairness in our political process and equal opportunity for minorities in American politics. 

5

Now, if we are to continue these provisions, we need to establish 

the record showing the compelling State interest in these processes, 

and making sure that the remedy is narrowly tailored to address 

that interest. And so, Mr. Chairman, I thank you for holding these 

hearings, so that that record can be established. 

Mr. CHABOT. Thank you very much, Mr. Scott. 

The gentleman from North Carolina is recognized. 

Mr. WATT. Thank you, Mr. Chairman. And let me start by thanking Chairman Chabot for convening this second in a series of hearings on the expiring provisions of the Voting Rights Act; and once 

again, thank Chairman Sensenbrenner publicly for committing to 

developing a full record for evaluating the impact of the Voting 

Rights Act and its provisions that we think need to be reauthorized. 

I normally would refrain from making a detailed opening statement, to try to get to the witnesses. But we kind of wandered away 

from the framework in the last hearing, and I wanted to make sure 

that we were focused. Because I think it is so important to focus 

these hearings on the various provisions that we are considering 

reauthorizing, so that we make sure that we kind of build the 

record in different parts. 

And today’s hearing focuses on sections 4(a) and 4(b) of the Voting Rights Act, commonly referred to as the ‘‘trigger’’ and ‘‘bailout’’

provisions. Under section 4(a), jurisdictions that maintained a discriminatory voting test or device or a literacy requirement as a precondition to registering or casting a vote as of November 1, 1964, 

1968, or 1972, and, two, wherein less than 50 percent of the votingage residents were registered to vote or actually voted in the Presidential elections of 1964, 1968, or 1972, are bound by the requirements of other provisions of the act, including section 5, 

preclearance, and the election examiner and observer provisions in 

sections 6 through 9. 

While the substance and operation of sections 5 and 6 through 

9 will be addressed at later hearings, today’s testimony should center upon the coverage formula contained in section 4(a). 

There are obviously those who contend that the coverage formula 

of the Voting Rights Act is outdated and unfair, insofar as it covers 

certain jurisdictions but not others. There is no doubt that there 

are any number of inventive triggers that Congress could have enacted. I believe, however that the central question before us during 

this process is not what Congress could have done, but whether 

what we have established as the coverage mechanism in the Voting 

Rights Act is justified by the facts. 

Covered jurisdictions, simply put, are covered because they have 

not only a history of discriminatory practices, but have a history 

of ongoing discrimination as well. 

And let me address two arguments quickly here. One is that, 

well, there are a lot of other people who violate the law, also. And 

I want to just draw a couple of distinctions here. It is no defense 

to a speeding infraction that the guy in front of you is speeding, 

too, or even going faster. There may be other people who were 

speeding, but if you were speeding, and you have a history of 

speeding, you are going to get coverage. 

6

Similarly, the presence of discriminatory activity in an uncovered 

jurisdiction does not, and should not, relieve those covered under 

section 4(a) from the act’s requirements. 

Second, there is this thing about history. And I don’t want to demean this, but I want my colleagues on the Committee and in the 

public to understand that there are some parallels here. And I hope 

I am not offending anybody by doing it in this way. I am doing it 

only for illustration purposes. 

I call this preclearance provision a kind of form of ‘‘Megan’s Law’’

registration requirement. If you committed a crime before, especially crimes of a certain kind where you are likely to have a higher 

predilection to commit the same or similar kinds of crimes again, 

you are required to do certain things. That is ‘‘Megan’s Law.’’ And 

the Supreme Court has upheld ‘‘Megan’s Law.’’

Now, personally, when ‘‘Megan’s Law’’ was debated on this Committee, I voted against it. I thought it was a precondition. But the 

Supreme Court upheld it. And there is no bailout provision in 

‘‘Megan’s Law.’’

So let me talk about the bailout provisions here, because I think 

that is what, really, we ought to focus on here. If a jurisdiction 

under section 4(b) wants to get out from under the preclearance requirements of the Voting Rights Act, there is a process for doing 

that. 

Mr. CHABOT. The gentleman’s time has expired. Would the gentleman like additional time? 

Mr. WATT. If I could, just let me run this out. And I will be very 

quick. It will be about a minute and a half, I think. 

Mr. CHABOT. All right. The gentleman is recognized for an additional 2 minutes. 

Mr. WATT. Under section 4—the bailout mechanism permits a 

covered jurisdiction to demonstrate that it now facilitates equal opportunity at the ballot box. By doing so, the jurisdiction may relieve itself of the obligations imposed under the act. And in fact, 

nine jurisdictions in the Sate of Virginia alone have availed themselves of this provision and have successfully bailed out of the 

preclearance coverage of the Voting Rights Act. 

Finally, in anticipation of some of the positions that may be advanced in opposition to the current coverage mechanism, I should 

say that, while section 2 is extremely important within the total 

scheme of the Voting Rights Act, it is no substitute for the protections afforded by sections 4 and 5. 

Section 2 places both the burden of proof and pocketbook on potential victims of voting rights violations. These, too, are issues we 

will explore in greater depth in subsequent hearings. 

Mr. Chairman, I am pleased that you are conducting this hearing. And I hope we will focus on these particular provisions today, 

because the preclearance provisions and the bailout provisions are 

not only important, but they are not unprecedented in our law. 

There are some other areas where we do similar kinds of things. 

I appreciate the extra time, and I yield back. 

Mr. CHABOT. I thank the gentleman. And I would also like to recognize several other Members that are here on the Committee 

today. Mr. Franks, from Arizona, it is my understanding that you 

7

do not need to make an opening statement at this time. Is that correct? 

Mr. Feeney from Florida, the same? Is that correct? 

We also have been joined by two other Members who are not actually Members of this Committee. But Ms. Sa ́nchez is a Member 

of the overall Committee from California. And although we generally don’t do opening statements of those not on the Committee, 

if you would like to make a brief statement, I would ask unanimous consent that that be allowed. 

Ms. SA ́ NCHEZ. Thank you, Mr. Chairman. Actually, in the interest of time and getting to the witness’ testimony, I would just ask 

that I be allowed to submit an opening statement for the record. 

Mr. CHABOT. Without objection, so ordered. 

And also, I would like to recognize the attendance of Mr. Scott, 

who is not only not on this Committee, but not on the full Committee, either. But I would like to commend him for his attendance 

from, I think, beginning to end at the hearing we had the other 

day. Mr. Scott, of course, is from the State of Georgia. 

And I would assume there is no opening statement that you 

would like to submit this morning? 

Mr. SCOTT OF GEORGIA. No, sir. Thank you for your graciousness 

and kindness. And I will just offer my statement for the record, in 

the interests of time. Thank you very much. 

Mr. CHABOT. Thank you very much. So noted. 

At this time, I would, without objection, ask that all Members 

have 5 legislative days to submit additional materials for the hearing record. And without objection, so ordered. 

And I would like to introduce our very distinguished panel here 

this morning. Our first witness will be the Honorable Michael 

Steele, current Lieutenant Governor of the State of Maryland. 

Since taking office in 2003, Lieutenant Governor Steele has served 

as the chair of the Governor’s Commission on Minority Business 

Enterprise Reform, redefining the State of Maryland’s goals and 

commitments toward minority businesses in Maryland. 

Lieutenant Governor Steele also has worked closely with the 

Maryland State Police, attempting—and being quite successful, I 

understand—in reducing crime and creating safer neighborhoods. 

In taking office in 2003, Lieutenant Governor Steele became the 

first African-American elected to statewide office, and currently is 

the highest ranking African-American Republican elected official in 

the country. Lieutenant Governor Steele is married, and has two 

sons. And we thank you very much for your attendance here this 

morning. And I will introduce the rest of the panel before you begin 

your testimony. 

Our second witness will be Mr. Jose Garza. Mr. Garza currently 

represents the League of United Latin American Citizens, as a voting rights attorney. In addition to representing the league, Mr. 

Garza is a solo practitioner in San Antonio, Texas, and has served 

as the litigation director of Texas Rural Aid, Inc., since 1998. 

Mr. Garza has argued on behalf of victims of voting discrimination in a number of high-profile cases, including before the United 

States courts of appeals, and also before the United States Supreme Court. We welcome you very much here this morning, Mr. 

Garza. 

8

Our third witness will be Mr. Armand Derfner. Mr. Derfner has 

had a long and distinguished career in voting rights litigation, including appearing before the United States Supreme Court in a 

number of pivotal voting rights cases. 

Mr. Derfner began his career in 1965, in Greenwood, Mississippi, 

and has appeared before the Constitution Subcommittee, this Committee, during consideration of all three extensions of the Voting 

Rights Act. He is the author of many voting publications, including 

‘‘Racial Discrimination and the Right To Vote.’’ Mr. Derfner is a 

former law clerk to the Honorable David Bazelon, Chief Judge of 

the U.S. Court of Appeals for the District of Columbia; and currently is in private practice in Charleston, South Carolina. We welcome you here, also, Mr. Derfner, this morning. 

And our fourth and final witness will be Mr. J. Gerald Hebert. 

Mr. Hebert currently works as a solo practitioner in Alexandria, 

Virginia, focusing on election law and redistricting. Mr. Hebert also 

has had an extensive career in voting litigation, representing a 

number of States in redistricting and election issues, including the 

States of Texas, California, New York, South Carolina, and Virginia. 

Prior to his practitioner work, Mr. Hebert worked at the Department of Justice from 1973 to 1994, where he served as Acting 

Chief, Deputy Chief, and Special Litigation Counsel in the Voting 

Section of the Civil Rights Division. Mr. Hebert has served as lead 

attorney in numerous voting rights and redistricting suits, and as 

chief trial counsel in over 100 voting rights lawsuits, many of 

which were ultimately decided by the United States Supreme 

Court. We welcome you here, as well, Mr. Hebert. 

As I said, we have a very distinguished panel before us this 

morning. 

For those of you who may have not testified before the Committee, or just to refresh those of you that may have, we have a 

lighting system there. There are two boxes; the 5-minute rule. Each 

of the witnesses has 5 minutes, and each of the Members up here 

would have 5 minutes to question. And we try to keep within that 

as much as possible. The yellow light will come on when you have 

1 minute, and the red light comes on when your 5 minutes is up. 

We’d ask you to try to stay within that. We won’t gavel you down 

immediately, but if you can stay within that, please try to. 

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

So, if you would, please, each of you please stand raise your right 

hand. 

[Witnesses sworn.] 

Mr. CHABOT. All the witnesses have affirmed. 

And again, thank you very much for your testimony. And we’ll 

begin with you, Lieutenant Governor Steele, at this time. You’re 

recognized for 5 minutes. 

TESTIMONY OF THE HONORABLE MICHAEL S. STEELE, 

LIEUTENANT GOVERNOR OF THE STATE OF MARYLAND 

Mr. STEELE. Thank you, Mr. Chairman and Members of the 

Committee. A real pleasure to be here with you this morning. ‘‘The rights of citizens of the United States to vote shall not be 

denied or abridged by the United States by any State on account 

9

of race, color, or previous condition of servitude, and that the Congress shall have the power to enforce this article by appropriate 

legislation.’’ At the dawning of the 21st century, the words of the 15th 

amendment to our Nation’s Constitution remind us of one of the 

most precious gifts of liberty: to freely exercise your right to vote. 

And yet, even the 15th amendment, on its face, did not guarantee that the right of citizens of the United States to vote would 

not be denied as America emerged from the fog of civil war and 

into the new reality that those individuals once enslaved under the 

Constitution were now entitled to exercise their rights as citizens 

under that same Constitution. 

It would not be long, however, before certain of the States, particularly in the South, responded to the enactment of the 15th 

amendment by devising a variety of tools to disenfranchise AfricanAmerican voters for reasons of eligibility. From literacy tests to poll 

taxes, from property ownership to oral and written examinations, 

States began to enact laws that ultimately denied and abridged African-Americans their right to vote. 

Moreover, when intimidation at the ballot box failed to curb the 

African-American thirst for full access to the rights guaranteed by 

the Declaration of Independence, more insidious and violent means, 

such as lynchings, fire bombs, and murder, were used to ‘‘remind 

the Negro of his place’’ in American society. In our society, all 

rights are ultimately protected by the ballot box, not the sword. 

By virtue of the efforts to legally circumvent the dictates of the 

15th amendment, as well as the escalation of violence against African-Americans in Philadelphia, Mississippi, Selma and Montgomery, Alabama, the promise of the Constitution for AfricanAmericans and many other minorities—full and equal political 

rights—seemed for a time like a munificent bequest from a pauper’s estate, until the passage of the single most important piece 

of civil rights legislation in American history, the Voting Rights Act 

of 1965. 

Both Democrats and Republicans were moved to respond to 

President Johnson’s voting initiative when he declared in his State 

of the Union Address, ‘‘We shall overcome.’’ With the leadership of 

individuals like Martin Luther King, Andrew Young, Maryland’s 

own Clarence Mitchell, Jr., Reverend Ralph Abernathy, and Congressman John Lewis, laying the foundation for what would become an increasingly important political movement, Congress took 

up an historic challenge to end the blight of racial discrimination 

in voting which had infected the electoral process in parts of our 

country for nearly a century. 

Central to the act’s remedial scheme is section 5, which places 

Federal preclearance barrier against the adoption of any new voting practice or procedure by covered States and localities whose 

purpose or effect is to discriminate against minority voters. For 40 

years thereafter, the Federal courts and the Department of Justice 

worked hand in hand to make this promise of section 5, and all the 

provisions of the act, a potent reality. 

But in an ironic twist, it has been the very success of the Voting 

Rights Act in not only protecting the right of African-Americans to 

vote, but indirectly contributing to the election of African-AmeriVerDate 0ct 09 2002 16:49 Feb 08, 2006 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 G:\WORK\CONST\102005\24034.000 HJUD1 PsN: 24034
10

cans to both State and Federal offices, which now fuels in part the 

argument of some against its extension. But we should not be misled to believe that the work of protecting equal voting rights for all 

is done, just because those States subject to the provisions of the 

act now have in place the political infrastructure to guard against 

race-based denial of voting rights. 

Indeed, our most recent electoral history dramatizes the difficulties still existing in the American electoral process. Every 2 years, 

we learn of new allegations of electoral fraud and abuse of the electoral process, from elections in small municipalities to the highestprofile Federal offices. 

Consequently, it has become even more important in this postcivil rights age to maintain the integrity of the elections process. 

Moreover, it is just as important to recognize the value of section 

4 of the act not just to those States subject to its requirements, but 

to those who could otherwise be aided by its provisions. 

For example, Maryland is not a preclearance jurisdiction, but is 

not totally unaffected by section 5 of the act. The preclearance 

process at the Department of Justice has assisted in illustrating 

discriminatory election processes and districting plans, and works 

to set a bar for the redistricting process and electoral process in 

non-covered States. 

Voting rights questions usually generate a higher degree of bipartisan consensus than other civil rights issues, such as the debates over either affirmative action or quotas. The act has had bipartisan support since its original enactment. Without true bipartisan support in the House and Senate in 1965, it would not have 

passed. The last extension of the act in 1982 would not have occurred without bipartisan congressional efforts leading to the bill 

being signed by President Reagan. 

It is my hope that, as this Congress considers the renewal of the 

1965 Voting Rights Act, that this Committee’s hearing process, and 

the Senate process as well, will permit the voices of minority communities from across our great Nation to not only be heard, but listened to. 

African-Americans, Latinos, and other ethnic or racial minorities 

will not participate in an electoral system or process that they do 

not trust or in which they feel their votes do not count. Nor are 

they served by an electoral system or process which takes their 

vote for granted because it has become stagnant, self-serving, and 

monolithic. 

