Mr. Fred Gray

May 17, 2006

Testimony of Fred D. Gray
United States Senate
Committee on the Judiciary
Hearing on

"Understanding the Benefits and Costs
of Section 5 Pre-Clearance"

Dirksen Senate Office Building Room 226
May 17, 2006
9:30 a.m.

Chairman Specter, Senator Leahy, my Senator Jeff Sessions,
and other members of the Committee:
My name is Fred Gray. I am highly honored today to testify
in support of reauthorizing what many have called "the most
important civil rights legislation" in history.
I testify before this Committee from the perspective of a civil
rights lawyer who has been in the trenches practicing for over 50
years in the Deep South, particularly in Alabama. I was fortunate
to have represented Mrs. Rosa Parks and Dr. Martin Luther King,
Jr. in the 1955 Montgomery bus boycott. I have represented many
other heroes who sought to eliminate segregation and
discrimination from every social and governmental institution.
The history of this struggle is critical to Congress's
consideration today of reauthorization. As South Carolina v.
Katzenbach teaches, "the constitutional propriety of the Voting
Rights Act of 1965 must be judged with reference to the historical
experience which it reflects."1
1 383 U.S. 301, 308 (1966).
2
I worked with African Americans in Alabama in efforts to
obtain - and then maintain - the right to vote. Some of the people
I represented, such as Dr. C.G. Gomillion, the lead plaintiff in
Gomillion v. Lightfoot,2 and William P. Mitchell, were filing
lawsuits as early as 1945 in an effort to obtain the right to vote for
African Americans in Tuskegee, Macon County, Alabama.
The problem of African-American disenfranchisement was
the subject of a hearing before the Senate Judiciary Committee's
Subcommittee on Constitutional Rights in February and March of
1957. Many persons testified at that hearing. I personally
submitted sworn written testimony at that hearing.
This struggle culminated in the Supreme Court's seminal
opinion in Gomillion v. Lightfoot. In direct response to increased
voter registration, the Alabama Legislature passed a law in 1957,
changing Tuskegee's city limits from a square to 28 sides,
excluding almost all African Americans registered to vote, but
leaving the white citizens. The Supreme Court unanimously held
2 364 U.S. 339 (1960).
3
that the boundary change violated the Fifteenth Amendment.
Gomillion demonstrates that the Supreme Court will infer
discriminatory intent from circumstantial evidence, including
evidence of severely disproportionate impact.3 Section 5, of
course, encompasses both intent and effect.4
The Voting Rights Act, passed in 1965, was the direct result
of the Selma-To-Montgomery March. The first attempt to march
was aborted on Bloody Sunday, March 8, 1965, when now-
Congressman John Lewis and others were beaten after they
crossed the Edmund Pettus Bridge in Selma, Alabama. Within
twenty-four hours I filed the case, Williams v. Wallace,5 to compel
the State of Alabama to protect the marchers.
As a civil rights lawyer practicing both before and after
enactment of the Voting Rights Act, I can, and do, attest to its
3 The Court repeated this point in Village of Arlington Heights v. Metro. Housing Dev.
Corp., 429 U.S. 252, 266 (1977).
4 The Court's analysis in Gomillion is a predecessor of the "retrogression" standard of
Section 5, where the baseline for comparison is the existing status of the minority
community before a voting change is implemented.
5 240 F. Supp. 100 (M.D. Ala. 1965).
4
profound impact on the full participation of African Americans in
our society. On a more personal note, it was enforcement of the
Voting Rights Act in redistricting cases that allowed me in 1970 to
become one of the first two African Americans to serve in the
Alabama Legislature since Reconstruction.
I understand the question has been asked whether there is
still a need for Section 5. Let me answer that question with a
resounding, "Yes."
We all recognize the substantial improvements that have
occurred because of the Voting Rights Act. African American
registration in Alabama is indeed much higher than it was. I knew
the time when Alabama had no Black Elected Officials; now we
have approximately 870.
But these successes that are directly attributable to a civil
rights law should not - and cannot - provide the very foundation
for eliminating protection under that law. If the law was necessary
in order to obtain these rights, certainly it is equally important, or
5
more important, that the law continue in effect so these great
successes will continue.
Unfortunately, Alabama still suffers from severe racially
polarized voting.6 Only two African Americans have ever been
