The congressional record underlying the 2006 voting rights act: How much discrimination can the constitution tolerate?

Harvard Civil Rights-Civil Liberties Law Review

Volumn 43, Issue 2, 2008, Pages 385-433

  Clarke, Kristen ^a  

^a NAACP Legal Defense and Educational Fund Inc   (United States)

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EID: 47049109437     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (371)

1. See Fannie Lou Hamer, Rosa Parks, & Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, §§ 4-5, 120 Stet. 577, 580-81 (codified as amended at 42 U.S.C.A. §§ 1973b-1973c (West 2003 & Supp. 2007)).
2. See, e.g., Hugh Davis Graham, Voting Rights and the American Regulatory State, in CONTROVERSIES IN MINORITY VOTING 177, 177 (Bernard Grofman & Chandler Davidson eds., 1992) (observing that the VRA is "one of the most effective instruments of social legislation in the modern era of American reform");
3. J. MORGAN KOUSSER, COLORBLIND INJUSTICE: MINORITY VOTING RIGHTS AND THE UNDOING OF THE SECOND RECONSTRUCTION 53 (1999) (describing the importance of the VRA in enforcing the guarantees of the Fourteenth and Fifteenth Amendments);
4. see also ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES (2000) (chronicling the role of the VRA in the legal and political history surrounding the struggle for suffrage rights among minority voters).
5. See DAVID A. BOSITIS, BLACK ELECTED OFFICIALS: A STATISTICAL SUMMARY, 2000, at 5 (2002), available at http://www.jointcenter.org/publications1/ publication-PDFs/BEO-pdfs/BEO-00.pdf (noting an increase in the number of Black elected officials from 1,469 in 1978 to 9,040 in 2000);
6. National Association of Latino Elected and Appointed Officials Educational Fund, http://www.naleo.org/membership.htm (noting an increase in the number of Latino elected officials between 1984 (3,128) and 2004 (4,853)); Voting Rights Act: the Judicial Evolution of the Retrogression Standard: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 16-17 (2005) (statement of Theodore Shaw, Director-Counsel, NAACP Legal Defense and Educational Fund, Inc.) (observing that "[t]he VRA and its expiring enforcement provisions have been the primary catalysts for dramatic increases in minority political participation, minority representation in elected bodies at the local, state and federal levels, and for the reductions in barriers to access to the political process for African Americans, Latinos, Asian Americans, and Native Americans").
7. 42 U.S.C. § 1973c (2000).
8. Id. Jurisdictions can obtain preclearance administratively by submitting the change to the Attorney General of the U.S. Department of Justice or judicially by means of a Section 5 declaratory judgment action filed in the U.S. District Court for the District of Columbia; until the voting change is precleared, the change is deemed legally unenforceable. See South Carolina v. United States, 589 F. Supp. 757, 759 (D.D.C 1984) (noting the District Court for the District of Columbia can enjoin any attempt to implement the change prior to granting of a declaratory judgment of preclearance). Preclearance determinations are final and unreviewable. See Morris v. Gressette, 432 U.S. 491 (1977). The Section 5 review process is very limited in scope, and preclearance of a change does not shield the change from a future challenge that may be mounted on other grounds.
9. 42 U.S.C. § 1973c. Minority voter population loss or the need to comply with the one-person, one-vote requirement may present legitimate reasons to depart from this rule. Likewise, increases in minority voter population may suggest that the jurisdiction could and should create additional majority-minority districts where that population is concentrated. At a bare minimum, covered jurisdictions must maintain status quo levels of minority voting strength to pass muster under Section 5. Id.
10. See infra Section II.B (discussing the inadequacy of the case-by-case approach);
11. see also South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966) (noting that "ingenious" defiance of court orders by the covered jurisdictions prompted Congress to conclude that case-by-case litigation was no longer sufficient).
12. 521 U.S. 507, 520 (1997).
13. Summarizing his overall impressions of the process leading up to the renewal of the expiring provisions of the VRA, Senator Patrick Leahy (Democrat-VT) observed that "Senators had available to them an extensive record to inform their votes," including a "voluminous Senate Judiciary Committee record," a full record before the House of Representatives, the House Committee Report, the full debate on the House floor and debate surrounding four proposed amendments that were all rejected. 152 CONG. REC. S8372-73 (2006). Senator Leahy also noted that Senate members were provided "some of the extensive evidence received in the Judiciary Committee about the persistence of discriminatory practices in covered jurisdictions that supports reauthorization of this crucial provision." Id.
14. For one article written prior to the 2006 reauthorization that highlights the importance of building a thorough congressional record, see Richard L. Hasen, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act After Tennessee v. Lane, 66 OHIO ST. L.J. 177, 180 (2005) (noting that "Congress would be well advised to craft the best evidentiary record possible to support a renewed preclearance provision").
15. 383 U.S. 301 (1966).
16. 446 U.S. 156 (1980).
17. Indeed, the House Judiciary Committee issued a report finding that: [V]oting changes devised by covered jurisdictions resemble those techniques and methods used in 1965, 1970, 1975, and 1982 including: enacting discriminatory redistricting plans; switching offices from elected to appointed positions; relocating polling places; enacting discriminatory annexations and deannexations; setting numbered posts; and changing elections from single member districts to at-large voting and implementing majority vote requirements. The Committee received testimony indicating that these changes were intentionally developed to keep minority voters and candidates from succeeding in the political process.
18. H.R. REP. NO. 109-478, at 36 (2006).
19. See Pamela S. Karlan, Section 5 Squared: Congressional Power to Extend and Amend the Voting Rights Act, 44 HOUS. L. REV. 1, 24 (2007) (observing that Section 5 creates a bargaining chip that may play a critical role in the ability of minority representatives "to pull, haul, and trade" within the political process).
20. See, e.g., Reauthorizing the Voting Rights Act's Temporary Provisions: Policy Perspectives and Views from the Field: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Comm. on the Judiciary, 109th Cong. 310 (2006) (statement of Donald Wright, General Counsel, North Carolina State Board of Elections) (observing that Section 5 preclearance decisions provide a seal of approval that can help vindicate governmental units from allegations of voting discrimination).
21. See Boerne, 521 U.S. at 518 ("Legislation which deters or remedies constitutional violations can fall within the sweep of Congress's enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into legislative spheres of autonomy previously reserved to the States.");
22. see also Lopez v. Monterey County, 525 U.S. 266, 282 (1999) (noting that the Act "contemplate[s] some intrusion" into areas traditionally reserved to the States); Katzenbach, 383 U.S. at 326 (1966) (upholding Section 5 as a valid exercise of Congress's "full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting");
23. id. at 327 ("Whatever legislation is . . . adapted to carry out the objects the Civil War amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within . . . congressional power.") (quoting Ex parte Virginia, 100 U.S. 339, 345-46 (1880)).
24. See Lopez, 525 U.S. at 282 (recognizing the "substantial 'federalism costs'" imposed by Section 5 and observing that congressional powers under the Fifteenth Amendment "contemplate some intrusion into areas traditionally reserved to the states") (internal citations omitted). Other VRA opponents level attacks on the Act's coverage formula, 42 U.S.C. § 1973b(b) (2000), arguing that it is outdated and does not permit Section 5 to reach discrimination taking place today in non-covered jurisdictions. Congress designed the coverage formula, based in part on turnout figures from presidential elections in 1964, 1968, and 1972 and on the presence of a prohibited device, such as a literacy test as a proxy for identifying jurisdictions with the longest and most egregious histories of entrenched voting discrimination. Coverage formula critics often neglect to highlight the fact that the coverage formula was reverse-engineered to describe jurisdictions that discriminated and not to describe the discriminatory conduct that Congress sought to remedy. However, the coverage formula has effectively imposed reasonable and logical limits on the scope of Section 5's application. Moreover, for the uncovered jurisdictions that lie beyond the ambit of Section 5, other remedial provisions of the Act can be used to address the discriminatory acts that arise in those areas.
25. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (pt. 1): Hearing on H.R. 9 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 13-37 (2006) (statement of Roger Clegg, President & General Counsel, Center for Equal Opportunity) (opposing renewal of Section 5);
26. Voting Rights Act: The Continuing Need for Section 5: Hearing on H.R. 9 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 32-43 (2005) [hereinafter The Continuing Need for Section 5];
27. Voting Rights Act: Section 5 of the Act - History, Scope, and Purpose: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 14-17 (2005)
28. [hereinafter Section 5 of the Act -History, Scope, and Purpose] (statement of Edward Blum, Visiting Fellow, American Enterprise Institute) (opposing reauthorization bill as excessively race-based and outdated).
29. See, e.g., An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 214-19 (2006) (statement of Richard Hasen, Loyola School of Law)
30. [hereinafter An Introduction to the Expiring Provisions of the Voting Rights Act];
31. id. at 220 (statement of Samuel Issacharoff, New York University Law School);
32. The Continuing Need for Section 5 Pre-Clearance: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 198-207 (2006) (statement of Richard Pildes, New York University Law School)
33. [hereinafter The Continuing Need for Section 5 Pre-Clearance].
34. See, e.g., Luis E. Fuentes-Rohwer, Legislative Findings, Congressional Powers, and the Future of the Voting Rights Act, 82 IND. L.J. 99, 130 (2007).
35. Boerne, 521 U.S. at 520.
36. See Tennessee v. Lane, 541 U.S. 509, 522 (2004); Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001).
37. Lane, 541 U.S. at 523.
38. See South Carolina v. Katzenbach, 383 U.S. 301, 308 (internal citations omitted).
39. Lane, 541 U.S. at 531.
40. See Reynolds v. Sims, 377 U.S. 533, 562 (1964) (holding that "any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized").
41. Boerne, 521 U.S. at 518.
42. 42 U.S.C. § 2000bb (2000).
