Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorizaton and Amendments Act of 2006

FANNIE LOU HAMER, ROSA PARKS, AND CORETTA SCOTT KING VOTING RIGHTS ACT REAUTHORIZATION AND AMENDMENTS ACT OF 2006 -- (Senate - July 20, 2006)

BREAK IN TRANSCRIPT

Mr. SESSIONS. Mr. President, I rise to voice my support for reauthorizing the Voting Rights Act of 1965. H.R. 9, the bill to reauthorize the Voting Rights Act, is an important piece of legislation. I wish to take a few moments to express my thoughts on the great progress prompted by the Voting Rights Act in my State, as well as to express a few concerns.

My home State of Alabama--the site of the Selma to Montgomery voting rights march--had a grim history on voting rights. Before 1965, only 19 percent of African Americans in our State were registered to vote, and they were denied the right to vote through any number of tactics and strategies. Behind those tactics and strategies--the multiple ``tests and devices''--lay a ruthless decision to deny Black citizens the right to vote so that the majority of the White community could maintain political power.

The results of the Voting Rights Act of 1965 were some of the best things that ever happened to Alabama. Before the Voting Rights Act, Alabama had fewer than a dozen Black elected officials. As of 2001, the most recent figures available, Alabama had over 750 African-American office holders--second only to Mississippi. These elected officials include a U.S. Congressman, 8 State senators, 27 members of the State House of Representatives, 46 mayors, 80 members of county commissions, school board members, town council members and the like.

Voter registration rates for Blacks and Whites in Alabama are now virtually identical. In fact, in the last Presidential election, according to the Census Bureau, a larger percentage of African Americans voted than Whites in the State of Alabama. Now, that was the goal of the act--to have this kind of progress occur. In fact, over the past 15 years, Alabama has not had a single court find the State guilty of violating the 15th amendment or the very broad protections afforded by section 2 of the Voting Rights Act. The same cannot be said of Arkansas; Colorado; Hawaii; Ohio; Maryland; Massachusetts; Missouri; Montana; Nebraska; Wisconsin; Chicago, IL; Hempstead, NY; Los Angeles County, CA; or Dade County, FL--none of which are covered by section 5's preclearance requirement.

The people of Alabama understand that these changes in our State are good, and they do not want to do anything that would suggest that there is any interest in moving away from the great right to vote. We want to reauthorize the Voting Rights Act. How we reauthorize the act is something that is worthy of discussion, however. The witnesses we have heard in the Judiciary Committee over the past couple of months have had many different ideas, and after hearing from them, I am concerned that we should have listened more carefully to some of their recommendations.

My concerns stem, in part, from the extraordinary nature of some of the temporary provisions of the Voting Rights Act particularly the ``preclearance'' requirement of section 5. Section 5 requires Alabama and other covered jurisdictions to ``preclear'' any change in ``any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.'' The preclearance requirement applies to ``[a]ny change affecting voting, even though it appears to be minor or indirect.'' As a representative of the Department of Justice testified in the House of Representatives, ``There is no de minimis exception'' to the preclearance requirement.

In 1966, the Supreme Court in South Carolina v. Katzenbach upheld section 5's preclearance requirement ``as aÐ necessary and constitutional response to some States' `extraordinary stratagem[s] of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees.' '' The Court ``acknowledged that suspension of new voting regulations pending preclearance was an extraordinary departure from the traditional course of relations between the States and the Federal Government,'' but ``held it constitutional as a permitted congressional response to the unremitting attempts by some state and local officials to frustrate their citizens' equal enjoyment of the right to vote.'' In other words, the preclearance requirement was an extraordinary response to an extraordinary problem--unrelenting efforts by some State and local officials to contrive new rules for voting and elections after each defeat in Federal court.

During the reauthorization process, we have been presented relatively little present-day evidence of continued ``unremitting attempts by some state and local officials to frustrate their citizens' equal enjoyment of the right to vote'' as was the case in 1965--especially the kind of change-the-rules-after-losing tactics that prompted the section 5 preclearance requirement. According to Richard L. Hasen, William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles: ``In the most recent 1998 to 2002 period, DOJ objected to a meager 0.05 percent of preclearance requests. Updating these data, DOJ interposed just two objections nationwide overall in 2004, and one objection in 2005.'' These data suggest relatively isolated attempts to interfere with voting rights not widespread, ``extraordinary stratagem[s]'' to perpetuate discrimination in voting.