elected to statewide office: the late Oscar Adams and Ralph Cook
to the Alabama Supreme Court. Currently, no African American
holds statewide office. All but one of our 35 Black Elected
Officials in the Statehouse were elected from majority African-
American districts, and even in that one instance, the House
District is 48% African-American.
Racial discrimination in voting has persisted in Alabama
since the reauthorization of the Act. Even in Selma - the
birthplace of the Voting Rights Act - the Department of Justice has
objected to redistricting plans as purposefully preventing African
Americans from electing candidates of choice to a majority of the
6 See, e.g., Dillard v. Baldwin County Commission, 222 F. Supp.2d 1283, 1290 (M.D.
Ala. 2002), aff'd, 376 F.3d 1260 (11th Cir. 2004).
6
seats on the city council and county board of education.7 The
Department objected to the Alabama Legislature's 1992
congressional redistricting plan on the ground that fragmentation
of black populations was evidence of a "predisposition on the part
of the state political leadership to limit black voting potential to a
single district."8 In 1998, the Department objected to a
redistricting plan for Tallapoosa County commissioners on the
ground that it impaired the ability of black voters to elect a
candidate of choice in order to protect a white incumbent.9 In
2000, the Department objected to annexations by the City of
Alabaster, which would have eliminated the only majority black
district, demonstrating that the boundary manipulations of
Gomillion are not a relic of the past.10
7 DOJ Section 5 Objection letter from John Dunne, Nov. 12, 1992; DOJ Section 5
Objection letter from James Turner, March 15, 1993; DOJ Section 5 Objection letters
from John Dunne, May 1, 1992; July 21, 1992; and Dec. 24, 1992.
8 DOJ Section 5 Objection letter from John Dunne, March 27, 1992.
9 DOJ Section 5 Objection letter from Bill Lann Lee, Feb. 6, 1998.
10 DOJ Section 5 Objection letter from Bill Lann Lee, Aug. 16, 2000.
7
Since 1982, federal courts have found violations of the
Voting Rights Act across Alabama's electoral structures. Dillard
v. Crenshaw County led to changes from at-large to single-member
districts for dozens of county commissions, school boards and
municipalities. In the initial Dillard decision, the court concluded:
"From the late 1800's through the present, the state erected barriers
to keep black persons from full and equal participation in the
social, economic and political life of the state."11 In Jefferson
County, officials refused to place black workers in white election
precincts on the ground that white voters would not listen to black
poll officials. The court stated: "That public officials today would
practice open and intentional discrimination of the kind now
evidenced before the court is lawless and inexcusable."12 In North
Johns, Alabama, a court found that the mayor intentionally
withheld candidacy forms from two African-American candidates,
fully aware they were running under a new single-member district
11 Dillard v. Crenshaw Co., 640 F. Supp. 1347, 1360 (M.D. Ala. 1986).
12 Harris v. Graddick, 601 F. Supp. 70, 74 (M.D. Ala. 1984).
8
plan and that their election would result in a majority black
council.13 The consent decree entered in Dillard v. City of Foley,14
demonstrates the persistence of intentional discrimination in the
annexation context.
Finally, Section 5 provides a powerful deterrent force in
preventing discrimination. As a civil rights practitioner and one of
Alabama's first African-American state legislators, I have worked
with countless state office-holders and officials, city councils,
county commissions, and their counsel. Based on these
experiences, I strongly believe that continued Section 5 coverage
in Alabama is not only necessary but imperative to prevent the
backsliding that history has demonstrated will occur when it comes
to full enfranchisement of African Americans. Simply put,
Senators, we have come too far to affirmatively invite retreat by
changing and weakening the protections of the Voting Rights Act.
13 Dillard v. Town of North Johns, 717 F. Supp. 1471, 1476 (M.D. Ala. 1989).
14 926 F. Supp. 1053 (M.D. Ala. 1995).
9
Today marks the 52nd anniversary of the decision in Brown
v. Board of Education. Even with such a groundbreaking rule of
law, we are keenly aware that acceptance, compliance, and
institutional change takes time, even decades. I implore the Senate
not to interfere with the progress we have achieved for all our
citizens when it comes to exercise of the franchise. There is
simply too much at stake.
Thank you very much. I will be happy to answer questions.