43. Id. § 2000bb-1.
44. Id. § 2000bb-2(1).
45. Id. § 2000bb-3(a).
46. Boerne, 521 U.S. at 532.
47. Id.
48. Id.
49. Id. at 530.
50. Id. at 509.
51. See Calvin R. Massey, Two Zones of Prophylaxis: The Scope of the Fourteenth Amendment Enforcement Power, 76 GEO. WASH. L. REV. 1, 50 (2007) (recognizing that "[i]n practice, the Court requires less evidence and permits a looser fit between the remedy and the wrong when the prohibited state behavior is presumed to be unconstitutional");
52. Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L REV. 1 (2004);
53. see also Daniel A. Färber, Pledging a New Allegiance: An Essay on Sovereignty and the New Federalism, 75 NOTRE DAME L. REV. 1133, 1135 (2000);
54. Ellen Katz, Federalism, Preclearance, and the Rehnquist Court, 46 VILL. L. REV. 1179 (2001).
55. For a fairly restrictive reading of Boerne, see Luis E. Fuentes-Rohwer, supra note 19 at 130 (concluding that if the federalism movement has any traction and the Court musters significant judicial will, Section 5 will be struck down).
56. Interestingly, Fuentes-Rohwer arrives at this conclusion while providing little substantive examination of the record of voting discrimination underlying the 2006 reauthorization. Id. For examples of Supreme Court cases using the VRA as exemplary legislation, see League of United Latin American Citizens v. Perry, 126 S. Ct. 2594, 2667 (2006) (Scalia, J., dissenting in part and concurring in part) ("We long ago upheld the constitutionality of Section 5 as a proper exercise of Congress's authority under § 2 of the Fifteenth Amendment . . . ."); Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721, 738 (2003) (noting various rejections to challenges against Section 5 based on the scope of Congress's enforcement power); Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 373 (2001) (contrasting Section 5 with Title I of the ADA, which the Court determined to be beyond the scope of congressional enforcement powers under the Fourteenth Amendment while identifying Section 5 of the VRA as "a detailed but limited remedial scheme"); United States v. Morrison, 529 U.S. 598, 626 (2000) (distinguishing Section 5 from statute at issue and identifying Section 5 as a proper example of an exercise of congressional power); Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 639 (1999) (invaldating the Patent Remedy Act as beyond the proper scope of congressional enforcement powers under the Fourteenth Amendment and using Section 5 of the VRA as an example of legislation properly within its authority); Lopez v. Monterey, 525 U.S. 266, 283 (1999) (noting that the Court had previously "upheld the constitutionality of §5 of the Act against a challenge that this provision usurps powers reserved to the States").
57. Boerne. 521 U.S. at 532-34.
58. Id. at 530-31.
59. Id. at 532.
60. Id. at 533. For a description of those statutes that did not satisfy the Boerne standard, see Garrett, 531 U.S. 356 (Title I of the Americans with Disabilities Act as applied to states);
61. Morrison, 529 U.S. 598 (Violence Against Women Act); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (Age Discrimination in Employment Act as applied to the states);
62. Fla. Prepaid, 527 U.S. 627 (Patent Remedy Act as applied to the states). For a description of those statutes that have withstood scrutiny post-Boerne, see Tennessee v. Lane, 541 U.S. 509 (2004) (upholding public accommodations provisions of Title II of the Americans with Disabilities Act);
63. Hibbs, 538 U.S. 721 (upholding the Family and Medical Leave Act).
64. Boerne, 521 U.S. at 531-32. 43
65. Id.
66. Id. at 530-32.
67. Garrett, 531 U.S. at 368-69.
68. Id. at 369.
69. Id. at 373.
70. 528 U.S. 62, 93 (2000).
71. Id. at 89.
72. Id.
73. 527 U.S. 627, 640 (1999).
74. 538 U.S. 721, 738 (2003).
75. Id. at 735.
76. 541 U.S. 509 (2004).
77. Id. at 526 U.S. at 18 (citing S. REP. NO. 101-116);
78. see also H.R. REP. NO. 101-485, pt. 2, at 47.
79. Lane, 541 U.S. at 526.
80. Id. at 528.
81. See Yick Wo v. Hopkins. 118 U.S. 356, 370 (1886);
82. see also Bush v. Gore. 531 U.S. 98. 104 (2000) (per curiam) (describing the right to vote as fundamental);
83. Kramer v. Union Free Sch. Dist., 395 U.S. 621, 626 (1969) (quoting Reynolds v. Sims, 377 U.S. 533. 562 (1964)) (same); Harper v. Va. State Bd. of Elections. 383 U.S. 663. 667 (1966) (same).
84. See City of Boerne v. Flores. 521 U.S. 507, 533 (noting that congressional power is heightened when Congress enacts remedial legislation that addresses problems at the convergence of race and fundamental rights);
85. see also Karlan, supra note 13 (discussing Lane. Hibbs. and United States v. Georgia. 126 S. Ct. 877 (2006) and observing that when "Congress acts to protect a fundamental right or when it acts to protect a suspect or quasi-suspect class, its powers are generally broader than when it acts to promote equality more generally").
86. Interestingly, some commentators questioned whether Congress is required to compile any legislative record at all: No compiled record can ever fully record what influenced Congress to act, nor can any judicial attempt to impose a record requirement on Congress be justified. Viewed through the prism of textualist jurisprudence, it is difficult to comprehend the Court's heavy weighting of legislative reports and witness and legislator statements that have great potential to mislead and be misused.
87. W. Buzbee & Robert A. Schapiro. Legislative Record Review, 54 STAN. L. REV. 87. 161 (2001);
88. see also Extension of the Voting Rights Act: Hearings on H.R. 939, H.R. 2148. H.R. 3247, and H.R. 3501 Before the Subcomm. on Civil and Const. Rights of the H. Comm. on the Judiciary, 94th Cong. 637 (1975)
89. [hereinafter 1975 House Extension of the Voting Rights Act] (noting that Congress is not necessarily required to seek new evidence in order to justify continued enforcement of the Fifteenth Amendment). There are, of course, practical reasons for creating a legislative record, including ensuring that those charged with carrying out the mandates of the particular legislation are sufficiently sensitized to the law's requirements and objectives.
90. No. 1:06-CV-01384 (D.D.C. Aug. 4, 2006) (on file with author).
91. See id.
92. See Joel Seidman, Officials Challenge Voting Rights Law, MSNBC, Sept. 17, 2007, available at http://www.msnbc.msn.com/id/20823422/ ; Press Release, Mexican American Legal Defense and Educational Fund, MALDEF Defends Voting Rights Act Against Constitutional Attack (Oct. 19, 2006), available at http://www.maldef.org/news/press.cfm?ID=358.
93. The utility district's economic and demographic profile stands in contrast to that of many jurisdictions that have been at the center of Section 5 objections or have been the subject of voting rights litigation. The district, created in the early 1980s, has not been at the heart of any intense racial struggles. In that sense, it appears that the utility district was strategically selected to mount what is certain to be one of the most important challenges to the newly reauthorized Section 5 provision. Regardless of the outcome of the case, which remains pending before a three-judge panel in the D.C District Court, the losing party will most likely appeal any ruling to the Supreme Court.
94. The bailout provision allows certain jurisdictions to seek a declaratory judgment from the District Court for the District of Columbia to remove themselves from Section 5 coverage. Jurisdictions that are eligible for bailout must prove, among other things, that they have faced neither a Section 5 objection nor any court finding of voting discrimination in the preceding ten year period. 42 U.S.C.A. § 1973b(a)(1), (3). The utility district does not fall into any of these categories.
95. During oral argument on summary judgment, Judge David S. Tatel of the D.C. Circuit questioned the utility district's claims that Congress did not receive sufficient evidence of discrimination in the covered jurisdictions to authorize the extension of Section 5 by pointing to the example of Kilmichael, Mississippi. See Transcript of Oral Argument, NAMUD v. Gonzales (argued Sept. 17, 2007) (on file with author). For more information regarding the Kilmichael, Mississippi, election cancellation, see infra Section III.B.
96. City of Boerne v. Flores, 521 U.S. 507, 525 (1997).
97. 383 U.S. 301 (1966).
98. 446 U.S. 156 (1980).
99. Katzenbach, 383 U.S. at 308-09.
100. Id. at 309.
101. Id.
102. Id.
103. Id. at 328.
104. Id. at 308.
105. City of Rome v. United States, 446 U.S. 156, 173 (1980).
106. Id. at 177-78.
107. Id.
108. Id. at 174.
109. 383 U.S. at 330.
110. City of Rome, 446 U.S. at 182.
111. Id.
112. In Katzenbach v. Morgan, the Court upheld the Act's ban on literacy tests against constitutional challenge. 384 U.S. 641 (1966). The Court found that: [I]t is enough that we perceive a basis upon which Congress might predicate a judgment that the application of New York's English literacy requirement to deny the right to vote to a person with a sixth grade education in Puerto Rican schools in which the language of instruction was other than English constituted an invidious discrimination in violation of the Equal Protection Clause.
113. Id. at 656.
114. Lopez v. Monterey County, 525 U.S. 266, 283 (1999).
115. South Carolina v. Katzenbach. 383 U.S. 301, 324 (1966).
116. City of Boerne v. Flores, 521 U.S. 507, 533 (1997).
117. A number of commentators have observed the difficulty that courts encounter when reviewing a matter that is inherently political in nature. See Karlan, supra note 13.
118. This difficulty weighs in favor of a high degree of judicial deference to Congress to decide whether Section 5 remains necessary to eliminate discrimination from the political processes of covered jurisdictions. See Karlan, supra note 13, at 18-19 (noting that the preclearance regime of Secdon 5 represents a quintessential exercise of political responsibility and observing that because the VRA involves regulation of the political process it raises important issues of political fairness that lie within the expertise of politicians). Other commentators have noted the difficulty that courts encounter when engaging in extensive review of the legislative record as a general matter.
