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Mr. Debo Adegbile
June 21, 2006
Testimony of Debo P. Adegbile
LDF's substantial experience enforcing voting rights protections in Louisiana since the 1982 reauthorization indicates that, although the VRA has facilitated some progress toward the goal of equality in voting, discrimination against African-American voters has not been eradicated. The continuing need for Section 5 preclearance in the future is highlighted by the fact that some jurisdictions - including the State of Louisiana itself - have been repeat offenders that have drawn multiple objections during this time period.
Here, I describe some of the forms of discrimination that the preclearance provision has blocked through the present day, and then discuss the experience in Orleans Parish and other jurisdictions within the state in which Section 5 has effectively protected minority voting rights from repeated threats.
Multiple Forms of Persistent Discrimination
Formal objections, however, do not include other indicia of Section 5's effectiveness - including its deterrent effect on those jurisdictions that may be considering potentially discriminatory changes. In particular, DOJ's "more information requests" (MIRs) often lead jurisdictions to withdraw or supercede potentially retrogressive voting changes.3 Overall, jurisdictions within Louisiana have withdrawn 45 changes after receiving an MIR since the last renewal.4 Both objection statistics and MIRs, among other things, help illustrate the full deterrent effect of Section 5.
Objections to Louisiana State Legislative Reapportionment Plans, 1971-2001
In 2001, the state filed a declaratory judgment action in Louisiana House of Representatives v. Ashcroft (Civ. No. 02-62 D.D.C.) seeking judicial preclearance process of its state house redistricting plan. In that case, the legislature argued that its proposed elimination of a viable majority African-American district in Orleans Parish was justified by arguing that white voters in this part of the state were entitled to "proportional representation," an unrecognized Section 5 defense, while ignoring long-standing Section 5 principles and disregarding significant growth of the African-American population in the Parish. The fate of Louisiana's 2001 redistricting plan was the same as that of its predecessors. The 2001 redistricting plan for the Louisiana House of Representatives is a telling statewide example that emerged during the last decennial redistricting cycle in that the evidence suggested that the pre-settlement plan was enacted with both retrogressive purpose and effect.
The Louisiana legislature's repeated attempts to violate the VRA over the course of four decades, which were arguably more blatant in 2001 than before, shows the importance and effectiveness of Section 5 in protecting African-American voters. The experience with Section 5 in Louisiana illustrates that without preclearance, we risk actual implementation of plans adopted with retrogressive effect and/or discriminatory purpose.
Other Repeat Offenders
Mississippi and South Carolina
Much like Louisiana, the recent experience in the States of South Carolina and Mississippi also provides strong evidence of the continuing need for the broad application of Section 5. Although the record contains numerous examples of persistent voting discrimination, as reflected in various reports, and extensive witness testimony that has been submitted and offered, I highlight a few examples here. Indeed, in both of these covered states, DOJ has interposed a series of recent objections that reach a wide range of voting changes, many of which illustrate both retrogressive effect and purpose. For example, in 2001, the Town of Kilmichael, Mississippi, cancelled its general election for alderman and mayor, after the all-White Board of Aldermen realized that, given 2000 census data, African Americans comprised a majority of both the town's total population and registered voters. The cancellation prompted a 2001 objection from the DOJ on the grounds that the voting change prevented African Americans from electing candidates of their choice (since several African Americans had already qualified for the town's elections).10 This continued voting discrimination has been accompanied by the reality of racially polarized voting, which has been documented through a long litany of Mississippi court decisions. In Jordan v. Winter, a congressional redistricting case, the three-judge district court stated "[f]rom all the evidence, we conclude that blacks consistently lose elections in Mississippi because the majority of voters choose their preferred candidates on the basis of race."11 In Martin v. Allain12, which involved a statewide challenge to the election of state trial court judges from multi-member districts, the federal district court noted that "racial polarization exists throughout the State of Mississippi . . . and that blacks overwhelmingly tend to vote for blacks and whites almost unanimously vote for whites in most black versus white elections."13 This same pattern has been confirmed in a number of decisions throughout the state dealing with local redistricting.
