The Honorable Wan J. Kim

May 10, 2006

Statement of
Wan J. Kim
Assistant Attorney General
Civil Rights Division
United States Department of Justice

Before the Committee on the Judiciary
United States Senate
Concerning
Enforcement of the Voting Rights Act
May 10, 2006

Chairman Specter, Ranking Member Leahy, distinguished members of the Committee:
On behalf of the Department of Justice, I want to thank you for the opportunity to appear
before you today. The President and the Attorney General have directed the Justice Department
to bring all of its resources to bear in enforcing the Voting Rights Act and preserving the
integrity of our voting process. The President also has called upon Congress to renew the Voting
Rights Act and his Administration appreciates this opportunity to work with Congress on
reauthorizing this landmark legislation.
It is my privilege this morning to provide you with an overview of the Justice
Department's enforcement of three important provisions of the Voting Rights Act - section 5,
which involves the Act's pre-clearance mechanisms, and sections 203 and 4(f)(4), which contain
the Act's language minority provisions. I am also pleased to provide you today with an
explanation of the Department's use of two other provisions of the Act - sections 6 and 8, which
pertain to Federal examiners and observers. As you know, all of these provisions of the Voting
Rights Act are due to expire in 2007.
Let me begin with the Justice Department's enforcement of section 5. Section 5
mandates that all covered jurisdictions seek pre-clearance of any new "voting qualification or
prerequisite to voting, or standard, practice, or procedure with respect to voting." This approval
can be sought administratively from the Attorney General or through the judicial route by filing
a declaratory judgment action in the United States District Court for the District of Columbia. In
the latter case, the Attorney General litigates the declaratory action and either supports or
opposes the court's approval of the voting change at issue. However, under both approaches, the
voting change - whether it be a new law, ordinance, regulation, or procedure - cannot be
implemented until the administrative or judicial approval is secured.
In determining which jurisdictions are subject to the section 5 pre-clearance
requirements, the Voting Rights Act contains a formula that is predicated on historical voter
1Specifically, a jurisdiction is covered under section 5 if (i) less than 50% of a
jurisdiction's voting age population either was registered to vote or actually voted in November
1964, November 1968, or November 1972; and (ii) the Attorney General determines that the
jurisdiction maintained certain "tests or devices," as defined by subsection 4(c) of the Act, in
November 1964, November 1968, or November 1972. 42 U.S.C. 1973b.
2Subparagraph 4(a)(1) of the Voting Rights Act, 42 U.S.C. 1973b(a)(1), contains detailed
procedures by which a covered jurisdiction may secure a declaratory judgment excusing the
jurisdiction from further compliance with section 5. This procedure frequently is referred to as
the "bail out" provision.
328 C.F.R. Appendix to Part 51 - Jurisdictions Covered Under Section 4(b) of the Voting
Rights Act, as amended.
4A chart denoting the number of annual submissions received by the Civil Rights
Division pursuant to section 5 each year is attached hereto.
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turnout as well as the presence of certain discriminatory voting tests or devices.1 There are 16
States - 9 in whole and 7 others in part - that meet this formula. The entire States of Alabama,
Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia are
covered, although 10 counties and cities in Virginia have "bailed out"2 of coverage in recent
years. Meanwhile, certain counties and townships are covered in the States of California,
Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.3
For reasons of expense and timing, the vast majority of voting changes by covered
jurisdictions are submitted to the Attorney General for administrative review. The Voting
Section of the Civil Rights Division receives roughly 4,000-6,000 submissions annually,
although each submission may contain numerous voting changes that must be reviewed.4
Redistricting plans are only a small portion of those submissions. For example, in Calendar
Year 2004, we received 5,211 submissions, 242 of which involved redistricting plans. In
Calendar Year 2005, we received a total of 4,734 submissions, 125 of which involved
redistricting plans. In Calendar Year 2006, we already have received 4,094 submissions (as of
May 5), 19 of which have been redistricting plans. Perhaps not surprisingly, the number of
section 5 submissions sent to the Department of Justice tends to reach its apex two years after the
decennial Census, the point at which jurisdictions have the demographic data necessary to
redraw their political districts. For example, in 2002 we received 5,910 submissions, of which
1,138 were redistricting plans. Similarly, in 1992, we received 5,307 submissions, 974 of which
involved redistricting plans.
Our function in evaluating section 5 submissions is, in the words of the Supreme Court,
"to insure that no voting-procedure changes [are] made that would lead to a retrogression in the
position of racial minorities with respect to their effective exercise of the electoral franchise."