119. See, e.g., A. Christopher Bryant & Timothy J. Simeone, Remanding To Congress: The Supreme Court's New "On The Record" Constitutional Review of Federal Statutes, 86 CORNELL L. REV. 328, 369-89 (2001) (describing judicial review of the legislative record as a "fundamentally ill advised" exercise);
120. Buzbee & Schapiro, supra note 60, at 91 (observing that judicial scrutiny of the legislative record is an "unjustified and unworkable abrogation of legislative authority");
121. Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH. L. REV. 80, 86-87 (2001) (expressing criticism of the "Court's emerging vision in which Congress has substantially diminished powers to conduct its internal affairs or to engage in factfinding and lawmaking that the judicial branch will respect");
122. Philip P. Frickey & Steven S. Smith, Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplany Critique, 111 YALE L.J. 1707, 1755 (2002) (contending that "eventually the Supreme Court will find the Garrett approach untenable").
123. See United States v. Lopez, 514 U.S. 549, 613-14 (1995) (Souter, J., dissenting) ("If, indeed, the Court were to make the existence of explicit congressional findings dispositive in some close or difficult cases something other than rationality review would be afoot. . . . [R]eview for deliberateness would be as patently unconstitutional as an Act of Congress mandating long opinions from this Court."). See also Buzbee & Schapiro, supra note 60, at 160-61 (observing that the Constitution's allocation of authority to legislate pursuant to the Reconstruction Amendments, coupled with the longstanding view that courts' questioning of political judgments must be constrained with judicially manageable standards, weigh against a strict interpretation or application of Boerne and its progeny).
124. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 451 (2002) (Kennedy, J., concurring in the judgment) ("[C]ourts should not be in the business of second-guessing fact-bound empirical assessments of city planners."); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 583 (1991) (Souter, J., concurring in the judgment) ("At least as to the regulation of expressive conduct, '[w]e decline to void [a statute] essentially on the ground that it is unwise legislation . . .' " (quoting United States v. O'Brien, 391 U.S. 367, 384 (1968))); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 52 (1986) (noting that it is not an appropriate function of the Court to appraise the wisdom of a city's policy of regulating its adult theatres).
125. 152 CONG. REC. S8372-73 (2006).
126. See H.R. REP. NO. 109-478, at 22 (2006).
127. See id. The author recognizes that some might quibble with the significance of the observations regarding the greater number of DOJ objections interposed between 1982 and 2005, relative to the period between 1965 and 1981. Some might argue that the two periods were different in length (sixteen years compared to twenty-three years). In addition, some might argue that the number of objections during the earlier period would have been higher had DOJ focused more on enforcement than on increasing minority voter registration following the Act's initial passage. Others might argue that even though the raw number of objections was greater between 1982 and 2005, the proportion of proposed changes to which DOJ has objected has dropped because of an increase in overall submissions for preclearance. However, these arguments ignore a number of factors, including the impact of the Supreme Court's rulings in Georgia v. Ashcroft, 539 U.S. 461 (2003) and Reno v. Bossier Parish School Board, 528 U.S. 320, 335-41 (2000) [hereinafter Bossier Parish II], which significantly curtailed DOJ's ability to interpose objections to discriminatory voting changes prior to the amendments made during the VRA reauthorization.
128. H..R. REP. NO. 109-478, at 21.
129. See infra Parts III.B, III.C.
130. See Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 YALE L.J. 174, 183 n.32 (2007) (observing "[t]hat the debate in the Senate hearings revealed a bit of a rift between legal academics and voting rights advocates").
131. For another brief commentary regarding a perceived rift between academics and policymakers, see Posting of Rick Hasen, Overton (VRA Renewal): The Conflict Between Scholars and Policymakers, to Election Law Blog, http://electionlawblog.org/archives/cat_vra_renewal_guest_blogging.html (July 20, 2006, 16:41 EST) ("[A]cademics . . . sometimes make judgments without having reviewed the complete legislative record ourselves.") (quoting Spencer Overton, Professor, The George Washington University Law School).
132. See Michael J. Pitts, Let's Not Call the Whole Thing Off Just Yet: A Response to Samuel Issacharoff's Suggestion to Scuttle Section 5 of the Voting Rights Act, 84 NEB. L. REV. 605, 617 (2005) (recognizing problems that occur at the local level that evidence the continuing need for protection of minority voters and contending that protection of minority voting rights in local government represents Section 5's most important modern-day function).
133. See also Understanding the Benefits and Costs of Section 5 Pre-Clearance: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 129 (2006) (supplemental statement of Nathaniel Persily, Professor, University of Pennsylvania Law School) (observing that "the greatest effect of Section 5 can be felt at the local level, where elections are usually nonpartisan and the stakes as viewed by the national parties and interest groups are seen as relatively low").
134. For extensive discussion of the debates, negotiation, and deals that preceded Congress's vote to reauthorize Section 5, see generally James Thomas Tucker, The Politics of Persuasion: Passage of the Voting Rights Act Reauthorization Act of 2006, 33 J. LEGIS. 205 (2007).
135. A number of witnesses expressed concerns regarding the constitutionality of a renewed Section 5. See, e.g., An Introduction to the Expiring Provisions of the Voting Rights Act, supra note 18, at 214-19 (statement of Richard L. Hasen, Professor, Loyola Law School) (describing perceived deficiencies in the congressional record);
136. id. at 220-25 (statement of Samuel Issacharoff, Professor, New York University School of Law);
137. The Continuing Need for Section 5 Pre-Clearance, supra note 18, at 198-207 (statement of Richard H. Pildes, Professor, New York University School of Law) (describing perceived inadequacies in the congressional record compiled for the 2006 reauthorization).
138. During a particularly poignant moment in the floor debate preceding the floor vote in the House of Representatives, Rep. James Sensenbrenner pulled out, in dramatic fashion, hard copies of the extensive volumes of materials Congress had amassed in its effort to study and determine whether there was a continuing need for the expiring provisions of the Voting Rights Act. As the books piled on the table before him, a number of them slipping to the floor, Sensenbrenner passionately observed that he had never seen Congress invest more time or resources into studying an issue presented before it: Based upon the committee's record ... it is one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 1/ 2 years that I have been honored to serve as a Member of this body. All of this is a part of the record that the Committee on the Constitution headed by Mr. Chabot of Ohio has assembled to show the need for the reauthorization of the Voting Rights Act. ... In fact, the extensive record of continued abuse compiled by the committee over the last year, which I have put on the table here today, echoes that which preceded congressional reauthorization of the VRA in 1982.
139. CONG. REC. H5143 (2006).
140. Rep. Steve Chabot, then-chairman of the Subcommittee on the Constitution in the House of Representatives, made particular note of the size of the congressional record, observing that: Since October of 2005, our subcommittee has held 12 hearings, heard testimony from 47 witnesses, and compiled over 12,000 pages on the Voting Rights Act .... [0]ur committee has devoted more time to this legislation than on any other matter since I became chairman of the Constitution Subcommittee 6 years ago.
141. CONG. REC. H5136 (2006) (concluding that "[t]he extensive testimony from a large number of diverse organizations demonstrated a clear need to reauthorize the Voting Rights Act").
142. Michelle Kuo, Memorandum on Congressional Materials Related to the 2005-2006 Voting Rights Act Reauthorization, Internal NAACP Legal Defense and Educational Fund Document, Summer 2007; citations for all the materials (memorandum on file with author).
143. Senator Edward Kennedy offered a formal statement during the reauthorization, observing "unimaginable" levels of progress since the Act was passed in 1965. 152 CONG. REC. S7967 (2006). However, Kennedy observed that "the goal of the Voting Rights Act was to have full and equal access for every American regardless of race" and that "[w]e have not achieved that goal." Id. at S7968. Kennedy also noted: Twenty-five years is not a long time when compared to the centuries of oppression that the law is intended to overcome. While we have made enormous progress, it takes time to overcome the deep-seated patterns of behavior that have denied minorities full access to the ballot. Indeed, the worst thing we could do would be to allow that progress to slip away because we ended the cure too soon. . . . We need to ensure that jurisdictions know that the act will be in force for a sufficiently long period that they cannot simply wait for its expiration, but must eliminate discrimination root and branch.
144. Id.
145. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 15-17 (2005) [hereinafter To Examine the Impact and Effectiveness of the Voting Rights Act] (statement of the Hon. Marc Morial, President and CEO, National Urban League).
146. 674 F. Supp. 1245 (N.D. Miss. 1987).
147. Voting Rights Act: Evidence of Continued Need: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 1725 (2006)
148. [hereinafter Voting Rights Act: Evidence of Continued Need] (report of RenewtheVRA.org, prepared by Robert B. McDuff, Attorney, Jackson, Mississippi).
149. See also PUSH, 674 F. Supp. at 1251-52.
150. Voting Rights Act: Section 5 -Preclearance Standards: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 19-20 (2005) [hereinafter Voting Rights Act: Section 5 -Preclearance Standards] (statement of Brenda Wright, Managing Attorney, National Voting Rights Institute).
151. See also Young v. Fordice, 520 U.S. 273 (1997).
152. Voting Rights Act: Evidence of Continued Need, supra note 104, at 55 (statement of Wade Henderson, Executive Director, Leadership Conference on Civil Rights).
153. Young, 520 U.S. at 273.
154. Voting Rights Act: Evidence of Continued Need, supra note 104, at 4540 (statement of Debo P. Adegbile, Associate Director of Litigation, NAACP Legal Defense Fund, Inc.).
155. Packing entails the placement of as many minority voters into as few districts as possible in order to reduce their influence and minimize their overall voting strength. For elaboration, see Voinovich v. Quilter, 507 U.S. 146, 153 (1993).
156. Voting Rights Act: Evidence of Continued Need, supra note 104, at 4540 (statement of Debo P. Adegbile, Associate Director of Litigation, NAACP Legal Defense Fund, Inc.).
157. See Peyton McCrary et al., The End of Preclearance as We Knew
158. see also Voting Rights Act: Section 5 -Preclearance Standards: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 180-81 (2006) [hereinafter Voting Rights Act: Section 5 -Preclearance Standards]
159. (appendix to McCrary et al., The End of Preclearance As We Knew It: How the Supreme Court Transformed Section 5 of the Voting Rights Act).