Likewise, in 2003, the DOJ interposed an objection to a proposed annexation in the Town of North, South Carolina. The DOJ determined that the town had "been racially selective in its response to both formal and informal annexation requests" and found that "white petitioners have no difficulty in annexing their property to the town" while "town officials provide little, if any, information or assistance to black petitioners and often fail to respond to their requests, whether formal or informal, with the result that the annexation efforts of black persons fail."15 In the view of the DOJ the town's deliberate non-responsiveness to African Americans revealed that race was "an overriding factor in how the town responds to annexation requests."16 More recently, in 2004, the DOJ interposed an objection to the state's proposed change to Charleston County School Board's method of election because the change from non-partisan to partisan elections would "make it extremely difficult for minority-preferred candidates to win."17 While the non-partisan election system was credited by a federal judge in United States v. Charleston County (D.S.C. 2003) for its creation of opportunities for single-shot voting and plurality victory by minority-preferred candidates, the proposed system imposed a de facto majority requirement, which, when combined with an at-large system, would likely result in the defeat of minority voters' candidates of choice. The DOJ also noted that this plan was proposed in the face of opposition from a majority of minority elected officials opposed and despite the availability of non-retrogressive alternative plans that had been made available.
Indeed, this evidence illustrates the persisting nature of voting discrimination in the covered jurisdictions and the ability of the Section 5 preclerance process to ferret out voting discrimination that often manifests itself in multiple forms. This evidence must also be viewed in the context of high levels of racial polarization18 and other barriers that persist within the political process. For example, federal observers have been deployed to monitor elections in Mississippi no less than 250 times covering 48 of the state's 82 counties since the 1982 renewal. A number of these counties were covered on multiple occasions illustrating the intransigence and resistance of local officials in these areas. Moreover, courts have highlighted the steep levels of racially polarized voting in these covered jurisdictions making the role of the Section 5 preclearance process necessary to prevent impairment of minority voting strength.
1. Why is Section 5 preclearance still necessary?
The Section 5 coverage formula was put into place after Congress thoroughly reviewed the record before it in 1965, and subsequently renewed in 1970, 1975 and 1982. During each of these deliberations Congress documented widespread evidence of persistent violations of minority voting rights in covered jurisdictions. The record before this Congress presents continued evidence of such violations, and highlights the necessity for continued review of voting changes to protect minority voters in covered jurisdictions. For example, since the VRA's 1982 renewal, violations of minority voting rights have taken the form of last minute election date or polling place changes, discrimination at the polls, and familiar dilutive tactics of "cracking" and "packing" minority voting districts.19 Additionally, as noted in the first part of my testimony, contemporary reports from the field illustrate that voting discrimination in covered jurisdictions is alive and well, and significantly continues to be checked by the prophylactic protection.
Section 5 preclearance also plays an important role in deterring covered jurisdictions from enacting discriminatory voting changes. Although many VRA opponents and commentators point to a recent reduction in DOJ objections as evidence of the decreasing need for Section 5 -- this analysis oversimplifies the many ways in which the law serves to protect minority voters. Excluded from the category of objection statistics are other categories of deterred and rejected voting changes. These include matters that were denied preclearance by the Washington D.C. District Court; matters that were settled while pending before that court; voting changes that were withdrawn, altered or abandoned after the DOJ made formal More Information Requests (MIRs)20; as well as any recognition that the very existence of preclearance deters discriminatory voting changes in the first place. Taken together, these categories provide a more holistic view of the sizeable impact, deterrent effect, and continued need for Section 5's provisions. Moreover, without the Section 5 preclearance provisions many jurisdictions that have experienced a long history of exclusionary practices in voting would have lacked the incentive to tailor their electoral changes in a non-discriminatory fashion. Even with Section 5 in place, many covered jurisdictions made voting changes that disadvantaged minority voters without preclearing them with the DOJ. Despite vigorous enforcement efforts, the DOJ -- with its limited resources -- is unable to ensure that jurisdictions have submitted every voting change for preclearance. Without Section 5, the DOJ's ability to monitor discrimination against minority voters would be severely handicapped, and the VRA's deterrent effect on covered jurisdictions would be lost. The hearings on the current House and Senate renewal bills - like those in previous decades - contain evidence that the burdens that would be placed upon voters to vindicate their rights in the absence of preclearance would be substantial.