Miller v. Johnson, 515 U.S. 900, 926 (1995) (quoting Beer v. United States, 425 U.S. 130, 141
(1976)). Stated differently, we examine whether the purpose or effect of a voting change is to
5Section 203(c), 42 U.S.C. 1973aa-1a(c).
6For example, Section 203 is triggered if, in a particular jurisdiction: (i) more than 5% of
the citizen voting age population, or more than 10,000 citizens of voting age, are members of a
single language minority, and (ii) the illiteracy rate of the citizens in the language minority group
is higher than the national illiteracy rate. Section 203(b)(2)(A), 42 U.S.C. 1973aa-1a(b)(2)(A).
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put racial minorities in a position inferior to the one they occupy under the status quo, as
compared to non-minorities, vis a vis their ability to elect their candidates of choice.
Impressively, the outstanding career attorneys in our Voting Section undertake this often highly
complex examination in a brief, sixty-day period of time, as is required under the statute.
Employing this standard over the last 40 years, we have found retrogression in an
extremely small number of cases. Since 1965, out of the 125,885 total section 5 submissions
received by the Department of Justice, the Attorney General has interposed an objection to just
1,402. And in the last ten years, there have been only 92 objections. In other words, the overall
objection rate since 1965 is only slightly above 1%, while the annual objection rate since the
mid-1990s has declined even more, now averaging less than 0.2%. This tiny objection rate
reflects the overwhelming - indeed, near universal - compliance with the Voting Rights Act by
covered jurisdictions.
Recently, the Supreme Court revised the standard applicable in section 5 retrogression
inquiries. See Georgia v. Ashcroft, 539 U.S. 461 (2003). The Court in that decision expanded
the factors to be considered in the retrogression determination by examining all the relevant
circumstances, which include a review of the minority voters' ability to elect candidates of their
choice, the feasibility of devising a non-retrogressive alternative plan, and the extent of minority
voters' opportunity to participate in and "influence" the political process. In implementing that
opinion, the attorneys and analysts in the Division's Voting Section continue to conduct wideranging
investigations into all of the circumstances surrounding voting changes, including
soliciting comments and opinions from the affected community, and undertaking complex
statistical analyses.
In addition to our Section 5 work, I'd also like to explain the Justice Department's
enforcement efforts regarding two other important provisions of the Voting Rights Act: sections
203 and 4(f)(4), which are the Act's language minority provisions. These provisions, which
have been in effect since 1975, mandate that any covered jurisdiction that "provides any
registration or voting notices, forms, instructions, assistance, or other materials or information
relating to the electoral process, including ballots" must provide such materials and information
"in the language of the applicable minority group as well as in the English language."5
In determining which States or political subdivisions are subject to the requirements of
sections 203 and 4(f)(4), the Voting Rights Act contains a formula that uses Census Bureau data
regarding ethnicity figures, citizenship, English proficiency rates, and literacy rates.6 Currently,
With respect to section 4(f)(4), a jurisdiction is subject to the translation obligations if: (i) less
than 50% of the citizen voting age population was either registered to vote, or actually voted, in
the November 1972 presidential election, (ii) the jurisdiction provided certain specified election
materials exclusively in English in November 1972, and (iii) more than 5% of the citizen voting
age population in November 1972, as determined by the then-latest available Census Bureau
figures, were members of a single language minority. Section 4(f)(3)-(4), 42 U.S.C.
1973b(f)(3)-(4). Essentially, section 4(f)(4) applies the 1972 section 5 coverage trigger to
language translation obligations.
7There are 296 jurisdictions throughout the United States covered by section 203. There
are approximately 298 jurisdictions covered by section 4(f)(4). Some coverage overlaps, most
notably in Texas and Arizona, which explains the 496 figure in the text above.
8Section 203(e), 42 U.S.C. 1973aa-1a(e).
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there are a total of 496 jurisdictions that are subject to the requirements of either section 203 or
section 4(f)(4).7 The only language minority groups covered under sections 203 and 4(f)(4) are
American Indians, Asian Americans, Alaskan Natives, and citizens of Spanish heritage.8
Under this Administration, the Justice Department's Civil Rights Division has
undertaken the most extensive section 203 and section 4(f)(4) enforcement activities in its
history. The initiative began immediately following the Census Bureau's July 2002
determinations (using 2000 Census data) as to which jurisdictions were covered under section
203. The Civil Rights Division not only mailed formal notice and detailed information on
section 203 compliance to each of the 296 covered section 203 jurisdictions across the United
States, but it also initiated face-to-face meetings with State and local election officials and
minority community members in the 80 newly covered jurisdictions to explain the law, answer
questions, and work to foster the implementation of effective legal compliance programs. That
effort has been a continuing one. Division attorneys speak regularly before gatherings of State
and local election officials, community and advocacy groups to explain the law, answer
questions, and encourage voluntary compliance.