160. 528 U.S. 320, 335-41 (2000).
161. See Tucker, supra note 97 at 221-23 (describing the changes made to Section 5 in order to reflect congressional intent that discriminatory purpose was grounds for denial of preclearance).
162. See McCrary et al., supra note 110;
163. see also Voting Rights Act: Section 5-Preclearance Standards, supra note 110, at 15-16 (statement of Mark A. Posner, Attorney-atLaw) (noting that purpose-based objections to voting changes that were not necessarily retrogressive in effect began under the leadership of former Assistant Attorney General Bradford Reynolds during the Reagan administration and recounting multiple purposed-based objections to proposed redistricting plans for various Mississippi counties following the 1980 decennial redistricting cycle).
164. See Voting Rights Act: Section 5 -Preclearance Standards, supra note 110, at 19-20 (statement of Brenda Wright, Managing Attorney, National Voting Rights Institute) (noting that a post-1980s congressional redistricting plan in Georgia fragmented the black population and that a legislator who headed the redistricting committee used racial epithets to express his opposition to drawing black majority districts);
165. Voting Rights Act: Evidence of Continued Need, supra note 104. at 54 (statement of Wade Henderson, Executive Director, Leadership Conference on Civil Rights) (describing 1991 objection to redistricting plans submitted by officials in Selma. Alabama, that unnecessarily fragmented the African American voting population).
166. See Voting Rights Act Reauthorization: Hearing Before the S. Comm. on the Judiciary. 109th Cong. 189-90 (2006) (statement of Fred Gray, Senior Partner, Gray, Langford, Sapp, McGowan, Gray & Nathanson) (describing a 1998 objection to a redistricting plan for the Tallapoosa County Commission that impaired the ability of black voters to elect a candidate of their choice in order to protect a white incumbent).
167. 116; See Voting Rights Act: Evidence of Continued Need, supra note 104, at 53 (testimony of Wade Henderson, Executive Director, Leadership Conference on Civil Rights) (describing a DOJ objection to a 2003 proposal in Chilton County, Alabama, that sought to reduce the size of an elected body and repeal cumulative voting in an effort to retrogress minority voting strength).
168. 200 F. Supp. 2d 1150 (D.S.D. 2002).
169. See Voting Rights Act: Evidence of Continued Need, supra note 104, at 1163 (statement of Laughlin McDonald, Director, Voting Rights Project, American Civil Liberties Union, Fnd.);
170. see also The Continuing Need for Section 5, supra note 17, at 14 (statement of Laughlin McDonald, Director, Voting Rights Project, American Civil Liberties Union, Fnd.).
171. No. CIV.A. 02-2209, 2002 U.S. Dist. LEXIS 16540 (D. La. August 26, 2002).
172. Id. at *2-3.
173. Id. at *33.
174. Id. at *34.
175. Letter from Ralph F. Boyd, Jr., Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, to J. Lane Greenlee, Esq. (December 11, 2001), available at http://www.usdoj.gov/crt/voting/sec_5/ltr/l_121101. htm.
176. H.R. REP. NO. 109-478, at 36 (2006).
177. Continuing Need for Section 5 Pre-Clearance, supra note 18 (statement of Anita Earls, then-Director of Advocacy, University of North Carolina Law School's Center for Civil Rights) (observing that "without Section 5, voters in the town [of Kilmichael] would not have been able to elect new town officials, and the existing officials would have been able to enact a single-member districting plan that unfairly diluted the voting strength of black voters").
178. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 591-96 (statement of Debo P. Adegbile, Associate Director of Litigation, NAACP Legal Defense and Fund).
179. Id.
180. See DEBO P. ADEGBILE, VOTING RIGHTS IN LOUISIANA, 1982-2006 13-18 (2006), available at http://www.civilrights.org/issues/voting/LAVRA.pdf;
181. see also Louisiana House of Representatives et al. v. Ashcroft, No. 1:02-cv-62 (D.D.C. Jan 17, 2003) (unpublished order) (on file with the author).
182. Louisiana House of Reps., No. 1:02-cv-62. The strong language of the D.C. District Court's order condemning the state of Louisiana's litigation tactics is but one example of the evidence of "gamesmanship" (or ingenious defiance) that some conservative commentators believe is necessary to show the continuing need for Section 5. Id.
183. League of United Latin Am. Citizens (LULAC) v. Perry, 126 S. Ct. 2594 (2006).
184. See generally Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options After LULAC v. Perry: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Comm. on the Judiciary, 109th Cong. 357-60 (2006) (statement of Nina Perales, Southwest Regional Counsel, Mexican American Legal Defense and Education Fund); see also LULAC, 126 S. Ct. at 2621 (also connecting racial polarization with "the possible submergence of minority votes -throughout Texas").
185. LULAC, 126 S. Ct. at 2621.
186. Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options After LULAC v. Perry: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property-Rights of the S. Comm. on the Judiciary, 109th Cong. 233 (2006) (statement of Sherrilyn Ifill).
187. See Foreman v. Dallas County, 521 U.S. 979 (1997) (holding that county's exercise of its "discretion" pursuant to a state statute to adjust procedure for appointing election judges did not compel finding that county could make such a change without obtaining preclearance).
188. Letter from R. Alexander Acosta, Assistant Attorney General, U.S. Department of Justice, to H. Bruce Buckheister, Mayor, Town of North, South Carolina (September 16, 2003), available at http://www.usdoj.gov/crt/ voting/sec_5/ltr/l_091603.html.
189. Id.
190. Id.
191. See H.R. REP. NO. 109-478, at 41-42 (2006) (finding that "covered jurisdictions continue to resist submitting voting changes for preclearance, as required by Section 5").
192. 208 F. Supp. 2d 14 (D.D.C. 2002).
193. No. L96-CV-700-JEC, 1996 WL 480861 (N.D. Ga. April 9, 1996).
194. Voting Rights Act: The Continuing Need for Section 5: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 131 (2005) (appendix to the statement of Laughlin McDonald, Director, ACLU Voting Rights Panel). Shannon and Todd Counties are the only two covered counties in South Dakota.
195. Voting Rights Act: Section 5 of the Act -History, Scope, and Purpose, Vol. II, supra note 17, at 3290 (statement of Bryan Sells).
196. Voting Rights Act: Section 203 - Bilingual Election Requirements (Part II): Hearing Before the Subcomm. On the Constitution of the H. Comm. on the Judiciary, 109th Cong. 77 (2005) (statement of Jacqueline Johnson, Executive Director, National Congress of American Indians) (describing particular needs of American Indians and Native Americans in Alaska and observing that many Native voters speak English as a second language and prefer to follow complicated ballot issues in their first language).
197. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 124-26 (2005) (statement of Juan Cartagena, General Counsel, Community Service Society) (highlighting results from a Pew Hispanic Center study that revealed that forty-seven percent of eligible Latinos voted in the 2004 presidential election compared to sixty-seven percent of whites).
198. But see Voting Rights Act: Sections 6 and 8 -The Federal Examiner and Observer Program: Hearing Before the Subcomm. of the H. Comm. on the Judiciary, 109th Cong. 12-14 (2005) (statement of Penny L. Pew, Elections Director, Apache County, Arizona) (noting that turnout among voters in the Navajo Nation increased substantially after county conducted outreach to Navajo community and made bilingual materials available).
199. Voting Rights Act: Evidence of Continued Need, supra note 104, at 309.
200. Section 5 of the Act -History, Scope, and Purpose, supra note 17, at 86.
201. See NINA PERALES ET. AL., VOTING RIGHTS IN TEXAS, 1982-2006 4 (2006), available at http://www.civilrights.org/issues/voting/TexasVRA.pdf.
202. Section 5 of the Act -History, Scope, and Purpose, supra note 17, at 86.
203. Voting Rights Act: An Examination of the Scope and Criteria for Coverage under the Special Provisions of the Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 13 (2005) (statement of Jose Garza, Voting Rights Attorney, League of United Latin American Citizens) (noting maintenance of racially segregated cemetery and county health office in Taft, Texas).
204. For a thorough record of all racial appeals identified in Section 2 cases, see Ellen Katz, Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982: Final Report of the Voting Rights Initiative, University of Michigan Law School, 39 U. MICH. J.L. REFORM 643 (2006).
205. Voting Rights Act: An Examination of the Scope and Criteria for Coverage Under the Special Provisions of the Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 84 (2005) [hereinafter Examination of the Scope and Criteria for Coverage].
206. See Voting Rights Act: Section 203 -Bilingual Election Requirement (Part 1): Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 18 (2005) [hereinafter Bilingual Election Requirement] (statement of Margaret Fung, Asian American Legal Defense and Education Fund) (describing various racially derogatory statements made to Asian American voters at a number of polling sites around the country during the 2004 elections).
207. Voting Rights Act: Sections 6 and 8 -The Federal Examiner and Observer Program: Hearing Before, the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 17-19 (2005) [hereinafter Voting Rights Act: Sections 6 and 8] (statement of Barry H. Weinberg, Former Deputy Chief and Acting Chief, Voting Section, Civil Rights Division, U.S. Dep't. of Justice) (noting that federal observers are the "eyes and ears of the Justice Department" and play a critical role in the law enforcement process by documenting harassment and intimidation of voters).
208. Id. at 12-14 (statement of Penny L. Pew, Elections Director, Apache County, Arizona) (noting that the observer program has functioned as a check-and-balance feature in the county's translator program).
209. Id. at 30 (statement of Barry H. Weinberg, former Deputy Chief and Acting Chief, Voting Section, Civil Rights Division, U.S. Dep't. of Justice).
210. H.R. REP. NO. 109-478, at 44 (2006).
211. Id.;
212. Modern Enforcement of the Voting Rights Act: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 5 (2006) [hereinafter Modern Enforcement of the Voting Rights Act] (statement of Wan J. Kim, Assistant Attorney General, Civil Rights Division, U.S. Dep't. of Justice).