Given an extensive and carefully assembled record of continued voter discrimination in covered jurisdictions, and the evidence that Section 5 has operated to correctly identify the jurisdictions where preclearance is most necessary given past and current patterns of voter discrimination, I believe that maintaining Section 5 preclearance is not only appropriate, but is critical to the continued success of the VRA.
Yes, in light of the strong, record of both historical and current voting discrimination before Congress, it continues to have the power to renew Section 5 of the VRA. Several factors support this conclusion. First, the VRA's renewal is consistent with recent Supreme Court precedent. The Boerne decision and its progeny, while requiring that Congress be deliberate in the exercise of its Fourteenth and Fifteenth Amendment enforcement powers, do not place a substantial limitation on Congressional power to enact remedial or prophylactic legislation in the area of race.21 In fact, Boerne and the subsequent case law in this area suggest that Congressional power is at its height when it enacts remedial or prophylactic legislation to protect the fundamental rights of individuals in classes afforded heightened levels of constitutional scrutiny.22 These are the precise circumstances at play here. Congress has before it an extensive record of both historical and current instances of voting discrimination that persuasively illustrates a measurable degree of progress but also the intractability of this problem in covered jurisdictions, necessitating continued Congressional protection of those jurisdictions. This record at issue here is distinguishable from the record under review in Boerne. Moreover, Boerne and the cases that followed the Court cited the VRA as the exemplar of Congress's enforcement power under the Fourteenth and Fifteenth Amendments.
Additionally, the Court recently reaffirmed its support of Congressional action on the issue of minority voting rights in the 1999 case Lopez v. Monterey County.23 In this post-Boerne decision, the court cited both Katzenbach and City of Rome favorably, and upheld the validity of preclearance in "jurisdictions properly designated for coverage."24 The Lopez decision was decided just weeks after another Supreme Court case in which Boerne was invoked to invalidate a congressional enactment.25 In light of this recent decision, there is nothing to suggest that Congress now lacks the authority to renew Section 5 of the VRA under the record before it.
Finally, this VRA renewal process does not stand alone. It is worth noting that a different constitutional moment occurs when Congress legislates under the Civil War Amendments de novo, as in Boerne, in contrast to when Congress is extending an existing piece of successful civil rights litigation. The Court has explicitly recognized that Congress acts as a continuing body when reviewing evidence, and that previous legislative findings and experience are properly part of the current record.26 In light of the strong record currently before Congress, which is supported by the records from 1965, 1970, 1975, 1982 and 1992, it seems readily apparent that Congress has satisfied its burden under the Boerne doctrine and has the power to renew Section 5.
3. Do the benefits of preclearance outweigh the costs?
Yes - Section 5 preclearance has led to widespread and well-documented benefits for minority voters with relatively low administrative or economic costs. From an economic and public policy standpoint, Section 5 is a cost-effective means to prevent discrimination. Every DOJ objection, or withdrawn, altered or abandoned voting change in response to a DOJ more information request (MIR), represents a potential lawsuit - and more importantly a deprivation of the right known to be "preservative" of all other. Blocking and deterring changes is undoubtedly better and more cost-effective than having to litigate them; Section 5 thus removes the need for private parties to spend their own and usually judicial resources to stop discriminatory changes.
Section 5 also plays an important educative function in covered jurisdictions. Through the MIR process, and as part of the submission process in general, there is extensive communication between the DOJ and the submitting jurisdiction. This communication thus facilitates public awareness and compliance with the law even short of the provisions affirmative deterrence effects.
The DOJ also applies the preclearance standard with a degree of flexibility that takes into account the nature of the electoral change being reviewed, and the time before the proposed change would take effect. For example, last minute polling place changes will be reviewed quickly before elections, whereas for more complex changes, the DOJ will be more likely to use its statutorily given 60-day review period. The DOJ's actions following Hurricanes Katrina and Rita further illustrate the flexible nature of preclearance review. After the hurricanes, the DOJ immediately sent a letter to the Secretaries of State in Mississippi and Louisiana acknowledging that they would be ready to expedite voting changes.