Our Nation has made great strides since 1965, but there’s still 

work to be done. Our system is not perfect. And a failure to reauthorize the Voting Rights Act would be to walk away and leave important work unfinished. We must continue our efforts to ensure a 

fair and just voting system for all of our citizens. I’ve seen firsthand how easily a redistricting plan or flawed ballot process can 

take away the voice of a vital segment of our population. 

Finally, quoting one of our Nation’s most famous voting rights 

advocates, Susan B. Anthony, ‘‘In the first paragraph of the Declaration of Independence is the assertion of the natural right of all 

to the ballot; for how can the consent of the governed be given, if 

the right to vote be denied?’’

11

Thank you, Mr. Chairman, for the opportunity to testify before 

you today. 

[The prepared statement of Mr. Steele follows:]

PREPARED STATEMENT OF THE HONORABLE MICHAEL S. STEELE

‘‘The Right of Citizens of the United States to vote shall not be denied or abridged 

by the United States by any State on account of race, color or previous condition 

of servitude and that the Congress shall have the power to enforce this article by 

appropriate legislation.’’

At the dawning of the 21st Century, the words of the 15th Amendment to our Nation’s Constitution remind us of one of the most precious gifts of liberty: to freely 

exercise your right to vote. 

And yet, even the 15th Amendment—on its face—did not guarantee that the 

‘‘right of citizens of the United States’’ to vote would not be denied as America 

emerged from the fog of civil war and into the new reality that those individuals 

once enslaved under the constitution were now entitled to exercise their rights as 

citizens under that same constitution. 

It would not be long, however, before certain of the states, particularly in the 

south, responded to the enactment of the 15th Amendment by devising a variety of 

tools to disenfranchise African American voters for reasons of ‘‘eligibility’’. From literacy tests to pole taxes, from property ownership to oral and written examinations, 

States began to enact laws that ultimately ‘‘denied and abridged’’ African Americans 

their right to vote. 

Moreover, when intimidation at the ballot box failed to curb the African American 

thirst for full access to the rights guaranteed by the Framers of the Constitution, 

more insidious and violent means such as lynchings, fire bombs and murder were 

used to ‘‘remind the Negro of his place’’ in American society. In our society, all 

rights are ultimately protected by the ballot box, not the sword. 

By virtue of the efforts to ‘‘legally’’ circumvent the dictates of the 15th Amendment as well as the escalation in violence against African Americans in Philadelphia, Mississippi, Selma and Montgomery Alabama the promise of the Constitution 

for African Americans and many other minorities—full and equal political rights—

was like a munificent bequest from a pauper’s estate until the passage of the single 

most important piece of civil rights legislation in American history: the Voting 

Rights Act of 1965. 

Both Democrats and Republicans were moved to respond to President Johnson’s 

voting initiative when he declared in his State of the Union Address ‘‘we shall overcome’’. With the leadership of individuals like Martin Luther King, Andrew Young, 

Maryland’s own Clarence Mitchell, Jr., Reverend Ralph Abernathy and Congressman John Lewis laying the foundation for what would become an increasingly important political movement, Congress took up an historic challenge to end the 

‘‘blight of racial discrimination in voting . . . [which had] infected the electoral process in parts of our county for nearly a century.’’

Central to the Act’s remedial scheme is Section 5 which places a federal ‘‘preclearance’’ barrier against the adoption of any new voting practice or procedure by 

covered states and localities whose purpose or effect is to discriminate against minority voters. For 40 years thereafter, the federal courts, and the Department of 

Justice worked hand-in-hand to make this promise of Section 5 a very potent reality. 

But, in an ironic twist it has been the very success of the Voting Rights Act in 

not only protecting the right of African Americans to vote, but indirectly contributing to the election of African Americans to both State and Federal offices which 

now fuels, in part, the argument of some against its extension. But we should not 

be misled to believe that because that those States subject to the provisions of the 

Act now have in place the political infrastructure to protect and guard against race 

based denial of voting rights, whether intentional or unintentional. 

Indeed, our most recent electoral history, dramatizes the difficulties still existing 

in the American electoral process. The 2000 and 2004 presidential elections, along 

with countless local and state elections remain subject to allegations of abuse, fraud 

and civil rights violations. 

Consequently, it has become even more important in this post-Civil Rights age to 

maintain the integrity of the election process. Moreover, it is just as important to 

recognize the value of the Act not just to those States subject to its requirements, 

but to those who could otherwise be aided by the pre-clearance process. For example, Maryland is not a pre-clearance jurisdiction but is not totally unaffected by Section 5 of the Act. The pre-clearance process at the Department of Justice has asVerDate 0ct 09 2002 16:49 Feb 08, 2006 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 G:\WORK\CONST\102005\24034.000 HJUD1 PsN: 24034
12

sisted in illustrating discriminatory election processes and districting plans and 

works to set a bar for the redistricting process and electoral process in non-covered 

states. 

Voting Rights questions usually generate a higher degree of bipartisan consensus 

than other civil rights issues, such as the affirmative action or quota debate. The 

Act has had bipartisan support since its original enactment. President Lyndon Johnson deserves great individual credit for proposing and signing the Act; yet, without 

true bipartisan support in the House and Senate in 1965, it would not have passed. 

The last extension of the Act in 1982 would not have occurred without a bipartisan 

congressional effort leading to the bill signed by President Reagan. 

It is my hope that as this Congress considers the renewal of the 1965 Voting 

Rights Act that this committee’s hearing process and the Senate process as well, 

will permit the voices of minority communities from across our great nation to not 

only be heard but listened to. African Americans, Latinos and other ethic or racial 

minorities will not participate in an electoral system or process that they do not 

trust or in which they feel their vote does not count. Nor are they served by an electoral system or process which takes their vote for granted because it has become 

stagnant, self-serving and monolithic. 

Quoting one of our nation’s most famous Voting Rights advocates, Susan B. Anthony: ‘‘in the first paragraph of the Declaration [of Independence], is the assertion 

of the natural right of all to the ballot; for how can ‘the consent of the governed’

be given if the right to vote be denied?’’

Mr. CHABOT. Thank you very much, Lieutenant Governor Steele. 

Mr. Garza, you are recognized for 5 minutes. 

TESTIMONY OF JOSE GARZA, VOTING RIGHTS ATTORNEY, 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS 

Mr. GARZA. Mr. Chairman, Members of the Committee, first, let 

me thank you for inviting me to participate in this very important 

process for justifying the reenactment of the Voting Rights Act and 

its special provisions. 

The emphasis of my presentation today will be on the record that 

we have discovered throughout our litigation process, as it relates 

to the Latino community. The history of discrimination is well documented with regard to the overall history of the Nation. I think 

that one of the important things that we need to focus on is that 

a lot of the same sorts of activities that occurred throughout the 

South occurred in Texas, but was targeted to the Mexican-American community. 

For instance, it’s documented through our process, through our 

litigation that we’ve done, that the ‘‘White man’’ primary that was 

enacted in Texas was aimed at the Mexican-American community. 

And in the Winter Garden areas and in other areas of Texas, the 

Mexican-American people were not allowed to vote in the primary, 

but then were allowed to vote in the general election, after the election had been determined. 

Through our litigation—this is not a comprehensive presentation 

that I’m going to be making; but rather, anecdotal, from the litigation experience that we’ve done. In the City of Corpus Christi, 

when we did a section 2 lawsuit in 1982, we discovered through a 

review of the minutes and of the history of Corpus Christi that 

there had been severe segregation for Mexican-Americans and African-Americans. Theaters were segregated so that Mexican-Americans and African-Americans were relegated to the balcony. Schools 

were segregated in Corpus Christi, and throughout Texas. 

In the Sherryland Independent School District, the lawsuit that 

we did in 1982, we had testimony of the maintenance of a Mexican 

school, as well as an Anglo school. And the testimony was—is that 

13

the Mexican-American children would ride the school bus, and 

would be dropped off at the elementary school, and then herded 

onto a flatbed truck, and then driven off to a Mexican school. And 

review of the minutes and of the records of the school district found 

that there was severe under-funding of the Mexican school. 

And so we have that historical discrimination in Texas, as we 

have uncovered through the number of lawsuits that we’ve done. 

But many of these things were ongoing into the ’80’s. In 1984, we 

did a lawsuit against the City of Taft, which is a small farming 

community outside of Corpus Christi on the coast of Texas. And we 

found that in 1984, the City of Taft maintained a cemetery that 

had been donated to the City of Taft by the Ku Klux Klan. And 

that cemetery was segregated, so that Anglos would be buried on 

one plot, Mexican-Americans would be buried in a different plot, 

and then African-Americans in still a third plot. 

And we drove through that cemetery, and we found that on the 

Anglo side of the cemetery it was manicured, had what they call 

‘‘carpet grass,’’ had a sprinkler system. And across a dirt road was 

where the Mexican-American and the African-American cemeteries 

were, and those were overrun with weeds, the headstones had been 

knocked over, and some of the graves were unmarked. 

Now, this wasn’t in 1954. This wasn’t in 1964. This was 1984. 

And this was a cemetery that was run by the City of Taft. It wasn’t 

a private institution. It was a city-run, government-run cemetery. 

In that same town, the county health officer maintained a clinic. 

And in that clinic he had segregated waiting rooms, in 1984: one 

waiting room for Anglos, and another waiting room for AfricanAmericans and Mexican-Americans. 

So the history of discrimination, the sorts of things that make it 

difficult for the minority community to participate in the electoral 

process, we found overwhelming evidence that those sorts of things 

that we traditionally know about that are used to discriminate 

against people were also used to discriminate against MexicanAmericans in Texas. 

Now, one of the things that we did in 1979 as part of a coalition 

of civil rights—Hispanic civil rights groups in Texas, the LULAC 

and Mexican-American Legal Defense Fund and others, is that we 

did a survey of county elected offices throughout the State. 

We surveyed over 200 counties. And each one of those counties 

in 1979 we found had been gerrymandered—gerrymandered so that 

it was not in compliance with the Voting Rights Act, not in compliance with ‘‘one person, one vote’’; and in many instances, diminished or prevented the election of Mexican-Americans to the governing board. 

After a series of lawsuits, and with the aid of section 5 and the 

‘‘one person, one vote’’ provision, we were able to almost double the 

number of county commissioners elected in Texas. And that campaign went on through the mid-’80’s. 

Today, the need for section 5 continues. Racial bloc voting, which 

is a primary obstacle to an unencumbered participation by the minority community, is still alive and well in Texas. This year, we 

had a Mexican-American candidate run for mayor of the City of 

San Antonio, against an Anglo candidate for mayor of the City of 

14

San Antonio. The Anglo candidate won, and the racial bloc voting 

was extremely severe. 

In our experience in Texas, LULAC and MALDEF and others, 

we’ve found that the words of Frederick Douglass come into play 

in matters of—‘‘Power gives nothing without demand.’’ And without 

the Voting Rights Act and without litigation, minority representation in Texas would be abysmal. Thank you. 

[The prepared statement of Mr. Garza follows:]

15

PREPARED STATEMENT OF JOSE GARZA


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Mr. CHABOT. Thank you very much, Mr. Garza. 

Mr. Derfner, you are recognized for 5 minutes. 

TESTIMONY OF ARMAND DERFNER, VOTING RIGHTS 

ATTORNEY, DERFNER, ALTMAN & WILBORN 

Mr. DERFNER. Thank you very much, Mr. Chairman. It’s an 

honor and a privilege to appear here again, to try to help this Committee in its crucially important work. And I thank the Committee 

and the Members for their dedication to this task. 

My experience, or my work with the Voting Rights Act does go 

back, as the Chairman was kind enough to note. I’ll be talking here 

today about what I’ve learned in that period; but especially about 

what I’ve learned in the most recent times. Because even today, 40 

years later, in the 21st century, I’m still dedicated to the same 

tasks that the Committee is focusing on. 

And I should mention that, although I live in South Carolina and 

most of my work today is in South Carolina, I also work, and have 

worked, in many of the other covered jurisdictions; have been involved in cases in Mississippi, Alabama, Louisiana, Virginia, Georgia, Florida, and several of the other States. 

What that experience has told me is how important the Voting 

Rights Act—the Voting Rights Act has been called the most successful civil rights act ever passed, and that’s clearly true. It’s true 

for several reasons. 

Not only did it end disfranchisement and total denial of the right 

to vote in the South, and eventually in the Southwest and other 

areas; but it also has shown a remarkable capacity to grow, to anticipate additional problems, new problems that came up. And that 

has been principally through the mechanism of section 4. 

In the Voting Rights Act, Congress essentially said, ‘‘We know 

there are problems out there. We are going to deal now with the 

problems that we can identify. But we are going to pass a statute 

focusing on section 4 that will be capable of adapting to new problems, because we know that when we eliminate the problems of 

today, new problems will crop up.’’

And so, in that respect, section 4 has been the mechanism for 

keeping the voting rights alive, vibrant, and dynamic; and through 

it, some of the other key provisions: section 5, the preclearance provision; sections 6, 7, and 8, dealing with Federal examiners and observers; and indirectly, section 203, dealing with the rights of language minority voters to assistance in casting their votes. 

Because these provisions are temporary, it has been necessary 

for Congress to reconvene periodically to consider reauthorization, 

as you are doing today. That’s a very healthy thing, frankly, for a 

body politic to do, to take a look and see if the laws of yesterday 

are still needed today. 

What this Congress has learned and this Committee has learned 

each time in the past is that, yes, in fact, although there’s been 

major progress, the problems also continue; and therefore, each 

time, Congress has said, ‘‘Don’t stop now.’’ And indeed, Congress 

has said on each of the prior occasions that it could see new problems, or new nuances. And so each time the law has not only been 

reauthorized, but has been brought up to date by amendments or 

modifications to deal with newly emerging problems. 

80

I think you will find that the same thing is true today. And without going into detail, I would just refer the Committee to my statement in which I talk about some of the things that I have been involved in personally, just in my own little corner of the Nation, in 

South Carolina. And this is just in the past decade or two; so we 

are not talking about the distant past. 

And if you’ll take a look, what I talk about are instances of manipulating municipal boundaries to fence some citizens out—basically, minority citizens; moving a registration office to a less convenient location; campaigns by private citizens to intimidate Black 

voters. The list goes on and on. And the things that we used to see 

all the time, we still, unfortunately, see. 

Some of these are purposeful, without question; some of them 

may not be. But the bottom line is still the same, that it’s the minority voters who get hurt, and our body politic is injured. 

I want to focus just on two particular things that I think tell 

more than anything else what the problems are today, and how 

telling they are. And so the first one, if you have a chance, if you 

have my statement, attached to my statement is an ad that ran in 

an election about a dozen years ago, between a White and Black 

candidate for probate judge of Charleston County. 

And you can see, it was the White candidate’s ad. And what he 

printed was a picture of himself and a picture of his Black opponent, making it very clear to every voter there—especially every 

White voter—just who was White and who was Black. And as campaigners yourself, you know you never publish your opponent’s picture or give him or her publicity, unless you want to publish it to 

show something bad. And this White candidate knew that in our 

community racial discrimination sells, and the way to win elections 

is to divide the races. 

The other indication is another exhibit that I brought. And this 

is a very recent case that just ended earlier this year, the case of 

United States v. Charleston County, in which the Justice Department and myself and other lawyers representing private litigants 

fought a 4-year battle to overturn the discriminatory election method in Charleston County. 