213. See Voting Rights Act: The Continuing Need for Section 5: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 49-50 (2005) (statement of Richard Engstrom, Professor, The University of New Orleans) (sharing findings from his expert analysis of elections in Louisiana between 1991 and 2002 and concluding that seventy-eight of ninety electoral contests revealed high levels of racial divisions in candidate preferences).
214. Voting Rights Act: The Judicial Evolution of the Retrogression Standard: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 19 (2005) (statement of Theodore Shaw).
215. Modern Enforcement of the Voting Rights Act: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 21, 26 (2006) (statement of Robert B. McDuff, Attorney, Jackson, Mississippi).
216. See Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization: Hearings on S. 2703 Before the S. Comm. on the Judiciary, 109th Cong. 50 (2006) (statement of Chandler Davidson, Professor Emeritus, Rice University) (observing that since 1982, "there were more than 200 proposed discriminatory submissions that jurisdictions withdrew from" DOJ consideration after receiving letters from DOJ suggesting that the changes would be blocked if not withdrawn or substantially altered).
217. See also Voting Rights Act: Evidence of Continued Need: Hearing on H.R. 9 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, Vol. II, 109th Cong. 2553 (2006) (statement of Luis Ricardo Fraga & Maria Lizet Ocampo, Stanford University) (concluding that letters seeking more information on submitted voting changes "increased the impact of the DOJ on submitted changes by 110 percent, i.e., doubling the number of changes that were not precleared by the DOJ").
218. Modern Enforcement of the Voting Rights Act, supra note 157, at 26 (statement of Robert B. McDuff, Attorney. Jackson, Mississippi).
219. Understanding the Benefits and Costs of Section 5 Pre-Clearance: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 4 (2006) [hereinafter Understanding the Benefits and Costs of Section 5 Pre-Clearance] (testimony of Fred Gray, Attorney, Montgomery, Alabama).
220. See supra Section II.B.
221. 152 CONG. REC. S7745 (2006) (rejecting the counterargument made by Samuel Issacharoff, Is Section 5 of the Voting Rights Act A Victim of its Own Success, 104 COLUM. L. REV. 1710 (2004)).
222. 152 CONG. REC. S7745.
223. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 6-7 (2005) (statement of the Hon. Jack Kemp, former member of Congress, former Sec'y of Housing and Urban Development, Founder and Chairman of Kemp Partners) (discussing DOJ objection to City of Freeport, Texas, proposal to return to at-large voting system after Latino voters succeeded in electing candidates of their choice under a court-ordered, single-member district plan).
224. Understanding the Benefits and Costs of Section 5 Pre-Clearance, supra note 163, at 192-93 (statement of Fred Gray, Attorney, Montgomery, Alabama).
225. See generally STEVEN F. LAWSON, IN PURSUIT OF POWER: SOUTHERN BLACKS AND ELECTORAL POLITICS, 1965-82 (1985) (focusing on the enforcement of the Voting Rights Act of 1965 in the South by exploring the efforts of civil rights forces to protect the black ballot and concluding that despite successes, vigilance remains necessary and that our political system must be made more responsive to the desires of black voters).
226. Reviewing the Temporary Provisions of the Voting Rights Act: Legislative Options After LULAC v. Perry,- Hearing Before the Subcomm. on the Constitution, Civil Rights, and Property Rights of the S. Comm. on the Judiciary, 109th Cong. 371 (2006) (offering an important examination of Section 5's progress in Alabama between 1982 and 2006);
227. JAMES BLACKSHER, EDWARD STILL ET AL., VOTING RIGHTS IN ALABAMA, 1982-2006 (2006).
228. Section 5 of the Act - History, Scope, and Purpose, supra note 17, at Vol. II 3198.
229. See generally Ellen Katz, Not Like the South? Regional Variation and Political Participation Through the Lens of Section 2, in VOTING RIGHTS ACT REAUTHORIZATION OF 2006: PERSPECTIVES ON DEMOCRACY, PARTICIPATION AND POWER 183 (Ana Henderson ed., 2007).
230. Earls' perspective was shaped by her experience as Director of Advocacy at the University of North Carolina Center for Civil Rights, Deputy Assistant Attorney General for Civil Rights at the Department of Justice, and Director of the Voting Rights Project of the Lawyers Committee for Civil Rights Under Law. See Section 5 of the Act -History, Scope, and Purpose, supra note 17, at Vol. I 7-8, 78-79, Vol. II 3181-92;
231. The Continuing Need far Section 5 Pre-Clearance: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 3-4 (2006).
232. See Continuing Need for Section 5 Pre-Clearance: Hearing on S. 2703 Before the S. Comm. on the Judiciary, 109th Cong. 146 (2006) (statement of Anita Earls, Director, Advocacy, Center for Civil Rights, University of North Carolina School of Law) (using example of litigation concerning Mississippi's dual registration requirements to illustrate ways in which Section 5 and Section 2 often work together to protect minority voters).
233. Id. at 145.
234. Id.
235. Id.
236. Examination of the Scope and Criteria for Coverage, supra note 151, at 34 (statement of Jose Garza, Counsel for the League of United Latin American Citizens).
237. Id.
238. Id.
239. Section 5 of the Act -History, Scope, and Purpose, supra note 17, at Vol. II 2-3, 3227-34;
240. An Introduction to the Expiring Provisions of the Voting Rights Act, supra note 18, at 10-11 (statement of Laughlin McDonald, Executive Director, Southern Regional Office of the ACLU).
241. See also id. at 141 (report published by the Federal Judicial Center) (noting that voting rights cases impose almost four times the judicial workload of the average case).
242. Modern Enforcement of the Voting Rights Act, supra note 157, at 96 (statement of Robert B. McDuff, Attorney, Jackson, Mississippi).
243. Voting Rights Act: An Examination of the Scope and Criteria for Coverage Under the Special Provisions of the Act: Hearing on H.R. 9 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 34 (2005) at 3230 (statement of Laughlin McDonald, Director, ACLU Voting Rights Project).
244. Section 5 of the Act - History, Scope, and Purpose, supra note 17, at 3230 (statement by Laughlin McDonald, Director, ACLU Voting Rights Project). Notwithstanding any difficulty proving intentional discrimination, the author disagrees with Hasen's underlying conclusion that Congress was "hard-pressed" to identify evidence of intentional discrimination during the 2006 reauthorization process. For elaboration on the "Bull Connor is Dead" problem, see Richard L. Hasen, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act After Tennessee v. Lane, 66 OHIO ST. L.J. 177, 179 (2005).
245. The witness, Jerome Gray, drew from his time as the State Field Director for the Alabama Democratic Conference, a position he held for twenty-five years, and as a former member of the Alabama Advisory Committee to the U.S. Commission on Civil Rights. In addition, Gray coauthored an important chapter on civil rights struggles in Alabama that appears in QUIET REVOLUTION IN THE SOUTH: THE IMPACT OF THE 1965 VOTING RIGHTS ACT, 1965-1990 38 (Chandler Davidson & Bernard Grofman eds., 1994). For more analysis of the system of checks and balances that Section 5 has helped produce in the covered jurisdictions,
246. see SPENCER OVERTON, STEALING DEMOCRACY 169 (2006).
247. Voting Rights Act: Section 5 - Preclearance Standards: Hearings on H.R. 109-69 Before the H. Subcomm. on the Constitution of the Comm. on the Judiciary, 109th Cong. 45 (2005) (statement of Jerome Gray, State Field Director, Alabama Democratic Conference).
248. Id. at 45-46.
249. Id.
250. Id.
251. See OVERTON, supra note 184, at 169 (arguing that voting should present "meaningful opportunities] for citizens to participate in government and check politicians");
252. Michael Kang, Race and Democratic Contestation, 117 YALE L.J. 734 (2008) (supporting values of more democratic debate, greater civic engagement and participation, and richer political discourse, which are generated through a process that the author describes as "democratic contestation").
253. Voting Rights Act: Section 5 - Preclearance Standards: Hearings on H.R. 109-69 Before the H. Subcomm. on the Constitution of the Comm. on the Judiciary, 109th Cong. 45 (2005) (statement of Jerome A. Gray, State Field Director, Alabama Democratic Conference) (describing a recent incident in Lanette, Alabama, where the city clerk changed rules for processing absentee ballot requests, but abandoned her effort and started to comply with the law after Gray informed her that her actions constituted a change subject to preclearance).
254. Voting Rights Act: Evidence of Continued Need, supra note 104, at Vol. II 2676-77 (statement of J. Gerald Hebert, Legal Counsel to jurisdictions using bailout provision).
255. Id. at Vol. II 1471 (2006) (statement of JoNel Newman, Special Counsel, ACLU of Florida, and Assistant Professor of Clinical Education, University of Miami School of Law).
256. The Continued Need for Section 5 Pre-clearance: Hearing on S. 109 Before the S. Comm. on the Judiciary, 109th Cong. 141 (2006) (statement of Anita S. Earls, Director of Advocacy, University of North Carolina Law School Center for Civil Rights).
257. Id.
258. Voting Rights Act: Section 5 of the Act - History, Scope, and Purpose, Vol. I: Hearing on H.R. 9 Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 225-1684 (2005) [hereinafter Section 5 of the Act - History, Scope, and Purpose] (statement of Bradley Schlozman, Acting Assistant Attorney General, Civil Rights, DOJ) (submitting copies of all Section 5 DOJ objection letters since 1982 (among other materials), which provided statements regarding the DOJ's rationale for interposing objections to changes deemed retrogressive or discriminatory).
259. See id.
260. See Voting Rights Act: Section 5 - Preclearance Standards, supra note 105, at 180-81
261. (appendix to Peyton McCrary et al., supra note 110).