Although Section 5 does require jurisdictions to take steps to comply and carefully consider the impact of voting changes, many of the costs and inconvenience arguments are overstated. More significantly, the cases from Katzenbach forward the Supreme Court has recognized that the imposition of costs must be weighed against the gravity of the harm being prevented - viewed in this light, on the record before Congress, the balance falls on the side of Section 5 to continue to protect the fundamental right to vote.
4. Is there a need to change the Section 4 coverage formula?
The evidence in the record does not indicate that the existing Section 4 coverage formula, or "trigger," needs to be revised or updated. The evidence in the record indicates that the existing coverage formula has proven extremely effective in addressing voter discrimination in the jurisdictions where voters most need protection, and has allowed for tailored responses in both covered and non-covered jurisdictions, where circumstances warrant, through administration of the bail-in and bailout provisions.
With respect to the existing coverage formula, the unique history and deeply entrenched nature of voting discrimination in covered jurisdictions strongly support the use of prophylactic measures to protect minority voters in these particular areas. In several covered states, for over a century before the passage of the VRA - and in many states up until the 1980's or early 1990's - not a single black was elected to Congress. Local circumstances in many places were not much better. Section 5, through "triggering" covered jurisdictions, has thus performed the important function of protecting the rights of minority voters in the places they are most at risk, and in which they have the most to gain.
Additionally, as set out above, because the Supreme Court considers both the history and ongoing nature of discrimination when weighing Congress's legislative power to enforce the Fourteenth and Fifteenth amendments, the years 1964, 1968 and 1972, which are referred to in the current trigger formula, remain relevant to assessing the jurisdictions in which minority voters are most in need of protection.
It bears emphasis that the registration and turnout levels that, in combination with the history of tests or devices, determine coverage were not the only evil that the VRA sought to eradicate. Depressed registration and turnout was a symptom of a much larger problem of discrimination in voting and Congress and courts have both recognized that mandate of the VRA does not end there.28 The registration and turnout data were used as a proxy for discrimination - a proxy that informed but did not exclusively determine the inquiry. As in 1982, Congress can appropriately look to the experience in covered jurisdictions to assess if preclearance is still effective in light of the dangers that continue to exist.
Moreover, the existing bailout and bail-in provisions - Sections 4(a) and 3(c) of the act - operate in tandem with the Section 5 Coverage formula to ensure that the scope of Section 5 is appropriately contracted or expanded. To date, every jurisdiction that has tried to bail out has been successful, and those jurisdictions have expressed satisfaction with both the existing bailout formulation as well as the results they have achieved.30 Additionally, courts have imposed Section 5 preclearance on jurisdictions where violations of the voting rights of their minority citizens justify future oversight.31
There is no evidence in the record, of which I am aware, indicating that the existing bailout provisions are particularly onerous or difficult to administer. According to J. Gerald Hebert, who served as legal counsel to all of the jurisdictions who have bailed out since the 1982 amendments, the issue is not that the bailout provisions are difficult or that jurisdictions are applying and being denied, but simply that "jurisdictions are just not applying."32 While this commentary perhaps suggests the need for increased awareness of the availability of bailout by covered jurisdictions, it does not suggest that the existing provisions are not working. Given this evidence, it stands to reason that the existing coverage formula and bailout provisions have provided, and will continue to provide, an important incentive for covered jurisdictions to comply with Section 5 as was intended at their enactment.
5. Should Section 5 be extended nationwide?
Proposals to extend Section 5 nationwide are designed to end the application of the statute for both legal and practical reasons. While applying Section 5 nationwide may seem attractive upon first blush, doing so would extend the VRA beyond the targeted jurisdictions that have an established history of discrimination and make it vulnerable to a constitutional challenge. The existing record does not support nationwide expansion to places where, among other things there are no minority voters. Indeed, no serious argument can be advanced that nationwide coverage of Section 5 would be "congruent and proportional" to address the harms it is designed to cure -- namely a history of significant discrimination against minority voters -- as required by the Supreme Court's recent precedents. Accordingly, it would be disingenuous for those who seek to conform to the contours of the Boerne decisions to support nationwide extension. Congress has appropriately focused on the history of discrimination that gave rise to the coverage formula, and the evidence of persisting forms of discrimination when evaluating which jurisdictions remain subject to the preclearance requirements.