In August 2004, the Assistant Attorney General mailed letters to the 496 jurisdictions
covered by sections 203 and/or 4(f)(4), reminding them of their obligations to provide language
minority assistance in the November 2004 general election and offering them guidance on how
to achieve compliance. The 2004 mailing to the section 4(f)(4) counties was the first blanket
mailing to these political subdivisions since shortly after their original designations as covered
jurisdictions in 1975.
In addition, the Division's Voting Section has been systematically requesting voter
registration lists and bilingual poll official assignment data from all covered jurisdictions,
beginning with the largest in terms of population. This information is then reviewed in order to
identify polling places with a large number of language minority voters and to ascertain whether
9Fifteen of the 28 language minority cases filed by the Department of Justice since the
adoption of sections 203 and 4(f)(4) have been commenced since 2001.
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the polling places are served by a sufficient number of bilingual poll officials who can provide
assistance to voters.
The Division also is systematically looking at the full range of information provided by
covered jurisdictions to voters in English - including, among other things, ballots and election
pamphlets, newspaper notices required by State law, and web site information - and determining
whether: (i) the same information is being made available to each language minority community
in an effective manner, and (ii) necessary translated materials, such as ballots and signage, are
actually provided in polling places.
Not surprisingly, the extraordinary efforts undertaken by the Civil Rights Division in this
area have been extremely successful. Since 2001, this Administration has filed more language
minority cases under sections 203 and 4(f)(4) than in the entire previous 26 years in which those
provisions have been applicable.9 Each and every case has been successfully resolved with
comprehensive relief for affected voters. And the pace is accelerating, with more cases filed and
resolved in 2005 than in any previous year, breaking the previous record set in 2004. The
lawsuits filed in 2004 alone provided comprehensive language minority programs to more
citizens than all previous sections 203 and 4(f)(4) suits combined. The enforcement actions
include cases in Florida, California, Massachusetts, New York, Pennsylvania, Texas, and
Washington. Among these cases were the first suits ever filed under section 203 to protect
Filipino and Vietnamese voters.
These lawsuits have significantly narrowed gaps in electoral participation. In Yakima
County, Washington, for example, Hispanic voter registration went up over 24% in less than six
months after resolution of the Division's section 203 lawsuit. In San Diego County, California,
Spanish and Filipino registration were up over 21%, and Vietnamese registration was up over
37%, within six months following the Division's enforcement action.
The Division's language minority enforcement efforts likewise have made a tremendous
difference in enhancing minority representation in the politically elected ranks. A section 203
lawsuit in Passaic, New Jersey, was so successful for Hispanic voters that a section 2 challenge
to the at-large election system was subsequently withdrawn. A Memorandum of Agreement in
Harris County, Texas, helped double Vietnamese voter turnout, and the first Vietnamese
candidate in history was elected to the Texas legislature - defeating the incumbent chair of the
appropriations committee by 16 votes out of over 40,000 cast.
Although there is much more that I could say about the important work the Justice
Department is doing with regard to the language minority provisions of the Voting Rights Act,
1042 U.S.C. 1973d, 1973f.
11There are also 19 political subdivisions in 12 States currently certified by court order.
With two exceptions, all of these certifications pertain to language-minority issues. An
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there is one final area that I would like to cover with you today: the Justice Department's use of
Federal examiners and observers pursuant to sections 6 and 8 of the Voting Right Act.10
Under the Voting Rights Act, Federal examiners are essentially officials assigned to a
particular political subdivision to whom certain complaints of voting discrimination can be
made. Governed by section 6 of the Act, the authority to appoint Federal examiners was first
designed as a congressional response to the racially discriminatory voter registration practices
that existed throughout the South at the time of the Act's original passage in 1965. Examiners
are charged with processing (or "examining") applicants for voter registration and making a list
of those applicants who meet State eligibility rules; the list is then given to the local county
registrar, who is required to put those names on the county's voter registration rolls. Those on
the examiner's list are commonly called "federally registered voters." The Voting Rights Act
also requires the examiners to be available during each of the jurisdiction's elections, and for two
days afterward, to take complaints about problems from anyone.