262. Underscoring the systemic nature of the evidence, Representative F. James Sensenbrenner highlighted some of the evidence culled from a number of the covered jurisdictions revealing, in his opinion, the continuing need for the Act's protections. In particular, he observed: Let's look at Georgia. Since 1982, there have been 91 objections, 91 objections submitted by the Department of Justice. And since 2002, there have been seven voting rule changes that were withdrawn by the State because of DOJ objections. Texas, 105 objections imposed by DOJ since 1982, and 14 voting rule proposals were withdrawn by the State because of voting rights concerns in the last 4 years. Mississippi, 112 objections since 1982, and Federal observers have been sent to this State 14 times to monitor elections since 2002, most recently last year. Louisiana, 96 objection[s] since 1982, eight Department of Justice objections to voting rules have been lodged since 2002, most recently in 2005, and 10 voting rule proposals withdrawn by the State in the last 4 years. South Carolina, 73 objections since 1982. North Carolina in the covered jurisdictions, 45 objections since 1982. And Alabama, 46 objections, and Federal observers have been assigned to the State 65 times since 2000 to monitor elections. Arizona, 17 objections since 2002, and Federal observers have been assigned to that State 380 times since 2000 to monitor elections, including 107 since 2004.
263. CONG. REC. H5164-65.
264. To Examine the Impact and Effectiveness of the Voting Rights Act, supra note 102, at 66 (statement of Joseph D. Rich, formerly of DOJ's Civil Rights Division).
265. It is often unclear what motivates jurisdictions to pursue this method of preclearance because it is more costly and time-intensive than pursuing preclearance through the administrative process. However, it appears that some jurisdictions that seek judicial preclearance are aware of the potentially problematic aspects of their proposed voting change and are thus engaging in a type of "forum shopping," hoping to obtain a more favourable outcome from a court than they would from the DOJ.
266. For example, the D.C. District Court denied judicial preclearance to a plan that sought to implement an at-large election method for the Sumter County Council in South Carolina. Sumter County v. United States, 596 F. Supp. 35 (D.D.C. 1984). In the declaratory judgment action, the Court found that the county "failed to carry [its] burden of proving that the legislature did not pass Act 371 in 1967 for a racially discriminatory purpose at the insistence of the white majority in Sumter County." Id. at 38.
267. In addition, the court noted that the at-large method of election would have diminished "the value of the then-increasing voting strength of the black minority" and may also have had the residual effect of "prevent[ing] formation of a black majority senate district." Id.
268. Finally, the court observed that a single-member plan would likely have provided the opportunity for black voters to elect candidates of their choice in three of seven districts. Id. at 37.
269. To Examine the Impact and Effectiveness of the Voting Rights Act, supra note 102, at 148-963 (2005). The efforts of the National Commission, spearheaded by the Lawyers' Committee for Civil Rights Under Law, was composed of a diverse group of individuals, including Honorary Chair Charles Mathias, Chair Bill Lann Lee, John Buchanan, Chandler Davidson, Dolores Huerta, Elsie Meeks, Joe Rogers, and Charles Ogletree.
270. Voting Rights Act: Evidence of Continued Need, supra note 104, at Vol. I 12 (statement of Bill Lann Lee, Chair, National Commission on the Voting Rights Act and former Assistant Attorney General, Civil Rights Division, DOJ).
271. Id. at 19-20, 378-1269 (statement of Nadine Strossen, President, ACLU and Professor of Law, New York Law School).
272. More information regarding this educational and research collaborative is available at http://www.civilrights.org (follow "About" hyperlink; then follow "LCCREF" hyperlink).
273. Voting Rights Act: Evidence of Continued Need, supra note 104, at 45-48 (2006) (statement of Wade Henderson, Executive Director, Leadership Conference on Civil Rights).
274. To Examine the Impact and Effectiveness of the Voting Rights Act, supra note 102, at 964-1124 (including study from the Voting Rights Initiative of the University of Michigan Law School).
275. See Ellen D. Katz, Not Like the South? Regional Variation and Political Participation Through the Lens of Section 2, in VOTING RIGHTS ACT REAUTHORIZATION OF 2006: PERSPECTIVES ON DEMOCRACY. PARTICIPATION, AND POWER 183, 204-14 (Ana Henderson ed., 2007).
276. Id. at 220 (Table 8.5).
277. Plaintiff's Motion for Summary Judgment with Memorandum of Points and Authorities in Support of Motion for Summary Judgment, at 51-52, NAMUD v. Gonzales, No. 1:06-CV-01384 (D.C. Cir. Aug. 4. 2006), available at http://yalelawjournal.org/images/pdfs/plaintiff2.pdf.
278. See. e.g.. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977) (noting that such anecdotes bring "the cold numbers convincingly to life"); McReynolds v. Sodexho Marriott Serv., Inc., 349 F. Supp. 1, 17 (D.C. Cir. 2004) (finding value in both statistical disparities between African Americans and whites with respect to promotions, as well as in supporting anecdotal evidence); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 168 (2d Cir. 2001) (noting that anecdotes "provide[ ] 'texture' to the statistics"). But see Tennessee v. Lane, 541 U.S. 509, 542 (2004) (noting that "unexamined, anecdotal" evidence does not suffice and certain anecdotal accounts were not sufficiently detailed to determine whether the instances of "unequal treatment" were irrational, and thus unconstitutional); Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 370 (2001) (observing that unexamined, anecdotal accounts of adverse, disparate treatment by state officials does not constitute legislative findings).
279. A number of courts have found significant value in anecdotal evidence, particularly in the context of Section 2 vote dilution claims. See, e.g., Rural West Tenn. African-Am. Affairs Council v. Sundquist, 209 F.3d 835, 844 (6th Cir. 2000) (crediting lower court's consideration of "a complex body of statistical and anecdotal evidence" in determining that contested plan unlawfully dilutes African American voting strength in rural west Tennessee); Askew v. City of Rome, 127 F.3d 1355 (11th Cir. 1997) (concluding that both empirical and anecdotal stand as evidence of the minority community's political cohesiveness); Sanchez v. Colorado, 97 F.3d 1303 (10th Cir. 1996) (noting that plaintiffs bear the burden of establishing who is the preferred minority candidate in each election and that this burden can be satisfied through the presentation of evidence, anecdotal or otherwise); Nipper v. Smith, 39 F.3d 1494, 1540 (11th Cir. 1994) (noting that the preference of the black electorate might be proved through the use of anecdotal testimonial evidence, among other things). In a future project, the author hopes to more fully address the concerns of skeptics who question the probative value of anecdotal evidence, given the central role such evidence has historically played in voting rights cases, while offering thoughts on how such evidence should be weighed by courts.
280. For a careful discussion of the legislative proceedings and constitutionality of Section 5 prepared shortly after the Act's initial enactment, see Warren M. Christopher, The Constitutionality of the Voting Rights Act of 1965, 18 STAN. L.R. 1 (1965).
281. H.R. REP. NO. 109-478, at 9 (2006). Congress also instituted a temporary, nationwide ban on literacy tests and determined that it was necessary to extend the period of time during which a jurisdiction had not employed a test or device in order to terminate its covered status under the Act.
282. Congress opted for a longer extension period, ultimately choosing to renew the temporary provisions of the Act for "another ten years." H.R. REP. NO. 94-196, at 38 (1975).
283. Id. at 3-4.
284. Specifically, Congress opted to extend Section 5 coverage to new geographic areas which met certain criteria. H.R. REP. NO. 109-478, at 9-10. The revised trigger formula resulted in extended coverage to those political subdivisions of a state that maintained a "test or device" on November 1, 1972 as a qualification for voting and those jurisdictions that the Director of the Census determined had less than fifty percent of their voting age persons either registered to vote on November 1, 1972, or voting in the presidential election of 1972. PUB. L. NO. 94-73, 89 STAT. 402 (1975);
285. H.R. REP. NO. 94-196, at 39. This expanded scope of Section 5 coverage was a direct response to the extensive record that Congress had developed, which demonstrated the discrimination against and high illiteracy rates among language minorities.
286. H.R. REP. NO. 109-478, at 10.
287. See H.R. REP. NO. 94-196, at 3-4.
288. Id. at 4.
289. S. REP. NO. 94-295, at 10 (1975).
290. See Extension of the Voting Rights Act of 1965: Hearings Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 94th Cong. 126 (1975)
291. [hereinafter /975 Senate Extension of the Voting Rights Act].
292. 7975 House Extension of the Voting Rights Act, supra note 60, at 637 (1975) (noting that Congress is not necessarily required to seek new evidence in order to justify continued enforcement of the Fifteenth Amendment).
293. During the 1975 reauthorization, Congress extended the "special remedies of the Voting Rights Act" to "citizens of language minority groups based on their right to vote under the Fourteenth and Fifteenth Amendments" because "language minorities experience voting dis crimination and exclusion caused by unequal educational opportunities and by acts of physical, economic, and political intimidation." H.R. REP. NO. 94-196, at 40.
294. 1975 Senate Extension of the Voting Rights Act, supra note 221, at 126 (statement of Nicholas Katzenbach, Executive Committee, Lawyers' Committee for Civil Rights Under Law) (noting that black political participation still remained in its infancy and extension of the Act was necessary to its continued development);
295. 1975 House Extension of the Voting Rights Act, supra note 60, at 630 (statement of Armand Derfner, Lawyers' Committee for Civil Rights Under Law) (noting that Section 5 is "likely to induce a change in people's attitude over a period of time" but that there is "no change overnight");
296. id. at 133 (statement of John Lewis, Executive Director, Voter Education Project ("VEP")) (noting that it would take time to deal with the "psyche of black people" who lived in tremendous fear and remembered the bombings and shootings they once faced in trying to exercise their right to vote).
297. 1975 Senate Extension of the Voting Rights Act, supra note 221, at 127 (statement of Frank R. Parker, Mississippi Office, Lawyers' Committee for Civil Rights Under Law) (noting that poll tax requirement was eliminated but replaced with similarly burdensome requirement that voters present their social security number, driver's license number, motor vehicle license tag number, and address provided on last tax form);
298. 1975 House Extension of the Voting Rights Act, supra note 60, at 629 (statement of Armand Derfner, Lawyers' Committee for Civil Rights Under Law) (noting shift from preventing blacks from voting to preventing them from winning and ultimately to preventing them from winning very much);
299. id. at 130 (statement of John Lewis, Executive Director, VEP) (noting "new barriers to black participation in southern politics," including gerrymandering, annexing, consolidating, changing polling places, and changing election methods, among other tactics).