We won, and as soon as we won, that case—the legislature 

adopted the exact same method for the school board. And if it had 

not been for the Justice Department’s objection under the Voting 

Rights Act, if it had not been for the Voting Rights Act, we’d be 

back in court again. A clear indication of the value and importance 

of the act. 

In conclusion—and again, I say there are many more examples 

in my statement—you will, in these hearings, as the days go forward, hear many tales of progress. And that’s a wonderful thing. 

But you’ll also hear continuing problems. And what we’ll hear is 

that—and I know this—that the Voting Rights Act and section 4 

and the special provisions that it brings have been vital to that 

progress. 

Continuation of the act is vital to continuation of the progress. 

And so my message to you today is: Don’t stop now. Thank you 

very much. 

[The prepared statement of Mr. Derfner follows:]

81

PREPARED STATEMENT OF ARMAND DERFNER

Mr. Chairman and members of the subcommittee, thank you for the opportunity 

to appear and testify concerning the critically important legislation before you. I 

have had the privilege of testifying before this subcommittee many times about the 

Voting Rights Act, going back to my first time more than 30 years ago. I have always known that the right to vote will be vigorously protected by this subcommittee, 

and I note that the current Chair of the full Committee, Rep. Sensenbrenner, was 

a strong champion of the Voting Rights Act at the time of the last extension in 1982. 

The Voting Rights Act was passed on August 6, 1965, against a background of 

ninety years of failure to enforce the Fifteenth Amendment. The original heart of 

the Voting Rights Act was Section 4, which suspended literacy and understanding 

tests, and similar devices, in certain ‘‘covered jurisdictions,’’ mostly in the Deep 

South. 

The suspension of the tests was for five years. During the five years, other remedies were in play, all based on the coverage formula, or ‘‘trigger’’ contained in Section 4 of the Act, which was codified at 42 U.S.C. § 1973b. The most important of 

which was Section 5, the preclearance provision. In 1965, Congress knew that in the 

past, whenever one type of discrimination had been blocked another had sprung up 

to take its place, sometimes within twenty-four hours. Section 5 was Congress’s answer to this problem. Section 5 simply provided that in a covered jurisdiction, no 

change in any voting law or procedure could be enforced until the change had been 

precleared by the jurisdiction through either a three-judge U.S. District Court in the 

District of Columbia or the Attorney General. In order to gain preclearance, the covered jurisdiction would have to show that its proposed change was not discriminatory in purpose and not discriminatory in effect. Section 5 was deliberately drawn 

as broadly as possible, to cover changes that could affect voting even in a minor 

way, because although Congress was confident that there would be widespread attempts to evade the Voting Rights Act, it could not predict exactly what forms those 

evasions would take 

In addition to the preclearance remedy of Section 5, Section 4 coverage also triggered oversight of the local registration and election process by authorizing the 

United States Department of Justice to send federal registration examiners and 

election observers to the covered jurisdiction. 

There were several provisions of the new Voting Rights Act that were not limited 

to covered jurisdictions; the one that came to be most important was Section 2, 

which generally barred discrimination in voting on account of race. 

The initial focus of efforts under the Act was on registration and voting, through 

suspension of literacy tests. By 1970, as the initial five-year special coverage period 

was winding up, the literacy test suspension had resulted in registration of an estimated one million new black voters in the covered states. 

On the other hand, as black citizens overcame barriers to registering and casting 

ballots, new barriers were being erected to insure that, while blacks might vote, 

their favored candidates couldn’t win. Congress’s faith in the ingenuity of those who 

had been relying on discriminatory literacy tests was being quickly rewarded. A 

1968 report of the Civil Rights Commission perceptively reported a sharp growth 

in vote dilution techniques as new methods of voting discrimination. The report specifically singled out redistricting measures, shifts to at-large elections, and changes 

in local government boundaries. 

The other temporary remedies went through similar evolutions. Thus, the need 

for federal examiners under Sections 6 and 7 declined as registration barriers largely disappeared, but the need for federal election observers under Section 8 increased 

as the focus of efforts shifted from registration office difficulties to Election Day 

problems. 

Rejecting the argument that Section 5 should be limited to measures directly affecting the right to register and to cast a ballot, the Supreme Court in 1969 held 

that the broad reach of Section 5 covered these changes in ‘‘systems of representation’’ because, as the reapportionment cases recognized, ‘‘the right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting 

a ballot.’’

The trends perceived by the Civil Rights Commission in 1968 were the beginning 

of an epidemic of dilution methods in the covered jurisdictions. In fact, of the 1300+ 

changes to which the Attorney General has objected to date, the vast majority have 

involved changes in representational systems, or, to put it in plainer terms, gerrymanders and related tactics: redistricting; changes to at-large or multimember districts; annexations superimposed upon at-large election systems; majority-runoff requirements; and anti-single-shot methods such as full-slate laws and numbered 

places. Since an objection is the equivalent of a court injunction, the large number 

82

of objections shows how central the role of preclearance is in guarding the right to 

vote. 

Furthermore, well over half of the objections have come since the last reauthorization of the Act in 1982, which makes it plain that the problem has not receded, and 

the need for preclearance continues today. 

The story of the Voting Rights Act did not end in 1965; it was just beginning. Because of its effectiveness in checking the growth of vote dilution and the demonstrated need to continue its protections, Congress extended Section 5 for five 

years in 1970, and for seven more years in 1975. Both of the extensions in 1970 

and 1975 were marked by vigorous debate in Congress and by extensive hearings 

and reports documenting the continuing abuses that justified the continued need for 

the preclearance remedy. Increasingly, these abuses fell in the area of vote dilution; 

and the 1975 hearings, reports, and floor debates are especially filled with account 

after account of gerrymandering, discriminatory at-large elections, improper municipal annexations, and similar methods that too often proved effective in keeping the 

newly registered black voters from exercising their votes effectively. The administrative record under Section 5 demonstrated, though, that effective weapons against dilution could be developed. 

The actual mechanism of the extension was by amending and expanding Section 

4’s coverage trigger, which had the effect of continuing Section 5 (and Sections 6– 8), and expanding their reach to include new jurisdictions under an expanded coverage formula. 

The 1975 amendments also added a new dimension to the Voting Rights Act, in 

the form of provisions designed to protect certain language-minority voters (American Indian, Asian American, Alaskan Native, and Spanish-heritage) from discrimination. The key new provision, which is temporary, required bilingual assistance in 

some areas where language-minority voters are highly concentrated. In addition, a 

clause was added to Section 2—the general ban on voting discrimination—prohibiting voting discrimination on account of language-minority as well as on account 

of race. 

In 1982, the temporary provisions were extended again, both the preclearance provisions of Section 5 and the language assistance provisions of Section 203. The extension was accomplished, as in earlier times, by amending Section 4, which contains the coverage formula or ‘‘trigger.’’ The temporary provisions whose application 

is ‘‘triggered’’ by Section 4 coverage include not only Section 5 (preclearance) but 

also Sections 6, 7 and 8 (federal examiners and election observers). (Also, of course, 

in 1982, Congress amended Section 2 to provide that existing voting schemes would 

be invalid if they ‘‘result’’ in discrimination without the heavy burden of proving discriminatory purpose.) 

The 1982 extension was for 25 years. It was accomplished by specifying that period in the trigger formula of Section 4(a)(8) of the Act, which is now codified at 

42 U.S.C. § 1973b(a)(8). This was obviously a much more realistic view of how long 

it might take to overcome voting discrimination. In a Nation where slavery lasted 

for a quarter of a millennium, where another century went by with racial segregation in full force before the Voting rights Act, where, in other words, the Voting 

Rights Act sought to change nearly 20 generations of human behavior, the problem 

could certainly not be solved in 5 or 10 or 17 years. 

Indeed, I do not assume that the Congresses of 1965, 1970 or 1975 thought they 

were solving the problem of voting discrimination once and for all. Rather, they 

were acting judiciously and cautiously to apply an appropriate remedy for a limited 

time period, and calling for a review at the end of that period to see if conditions 

had changed sufficiently to end the statute. Each time before now, that review has 

led Congress to decide that the time had not yet arrived to end the statute. In fact, 

each time Congress has held extensive hearings and compiled a detailed record of 

continuing problems not only justifying extension of Section 5 and the other temporary provisions but adding new remedies to address newly recognized problems. 

Two prime examples are the permanent elimination of literacy tests nationwide—

achieved in two steps in 1970 and 1975—and the amendment of Section 2 to adopt 

a ‘‘results’’ standard for proving discrimination. 

Another preeminent example of Congress’ strengthening of the Act to respond to 

new challenges is the addition of provisions protecting language minority citizens, 

both by expanding the trigger formula in section 4 and by enacting section 203 to 

provide assistance to language minority voters at all stages of the voting process. 

So too with the addition of section 208 in 1982, which allows voters who need assistance—including elderly and handicapped voters—to receive assistance from a person of their choice. 

Each time Congress has reviewed the Voting Rights Act in the past, it has been 

a learning experience for Congress and for the entire Nation. The Act has fulfilled 

83

its role as a dynamic piece of legislation not only designed to deal with existing 

problems, but also well adapted to grow to meet new abuses as they arose. It is precisely this ability of the Voting Rights Act to ‘‘head off new problems at the pass’’

that has continued to give it such vitality. Today this subcommittee has the opportunity and obligation to continue the Act’s protections as we face new problems in 

the unending quest to guarantee the fully equal right to vote to all. 

These hearings represent a new visit by Congress to this arena, and based on my 

experience observing elections and voting since the 1982 extension, I believe Congress will come to the same conclusion in or before 2007 as it has on its previous 

reviews: it is not time yet to abandon the course. 

I practice law in Charleston, South Carolina, and I have studied voting and elections not only there but elsewhere in my state and in the surrounding states. I know 

that the need for Section 5 is still there and I would like to tell you some of what 

I have seen that tells me so. This will be only one person’s experience, and I am 

sure you will hear in the coming weeks from others who have detailed accounts of 

problems in other areas. 

I also know there has been great progress, and I would not deny that for a moment. But we started so far down that even with great progress we have too far 

to go to be ready to abandon a protection that is responsible for much of the 

progress. 

Let me talk to you briefly about five sets of cases I have personally been involved 

in my home state during the past two decades. This is not ancient history: if I wanted to go into ancient history, i.e., back into the 1950’s or even the 1960’s and 1970’s, 

I would be here all day. Rather, what I will talk about happened in the time since 

the 1982 extension, indeed a lot of it in this very decade—the 21st century. 

I should also emphasize that my state is not alone. I do not believe South Carolina legislators or officials are more likely to do things that require the protection 

of the Voting Rights Act than their counterparts in other nearby states. On the contrary, my experience tells me that my state is on the same wave length as other 

jurisdictions covered by Section 5, and that those other covered states need Section 

5 just as much as my state. 

The problems I will talk about are some of the same types of problems we encountered in earlier times—but they are still with us. 

First, one of the problems that has plagued voters is manipulation of city boundaries to maintain white control. This was the trick in Tuskegee, Alabama, that produced the famous 1960 Supreme Court case of Gomillion v. Lightfoot. A few years 

later, one of the earliest Supreme Court cases under the Voting rights Act was Perkins v. Matthews, in 1971, a case of mine in which Section 5 blocked the city of 

Canton, Mississippi from carrying out an annexation that added new white residents to offset growth in black voting registration. 

The problem continues. In 1987 I brought a lawsuit against the city of Orangeburg, South Carolina, for the same thing. Orangeburg was once a round town, that 

is, it had been formed, like many cities, by drawing a circumference from a center 

point. As black voting grew, however, the town officials responded by a series of annexations that turned the town border into a jagged design of the most irregular 

shape. Our lawsuit resulted in a decision which allowed the annexations but minimized their discriminatory effect by changing from at-large elections to elections by 

fairly drawn districts or wards. A similar lawsuit in Hemingway, South Carolina, 

also blocked that city’s annexations, and the discriminatory nature of those annexations was plainly shown when the city decided that rather than annex nearby 

areas of black residents, it would simply undo the annexations of white people. In 

other words, if it could not carry out its discriminatory design, it had no use for 

these annexed areas. 

A second type of problems frequently encountered is harassment of poor or black 

voters at the polls. In a 1990 election for Probate Judge of Charleston County, a 

black candidate faced a white candidate. There was widespread intimidation of 

black voters at rural polling places, especially black voters who needed assistance 

because they were old, infirm or not fully literate. (And, by the way, it is no shame 

to need help with casting a vote in our elections: if you saw some of the Constitutional referendums on our ballot, you would need a Ph.D. to read them or make 

heads or tails out of them.) 

Despite the attempts to suppress black voting, the black candidate, Bernard Fielding, won that election. However, the State Election Commission, acting on 

unverified complaints from some of the same people who had tried to intimidate the 

black voters, set the election aside. We had to appeal to the South Carolina Supreme Court, which fortunately upheld Fielding’s election. One of the other features 

of that campaign was the white candidate tactic of running an ad with his black 

84

opponent’s picture, to make sure that every white voter knew exactly who was white 

and who was black. 

That was not the last time we have seen intimidation of voters. In a trial in 2002, 

which I will discuss in a few minutes, there was testimony that attempts to intimidate black voters continues as a frequent tactic. 

We also have problems sometimes recognizing laws of the land that protect voting 

rights. When you passed the National Voter Registration Act in the mid-1990’s 

(‘‘Motor Voter law’’), our then Governor simply announced that the law did not apply 

in South Carolina, and our then-Attorney General went to court to defend South 

Carolinas right to ignore the law. Again, fortunately, the court—this time a federal 

court—put a stop to that nonsense. The bill to the state, by the way, was $150,000 

in attorneys’ fees to us, not counting the cost of the State’s own lawyers including 

a special private counsel retained to augment its Attorney General’s staff. 

The presence of pervasive racial polarization among voters has not abated. Studies by experts on all sides, including experts hired by the State, and repeated judicial decisions, have highlighted the continuing phenomenon. It is not just in elections here and there, but throughout our State. In the most recent statewide redistricting case, a three-judge court took extensive note of the persistence of racially 

polarized voting, and how it affects the fundamental right to vote. Among the court’s 

findings, it said ‘‘the history of racially polarized voting in South Carolina is long 

and well-documented,’’ and the court cited the ‘‘disturbing fact’’ that there has been 

‘‘little change in the last decade.’’ These findings echoed earlier findings. In fact, I 

am not aware of any one of the dozens and dozens of voting lawsuits in our state 

in which any single expert has ever said we do not suffer from racially polarized 

voting. 

Going from the large-scale to the intensely local, even the most minor, seemingly 

innocuous changes can be fraught with problems that hinder voters. Last year, in 

Charleston County, the registration office—which is also the location for ‘‘early absentee voting’’ and resolving election day registration disputes—was moved from a 

central location, well served by bus lines and adjacent to other government offices—

including public assistance agencies—to a remote location nearly half a mile from 

the nearest bus service. What does that mean if you don’t have a car, especially if 

you are a minority voter—who disproportionately don’t own cars? 

Perhaps the most notable case is a case that is hot off the presses—a case that 

started in 2001 and ended with a Supreme Court order less than a year ago. This 

case involved the method of electing the County Council in Charleston County. The 

County Council members were elected from nine separate districts until 1969, when 

there was a sudden change to at-large elections for the nine members. 

Unfortunately, when that change took place in 1969, it was precleared under Section 5. The reason is not entirely clear, but that was in the infancy of Section 5 and 

it was before the Supreme Court had highlighted the dilutive effects of at-large elections. 