Federal examiners can be appointed in two separate ways. The first route is through
section 6's authorization for the Attorney General to "certify" for the appointment of Federal
examiners any jurisdiction falling within the coverage of the Voting Rights Act in which there is
reason to believe that voters have been denied the right to vote on account of their race or status
as a language minority. In particular, the Attorney General must certify that either: (i) he has
received complaints in writing from twenty or more residents alleging that they have been denied
the right to vote under color of law on account of race or color or because they are a member of a
language minority and he believes such complaints to be meritorious; or (ii) in his judgment, the
appointment of examiners is necessary to enforce the guarantees of the Fourteenth or Fifteenth
Amendments. The second method by which Federal examiners may be appointed is for a
Federal court to do so pursuant to section 3(a) as part of an order of equitable relief in a voting
rights lawsuit to remedy violations of the Fourteenth or Fifteenth Amendment. Judicial
certifications, unlike those of the Attorney General, are not restricted to those political
subdivisions covered by section 4 of the Voting Rights Act. Regardless of who makes the
formal certification, once the determination is made, the actual selection of the examiner is
undertaken by the Director of the Office of Personnel Management (OPM), who then oversees
the examiner's activities.
The Voting Rights Act's ban on literacy tests and other discriminatory practices has
mitigated many of the voter registration problems that made examiners so important. As a result,
the need for, and role of, Federal examiners has greatly diminished over time. Although there
are still 148 counties and parishes in nine States that the Attorney General has certified for
Federal examiners,11 nearly all of these certifications were certified shortly after the Voting
additional 14 jurisdictions in eight States previously were certified for Federal examiners by
Federal courts under section 3(a), but the designations have since expired.
12The complete list of counties certified by the Attorney General, along with dates of
certification, can be found on the website of the Department of Justice's Voting Section. See
http://www.usdoj.gov/crt/voting/examine/activ_exam.htm.
1342 U.S.C. 1973gg et seq.
1442 U.S.C. 1973f.
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Rights Act was passed in 1965 when conditions were radically different from today.12
Moreover, many of the counties/parishes have not been the source of any race-based voting
registration complaints for decades.
According to OPM, there have been no new "federally registered voters" (i.e., voters
registered by Federal examiners) added in any jurisdiction throughout the country since 1983.
Nor has the Department of Justice received any complaints about covered jurisdictions refusing
to register Federal voters in decades.
In addition to the great advances in minority access to the franchise today as compared to
thirty to forty years ago, the decline in registration-related complaints is also attributable to the
passage of the National Voter Registration Act of 1993 (NVRA), which made voter registration
dramatically more accessible.13 Prior to this 1993 Act, there were few Federal standards for
voter registration. Through the NVRA, however, Congress established specific, uniform
requirements for voter registration and State maintenance of voter registration lists. All of these
requirements are applicable across the United States, not just in those jurisdictions certified for
Federal examiners or otherwise covered by the Voting Rights Act. The reality today is that the
only real importance of the Federal examiner provision from a practical standpoint is its function
as a statutory prerequisite to the Attorney General's ability to call upon OPM to assign Federal
observers to monitor particular elections in certified jurisdictions.
At any time after a Federal examiner has been appointed to a particular jurisdiction, the
Attorney General may request under section 8 that the Director of OPM assign Federal observers
to monitor elections in that jurisdiction.14 These observers are full-time or intermittent Federal
employees who are recruited and supervised by OPM. They are authorized by statute to enter
polling places and vote-tabulation rooms in order to observe whether eligible voters are being
permitted to vote and whether votes casts by eligible voters are being properly counted.
The OPM observers work in conjunction with attorneys from the Justice Department's
Civil Rights Division. Department of Justice attorneys assist OPM with the observers' training,
brief the observers on relevant issues prior to the election, and work closely with them on
election day. Federal observers are instructed to watch, listen, and take careful notes of
everything that happens inside the polling place/vote-tabulation room during an election. They
1542 U.S.C. 1973aa-1a.
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are also trained not to interfere with the election in any way. After the election, Justice
Department attorneys debrief the observers, and the observers complete written reports on their
observations. These reports are sent on to the Civil Rights Division and can be used in court if
necessary.