On the practical side, nationwide application of Section 5 would be extremely difficult, if not impossible, for the DOJ to administer, given the volume of voting changes that would have to be reviewed. This expansion of coverage would dilute the DOJ's ability to appropriately focus their work on those jurisdictions where discrimination has been and continues to be a problem.
6. Are the proposed modifications to the statute appropriate?
The proposed modifications to the statute realign the standards for Section 5 with long-standing judicial interpretations of and Congressional intent regarding Section 5. First, the proposed bill amends Section 5 of the Act to prohibit all unconstitutional discrimination with regards to the right to vote, not just discrimination that is also retrogressive. This modification responds to the holding of Reno v. Bossier Parrish II (Bossier II), which established a preclearance standard under which intentionally discriminatory voting changes (i.e. those motivated by racial animus) must be precleared where minority voters are not made worse off. This decision makes little sense, and ultimately allows for discrimination that not only violates the purpose of the VRA, but also is itself unconstitutional. The Fifteenth Amendment and the VRA each have, as one of their principal purposes, the eradication of historic and long-maintained voting discrimination. It is both unnecessary and inefficient for the federal government to turn a blind eye to purposefully discriminatory acts while covered jurisdictions persist in, renew, or develop invidious voting schemes. The modification to Section 5 will prevent this from occurring.
The proposed bill also restores the original "ability to elect" test for measuring minority voting strength. In Georgia v. Ashcroft, the Supreme Court abandoned this straightforward non-retrogression test in favor of a confusing, amorphous, and difficult to administer "influence" standard.33 This new standard permits electoral changes where the DOJ can identify that proposed plans trade "influence district" for "ability to elect" districts Although there may be situations where minority "influence" is measurable and important, in reality discerning such instances seems not only unrealistic, but administratively unworkable. For instance, in the absence of any clear metric for "influence," which was not provided by the Court in Georgia v. Ashcroft, it would be difficult to evaluate the tradeoffs that this case injected into the Section 5 analysis. Additionally, an influence trade-off theory could be used to cloak purposefully
Finally, the proposed bill would amend Section 14 of the VRA to allow prevailing parties to recover reasonable litigation expenses in addition to attorney's fees. Given the complex nature of VRA litigation, litigants currently bear significant expense furnishing witnesses, experts and other trial necessities. The proposed amendment will assist the efforts of all parties seeking to enforce the provisions of the VRA, and prevent worthwhile cases from going untried due to lack of funds.
7. Does the record suggest that renewal of the language assistance provisions is necessary?
S 2703 also provides a straight reauthorization of Sections 4(f)(4) and 203 for twenty-five years, based upon a well-documented need for language assistance among language minority citizens whose access to the political process has been barred by discrimination in voting and education.
Congress plainly has the authority to remove barriers to political participation by language minority U.S. citizens. In Katzenbach v. Morgan, the United States Supreme Court upheld the language assistance provisions in Section 4(e) as a valid exercise of congressional enforcement powers under the Fourteenth and Fifteenth Amendments.35 The Court reasoned that Congress may have "questioned whether denial of a right deemed so precious and fundamental in our society was a necessary or appropriate means of encouraging persons to learn English, or of furthering the goal of an intelligent exercise of the franchise."36 Katzenbach is consistent with the Supreme Court's 1923 decision in Meyer v. Nebraska, which held that "the protection of the Constitution extends to all, to those who speak other languages as well as those born with English on the tongue." As a result, Congress has broad remedial powers to reauthorize Sections 4(f)(4) and 203.