In any event, in 2001 the U.S. Department of Justice, along with a group of individual voters, brought a lawsuit to challenge the at-large elections as racially discriminatory. I was privileged to be one of the lawyers representing the plaintiffs in 

that case. The case was tried for six solid weeks in 2002, and it resulted in a sweeping decision overturning the at-large elections on the ground that system discriminates against black voters on account of their race. The court issued a 75-page opinion analyzing in minute detail what the role of race has been and continues to be 

in our elections. Much of the evidence supporting the decision came from the County’s own expert witness. The decision is a virtual primer about corrosive voting discrimination in my state and my county today, in the 21st century. 

Let me outline a few of the things this case tells us. First, there is severely racially polarized voting, meaning that white voters rarely vote for candidates favored 

by black voters, especially if those candidates are black themselves. This was based 

on analysis not of old elections, but elections during the past 15 years, by experts 

for all sides. 

This pattern has had a predictable result. In a county with a population more 

than one-third black, only three of the 41 people elected to County Council since 

1970 were minority, including only one in the last decade. In that last decade, all 

nine black candidates supported cohesively by black voters were defeated in the general elections, as well as 90% of the 21 preferred candidates of whatever race. For 

example, black voters did best in 1998, but even in that year, the two white candidates they supported won but the two black candidates they supported lost. 

Nor were these results accidental. In addition to demographic factors that are relevant in judging voting discrimination, there was powerful evidence of intimidation 

and harassment of blacks at the polls during the 1980s and 1990s and even as late 

85

as the 2000 general election. There was also evidence of race baiting tactics used 

by political strategists. 

Perhaps the most telling sign of voting discrimination in Charleston County elections was the Court’s finding that racial appeals of a subtle or not-so-subtle (i.e., 

overt) nature were used in election campaigns. The most telling of these examples 

were white candidates running ads or circulating fliers with photos of their black 

opponents—sometimes even darkened to leave no mistake—to call attention to the 

black candidates’ race in case any white voter happened to be unaware of it. 

This tactic is the surest sign of an atmosphere where voting discrimination flourishes; in locales where the tactic is used, this tactic says local politicians know race 

‘‘sells,’’ and that is why they use it. How much more would they use race to buy 

and sell elections if the Voting Rights Act were not in place? 

After the district court’s decision, the County nevertheless appealed, and the decision was resoundingly affirmed by the Fourth Circuit in an opinion by Judge J. 

Harvie Wilkinson. Still the County did not give up, but petitioned the U.S. Supreme 

Court, which refused to hear the case, and it finally ended with a new system designed to provide equal rights to all voters of all races. 

One important note: the County spent over $2,000,000 of taxpayers’ money in its 

defense of the discriminatory method of electing County Council members. 

Another telling note: the Charleston County School Board has an election method 

that is similar but not identical to the County Council. While the County Council 

case was going on, the South Carolina General Assembly, led by legislators from 

Charleston County, tried to change the school board method to adopt the most discriminatory features of the County Council. The then-Governor vetoed the first attempt, but the General Assembly tried again—even after the method had already 

been thrown out by the federal court. This time, the new Governor signed this discriminatory bill. Fortunately, Section 5 of the Voting Rights Act covered this voting 

change and when it was presented for preclearance under that Section, preclearance 

was denied. If Section 5 had gone out of existence, this bill would have become law 

even though its precise twin had already been found to be racially discriminatory. 

I cannot imagine clearer proof of the need to extend the trigger of Section 4 of 

the Voting rights Act so that Section 5 and other ‘‘temporary provisions’’ will continue to protect voters. 

Striving for full equality in all areas especially the right to vote, is an obligation 

for every American. When we have such an effective protection in the form of the 

Voting Rights Act, we should not rush to abandon that protection prematurely simply in the hope that equality will come. 

Finally, I want to say a word about the Constitution. I realize that Congress is 

not the only branch of government that will consider the Voting Rights Act, and I 

know there has been speculation about whether continuing the section 4 trigger will 

still be constitutional. I have no doubt that doing so is constitutional. I litigate in 

other covered states as well as South Carolina, and am familiar enough with some 

of those states to be confident that the record presented to you in these hearings 

will show that the types of problems I have outlined here are widespread in the covered jurisdictions. Based on the record I expect you will see, there will be ample 

justification for continuing to provide special remedies in the covered jurisdictions, 

based on the eminently rational and well-tailored coverage formula of the section 

4 trigger. Moreover, while section 4 contains the trigger that imposes the special 

remedies, section 4 also contains a carefully tailored bailout, described by my fellow 

witness Mr. Hebert, which is essentially a ‘‘reverse trigger’’ that a covered jurisdiction can use to end coverage. With a rational coverage formula, with a record continuing to justify that formula, and with a nuanced bailout in place, the Voting 

Rights Act is exactly the kind of congruent and proportional remedy that satisfies 

the Constitution. 

Thank you. Again, I salute the Members and the excellent staff for placing this 

crucial issue in the limelight. I would be pleased to answer any questions.

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ATTACHMENT


Derfner.eps
87

Mr. CHABOT. Thank you very much, Mr. Derfner. 

Our final witness this morning will be Mr. Hebert. And you’re 

recognized for 5 minutes. 

TESTIMONY OF J. GERALD HEBERT, FORMER ACTING CHIEF, 

CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE 

Mr. HEBERT. Thank you, Mr. Chairman. Chairman Chabot, Representative Nadler, and distinguished Committee Members, thank 

you for the opportunity to appear before you today. I’ll focus my 

comments on the bailout provisions of the Voting Rights Act, but 

I would at least like to put them in one broad context; which is 

that I do support an extension of the act, and I believe the bailout 

provisions, as they presently exist, are largely working. 

I’m also here today in my capacity as legal counsel to a number 

of the jurisdictions that have already bailed out, or are in the process of bailing out; including, among others, Augusta County, Virginia, and Kings County, California. 

Now, we know that the Voting Rights Act is the crown jewel of 

civil rights. What we saw prior to 1965 is that case-by-case approach to voting discrimination problems was not working. So Congress took a unique and fresh approach, by enacting the 

preclearance provisions of the Voting Rights Act, which set up a 

means by which jurisdictions that were subject to a certain coverage formula, and therefore are called covered jurisdictions, would 

be required to submit voting changes for preclearance. 

Now, the jurisdictions at that time could also bail out from coverage under the Voting Rights Act. And indeed, between 1965 and 

’70, several of them did. And what they had to do to bail out at 

that time was they had to show that they had used no test or device—meaning like a literacy test, a poll tax, and so on—in a discriminatory manner for at least 5 years. 

Well, as of 1965, most of the covered jurisdictions were not able 

to meet that test, of course, because they had used literacy tests 

and poll taxes and other tests or devices in a discriminatory way 

for 5 years. And they also met the other part of the coverage formula, that less than 50 percent of their voting-age population was 

registered, or less than 50 percent had turned out to vote. 

Political subdivisions at that time were not allowed to bail out, 

either. If you were a political subdivision within an entirely covered 

State—like Virginia, for example, my home State—and you wanted 

to bail out, the State was the only entity that could bail out in a 

complete covered State. 

There were some States, as there are now, where you only had 

certain parts of the State that were covered. Representative Conyers mentioned his home State of Michigan, where they have a couple of townships, for example, that are still covered. In jurisdictions 

like that, that are in a State that’s only partially covered, the political subdivisions could bail out. 

Between 1965 and ’70, Alaska, three counties in Arizona, Elmore 

County, Idaho, and Wake County, North Carolina, all bailed out. 

Nash and Gaston County, Representative Watt, were not allowed 

to bail out. The Justice Department opposed that in those early 

years. 

88

In 1970 to ’75, when Congress extended the act again, you had 

a couple of jurisdictions. The State of Alaska bailed out, as did the 

State of New York. And New York ended up getting recovered 

under the Voting Rights Act, when it was found that they had in 

fact used a test or device in a discriminatory manner. 

And my home State of Virginia in 1974 sought a bailout. And 

they were denied a bailout because there was evidence that the setting up of inferior schools for minority voters in fact disabled minority voters from passing the literacy test. And so therefore, the 

literacy test in Virginia had a discriminatory impact, and they did 

not meet the bailout provisions. 

Now, Congress in 1982 dramatically changed the bailout provisions. And I’ll move quickly through this, but essentially, as a result of the ’82 amendments, in the last 25 years you’ve now had 

a bailout standard that is totally different, and not focused on a 

time limit of 5 years showing a non-discriminatory test or device 

or so on. 

Instead, you have to show that within the last 10 years you have 

used no test or device; that there have been no final judgments or 

settlements that you’ve entered into as a jurisdiction because it’s 

been alleged that you discriminated on the basis of race, color, or 

membership in a language minority group in your voting and election practices; that there haven’t been any Federal examiners assigned to your jurisdiction; that you’ve timely submitted all the voting changes to the Justice Department for preclearance; that the 

Justice Department has not objected to any of your changes, or the 

D.C. court denied any of your changes. 

That’s what you have to show over a 10-year period. And quite 

frankly, for nearly, I would say, 90 percent of all the covered jurisdictions today, they could show at least that much. 

Now, you also have to show when you’re seeking the bailout that, 

if you’ve had any dilutive procedures, that you’ve in fact, in your 

voting system—that you’ve eliminated those. You have to show 

that you’ve engaged in constructive efforts to increase minority participation. 

You have to show that, if there has been any intimidation or harassment of minority voters—and I will tell you today that there 

still is harassment and intimidation of minority voters—that you’ve 

made constructive efforts to eliminate it; and that you have engaged in other constructive efforts to expand the opportunity to 

register and to cast ballots; and that you’ve included minorities in 

running the election process, whether they work in the voter registration office or as poll officials or on the electoral board. 

As someone mentioned earlier, I think that the jurisdictions that 

I have represented—and I have represented all nine of the jurisdictions that have bailed out since the ’82 amendments—the jurisdictions have been able to meet that. 

Now, why, though, have there not been more? The simple answer 

to that—and I’ll use this point really to sum up—is that I think 

a lot of the jurisdictions don’t really know about the bailout provisions and how easy it is, frankly, to meet them if you’ve engaged 

in non-discriminatory voting behavior. 

And that’s the key part of that answer; is that jurisdictions today 

want to be able to demonstrate that they have a good record, that 

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1 City of Rome v. United States, 446 U.S. 156, 167 (1980). 2 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46,as reprinted in 1982 U.S.C.C.A.N. at 222. 3 42 U.S.C. § 1973b(1)(A-E) (2005). 

they offer equal opportunity. And when they find out that the bailout provisions are available to show that and to show their citizens 

that we do have an open process, they’ve pursued it, and they’ve 

been proud of it. 

The bailout provisions are really an incentive for the covered jurisdictions, which have a presumption that they discriminate, to 

show that, in fact, they have a clean record. That’s what you intended when you enacted the bailout provisions; and thus far, 

they’ve worked very well. 

I’ve submitted to you a chart. I’m going to ask permission to submit written testimony at the conclusion of this hearing. I’ll do it 

within a prescribed time period, Mr. Chairman, to extend my remarks and give you additional information on what I agree with 

Mr. Watt, Congressman Watt; that this is perhaps one of the more 

central parts to show that the Voting Rights Act today is not only 

constitutional, but that it in fact works to end discrimination. And 

that’s what it was intended to do. And it’s a law that we’re all very 

proud of. Thank you very much. 

[The prepared statement of Mr. Hebert follows:]

PREPARED STATEMENT OF J. GERALD HEBERT

Good morning Chairman Chabot, Rep. Nadler, and distinguished committee members. Thank you for the opportunity to testify before you today. I will focus my comments on the bailout provisions of the Voting Rights Act (VRA), but would like to 

state at the beginning that the Act should be extended and the bailout provisions 

be retained largely in their present form. 

The marches, protests, and struggles of the civil rights community culminated in 

1965 with the passage of the VRA. Individual adjudication of disputes had been ineffective in securing minority citizens an equal opportunity to cast their ballots. 

Congress took a fresh approach, establishing a formula subjecting certain jurisdictions to administrative or judicial preclearance of changes affecting voting, and setting up a means for those jurisdictions to bailout out of coverage at a later date. 

A jurisdiction is covered, and required to preclear all changes effecting voting, if 

it (1) maintained a test or device as a prerequisite to voting as of one of three fixed 

dates, and (2) as of that date either less than 50 percent of its voting age residents 

were not registered to vote or less than 50 percent of its voting age residents actually voted. 

Between 1965 and 1982, these covered jurisdictions could bailout of coverage by 

demonstrating in an action for declaratory judgment before a three-judge panel of 

the United States District Court of the District of Columbia that no test or device 

had been used in a given number of years. Political subdivisions, such as counties, 

were prohibited from bailing out separately if they were located within a state that 

was covered in its entirety.1

In 1982, Congress enacted two major revisions to the bailout provisions. First, political subdivisions could bailout separately from their covered jurisdictions. Second, 

the bailout criteria were changed to ‘‘recogniz[e] and reward[] their good conduct, 

rather than require[e] them to await an expiration date which is fixed regardless 

of the actual record.’’ 2

Under the current bailout formula, a covered jurisdiction must first demonstrate 

that in the past 10 years: (1) no test or device has been used to determine voter 

eligibility with the purpose or effect of discrimination, (2) no final judgments, consent decrees, or settlements have been entered against the jurisdiction for racially 

discriminatory voting practices, (3) no federal examiners have been assigned to monitor elections, (4) there has been timely submission of all voting changes and full 

compliance with § 5, and (5) there have been no objections by the Department of 

Justice or the District Court for the District of Columbia to any voting changes.3

Second, the jurisdiction bears the burden of proving at the time bailout is sought

that any dilutive voting procedures have been eliminated, constructive efforts have 

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4 42 U.S.C. § 1973b(1)(F) (2005). 5 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46, 60, as reprinted in 1982 U.S.C.C.A.N. at 238. 6 Id., at 222 7 City of Boerne, 521 U.S. 507, 525 (1997). 8Paul F. Hancock and Lora L. Tredway, The Bailout Standard of the Voting Rights Act: An 

Incentive to End Discrimination, 17 Urb. Law. 379, 393–394 (1985). 9 Id. 397, fn. 93–98. 10 Vernon Francis et al., Preserving a Fundamental Right: Reauthorization of the Voting 

Rights Act, Lawyers’ Committee for Civil Rights Under Law, at 11, June 2003. 

been made to eliminate any known harassment or intimidation of voters, and it has 

engaged in other constructive efforts at increasing minority voter participation such 

as, expanding opportunities for convenient registration and voting and appointing 

minority election officials throughout all stages of the registration/election process.4

The current bailout formula was an important step towards achieving the goals 

of the VRA. It gave covered jurisdictions an incentive to move beyond the status 

quo, and to improve accessibility to the electoral process for minorities. As the Senate Judiciary Committee report stated, ‘‘the goal of the bailout . . . is to give covered jurisdictions an incentive to eliminate practices denying or abridging opportunities for minorities to participate in the political process.’’ 5

Congress should examine whether there is evidence that the bailout provision actually ‘‘provide[d] additional incentives to the covered jurisdictions to comply with 

laws protecting the voting rights of minorities, and . . . improve[d] existing election 

practices.’’ 6 I believe it has. 

The Supreme Court has indicated a strong Congressional record demonstrating 

the existence of discrimination is required when legislating in this area.7 In 1970, 

1975 and 1982, Congress commissioned studies to collect evidence on voter discrimination. In 1970, the Act was extended because while there was a significant increase in black voter registration, there was continued racial discrimination in the 

electoral process (e.g., switching from single-member districts to at-large elections, 

redrawing boundaries, minority candidates prevented from running, illiterate voters 

being denied assistance, racial discrimination in selection of poll officials, harassment, intimidation) and black voter registration rate lagged behind white rate.8

Similarly, in 1975 minority registration rates improved, but still lagged behind 

whites and restrictions on registration, casting a ballot, running for office, intimidation and vote dilution still existed.9 In 1982, the Commission on Civil Rights report 

documented continued resistance by individuals and local jurisdictions to increased 

minority participation in elections and to complying with the VRA. What evidence 

about all this exists today? Congress has a duty, whether it extends the Act or not, 

to answer this question. 