While most Federal observers have reported fewer irregularities than in the 1960s,
problems still occur. Over at least the last decade, most of these have related to compliance with
the language minority requirements of section 203.15 Where problems are discovered, a variety
of actions may be taken depending on the relevant circumstances. On occasion, Justice
Department personnel will assess the situation and work with county/parish officials on election
day to clarify Federal legal requirements and immediately resolve the identified problem. Other
times, the Department will send a letter to the jurisdiction following the election in which we
identify certain incidents or practices that should be addressed or improved in the future (e.g.,
removal of certain poll workers, additional training for election-day officials, etc.). Department
attorneys likewise may recommend further investigation. If no Federal issues are identified, the
matter may be referred to State authorities. If necessary, the Department will commence a civil
action (or contempt motion if applicable) to enforce the protections of the Voting Rights Act.
Notwithstanding the general overall compliance with the Voting Rights Act, the
Department of Justice has taken full advantage of the Federal observer provisions to help avoid
slippage or complacency by covered jurisdictions. In 2004, for example, the Civil Rights
Division worked with OPM to send 1,463 observers to cover 55 elections in 30 jurisdictions in
14 different States. In 2005, 640 Federal observers were sent to cover 22 elections in 17
jurisdictions in 10 different States. Meanwhile, already in 2006 (as of May 5, 2006), 30 Federal
observers have been dispatched to cover 2 elections in 3 jurisdictions in 2 different States.
Moreover, since 2004, the Justice Department has sent more than 200 Department personnel to
assist the Federal observers with their work.
In addition to Federal observers, the Civil Rights Division will send Justice Department
personnel, in cooperation with State and local election officials, to monitor elections if it has
received complaints or has uncovered credible evidence of possible violations of the Voting
Rights Act. In fact, the great bulk of our recent enforcement cases since approximately 1993
have involved jurisdictions (e.g., Massachusetts, California, New York, New Jersey, Florida,
Washington, and Pennsylvania) where there is no statutory authority to send Federal observers.
We have expended substantial resources in this endeavor. For example, in 2004, the Department
of Justice sent 393 departmental personnel to monitor 108 elections in 80 jurisdictions in 27
different States. In 2005, we sent 122 departmental personnel to monitor 25 elections in 21
jurisdictions in 10 different States. So far in 2006, the Department has sent 48 personnel to
cover 5 elections in 6 jurisdictions in 3 different States. Those monitors helped account for the
record-setting work we have done in enforcing the Voting Rights Act in recent years.
16The Voting Rights Act: Ten Years After, U.S. Civil Rights Commission, January 1975,
page 43.
17U.S. Bureau of the Census, I. Current Population Survey, Table 4a (2004), and IV.
Historical Time Series, Table A-9.
18Black Elected Officials - A Statistical Summary 2001, Joint Center for Political and
Economic Studies, Table 1, page 13.
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Let me say in conclusion that the Civil Rights Division has made the vigorous
enforcement of voting rights a primary objective. The fruits of our efforts in enforcing the
Voting Rights Act have been dramatic. Indeed, at the time the Voting Rights Act was first
passed in 1965, only one-third of all African-American citizens of voting age were on the
registration rolls in the jurisdictions covered by Section 5 of the Act, while two-thirds of eligible
whites were registered. Today, African-American voter registration rates not only are
approaching parity with that of whites, but actually have exceeded that of whites in some areas,
and Hispanic voters are not far behind. Forty years ago, the gap in voter registration rates
between African-Americans and whites in Mississippi and Alabama ranged from 63.2 to 49.9
percentage points. For example, only 6.7% of African-Americans in Mississippi were registered,
in comparison with 69.9% of whites.16 Yet by the 2004 general election, the Census Bureau
reported that in Mississippi a higher percentage of African-Americans were registered to vote
than whites (over 76% versus under 74%). In the same year the Census Bureau reported that
73% of African-Americans in Alabama were registered, as compared with under 75% of whites
(a difference of less than 2 percentage points). Moreover, the Census Bureau also recorded an
increase in minority turnout in the South from 44% for all non-whites in 1964 to 53.9% for
African-Americans alone in 2000.17
Enforcement of the Voting Rights Act also has helped to increase the opportunity of
minority voters to elect representatives of their choice. Virtually excluded from all public
offices in the South in 1965, minority elected officials are now substantially present in State
legislatures and local governing bodies throughout the region. For example, the number of
African-American elected officials has increased dramatically during the life of the Voting
Rights Act, from only 1,469 in 1970 to 9,101 in 2001.18 In fact, many covered States, such as
Georgia and Alabama, have more elected African-American officials today than most that are
not covered by section 5.
But our work is never complete. The Department of Justice is proud of the role it plays
in enforcing this statute, and we look forward to working with Congress during these
reauthorization hearings.
At this point, I would be happy to answer any additional questions from the Committee.