300. 1975 Extension of the Voting Rights Act, supra note 60, at 130 (statement of John Lewis, Executive Director, VEP) (noting the "threat of economic reprisal against those who might register to vote for the first time"); id. at 521 (statement of Modesto Rodriguez, Pearsall, Texas) (providing several compelling examples of economic intimidation and observing that "white people are using the threat of economic reprisal to attempt to keep the Mexican American from becoming politically active and exercising a free franchise").
301. 1975 Senate Extension of the Voting Rights Act, supra note 221, at 127 (statement of Frank R. Parker, Mississippi Office, Lawyers' Committee for Civil Rights Under Law) (observing that local circuit clerk in Madison County, Mississippi, drew a gun on local black advocates trying to help a black voter complete a complex registration form);
302. 1975 House Extension of the Voting Rights Act, supra note 60, at 668 (statement of Dr. Aaron E. Henry, President, Mississippi State Conference of NAACP) (noting that registrars in Mississippi often asked newly registered black voters for the names of their employers, creating fear among blacks that they might face job loss).
303. 1975 House Extension of the Voting Rights Act, supra note 60, at 521 (statement of Modesto Rodriguez, Pearsall, Texas) (noting example of a white-led boycott against a Latino tenant farmer in Pearsall, Texas, after the farmer's son became politically active and was named president of a local Chicano political organization).
304. Id. at 522 (statement of Modesto Rodriguez, Pearsall, Texas) (noting that "new gimmick used by whites to intimidate Mexican Americans is to challenge elections won by Mexican Americans" based on alleged voting irregularities).
305. 1975 Senate Extension of the Voting Rights Act, supra note 221, at 804 (statement of Rafael Moreno. Tejano Political Action Committee) (noting that significant number of Latino voters during an April 1975 city council election were told to return to the polling place at 9 pm because of broken voting machine even though polls closed at 7 pm).
306. Compare Voting Rights Act: Evidence of Continued Need, supra note 104, at 1753 (observing that black voters were the targets of deceptive election practices, including signs posted in predominately black districts advertising the wrong election date, in North Carolina during the November 2004 election)
307. with 1975 House Extension of the Voting Rights Act, supra note 60, at 856 (statement of Vilma S. Martinez, President and General Counsel, Mexican American Legal Defense and Educational Fund) (attacking local officials' refusal to establish a polling site in Chicano neighborhood of Villa Coronado, Texas).
308. Compare Examination of the Scope and Criteria for Coverage, supra note 151, at 67 with 1975 House Extension of the Voting Rights Act. supra note 60, at 856 (statement of Vilma S. Martinez, President and General Counsel. Mexican American Legal Defense and Educational Fund) (noting challenge to Texas statute that requires a student to intend to reside indefinitely as his domicile in order to vote in jurisdiction).
309. See also An Introduction to the Expiring Provisions of the Voting Rights Act. supra note 18. at 23 (statement of Chandler Davidson. Professor Emeritus. Rice University) (noting that Waller County, Texas, officials have attempted to prevent students at Prairie View A&M, an historically Black college, from voting in county elections).
310. Compare Section 5 of the Act -History, Scope, and Purpose, supra note 17, at 3257
311. (statement of Jose Garcia of the Institute for Puerto Rican Policy and the Latino Voting Rights Network) (discussing the intimidating effects of the use of off-duty police officers and other law enforcement personnel as poll watchers in Latino communities, among other things) with 1975 Senate Extension of the Voting Rights Act, supra note 221, at 133
312. (statement of Frank R. Parker, Mississippi Office, Lawyers' Committee for Civil Rights Under Law) (noting that poll watchers for black candidates were arrested or threatened with arrest in Copiah County, Mississippi), and 1975 House Extension of the Voting Rights Act, supra note 60, at 522 (statement of Modesto Rodriguez, Pearsall, Texas) (noting that local law enforcement officials walk around polling places in Latino areas "brandishing guns and billy clubs" to find reasons to arrest Latino voters).
313. 1975 Senate Extension of the Voting Rights Act, supra note 221, at 111 (statement of John Lewis, Executive Director, Voter Education Project) (noting that voting booths were moved to segregated places that are considered places of hostility in the black community);
314. id. at 122
315. (statement of Nicholas Katzenbach, Executive Committee, Lawyers' Committee for Civil Rights Under Law) (noting that DOJ objected to a proposed polling place change in St. Landry Parish, Louisiana, where officials sought to move polling place to the Knights of Columbus Hall - a venue where Blacks were generally denied access); 7975 House Extension of the Voting Rights Act, supra note 60, at 522 (statement of Modesto Rodriguez, Pearsall, Texas) (noting that whites moved polling place outside of a barrio, resulting in a dramatic decrease in the number of Chícanos voting).
316. Compare The Continuing Need for Section 5 Pre-Clearance, supra note 18, at 60-61 (testimony received regarding DOJ objection to North Harris and Montgomery Community College District proposal to reduce the number of polling places from eighty-four to twelve; DOJ also observed that under the proposed change, the site with the smallest proportion of minority voters served just 6,500 voters, while the site that served a population that was 79.2% black and Hispanic served over 67,000 voters.")
317. with 1975 House Extension of the Voting Rights Act, supra note 60, at 495 (statement of William Boyd Oliver, Pastor, Plymouth United Church, Beaumont, Texas) (noting polling place changed to a gun club believed to have a policy of excluding black members).
318. Compare Letter from R. Alexander Acosta, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, to H. Bruce Buckheister, Mayor, North, South Carolina (September 16, 2003) (objecting to a proposed annexation in the town of North, South Carolina, because of official action that was "racially selective" in manner, i.e., where white petitioners had no difficulty in annexing their property to the town while "town officials provide[d] little, if any, information or assistance to black petitioners") with 1975 House Extension of the Voting Rights Act, supra note 60, at 523 (statement of Modesto Rodriguez, Pearsall, Texas) (highlighting examples of Cotulla and Pearsall, Texas, where local councils granted annexation requests of white areas while rejecting similar requests from minority communities, resulting in significant dilution of minority voting strength).
319. 1975 House Extension of the Voting Rights Act, supra note 60, at 129 (statement of John Lewis, Executive Director, Voter Education Project) (noting that "increase of black participation has brought the dawning of a new day for Southern politics" and "[djemagogues of the past are now trying hard to acquire a new public image").
320. 1975 Senate Extension of the Voting Rights Act, supra note 221, at 108 (statement of John Lewis, Executive Director, Voter Education Project) (noting that Georgia and Alabama have enacted 158 and 161 changes, respectively, without preclearance).
321. For a general discussion of the 1982 reauthorization and an argument for stronger DOJ enforcement of Section 5, see Laughlin McDonald, The 1982 Extension of Section 5 of the Voting Rights Act of 1965: The Continued Need for Preclearance, 51 TENN. L. REV. 1, 1-82 (1983).
322. H.R. REP. NO. 97-227, at 2 (1981).
323. See Extension of the Voting Rights Act: Hearings Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 97th Cong. 1-2813 (1981) [hereinafter 1981 House Hearing].
324. H.R. REP. NO. 97-227, at 2-3.
325. See Extension of the Voting Rights Act: Hearings Before the Subcomm. on Civil and Constitutional Rights of the Sen. Comm. on the Judiciary, 97th Cong. 1-1850 (1982) [hereinafter /982 Senate Hearing].
326. After a floor debate in the House, the bill was passed by a sizeable margin of 389 to 24. See 127 CONG. REC. H7011 (daily ed. Oct. 5, 1981).
327. S. REP. NO. 97-417, at 3, reprinted in 1982 U.S.C.C.A.N. at 180.
328. 128 CONG. REC. S7139 (daily ed. June 18, 1982).
329. Id.
330. 1981 House Hearing, supra note 241, at 17 (statement of Vernon Jordan, President. National Urban League) (observing that sophisticated procedural devices now employed by covered jurisdictions include adopting anti-single shot laws, implementing majority run-off requirements, and authorizing annexations of white areas).
331. See id. at 1806-07 (statement of Raymond H. Brown, Director, Voting Rights Project, Southern Regional Council) (sharing results of study of two Southern states and concluding that once black voters "come within striking distance of electing candidates responsive to their needs," local officials propose and implement manipulative election schemes that have resulted in massive under-representation of blacks).
332. See 1982 Senate Hearing, supra note 241, 1653 (statement of Hon. Walter Fauntroy. Delegate of the District of Columbia) (noting that black citizens in Montgomery, Alabama, and Marengo County, Alabama, were required to present social security numbers as a prerequisite to registering to vote);
333. id. at 315-16 (statement of Ruth J. Hinerfield, President, League of Women Voters of the United States) (noting incident in Edinburg-McAllen, Texas, where officials ordered a single voting machine in a precinct with large numbers of Latino voters, resulting in election day delays and long lines, and where precinct election judge told League of Women Voters representation that the problems started when "those Mexicans started to vote");
334. id. at 1130-31 (statement of Thomas C. McCain, Chairman, Democratic Party, Edge-field, South Carolina) (noting that because of lingering resistance, many black voters are deterred from registering to vote in Edgefield, South Carolina); 1981 House Hearing, supra note 239, at 1526 (statement of Dr. Joe Reed, Chairman, Alabama Democratic Conference) (noting the chilling effect that results from short hours for voter registration, designation of polling places at white establishments and low numbers of black poll workers).
335. 1981 House Hearing, supra note 241, at 1450 (statement of Hon. Robert Abrams, State Attorney General, State of New York) (noting 1974 DOJ objection involving polling places that were located in majority white apartment complexes but not similarly located in complexes with mostly minority tenants);
336. id. at 1769 (statement of Arthur S. Fleming, Chairman, U.S. Commission on Civil Rights) (noting 1977 objection to proposed polling place in Raymondville, Texas, where Mexican Americans felt unwelcome).