I have served as legal counsel to all of the jurisdictions that have bailed out since 

the 1982 amendments to the VRA. All of them are in Virginia and are listed in Appendix A. 

Local jurisdictions with which I have worked have expressed to me several advantages that they derive from the current bailout formula. For instance, by requiring 

them to prove a ten-year record of good behavior and to demonstrate improvements 

to the elections process for minorities, these covered jurisdictions are afforded a public opportunity to prove it has fair, non-discriminatory practices. Second, while bailouts come with some costs (on average about $5,000 for legal expenses), it is still 

less costly than making § 5 preclearance submissions indefinitely. Finally, once bailout is achieved local jurisdictions are afforded much more flexibility and efficiency 

in making routine changes, such as moving a polling place. 

For all of its advantages, however, only a few jurisdictions have bailed out. Some 

argue § 5 should be retained because jurisdictions have not been achieving bailout 

on a mass scale, and that this is evidence there are still many problems with the 

election processes in these jurisdictions.10 This assumes that jurisdictions are applying and being denied, when really the problem is that jurisdictions are just not applying. (See Appendix A). Why is this? 

One reason might be that smaller localities just do not know the bailout option 

is available to them, or it seems too complicated or time consuming. For the vast 

majority of jurisdictions, the process is relatively straightforward and easy. I would 

recommend that when the legislation is reauthorized, Congress suggest the Department of Justice provide more information to localities about how to achieve bailout 

and encourage them to do so. 

Another reason posited for the lack of bailouts is that the criteria are thought to 

be too difficult to meet. That is not the case. Most of the factors to be demonstrated 

are easily proven for jurisdictions that do not discriminate in their voting practices. 

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11 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46, 48, as reprinted in 1982 U.S.C.C.A.N. at 226. 12 H.Amdt. 266 to H.R. 3112, 97th Cong., 1st Sess., offered Oct. 5, 1981 would have allowed 

a state to bailout if two-thirds of its political subdivisions bailed out, and H.Amdt. 272 to H.R. 

3112, offered Oct. 5, 1981 and S.UP.Amdt. 1029 to S. 1992, offered Jun. 18, 1982, both would 

have allowed a state to bailout if the state met all the criteria, even if its political subdivisions 

did not. Each was rejected, because the 15th amendment places the burden of protecting the 

electoral franchise on the States. 13George F. Will, VRA, All of It, Forever?, Newsweek, Oct. 10, 2005. 14 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46, as reprinted in 1982 U.S.C.C.A.N. at 222. 15 City of Boerne v. Flores, 521 U.S. 507, 520 (1997). 

One factor, proving § 5 compliance, is often cited as the most difficult to meet because opponents to bailout are likely to be able to find some small change that was 

not precleared. But this is not an obstacle either. 

There are several reasons why demonstrating § 5 compliance should be retained 

as part of the bailout formula. First, DOJ will allow a jurisdiction that inadvertently 

failed to submit a few changes to submit those changes for preclearance at the time 

bailout is sought, and thus the preclearance is nunc pro tunc. Second, the legislative 

history shows that Congress thought that for changes which ‘‘are really de minimis’’

the ‘‘courts and Department of Justice have used and will continue to use common 

sense.’’ 11 While this process of going back and making these § 5 submissions can be 

time-consuming, it ensures full compliance with the Act and is faithful to the language and spirit of the law. 

While most jurisdictions who have sought bailout since 1982 have had to make 

few such submissions, (See Appendix A) some county officials know that political 

subdivisions, such as towns and cities within the county, have not made any submissions. This affects the County’s ability to obtain an expedited bailout. In King’s 

County, California, for example, 40–50 submissions have been required on behalf of 

localities, some of which do not even exist anymore. Furthermore, King’s County 

does not have authority to compel the localities’ compliance with § 5. 

Several amendments were proposed in 1982 which would have made it easier for 

states to bailout without each of its political subdivisions bailing out, and each was 

rejected.12

A better solution may be to allow towns, cities and other local governmental units 

within a covered county to bailout independently. Then, once each has bailed out, 

the county can bailout without having to make submissions on behalf of each town 

or city within its borders. In this sense, the town-county relationship mirrors the 

current county-state relationship that exists under the current bailout law. The 

county would still need to make submissions for any changes it makes until it seeks 

bailout. 

To consider the merits of this, Congress should examine § 5 in covered states to 

see if allowing a bailout to jurisdictions within the state has proven to be problematic from an enforcement or compliance perspective. If a county can bailout now in 

a state like Virginia that is completely covered (and they can and have done so), 

has exempting parts of a state from preclearance obligations or other special remedial provisions caused any problems from an enforcement perspective? That would 

shed light on whether Congress might want to allow a local government to bailout 

within a covered county, or vice versa. 

A third criticism of the bailout provision relates to the VRA coverage formula. 

(‘‘Places bound by the preclearance provision are identified by a formula based on 

minority participation in election more than three decades ago.’’ 13) The bailout provisions, on the other hand, were designed to ‘‘relate to the jurisdiction’s recent 

record of behavior rather than to a mere calendar date.’’ 14 To the extent that only 

jurisdictions that meet the coverage formula need to seek bailout, the bailout provisions suffer from whatever overbreadth or other potential problems exist with regard to the coverage formula. 

Some argue the current coverage formula may be unconstitutional because of a 

lack of ‘‘congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.’’ 15 § 2 of the 15th Amendment to the 

United States Constitution grants Congress the authority to enforce § 1, namely ‘‘the 

right of citizens of the United States to vote shall not be denied or abridged by the 

United States or any State on account of race, color, or previous condition of servitude.’’ After passage of the Voting Rights Act in 1965, the Supreme Court held 

in South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966), that Congress had the 

remedial authority under the 15th Amendment, § 2 to pass parts of § 4 of the VRA. 

Again, in 1980 the Supreme Court stated in City of Rome v. United States, 446 U.S. 

156, 177, that preclearance ‘‘is an appropriate method of promoting the purposes of 

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16 City of Rome, brief by Appellees pg 44 (citing H.R. Rep. No. 439, 89th Cong., 1st Sess. 8, 

12–14 (1965); S. Rep. No. 162 (Pt. 3), 89th Cong., 1st Sess. 13–16 (1965); Sheffield, 435 U.S. 

at 119–120

the Fifteenth Amendment, even if it is assumed that § 1 of the Amendment prohibits 

only intentional discrimination in voting.’’

Congress’ authority to enact remedial legislation under the Fourteenth Amendment was later reviewed in City of Boerne v. Flores, 521 U.S. 507, 519 (1997), and 

the Court determined that Congress’ remedial authority extends only to enforce prevention of unconstitutional actions, not to make substantive change in the governing 

law. Id. at 520 (holding Congress did not have the remedial authority to pass the 

Religious Freedom Restoration Act). Some thought this holding signaled potential 

problems for the VRA’s constitutionality, yet just two years later the Court stated 

in Lopez v. Monterey County, 525 U.S. 266, 282–283 (1999), ‘‘[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into legislative spheres of autonomy previously reserved for 

the states.’’

Thus, the remedial provisions of the VRA, including the bailout provision, must 

be proportional to the injury to be prevented. Considering the bailout provision applies to jurisdictions based on a coverage formula that most seem to agree is outdated, one solution would be to revise the coverage formula. It’s perhaps the hardest 

issue facing the Congress. This is an area the Congress should give serious consideration and study to. 

A solution might be crafted along the following lines: a jurisdiction is covered if 

(1) there is a disparity between the percentage of registered minority voters or percentage of minority voters who cast ballots in the last presidential election on the 

one hand, and the actual voting age population percentage of minorities on the 

other; or (2) the jurisdiction provided English only election materials and assistance 

and more than five percent of the voting age residents are members of a single language minority. 

This formula would seemingly target the remedy toward the potentially discriminatory conduct in a more direct way than a formula based on the results of a presidential election conducted thirty years ago. Jurisdictions which meet this formulation would be presumptively covered and subject to § 5 preclearance. They may seek 

bailout from coverage immediately, but would be required to meet the same bailout 

factors that currently exist. 

When devising a new formula, it is important to keep in mind the original purpose of the coverage formula: ‘‘The coverage formula of section 4(b) was designed 

to limit the Act’s most stringent remedies to those areas of the country where congressional investigation had disclosed the most prevalent and pervasive degree of 

racial discrimination in voting.’’ 16 Congress has done a magnificent job each time 

it extended the Act in the past to gather detailed information on how the Act was 

working. It should once again undertake that effort. 

To this extent, and to the extent that § 5 preclearance had worked as evidenced 

by the steady submissions of changes, the sharp reductions in objections (See Appendix B), and the practical standards for bailout that currently exist, we are headed toward a day when there will be no discrimination that affects the ability of any 

person to register to vote or to cast a ballot, and our democracy will be better for 

it. 

Thank you.

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ATTACHMENT 1


Hebert1.eps
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ATTACHMENT 2


Hebert2A.eps
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Hebert2B.eps
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Mr. CHABOT. Thank you very much. Without objection, those materials will be included in the record. 

Mr. HEBERT. Thank you. 

Mr. CHABOT. We want to thank all four of the members for their 

testimony here this morning. Now the Members up here have 5 

minutes each to ask questions. And I yield myself 5 minutes for 

that purpose. 

I’d ask all of you this question, if you could—and since I’m asking all four, if you could keep it within a confined range, so we 

could get everything in—how do you see the state of minority voting rights now, as compared to 1965? And how much of that would 

you say is directly or indirectly attributable to the Voting Rights 

Act? And I guess we’ll start with you, Lieutenant Governor. 

Mr. STEELE. Thank you, Mr. Chairman. Just very quickly, I 

think if you look at where we were and where we are, you can see 

dramatic progress has been made, as has been indicated by the testimony here this morning. But what I tried to caution in my comments was, you know, yeah, we’ve gone down the road and we’ve 

gotten rid of some of the ugly, but we still have some of the bad 

out there to deal with, as well; as well as we’ve got some good. 

So the process of enfranchising individuals is a living process. It’s 

an ongoing process that I think reflects the vibrancy and the diversity and the changes that occur within any given community. 

Right now, our country, for example, is dealing with increased 

immigration. And I know in my State of Maryland, and particularly Prince George’s and Montgomery Counties, we’ve seen a very 

significant increase in Hispanic and other minority communities 

who have migrated to this part of our Capital region. So how do 

we address their ongoing issues and concerns relating to enfranchisement, as they become fully American citizens and want to 

fully participate? 

So I think we have to stay focused on the evolution and the continual vibrancy of this process. And this type of hearing and this 

process, in and of itself, helps us do that. 

Mr. CHABOT. Thank you. Mr. Garza? 

Mr. GARZA. I think there has been a dramatic improvement in 

the level of representation in the Latino community in Texas and 

throughout the Southwest, and in large measure because of the 

Voting Rights Act—section 5 and section 2. 

I think there’s still a lot of work that needs to be done. And we 

find examples every day of continuing applications of discriminatory features and of things that could be improved in this thing. 

For example, the 2001 redistricting plan from Texas was objected 

to by the Department of Justice because it retrogressed and eliminated four Latino districts. All of those were put back into place 

as a result of the letter of objection and as a result of litigation. 

So that’s 2001, when that redistricting plan was adopted for the 

State House of Representatives. 

And another thing that we find continually when we file section 

2 cases is there is a large percentage of non-compliance, or a substantial amount of non-compliance in local jurisdictions. We inevitably will find in reviewing records—for example, in the Roscoe 

Independent School District, we sued, challenging the at-large election system in Roscoe. And in discovery and in reviewing the minVerDate 0ct 09 2002 16:49 Feb 08, 2006 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6601 G:\WORK\CONST\102005\24034.000 HJUD1 PsN: 24034
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utes of the school district, we found that they had adopted a numbered post provision for the at-large election system, and had never 

submitted it for preclearance. 

So there’s a number of instances like that in almost every situation where we’ve filed these at-large challenges, that we find noncompliance. And so I think there’s still a major problem with that, 

as well. 

Mr. CHABOT. Thank you. Mr. Derfner? 

Mr. DERFNER. There’s no question that the right to vote is much 

more real today—incredibly more real—than it was in 1965. At the 

same time, we have to recognize the Voting Rights Act has been 

central to that progress. 

And I liken it to a cold. If I get a cold, the doctor gives me an 

antibiotic, and he warns me,‘‘Keep taking this antibiotic for a full 

week, or a full 10 days. And even if your symptoms appear to be 

lessening after four or 5 days, don’t give up on the antibiotic, because your cold is not over just because the symptoms are not quite 

as visible.’’ And I think that’s what we have here. The Act has been 

critical to the progress we’ve made, and it remains critical to keeping on the progress. 

Mr. CHABOT. Thank you. Mr. Hebert? 

Mr. HEBERT. Just very briefly, Mr. Chairman, simply put, the 

Voting Rights Act has been responsible for bringing about the presence in boards, commissions, and other public bodies, of minority 

citizens taking their rightful place. And but for the Voting Rights 

Act, that would not have happened. 

I have seen in my own experience, particularly, I recall my days 

in the Justice Department, when I was in Selma, Alabama, where 

Dallas County, Alabama—Selma being the county seat—was 

roughly 50 percent Black in its voting-age population. And due to 

the fact of extreme racially polarized voting and the fact that there 

was a long history of discrimination, obviously, against Black voters in Selma, Black voters were never able to elect a single county 

commissioner or school board member to the school board or to the 

county commission; even though they were roughly half of the population. And that didn’t come about until nearly 1990. 

And it came about because the Justice Department spent years 

litigating the case that went back and up and down to the 11th 

Circuit like a yo-yo several times. But eventually, single member 

districts were there, put into place. Some of the districts were majority Black, and Black voters chose to elect a Black candidate to 

those. And so for the first time in history in Selma, Alabama, the 

Voting Rights Act finally brought fruit, and Black voters were able 

to have representatives of their own choice governing them. 

Now, that story has been repeated across the Nation in jurisdictions and small towns. And the Voting Rights Act has been singularly responsible for empowering minority voters to achieve those 

magnificent results. 

Mr. CHABOT. Thank you very much. My time has expired. The 

gentleman from New York, Mr. Nadler, is recognized for 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. I’d like to ask the members of the panel one question, so we can clear this up for the benefit of the Supreme Court. Starting with Mr. Haybert, is it? 

Haybert? 

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Mr. HEBERT. Hebert. 

Mr. NADLER. Hebert. Starting with Mr. Hebert, and going this 

way, do the members of the panel, based on their own experiences 

with elections in their home jurisdictions, believe that the protections of the Voting Rights Act—and most especially, the protections 

of the various sunsetting provisions of the Voting Rights Act that 

we’re considering—are still vitally needed? And I mean vitally 

needed today; not 40 years ago. 

Mr. HEBERT. The answer is, yes, Mr. Nadler. And if I would add 

one comment, you’ll see I’ve attached a listing of all the objections 

that the Justice Department has entered in some States, covered 

States—Mississippi, Virginia, South Carolina, to name a few. Some 

will argue that the fact that there are maybe half as many objections in the last 10 years as the prior 10 years to that, that that’s 

evidence that we no longer need section 5. 