The record supports the exercise of those powers, as the bill recognizes in reaffirming the findings in Section 203(a).38 The Judiciary Committee and this Subcommittee have received substantial evidence documenting discrimination in voting and education that supports maintaining the protections in Sections 4(f)(4) and 203 of the Voting Rights Act for the four covered language groups. I will briefly summarize some of that evidence, first focusing on voting discrimination, and second turning to the lack of equal educational opportunities in the three states that became subject to the preclearance and minority language assistance provisions in 1975: Alaska, Arizona and Texas.
The need for language assistance in Alaska remains high, but is largely unmet.40 There is substantial non-compliance with Section 203, including lack of oral language assistance, no voter outreach, and the absence of language assistance by telephone.41 Voter turnout in these isolated Native communities trails statewide turnout by nearly seventeen percent.
In Arizona, the Department of Justice has objected to four statewide redistricting plans since 1982 because of their discriminatory impact on language minority citizens, including one in the 1980s, two in the 1990s, and one in 2002.43 Since 1982, more than 1200 federal observers have been deployed to Apache, Navajo, and Yuma Counties, identifying substantial non-compliance in the availability and quality of language assistance to American Indian and Latino voting-age citizens.44 In 1989 and 1994, the Department of Justice brought successful cases against the State of Arizona and Apache, Coconino, and Navajo Counties for denying American Indian voters access to the political process, which continued to be a problem as recently as 2002.45 Indeed, just last week the DOJ brought a Section 203 case in Cochise County, Arizona where a consent decree is currently before the court.
The record also contains evidence about the importance of the language assistance provisions and oversight under Section 5 in Texas, where 22.4 percent of voting age citizens are Latino and 12.3 percent are African-American.46 Since 1982, Texas has the second highest number of Section 5 objections interposed by the DOJ, including at least 107 objections, 10 of which were for statewide voting changes.47 A majority of all Section 5 objections to discriminatory voting changes in Texas have been since 1982, which have affected nearly 30 percent of Texas's 254 counties, where 71.8 percent of the State's non-white voting age population resides.48 Texas also leads the nation in several categories of voting discrimination, including recent Section 5 violations and Section 2 challenges.49 For example, in 2004, Waller County was stopped from disenfranchising African American students at Prairie View A&M who were trying to vote for two African American students running for County office. In 2002, Section 5 prevented the City of Seguin from dismantling a Latino city council district and then from canceling the candidate-filing period to prevent Latino candidates from running in the district and winning a majority of seats. In 2002, DOJ used Section 5 to prevent the City of Freeport from restoring at-large elections that had been eliminated after a successful voting rights lawsuit brought by Latino and African American voters who comprised a majority of the City's population.
The need for language assistance in jurisdictions across the nation is extreme in many places. Among all covered jurisdictions, an average of 13.1 percent of citizens of voting age are limited-English proficient (LEP) in the languages triggering coverage.51 These LEP U.S. voting age citizens also experience high illiteracy rates. According to the 2000 Census, covered language minority citizens have an average illiteracy rate of 18.8 percent, nearly fourteen times the national rate.52
High LEP and illiteracy rates are the product of past and present educational discrimination. Since 1975, at least twenty-four successful educational discrimination cases have been brought on behalf of ELL students in fifteen states, fourteen of which are presently covered in whole or in part by the language assistance provisions.53 Cases brought on behalf of ELL students remain pending in Alaska, Illinois, and Texas.54 Consent decrees or court orders remain in effect for ELL students statewide in Arizona and Florida, and in the cities of Boston, Denver, and Seattle, each of which is covered by the language assistance provisions.55
Educational discrimination is compounded by the absence of sufficient adult ESL programs in most of the covered jurisdictions. A majority of surveyed ESL providers in sixteen states covered by Section 203 reported that they have lengthy waiting lists, many ranging from one to three years.
Unequal educational opportunities afforded to covered language minority groups continue to result "in high illiteracy and low voting participation."57 The barriers posed by educational discrimination, language and the absence of sufficient ESL classes, and high illiteracy result in extremely depressed voter participation. According to the Census Bureau, in the November 2004 Presidential Election, Hispanic voting-age U.S. citizens had a registration
8. Do the expiring provisions serve to enhance political inclusion of race and language minorities, or further balkanize society?