337. Id. at 2069 (statement of Joseph E. Lowery, President, Southern Christian Leadership Conference) (recounting assault by sheriffs deputies in Johnson County, Georgia, in response to voter registration efforts on behalf of black voters);
338. id. at 1565-66 (statement of Maggie Bozeman, President of Pickens County, Alabama branch of NAACP) (observing intimidation at the hands of law enforcement when black voters mobilize registration drives and sheriff harassment of black voters casting absentee ballots in Pickens County, Alabama).
339. Id. at 1450 (noting 1975 objection to consolidation of two Democratic leadership districts that would have dismembered a majority-minority district).
340. See 1982 Senate Hearing, supra note 241, at 291 (statement of Vilma Martinez, Executive Director and General Counsel, Mexican American Legal Defense and Educational Fund) (noting that officials are not providing necessary minority language assistance, in part because they believe assistance is not needed and would foster "cultural separatism"). Martinez also cited results of an extensive MALDEF survey examining needs of Spanish-speaking citizens in the covered jurisdictions and observed that "35 percent of all respondents would be less likely to register if there was no one to help in Spanish" and "33 percent would be less likely to vote if there were no ballot in Spanish...." Id. at 308.
341. See also 1981 House Hearing, supra note 239, at 1490-93 (statement of Arnold Torres, Congressional Liaison, League of United Latin American Citizens) (noting need for minority language assistance);
342. id. at 1909-11 (statement of David Dunbar, General Counsel, National Congress of American Indians) (observing need for language assistance in Navajo communities in Southwest and noting ninety percent of Navajos speak their native tongue);
343. id. at 1914-20 (statement of John Trasvina, Commissioner, Citizens Advisory Committee on Elections, San Francisco) (noting problems with provision of minority language assistance throughout California).
344. See id. at 1617 (statement of Larry Fluker, President of Conecuh County, Mississippi, branch of the NAACP) (noting that 12 of 140 poll workers in Conecuh County were black, despite the fact that the black population of the county was over forty percent, and recounting need to call in federal observers after white city clerk purged over 200 black voters from the registration rolls).
345. 1982 Senate Hearing, supra note 241, at 1188 (statement of Frank Parker, Director, Voting Rights Project, Lawyers' Committee for Civil Rights Under Law) (referring to report cataloguing various efforts to minimize and cancel out black voting strength in Mississippi, including thirteen counties and forty-six cities and towns that sought to change to at-large elections between 1965 and 1979).
346. Id. at 373 (statement of Laughlin McDonald, Director, Southern Regional Office, American Civil Liberties Union Foundation, Inc.) (noting that white officials in Terrell County, Georgia, resisted creating additional majority-minority districts, despite the fact that blacks composed majority of the population because they wanted blacks to "participate but not to dominate the political situation.... ").
347. 1981 House Hearing, supra note 239, at 1281 (statement of Hon. Paul Ragsdale, Texas State Representative. Dallas) (noting that seven years of coverage in Texas is "hardly time enough for a political culture appreciative of minority participation to develop in a state which for generations has excluded blacks and Mexicans Americans"); id. at 1578-79 (statement of Prince Arnold, Sheriff. Wilcox County. Alabama) (noting that despite progress, efforts were underway to undo gains among black voters in Wilcox County. Georgia, and noting threats to his life during his bid for sheriffs seat in 1978 election).
348. Id. at 1274-77 (statement of Hon. Bernardo Eureste. Member, San Antonio City Council) (noting ripple effect of Section 5 objection interposed to proposed annexation in San Antonio, that influenced city adoption of single-member districts).
349. See 1982 Senate Hearing, supra note 241. at 1004-54 (concluding that polarized voting in conjunction with at-large election makes Latino success a virtual impossibility).
350. See 1981 House Hearing, supra note 239, at 1253 (statement of Ruben Bonilla, National President, League of United Latin American Citizens) (recounting 1978 local election in Rockport, Texas, in which Mexican American candidate challenged a white candidate who died before election was held and after the incumbent's death, Anglo community mobilized in support of the dead white candidate to specifically block election of Mexican American candidate).
351. See id. at 2078 (statement of Prof. Howard Ball, Chairman, Department of Political Science, Mississippi State University) (distinguishing cities with more politically active minority citizens such as Jackson, Mississippi, from smaller towns, where community members are not able to pressure the local attorneys to comply with their preclearance obligations or to mount complaints with the DOJ);
352. id. at 172 (statement of Reverend Jesse L. Jackson, President, Operation PUSH) (highlighting example in Edgefield, South Carolina -home of Strom Thurmond -where black voters submitted complaints to DOJ regarding non-compliance with Section 5 but were ignored).
353. See 1981 House Hearing, supra note 239, 37-52 (report by Rolando L. Rios, Director of Litigation, Southwest Voter Registration Education Project) (noting DOJ objection to proposed annexation in Victoria, Texas, that annexed numerous Anglo areas to counter voting strength of growing Latino population).
354. See id. at 60 (statement of Benjamin L. Hooks, Executive Director, NAACP).
355. See 1982 Senate Hearing, supra note 241, at 665 (statement of Hon. Henry J. Kirksey, State Senator, Jackson, Mississippi) (noting failure of the DOJ under the Reagan administration to adequately enforce the protections of the Act);
356. id. at 561-62 (statement of Joaquin G. Avila, Associate Counsel, Mexican American Legal Defense and Educational Fund) (noting DOJ's insensitivity to the protection of the voting rights of Latino voters and highlighting the Department's reversal of its position on the City of Lockhart's adoption of a numbered place system and staggered terms, after initially interposing an objection to the change).
357. See id. at 596-97 (statement of Steve Suitts, Executive Director, Southern Regional Council) (condemning failure of the DOJ to assure that every electoral change by local and state jurisdictions is submitted and identifying more than 750 not precleared changes among the six southern states);
358. 1981 House Hearing, supra note 265 (statement of Prof. Howard Ball, Chairman, Department of Political Science, Mississippi State University) (recounting admissions of non-compliance by white officials in rural parts of Mississippi);
359. id. at 232 (statement of Hon. Julian Bond, Member of Georgia Legislative Black Caucus and President of the Atlanta Branch NAACP) (citing several Georgia counties with sizeable black populations, including Morgan, Early, Clay, Miller, Pike, Dooly, and Calhoun, that failed to submit changes for preclearance).
360. See id. at 23-24 (statement of Lane Kirkland, President, AFL-CIO) (advocating placement of burden on the covered jurisdictions to prove that the legacy of voting discrimination had been overcome and that several years of federal government response had brought about a total change of heart no longer necessitating Section 5's protections);
361. id. at 181 (statement of Archibald Cox, Chairman, Common Cause) (observing that hard-won gains of the Act are fragile and concluding that it would be naïve to believe that engrained habits of discrimination have been removed so quickly).
362. 446 U.S. 55 (1980).
363. 1982 senate Hearing, supra note 241, at 1648 (statement of Hon. Harold Washington, Representative in Congress from Illinois) (observing that intent standard was particularly onerous in the voting rights context given the reality of political decision-making at the local level in which "decisions are often reached at dinner parties, in closed meetings, at private clubs, and in back rooms, in places where ... no reasons are stated for the decision.");
364. see also id. at 246 (statement of Benjamin L. Hooks, Executive Director, NAACP) (noting difficulty of proving intent);
365. id. at 1612 (statement of Amoldo S. Torres, National Executive Director, League of United Latin American Citizens) (supporting incorporation of results test into Section 2);
366. id. at 1367 (statement of Drew Days, Associate Professor of Law, Yale University) (same);
367. id. at 1167 (statement of Arthur S. Fleming, Chairman, U.S. Commission on Civil Rights) (same).
368. See 1981 House Hearing, supra note 239, at 423-27 (statement of Jack Greenberg, Director-General Counsel, NAACP Legal Defense and Education Fund) (describing complexities, costs, and delays associated with Section 2 litigation).
369. During the 2005-2006 reauthorization, Congress not only renewed Section 5 but also offered a number of substantive changes to the statute that clarify congressional intent regarding the scope of changes deemed objectionable under Section 5. In particular, these changes were aimed at addressing the impact of two recent Supreme Court rulings on the Section 5 preclearance process, Bossier Parish II, 528 U.S. 320 (2000), and Georgia v. Ashcroft, 539 U.S. 461 (2003). These changes are beyond the scope of this article; however, they restore the strength and reach of Section 5 and make it more likely that we will see increasing numbers of objections interposed in future years. This is good news, given the recent wave of election reforms and discriminatory voting changes that have emerged in the post-Bush v. Gore era. 531 U.S. 98 (2000). These voting changes, including purge schemes that rely on flawed matching methodology, mandatory photo identification requirements, and aggressive challenges by poll watchers all stand as new threats to minority voters' access to the political process.
370. The author's examination of the legislative record suggests that the body of voting rights scholarship that looks beyond doctrinal and jurisprudential issues alone and considers practical evidence of voting discrimination will prove particularly valuable to courts assessing the constitutionality of Section 5.
371. Considering some of the arguments of those now seeking to contest the weight of evidence in the congressional record, the author argues that the development of a national cataloging system or archive for evidence of discrimination would likely benefit any future congressional considerations of Section 5's utility. Any such archive would be one that litigators and practitioners, private citizens, and others might use to document instances of alleged voting discrimination taking place in the covered jurisdictions. The information compiled in this archive could then be used to complement, compare, or contrast the body of evidence presented to Congress during subsequent examinations of Section 5. In addition, in suggesting that litigators and advocates played a particularly important role during the 2005-2006 reauthorization process, this Article invites criticism from those who may argue that the record was built by persons with particular vested interests in the process. However, those claims have little merit since the reauthorization process was driven by a Republican-led Congress that provided opportunities for members of Congress on both sides of the aisle to offer evidence and extend invitations to witnesses of their choice. Moreover, there was no requirement that mese witnesses present testimony expressing any particular set of ideological or political positions.