In fact, the opposite is true. In fact, this shows that jurisdictions 

now understand that they can’t retrogress minority voting rights 

when they make changes, and they’ve made less of them. 

Mr. NADLER. And it’s working. 

Mr. HEBERT. And it’s working. 

Mr. NADLER. Thank you. Mr. Derfner? 

Mr. DERFNER. Mr. Congressman, yes, I agree wholeheartedly. 

And in fact, another way to do it is to pay attention in our local 

communities to the—or our State legislatures—to the proposals 

that are floated, and that never even get off the ground because it’s 

understood that they will not get precleared. And so, in fact, the 

deterrent effect of the preclearance provision, just for one, is a critical one. And half the time, we never see what might happen and 

what would happen if we didn’t have section 5. 

The same thing, frankly, is true with the Federal Observer Program under section 8 of the act. The mere possibility of Federal observers coming to some elections, and the fact that observers have 

been sent to certain elections and certain polling places, gives us 

cleaner elections than we would have, and guarantees the protections. So we can’t do without it. 

Mr. NADLER. Thank you. Mr. Garza? 

Mr. GARZA. Absolutely. And to echo some of the comments, the 

experience that we’ve had is that discussions in the governing 

boards have turned to, for instance, ‘‘Well, you know, we’ve had 

single member districts all these years. We have to keep redistricting every decade. It’s costing us a lot of money. Why don’t we 

do away with single member districts?’’ And inevitably, the discussion goes to, ‘‘Well, you can’t, because of the Voting Rights Act.’’

Mr. NADLER. Thank you. Lieutenant Governor Steele? 

Mr. STEELE. Thank you. Absolutely, it is relevant today, as it 

was in 1965, and I would say more so. And I think our recent history, electoral history, at the Federal and State levels would dictate 

that we not only renew and put back in place those—keep in place 

those provisions, but to the extent necessary, enhance and augment 

them to address some of the ongoing concerns that have been identified since 2000. So I think it’s very relevant. 

Mr. NADLER. Thank you. Well, I think we’re making the record 

for the Supreme Court. Mr. Chairman, I will at this time yield the 

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balance of my time to the gentleman from Georgia, who has worked 

so very hard on these issues. 

Mr. SCOTT OF GEORGIA. Thank you very much, Mr. Nadler. And 

I thank this entire Committee for your kindness and graciousness 

in extending me this opportunity to participate; not being a Member. I really, really appreciate it. Thank you very, very much. 

I’d like to ask this question to each of the panelists, and if you 

could respond to it. For jurisdictions covered by section 5 of the 

Voting Rights Act, any change in the State’s or political subdivision’s electoral process must be submitted for Federal preclearance, 

to prove that such a change does not have the purpose or effect of 

denying or abridging a citizen’s right to vote. 

As you know, in my home State of Georgia there’s a bill that has 

been passed, and is now law, that requires everyone who votes in 

person to first show State-issued identification photo card. Let me 

ask each of you this question. How does this law not have the purpose or effect of denying or abridging a citizen’s right to vote; since 

most of the people without the photo driver’s license or State-issued 

photo identification cards are people of color; or the poor, Black and 

White; or the disenfranchised; and the elderly? 

And I’d like for each of you to respond. Mr. Steele, especially, I 

think you’ve had a case where you’ve vetoed—or your State has recently vetoed—an ID bill. I think you have some familiarity with 

that. And of course, Mr. Garza, you’re representing from your perspective for Hispanics, and yours as a voting rights attorney. Especially, Mr. Hebert, yours as a former Acting Chief of the Civil 

Rights Division of the Justice Department. 

Because, to show the irony of this, just yesterday, a Federal 

judge in the Rome Northern Circuit in Georgia ruled that, in fact, 

this very law that was precleared by the Justice Department is, in 

fact, discriminatory and, he said in his own words, unconstitutional 

and acted as a poll tax—one of the most vicious forms of denying 

individuals the vote. 

Each of your responses, that would be very, very important, because I think Georgia now becomes the poster State for why we 

need this Voting Rights Act extended. 

Mr. CHABOT. The gentleman’s time has expired. The witnesses, 

we’d ask you to be relatively brief in your answers. 

I would also note that it’s really more specifically a HAVA issue, 

rather than what’s covered in this hearing. But nonetheless, the 

question has been asked, and can be answered. 

Mr. STEELE. I’d just very quickly say that, yes, we did recently 

have to deal with this issue. With respect to that bill, there was 

additional language in there that the Governor found particularly 

onerous. It wasn’t just specifically the idea of having a voter ID 

card. 

But this is a debate that many States are having right now. Particularly, in the State of Maryland, we had a very contentious 1994 

election for governor, in which there was fraud and abuse: in which 

voters who had long since been dead voted; in which voters who 

were not registered to vote, voted. And so there has to be in place 

in the system some type of checks and balance. 

And I think the debate and discussion we need to rightly have 

is what makes sense. If I go to the bank right now to cash a check, 

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regardless of my status in life, not only do I have to present an 

identification card, I get fingerprinted. So there are checks and balances throughout our system. And I don’t see how or why this process—which is the most precious process that we can engage in— should not be protected as much as possible from fraud and abuse, 

at any level, so that every citizen’s vote not only is counted, but is 

counted fairly. 

And so I think it’s an open debate. It’s an open question. The 

States are having it. The Congress is certainly going to be engaged 

in it. And probably, at some point, the Supreme Court is going to 

ultimately judge which way is right and which way is wrong, visa`-vis the Constitution. 

But it’s an important debate we’re having in our State. And I 

look forward to having it again come this January when the session 

starts up in our legislature, because I know it’s one of the issues 

we’ll be tackling. 

Mr. CHABOT. If the other witnesses would like to answer the 

question, they can. But, please, if you would be brief in your answers, because we’re trying to keep this within the 5-minute rule. 

Mr. DERFNER. Mr. Congressman Scott, I have no doubt that that 

bill was flagrantly unconstitutional, flagrantly illegal, flagrantly 

discriminatory. And that’s exactly what Judge Murphy found. 

And I think the importance of that is, how did the bill get that 

far? What does it show about the propensity of a covered jurisdiction to do things that it knows are discriminatory? 

And frankly, what can we learn in the rest of the Nation, where 

there’s a rush to judgment in many States to perhaps deal with 

fraud—which I acknowledge is something we need to prevent; but 

they aren’t being careful enough to deal with it in a way that will 

still protect and preserve the right to vote of people, especially poor 

people that don’t drive cars, that don’t necessarily carry ID cards 

with them around. And so that case is a beacon for telling us that 

we are reminded we have to protect the right to vote. 

Mr. HEBERT. And if I may just add one other comment to that, 

you brought up the fact that the Justice Department did, in fact, 

preclear that bill, and it’s very troubling. 

I mean, I think, as the section chief there, there was an effort 

made in South Carolina to impose a college diploma requirement 

to hold certain offices. And we found when we examined that, that 

that would fall more harshly on the shoulders of minority citizens, 

who hadn’t achieved that same education attainment level. And 

this is a similar thing. 

It always amazes me, I guess, as a voting rights lawyer, to see 

that we’re taking a fundamental right like the right to vote and, 

instead of trying to expand it, we’re trying to put conditions on it. 

We’ve done that throughout the history of our country. White 

males were allowed to vote; then property owners were allowed to 

vote; people only over 21, which we eventually lowered to 18. We 

eventually made people pass literacy tests; poll taxes; good character clauses. 

Instead of expanding the right to vote, the State of Georgia tried 

to restrict the right to vote. And even though there are some cases 

of legitimate concern about fraud, as the Lieutenant Governor has 

pointed out, well, if the voting rights community is going to have 

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to show a demonstrated record of a need to extend voting rights 

discrimination, anti-discrimination provisions, why shouldn’t those 

who are claiming that there’s fraud have to also show factually— not just come in and make allegations, but to show a record, so 

that their legislation is tailored to meet that? Seems to make sense 

to me. 

Mr. GARZA. Just very briefly, LULAC is extremely concerned 

about any restriction that has that sort of requirement for voting. 

We understand the need to make sure that elections are fair and 

clean. Our experience, though, has been that when you target election fraud measures, they’re usually targeted at the minority community in a far greater extent than they are the non-minority community. 

For example, we had a congressional race not too long ago in 

Houston, where 1,700 White voters voted in the Democratic—in the 

Republican primary, and then switched to vote in the Democratic 

run-off where an Hispanic was running against an Anglo candidate. That’s illegal in Texas. That’s a felony. Nobody was prosecuted. 

I represented a young man in Uvalde, Texas, who assisted an illiterate voter secure an absentee ballot, a mail-in ballot. And because he was illiterate, he could only make a little mark, and had 

to be witnessed. Well, in Texas, a voter can only witness two—I 

mean, I’m sorry, one application for absentee ballot, or mail-in ballot, for an illiterate voter. My client witnessed two, and he was 

prosecuted. The DA dropped the charges when I sent him a copy 

of the 1983 action that I would file if he continued. 

But that’s the sort of enforcement that we see in Texas; when 

much of the fraud is actually committed by officials, not by voters. 

Mr. CHABOT. The gentleman’s time has expired. The Chair would 

just note for the record—and again, I don’t want to get too far 

afield of what the purpose of this hearing is—but I’m all for expanding voting as widely as possible; but not expanding it to the 

extent that people who are deceased are allowed to vote. And so I 

have to concur with some of the comments that the Lieutenant 

Governor made, that I think it’s in no one’s interests to have fraud 

occurring. 

And as we’re doing that, we certainly need to make sure that 

we’re not trampling upon anybody’s rights, whether they be minorities or otherwise. But there is voter fraud going on, and that’s just 

unacceptable. We need to come to grips with that, I believe. 

The gentleman from Arizona, Mr. Franks, is recognized for 5 

minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman, and thank you, 

panel members. Lieutenant Governor Steele, it’s always good to see 

you again, sir. 

Mr. Hebert, in the covered areas, or those areas where there is 

special scrutiny due to past violations of the Voting Rights Act, do 

you see in your official capacity, or just studies that you have, that 

the complaints are increasing or decreasing on the Voting Rights 

Act? 

Mr. HEBERT. Well, in the jurisdictions that have bailed out, certainly, they are decreasing. In fact, in many of those jurisdictions, 

the bailout process is an opportunity really for the election officials 

102

to look at their entire voting and election system, top to bottom, 

and ensure that every aspect of it is non-discriminatory, and that 

in fact they are making the opportunities for people—minorities, of 

course, focused in that—to register and to cast ballots. 

So in the bailout jurisdictions, the opportunities were actually increasing, as the Justice Department found when they consented to 

them. 

Mr. FRANKS. And in your position, do you see—if you had to 

point out any particular practice that would be the most egregious, 

that goes to the heart of why we have the Voting Rights Act in the 

first place, that would be the most egregious in discriminating 

against people or trying to place undue burden on their right to 

vote, what would your perspective be on that? 

Mr. HEBERT. I think today the biggest area that needs reform is 

redistricting, frankly. I think you see gerrymandering taking place 

at all levels; and oftentimes, aimed at keeping certain potential 

candidates off the county commission or the city council or school 

board. So I see intentional—a lot of times intentional fragmentation of the minority community, so that they cannot elect a candidate of choice. I think that would probably be one of the principal 

things I see. 

Problems that deal with method of election, I think, continue to 

be the largest ones; because they in fact ultimately preclude minority citizens from taking their rightful place, oftentimes, you know, 

in a governing situation. 

Mr. FRANKS. Well, I might ask you to help me understand that 

a little bit better, how they preclude that. 

But my last question would be to the entire panel, and starting 

with you, Mr. Hebert. If you were going to rewrite some part of the 

Voting Rights Act retrospectively, if you, knowing what you do 

now, could go back the 40 years and say, ‘‘We want to put this in 

place because now we know what the trends were,’’ how would you 

change—what things would you do differently? And I’ll start with 

you, Mr. Hebert. And just if everyone could take a shot at that. 

Mr. HEBERT. Well, that’s a very interesting question, actually, 

Congressman Franks. I would say that one thing I would do, if I 

had had the foresight to do it—and I admit that I would not have; 

and you didn’t either, unfortunately—is that I would have spelled 

out in section 5 that the purpose prong of section 5 bars unconstitutional discrimination, and not just retrogressive intent, as the 

Supreme Court has now limited it. 

I would have said that if a county or a State or a city makes a 

voting change, and they intend to discriminate against minority 

voters, even if they don’t make them worse off in the process, but 

they intend to discriminate against them and keep them in their 

place, that that ought to be unconstitutional—which it is—and it 

ought not to be precleared under the Voting Rights Act—which, unfortunately, today is not the law, as a result of the Supreme Court’s 

decision in Bossier Parish v. Reno.

So that’s certainly one change I would retrospectively go back 

and make. Mr. Derfner was around for the original ’65 Act, so I’ll 

let him add another—— [Laughter.] 

Mr. FRANKS. Mr. Hebert, just briefly, related to the previous 

thought that you brought forth, the part that you think related to 

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the electoral redistricting, what part of that would you point out 

as having been something that is discriminatory toward minorities 

of any kind? 

Mr. HEBERT. Well, when a redistricting plan is drawn by a jurisdiction, whether it’s at the State level or the local level, they have 

a whole host of data available to them, down to the finest detail. 

And as a result of highly sophisticated technology, we can actually 

look down and see which blocks within a State voted Democratic, 

which ones voted Republican, where the minority voters are, the 

Hispanics, and how they’re trending in terms of their voting patterns. And we can calibrate districts down to almost a tenth of a 

percent, as to what the likely outcome is going to be on election 

day. 

And so I think that what happens in a lot of jurisdictions is that, 

as particularly the Latino community has been growing in so many 

jurisdictions across the country, and there are issues there with regard to their turnout because a number of people may not be citizens, or may not turn out to vote, that in fact there are calculations 

that are actually made in ways that are intended to keep Latino 

voters from electing their preferred candidates and to create districts in which they can elect their candidates of choice. 

Mr. CHABOT. Thank you. The gentleman’s time has expired. 

I would just note for the record, we’ve been advised that we’re 

supposed to have a series of votes at about quarter till twelve; 

which is a little over 20 minutes from now. I think we have four 

Members here still to question. The timing works out well, as long 

as we stay on schedule to, you know, some extent. 

The gentleman from Michigan, Mr. Conyers, the distinguished 

Ranking Member of the full Committee, is recognized for 5 minutes. 

Mr. CONYERS. Thank you, Chairman Chabot. 

This has been a very good discussion. I’m not going to be able 

to talk with the Lieutenant Governor about some voter rights 

measures—three of them—that the Governor vetoed; one of them 

making it illegal to suppress the vote through the dissemination of 

false or misleading information. But I’d like to get some additional 

information about that, and how you came out on that position. 

Mr. STEELE. How I personally came out? 

Mr. CONYERS. Yes. I would like to find out where—I mean, you 

didn’t veto them, but I’d like to know, because of your strong support for the Voting Rights Act, and the fact that in Baltimore particularly there were lots of—there have been a number of problems 

that have come to my attention. My staffer happens to live in the 

State. And so we’d like to get those for the record, since you’re here 

and with us today. 

I’d like to begin our discussion, as brief as it is, with the whole 

issue of bailout. I assume that the trigger is reasonably supported 

by most people. But I think that the bailout circumstances—which 

I think have been expedited by now. You don’t even—you can do 

it through just filing. And I think that the bailout is where we 

should put our discussion. 

And I’d like to begin with Mr. Derfner, who has been here—I’ve 

seen him around here—from the beginning of the act. And then I’d 

like to go to Mr. Hebert and the rest of our witnesses. 

104

What do you think we need to do with bailout? Is it in—has it 

gone through enough changes so that we can support it in its 

present circumstance, Mr. Derfner? 

Mr. DERFNER. I think—I think we have, and I think it does. The 

debate in 1982 took place because at that time the bailout had 

been very infrequently used. And in effect, the only bailout at that 

time available was for jurisdictions that could sort of show that it 

was a mistake to include them from the beginning. So there was 

no way that a jurisdiction, once covered, in those days could bail 

out simply by improving and doing better. 

The 1982 bailout—and I think Mr. Hebert’s cases have shown 

this—has shown that a jurisdiction can bail out effectively, and it 

can do it as much by showing that it has a good record today, it 

has worked to have a good record, and it has worked to do those 

things that are the goals of the act. So in that regard, I think the 

bailout has been fine. 

Mr. Hebert tells me that no jurisdiction that has tried to bail out 

has been unable to do so, so it seems to be working. And unless 

there is more of a record put on about specifics, I think the bailout 

as it is is just fine, and fully supports the constitutionality of the 

Voting Rights Act by giving a safety valve, or almost a reverse trigger, to correspond to the trigger of section 4. 

Mr. CONYERS. Mr. Hebert? 

Mr. HEBERT. I would agree with that. Let me also add, Mr. 

Derfner is correct, there have been—not a single jurisdiction has 

attempted to bail out since the ’82 amendments and been turned 

down by the Justice Department or a Federal court. 

When you think about the bailout provisions, they are just the 

right stuff. They go exactly to the issues that Congress was concerned about when it enacted the Voting Rights Act in the first 

place. 

When you think about the criteria that you have to establish in 

order to bail out, you have to show that you haven’t lost a court 

case in which you’ve been found guilty of discriminating on the 

basis of race or color or membership in a language minority group. 

You have to show that you’ve actually taken constructive measures 

to increase minority voter participation. You have to show that 

you’ve complied with section 5’s preclearance requirements. You 

have to show that not only have you made your submissions, but 

you haven’t proposed anything that discriminates against minority 

voters or makes them worse off. All of the kinds of things that jurisdictions should have to show in order to escape. 

And quite frankly, I think they’re perfectly tailored to meet the 

nature and extent of the violation; which is exactly what the Supreme Court has said repeatedly in this area. 

Mr. CONYERS. Mr. Garza, do you have anything to add? 

Mr. GARZA. No, I think I would echo what they’ve——

Mr. CONYERS. Surely. Lieutenant Governor? 

Mr. STEELE. I would echo the same. 

Mr. CONYERS. Thank you. Thank you, Mr. Chairman. 

Mr. CHABOT. Thank you very much. If I could ask for unanimous 

consent for 1 minute, just to follow up on a question that the distinguished Member, Mr. Conyers, just asked and that you were 

talking about, Mr. Hebert, relative to California, apparently, 

105

there’s four counties out there where some folks have indicated 

that they think the process is difficult and cumbersome and has a 

low probability of success; as opposed to other areas which have 

done quite well. Could you comment on that point of view, and 

what your opinion would be? Again, very briefly. 

Mr. HEBERT. Yes, I would say that, you know, I only represent 

one county in California, Kings County. And I believe that in Kings 

County the officials there recognize that the Voting Rights Act 

plays an extremely important part of empowering racial and ethnic 

minorities. 

I don’t think—I think that the one issue for Kings County, which 

is presently seeking a bailout, or at least has notified the Justice 

Department that it is seeking a bailout, that they have an issue 

with is the fact that in order to get a bailout they have to show 

not only that they have made all their section 5 submissions, but 

all the dozens and dozens and dozens of jurisdictions within the 

county—often, that they have no control over, and who conduct 

their own elections sometimes—that they have also made all of 

their section 5 submissions, or engaged in non-discrimination. 

And you know, that’s proving to be a challenge for us, because 

we’ve now found that there are 40 to 50 of those out there within 

the county that have never been submitted for preclearance. 

Mr. CHABOT. The gentleman from New York is recognized briefly 

here. 

Mr. NADLER. Very briefly. I just want to ask a follow-up question 

to this. What you just said intrigued me. So Kings County has a 

problem with the fact—the difficulty of getting 40 or 50 jurisdictions locally to be perfect, also. My question is, if Kings County 

bailed out, wouldn’t those local jurisdictions automatically also be 

bailed out? 

Mr. HEBERT. Yes, they would. 

Mr. NADLER. That’s why you have to make sure that they’re 

okay, too? 

Mr. HEBERT. That’s correct. 

Mr. NADLER. Okay. 

Mr. HEBERT. That’s the current state of the law. 

Mr. NADLER. Thank you very much. 

Mr. CHABOT. The gentleman’s time has expired. The gentleman 

from Florida, Mr. Feeney, is recognized for 5 minutes. 

Mr. FEENEY. Thank you, Mr. Chairman. I’ve appreciated all the 

witnesses. Lieutenant Governor Steele, thank you for being here. 

I have a series of some quick questions for you to, I think, clear 

some matters up. You don’t support proposals that would require 

some form of ID or proof of who you are that would be either 

unaccessible or unaffordable, unavailable to any particular group; 

is that right? 

Mr. STEELE. No, absolutely not. I can look to the case of my 

mother, 76 years old, a senior citizen. What we did was, we went 

out and got made up just an identification card—name, address, 

you know, Social Security number—that she could use. 

Mr. FEENEY. And to the extent that a State deliberately had a 

burden or a gate to get certain forms of legitimate ID to discriminate against certain voters, that would violate the 15th amendment 

and the Voting Rights Act. 

106

Mr. STEELE. Absolutely. I mean, we’re not talking about identification that would be onerous to obtain. 

Mr. FEENEY. But do you think this State may have an interest 

in preventing some of the 10 to 12 million people that are in America illegally from participating in Americans’ elections? 

Mr. STEELE. It goes to the question of checks and balances in the 

system to make sure that the fraud and abuse that has been documented, at least in my State, over the last 10 years does not occur. 

Mr. FEENEY. And in Florida we have ‘‘snow birds’’ that are fortunate enough to spend the summer months in the North often, and 

they spend four, 6 months in the South. We know that thousands 

of them traditionally vote twice for President. 

Mr. STEELE. We have had examples of that in the State of Maryland, where we have citizens of the District of Columbia who are 

domiciled there but registered to vote in Maryland, and tend to 

vote in both jurisdictions on election day. 

Mr. FEENEY. And notwithstanding a person’s passion to participate in the democratic process, do you believe that, once they are 

dead, they ought to quit participating? 

Mr. STEELE. I think that would be a good thing. 

Mr. FEENEY. Okay. Thank you. I really appreciate that. 

Mr. Hebert, I want to congratulate you on the extraordinary 

record. You’ve represented 100 percent of the applicants who have 

been successful in the bailout provision. And not only that, but 

your average fee of about $5,000 seems to be one of the most affordable waivers of any Federal program that I know of. I don’t 

know of any lawyer in the country that can brag about that success 

rate for such an affordable proposition. 

You point out that some folks are either just not aware that 

they’re eligible to apply for bailout, or that they are intimidated because of the prospects. I mean, after all, the way that section 4 is 

stated, to prove that you haven’t violated section 5 is almost the 

impossible burden of proving the negative, if you take it to the extreme. 

But what you point out is that a failure, for example, to have 

precleared ahead of time a change in the past 10 years can be remedied at the time of application, and that if there have been certain 

de minimis failures to comply with the Voting Rights Act, that they 

have been waived. 

Can you elaborate on that, as we decide whether to reenact section 4? Do we need to change some of the provisions of the bailout 

provision, or do you just think we need to do a better job of educating the eligible jurisdictions that they can participate? 

Mr. HEBERT. Thank you, Congressman Feeney. I would encourage the Congress to ask the Justice Department to make bailout 

information more available to the covered jurisdictions, and that 

they will work with them to that end. 

But in terms of the actual de minimis changes, what that provision was really intended to do was this. If a jurisdiction is a covered jurisdiction and wants to bail out, they have to show a good 

record of having—consistent record of having made all of their submissions to the Justice Department for preclearance of their voting 

changes, to show non-discrimination. 

107

The Justice Department is not concerned if a State or a city or 

a county or a school board inadvertently forgot to submit something that is not controversial and is—and could be labeled de 

minimis; even if it involves moving a polling place, which can 

sometimes not be de minimis. 

And the Justice Department and Congress spelled this out the 

last time when it amended the bailout provisions in ’82—should 

really bring a heavy dose of common sense to the application of the 

bailout process. And in fact, that’s what the Justice Department 

has done. 

In the table I gave you, for example, in Shenandoah County, Virginia, one of the counties that I represent, there were 31 unprecleared changes that we found in the course of that review with 

the Justice Department. We went back and submitted those. They 

were precleared nunc pro tunc. And basically, the county was then 

eligible and the Justice Department considered it. 

Mr. FEENEY. And then, finally, in Katzenbach, the Supreme 

Court ruled that the Voting Rights Act was an exceptional power 

exercised by the Congress, and therefore had to be limited and 

would be subject to scrutiny. You pointed out that the bailout provisions, like other provisions of the Voting Rights Act, has to be 

proportional to the remedy to be resolved. 

In your opinion, is the Voting Rights Act, as it applies today in 

America, still proportional in a constitutional sense to the remedy 

to be addressed? 

Mr. HEBERT. Yes, both the preclearance provisions and the bailout provisions, in my view, are constitutional to that respect. 

Mr. FEENEY. Thank you. I yield back. 

Mr. CHABOT. Okay. Thank you. We’ll go ahead to Mr. Scott now. 

If Mr. Watt is going to come back, then we’ll have to come back 

afterwards. If not, then we could conclude before these votes. So 

the gentleman from Virginia is recognized for 5 minutes. 

Mr. SCOTT OF VIRGINIA. Thank you, Mr. Chairman. Mr. Hebert, 

you’re familiar with Virginia politics. It seems to me that the burden of bailing out may not be the reason that a lot haven’t bailed 

out. I’d imagine that a lot of cities wouldn’t want to offend their 

minority population by adding questions about motives and all 

that, and would just—where the remedy may be worse than the 

cure—I mean the remedy may be worse than the disease. And they 

just go through the perfunctory kind of changes they go through. 

Rather than get into a racially divisive situation with their community, I suspect a lot of jurisdictions just don’t want to. And a lot 

in my district, I would imagine, wouldn’t want to spoil whatever 

race relations they have by going through that fight and, however 

easy it may be, would just leave well enough alone and like that. 

Do you agree? 

Mr. HEBERT. Yes, I do, because, you know, Congressman Scott, 

you make a good point here; which is that when jurisdictions are 

considering bailout, the first thing that I’ve recommended to my clients to do is to meet with the minority community and see what 

they think about it. 

And in fact, you can use the minority community, engage the minority community to find out more about the bailout process and 

108

what their concerns are about the community in the area of voting. 

So you can actually use it as a constructive tool. 

Mr. SCOTT OF VIRGINIA. But generally, the reason a lot of them 

may not be trying to bail out is they just decide they don’t want 

to go through that process and spoil their race relations. 

Did I understand your testimony to say that it’s somewhat absurd to preclear a plan that is a clear section 2 violation? 

Mr. HEBERT. No, I didn’t say that. It used to be the law—at 

least, according to Justice Department regulation—that the Justice 

Department would not preclear voting changes that provided a 

clear violation of section 2. The Supreme Court struck down that 

particular interpretation in Bossier Parish I. 

What I said was that, if you engage today in unconstitutional 

discrimination, and you enact a voting change that basically keeps 

minorities in their place but doesn’t make them worse off, that’s 

unconstitutional; but that’s going to get precleared. 

Mr. SCOTT OF VIRGINIA. But it’s a violation of section 2. 

Mr. HEBERT. It is a violation of section 2, but it puts the burden 

on the minority. 

Mr. SCOTT OF VIRGINIA. And isn’t it absurd to preclear a section 

2 violation and force the community to go to court, rather than just 

fail the preclear it? 

Mr. HEBERT. Well, it’s an area of the law that should be fixed. 

Mr. SCOTT OF VIRGINIA. Okay. 

Mr. HEBERT. It should be fixed. 

Mr. SCOTT OF VIRGINIA. The present law is absurd. That’s what 

I mean. 

Mr. HEBERT. Yes, it is. 

Mr. SCOTT OF VIRGINIA. Yes. 

Mr. DERFNER. Congressman Scott, I would just say I think that 

is a situation in which, with all due respect to the Supreme Court, 

I think they got Congress’ intent wrong. And I think Congress 

made plain what it meant. And I think that may be one of the instances in which this Congress ought to engage in restorative conduct, to reassert what it did the first time around. 

Mr. SCOTT OF VIRGINIA. One of the things—just don’t have much 

time left—the question of whether we ought to go nationwide with 

the Voting Rights Act, how can you narrow—is it possible to narrowly tailor a Voting Rights Act protecting rights of minorities to 

vote, and try to go nationwide? Is that possible? 

Mr. HEBERT. This was considered back in 1982 and, in my judgment, was properly rejected, because you really want to—and because the provisions are special remedial provisions, you really 

want to target them to where the problems are. And making them 

simply nationwide creates all kinds of over-breadth problems that 

I think Congress should avoid. 

Mr. SCOTT OF VIRGINIA. My time is just about up. If someone 

could submit for the record the need for observers and examiners, 

I’d appreciate it. And Mr. Chairman, I would yield back so that my 

colleague could have time before we vote. 

Mr. CHABOT. I don’t know if there is time, really. 

Mr. WATT. Mr. Chairman, if you could just recognize me for 1 

minute. 

Mr. CHABOT. The gentleman is recognized for 1 minute. 

109

Mr. WATT. I think I can do what I need to do. I really had a 

question that I don’t think we can do justice to in the time here, 

but I’d like to submit it technically for the record and get a followup answer, if it’s all right with the Chair. 

The general concept is what we need to do possibly to expand 

section 5 jurisdiction. And one of the—and so you all can be thinking about it, I’ll give it to you in precise language. But the concept 

would be the possibility of expanding section 5 to include jurisdictions that have since 1982 been found guilty of violating the Voting 

Rights Act. 

But I think the question and the responses probably need to be 

well thought out and articulated better than I’m articulating them 

here. So if it would be better—I think it would be better for me to 

just do it in the record. 

Mr. CHABOT. So noted. The gentleman will do that, and the Committee would respond. We appreciate that. 

Thank you very much for your time. We’ve got to head over to 

the floor. You’ve been extremely helpful at this point in time. We 

do have hearings next week, as well, but not with this particular 

panel. 

And the gentleman from New York is recognized. We already did 

the 5-minute thing. 

Mr. NADLER. Yes, we already did it. 

Mr. CHABOT. Okay. If there’s no further business to come before 

the Committee, we’re adjourned. Thank you very much. 

[Whereupon, at 11:40 a.m., the Subcommittee was adjourned.] 

(111)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE LINDA T. SA ́ NCHEZ, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA, AND MEMBER, SUBCOMMITTEE ON THE

CONSTITUTION

I thank Chairman Chabot and Ranking Member Nadler for convening this second 

hearing on reauthorization of the Voting Rights Act, and for allowing me to be a 

guest on this panel. 

As the only Latina on the House Judiciary Committee, today’s hearing regarding 

‘‘Section 4: An Examination of The Scope and Criteria For Coverage Under The Special Provisions of the VRA’’ is significant to me and thousands residents in my home 

state of California. 

This hearing is vital because section 4 prohibits the use of literacy tests and 

English-only tests in voter eligibility determinations. For decades in voting jurisdictions nationwide, English-only tests have been a subtle but insidious method used 

to keep eligible Latino and other language minority voters from the polls. 

My home state of California is one of the 16 states in the Union that are presently 

covered by section 4. 

With California and the nation experiencing annual Latino population growth, it 

is vital that section 4 cover all jurisdictions there is a confirmed history of discrimination that may adversely impact Latino voters. 

The current section 4 criteria are stringent but may benefit from some revisions. 

Presently, jurisdictions are covered based on whether literacy tests or other devices were in place in 1964, 1968, or 1972, and whether voter registration and participation in covered jurisdiction was less than 50 percent in those years. 

The continued reliance on these decades-old criteria raises the obvious question 

whether the jurisdictions presently covered by section 4 should continue to be, and 

whether new jurisdictions are being overlooked. 

Likewise, I think it is critically important that we closely consider the ‘‘bail out’’

provisions that allow jurisdictions with proven histories of discrimination to end 

their Voting Rights Act scrutiny. 

It is commendable to reward jurisdictions for reversing their histories of discrimination. However, the preservation of all citizens’ right to vote should take first priority. 

Section 4 is a critical provision of the Voting Rights Act for protecting Latino and 

other minority voters from literacy and English-only tests. 

It is a provision that must be reauthorized and if necessary amended to ensure 

all applicable jurisdictions are covered. 

I hope that today’s witnesses will inform the Subcommittee on the importance of 

section 4 and make recommendations to improve its scope and application. 

Again, I thank the Chairman and Ranking Member for their courtesy and allowing me to join the Constitution Subcommittee at this important hearing. 

I yield back.

112

PREPARED STATEMENT OF THE DAVID SCOTT, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF GEORGIA

Thank you, Mr. Chairman and members of this subcommittee for the opportunity 

to be here today during this important hearing to examine the scope and criteria 

for coverage under the Voting Rights Act. The legislation was one of the most important, if not, the most important legislation enacted by Congress in the 20th century. 

The legislation protects the voting rights of not just African-Americans, but each 

and every citizen of this wonderful country. The Voting Rights Act is so important 

that it has been amended and sections that were due to expire extended in 1970, 

1975, 1982, and 1992. Again, it is time to reexamine this legislation and its impact 

on several states including my own state of Georgia. 

I am particularly concerned with the effectiveness of the preclearance provisions 

in section 5 of the Voting Rights Act that require states, including Georgia, with 

a history of discriminatory voting practices to obtain preclearance for any proposed 

changes to their election laws or procedures. The fact that Georgia’s obviously discriminatory Voter ID law was precleared by the U.S. Department of Justice underscores the continued need for the judicial remedies of the Voting Rights Act to be 

extended. A citizen’s right to vote must not be left to the political winds of which 

party controls the Justice Department, but should be enshrined in our federal laws 

and protected by judicial review. 

Therefore, I will work closely with my colleagues in the House and Senate to ensure that this legislation continues to protect the rights of all Americans. I look forward to hearing from my colleagues, legal and constitutional scholars, civil rights 

activists, and the community during the hearings being held by this committee. 

Thank you.

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PRESENTATION ON BEHALF OF MERCED COUNTY, CALIFORNIA, CONCERNING

REAUTHORIZATIONS OF SECTIONS 4 AND 5 OF THE VOTING RIGHTS ACT


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1 Reno v. Bossier Parish School Board, 528 U.S. 320 (2000), also referred to as Bossier II. 

PREPARED STATEMENT OF CHELLIE PINGREE, PRESIDENT AND CEO, COMMON CAUSE

Chairman Chabot and Ranking Member Nadler: 

Thank you very much for holding the recent round of hearings on the provisions 

of the Voting Rights Act which are up for reauthorization in the 109th Congress. 

It is our hope that these hearings will produce a reliable record that Congress can 

rely on as it proceeds with the reauthorization of this historic act. Common Cause 

is proud to offer its remarks on the Voting Rights Act and suggestions for improving 

the sections that are up for reauthorization. 

Common Cause is a nonpartisan nonprofit advocacy organization founded in 1970 

by John Gardner as a vehicle for citizens to make their voices heard in the political 

process and to hold their elected leaders accountable to the public interest. 

Now with nearly 300,000 members and supporters and 38 state organizations, 

Common Cause remains committed to honest, open and accountable government, as 

well as encouraging citizen participation in democracy. 

In our 35-year history, Common Cause has had a long history of support of the 

Voting Rights Act. We testified before the House Judiciary Subcommittee on the 

Constitution in 1975 and 1981 on the need for extension of the act. In addition, our 

former chairman emeritus, the late Archibald Cox, helped develop key provisions of 

the original act as United States solicitor general and supported its constitutionality 

in oral arguments before the Supreme Court. 

Since its enactment 40 years ago as a culmination of the Civil Rights Movement, 

and with its subsequent extensions, the Voting Rights Act has been an invaluable 

tool in breaking down voting barriers to millions of Black and Hispanic Americans. 

It has also extended crucial voting access to Native Americans, Alaskan and Pacific 

Islanders and Asian Americans, ensuring in the process that all Americans have an 

opportunity to equally participate in the most vital duty of citizenship. Along the 

way, it has contributed immensely to diversifying the ranks of our nation’s elected 

officials. 

Although much of the electoral progress of the past four decades can be attributed 

to the Voting Rights Act, its success does not mean the law is outdated or obsolete. 

Indeed, many of the numerous problems voters confronted across the United States 

in the 2000 and 2004 elections show there is still a need for the expiring provisions 

of the Voting Rights Act. As long as barriers to the effective exercise of the franchise 

remain for racial, ethnic, and language minorities, there will be a need for the Voting Rights Act. Several groups have submitted testimony showing the lingering persistence of racial polarization in voting patterns; the bipartisan National Commission on the Voting Rights Act, organized by the Lawyers’ Committee for Civil Rights 

Under Law, is expected to issue a report in early 2006 detailing, through testimony 

and supporting documents, that discrimination against racial or language minority 

voters continues to exist in every region of the United States. In addition, the increase in minority political participation over the past four decades has been met 

with new political devices designed to roll back or negate those gains. (e.g., the return of at-large election systems, discriminatory placement of polling places, or manipulating minority voter strength either by concentrating, or ‘‘packing’’ numbers of 

voters into districts, or dividing or ‘‘cracking’’ them among numerous districts) These 

factors, combined with the continued existence of racially polarized voting, make 

plain the need for continuing the strong, prophylactic measures of the Voting Rights 

Act. 

RESTORING SECTION 5’S ORIGINAL INTENT

We strongly believe there is a need for Congress to restore protections against intentional racial discrimination in areas covered by the ‘‘preclearance’’ requirements 

of Section 5. As you know, certain jurisdictions nationwide with a history of discriminatory voting practices must have proposed election changes reviewed for potential discriminatory impact by the Justice Department or the federal District 

Court for the District of Columbia before they can be carried out. 

Those protections were fundamentally weakened in January 2000, when the Supreme Court ruled in Reno v. Bossier Parish School Board 1 that the Justice Department could not block the implementation of racially discriminatory voting changes 

under Section 5 if they were not retrogressive as compared to the status quo, even 

if there was a finding of clear intentional discrimination in a jurisdiction’s newly 

proposed voting schemes. That is, a jurisdiction that never had minority representation on its elected body could continue to adopt new redistricting plans intentionally 

250

2Georgia v. Ashcroft, 539 U.S. 461 (2003). 3 Beer v. United States, 425 U.S. 130 (1976). 4Miller v. Johnson, 515 U.S. 900, 919–20 (1995). 

designed to minimize minority voting strength, and Section 5 would provide no protection. 

This decision upset Congress’ original intent in enacting Section 5 of the Voting 

Rights Act and the legal precedent that has flowed from it. In the process, it has 

caused significant damage to the anti-discrimination protections contained in the 

Voting Rights Act, as well as its enforcement by the Justice Department. As Brenda 

Wright of the National Voting Rights Institute testified before this committee, Section 5 objections based on racial discrimination were common before the Bossier II

decision. During the 1980s and 1990s, the Justice Department logged 234 objections 

to voting changes based solely on intent. By comparison, between January 2000 and 

June 2004, only two similar objections were filed—a clear sign that the intent standard has changed significantly since the Bossier II decision. Common Cause joins 

with its peers within the civil rights community, including the Leadership Conference on Civil Rights and the NAACP Legal Defense and Education Fund, Inc., 

in asking Congress, as part of the reauthorization of the Voting Rights Act, to restore the original intent of Section 5. 

We are also very concerned about the effect of the Supreme Court’s 2003 ruling 

in Georgia v. Ashcroft.2 In that ruling, which dealt with Georgia state senatorial districts, the Court allowed states greater freedom to redraw elective districts without 

fear of having the districts rejected as ‘‘retrogressive,’’ or harmful to minority voters’

interests. The Court ruled that states could dismantle districts that afforded minority voters an opportunity to elect candidates of choice in favor of districts that gave 

minority voters an opportunity for ‘‘influence.’’ This decision is a radical departure 

from decades of the Court’s precedents. 

Twenty-seven years before Georgia v. Ashcroft, the Supreme Court in Beer v. 

United States 3 ruled that creating ‘‘influence districts’’ failed to preserve minorities’

ability to elect candidates of their choice, and, as such, was retrogressive. As a result, such voting changes were objectionable under Section 5 of the Voting Rights 

Act. In 1982, Congress adopted the Beer standard as part of the act’s reauthorization. 

The court’s ruling in Georgia introduced new standards that are at once vague, 

contradictory and difficult to apply. For instance, the court found the ability to elect 

a candidate of choice is ‘‘important’’ and ‘‘integral,’’ but a court must also consider 

the effect—whether voters have the ability to ‘‘influence’’ and elect ‘‘sympathetic’’

representatives. 

Also, the Supreme Court’s 1995 decision in Miller v. Johnson 4 demonstrates ably 

that influence is not a substitute for the ability to elect. In that case, White citizens 

who were placed in majority-Black districts successfully argued their inclusion in 

those districts (which could also be described as White ‘‘influence’’ districts) was unconstitutional. The voters in this lawsuit, rather than embracing the opportunity to 

‘‘play a substantial, if not decisive, role in the electoral process’’ or to accomplish 

‘‘greater overall representation’’—all similar arguments the Supreme Court made in 

Georgia v. Ashcroft—instead chose to challenge their placement in majority-Black 

districts. Were ‘‘influence’’ as attractive a status as the court would have us believe, 

everyone would be fighting to be a minority in as many districts as possible. The 

fact that no voters are doing so speaks volumes of the Georgia v. Ashcroft ruling 

and the approach it embodies. 

Through its ruling in Georgia v. Ashcroft, the court took a clearly understood and 

applied standard and reworked it into something ambiguous and open to varying 

interpretation. It raises the specter that states may eventually reduce racial, ethnic 

and language-minority voters to second-class status by locking them into influence 

districts without the opportunity to elect their preferred candidates—a result that 

Section 5 was intended to avoid. 

The Supreme Court’s decisions in the Georgia v. Ashcroft and Bossier II cases 

jeopardize many of the gains that American citizens have made under the Voting 

Rights Act. As a result, Common Cause asks Congress to reinstate the Beer standard that has competently guided federal, state and local officials as part of the provisions of the Voting Rights Act for nearly 30 years. At minimum, Congress should 

clarify the issue by stating as part of the reauthorization that any diminution of the 

ability of a minority group to elect a candidate of its choice constitutes retrogression 

under Section 5. In addition, Congress must also act to ensure that voters’ rights 

are protected under the enforcement mechanism of Section 5 by restating its intent 

using the pre-Bossier II standard. 

251

STRENGTHEN THE ACT’S LANGUAGE PROVISIONS (SECTIONS 4(F)(4) AND 203)

Common Cause has historically supported efforts to include bilingual election requirements, such as those included in Sections 4(f)(4) and 203 of the Voting Rights 

Act. As Archibald Cox said in his 1982 testimony before Congress on the issue:

In adopting the bilingual election provisions (in 1975), Congress recognized that 

English-only election materials and voter assistance can constitute a barrier to 

voting similar to literacy tests. Requirements for bilingual elections have enabled and encouraged minorities to become active participants in the great work 

of governing ourselves. I am not unmindful of the argument that the bilingual 

provisions will tend to polarize American society. Surely, bilingual voting will 

have just the contrary effect. The best way to avoid a separatist movement in 

this country is to encourage participation in the exercise of the right to vote. 

For participation in the electoral process without language barriers makes it 

plain to all that we are one Nation with one government for all the people.

Currently, Section 4(f)(4) applies to three states (Alaska, Arizona and Texas) and 

19 counties or townships in six additional states; Section 203 applies to five states 

(Alaska, Arizona, California, New Mexico and Texas) and parts of 26 additional 

states covering 29 languages. Taken together, sections 4(f)(4) and 203 apply to 505 

jurisdictions nationwide. Common Cause believes that attempts to impose Englishonly provisions should be blocked and that the language provisions included in sections 4(f)(4) and 203 should be reauthorized for 25 years. More specifically, we associate ourselves with the comments of Margaret Fung of the Asian-American Legal 

Defense and Education Fund and Juan Cartagena of the Community Service Society 

of New York, in asking that Congress lower the language minority numerical trigger 

contained in Section 203 from 10,000 voting-age citizens to 7,500. This move would 

continue the encouraging trend of higher Asian-American and Latino political participation among our fastest-growing populations. 

Enhanced access to bilingual voting materials will continue to expand minoritylanguage voters’ access to the political process—especially older citizens for whom 

English may not be their first language. Most importantly, this expands the right 

to vote and participate in American society, which solidly trumps any claims of 

fraud and increased expense that opponents of minority-language provisions have 

put forth. 

REAUTHORIZE FEDERAL OBSERVER AND EXAMINER PROVISIONS (SEC 6–8)

The Voting Rights Act also provides for the deployment of federal observers and 

examiners to witness voting practices, as well as interview and register individuals 

denied the right to register by state and local officials in covered jurisdictions. As 

Nancy Randa of the Office of Personnel Management recently testified, these provisions have not changed significantly since the original enactment of the Voting 

Rights Act. Since 1966, the federal government has deployed more than 26,000 observers to 22 states in all regions of the country. As you have heard in testimony 

by the National Commission on the Voting Rights Act and the Asian-American 

Legal Defense and Educational Fund, there remain numerous instances in which 

voters have been subjected to harassment or intimidation at the polls. As long as 

these incidents continue to take place, there will be a need for examiners and observers. Therefore, Common Cause asks Congress to reauthorize sections 6 and 8 

of the Voting Rights Act for an additional 25 years to ensure these well-practiced 

protections will remain in place. 

CONCLUSION

As stated above, the Voting Rights Act has served its purpose well over the previous 40 years. But that does not mean its time has passed. To the contrary, the 

explosive growth of Asian Americans and Latinos in the United States, combined 

with the deleterious effects of recent Supreme Court decisions with respect to Section 5, are all the more reasons why Congress must reauthorize a stronger Voting 

Rights Act. By reinstating the Beer standard, reversing the damage caused by Georgia v. Ashcroft and Reno v. Bossier Parish (2000), lowering the minority language 

trigger in Sections 203, and reauthorizing the federal examiner and observer provisions of Sections 6 and 8, Congress can send a strong message to Americans that 

everyone’s vote does count. We hope Congress takes an affirming step for voting 

rights in America by incorporating these actions in the reauthorization of the Voting 

Rights Act. 

Thank you.