To be sure, there have been examples of misconduct, such as the cancellation of the June 5, 2001, city council and mayoral elections in the town of Kilmichael, MS, and I do not want to minimize those violations in any way. Such misconduct did not appear to be common or widespread, however, and it could have been remedied through ordinary litigation under section 2 of the act and 42 U.S.C.  1983. In fact, a disturbing aspect of the Kilmichael incident is that the attorney general's objection to the cancellation of the election came on

December 11, 2001 over 7 months after the election had been canceled. This was no doubt due in part to the town's failure to submit the change in a timely fashion, but it nonetheless appears that minority voters would have received justice more quickly through a lawsuit in Federal court, accompanied by a request for a preliminary injunction and/or a temporary restraining order.

In light of the dearth of present-day preclearance objections or evidence of violations that, due to their nature or number, cannot be remedied through litigation, I am concerned that reauthorizing section 5's preclearance requirement for 25 years as proposed in H.R. 9 will not pass constitutional muster in the litigation that is certain to follow its enactment. In City of Boerne v. Flores, the Supreme Court held that when Congress enacts legislation to enforce constitutional guarantees, ``[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'' The Court cited the Voting Rights Act of 1965 as an example of appropriate congressional enforcement legislation that it had upheld. The Court observed, however, that ``[s]trong measures appropriate to address one harm may be an unwarranted response to another, lesser one.''

I am worried because, in extending section 5's preclearance requirement for another 25 years, H.R. 9 does little to acknowledge the tremendous progress made over the past 40 years in Alabama and other covered jurisdictions. Today is not 1965, and the situation with respect to voting rights in Alabama and other covered jurisdictions is dramatically different from 1965. I would have expected Congress to recognize this tremendous progress in covered jurisdictions by modernizing section 5 to reflect present-day progress and remaining problems.

For example, Congress ought to update the coverage trigger in section 4(b) of the act. It is simply illogical--in 2006--to base coverage solely on registration and voter turnout data from the Presidential elections in 1964, 1968, 1972. What about the Presidential elections of 1996, 2000, and 2004? What about the 14 noncovered jurisdictions that Federal courts have found guilty of constitutional or section 2 violations in recent years? Those years and those jurisdictions could easily be added to the coverage formula in section 4(b), but H.R. 9 does not update the coverage formula to include them. Given the dearth of preclearance objections, it seems that some minor or de minimis voting changes ought to be removed from the preclearance requirement, as well.

Congress also needs to make changes to improve the ``bailout'' process in section 4(a) of the act. According to the Department of Justice, out of 914 covered States and political subdivisions, only 11 covered jurisdictions, all in Virginia, have bailed out from coverage, and thus preclearance, under section 4(a). It is obvious that bailout is not working properly, but H.R. 9 does not correct that problem. For example, even if a town in Alabama has a perfect record on voting rights and meets every one of the requirements for bailout, it cannot seek bailout because section 4(a) only allows a ``political subdivision'' to bail out, and section 14(c)(2) defines ``political subdivision'' to mean ``any county or parish'' but not any city or town. That should be changed, but this bill does not address it. I also think we should have given serious consideration to Professor Hasen's ``proactive bailout'' proposal to improve the bailout process.

I am also concerned that the Supreme Court will think that a 25-year reauthorization is simply too long to pass constitutional muster. In 1965, Congress only authorized the temporary provisions of the Voting Rights Act for 5 years. They have now been in effect for 41 years. I am worried that the Supreme Court will conclude that it is not ``congruent and proportional'' to require some States to preclear every single voting change, no matter how minor or insignificant, until the year 2031 based on data regarding voter turnout and registration from 1964--67 years earlier.

Finally, I am concerned about H.R. 9's language adding new subsections (b), (c), and (d) to section 5 of the Voting Rights Act to alter the Supreme Court's decisions in Georgia v. Ashcroft and Reno v. Bossier Parish School Board, Bossier Parish II. In its decision in Bossier Parish II, in particular, the Court warned that the interpretation of section 5 rejected in that case ``would also exacerbate the `substantial' federalism costs that the preclearance procedure already exacts perhaps to the extent of raising concerns about §5's constitutionality.'' Altering these decisions adds to the risks taken in failing to modernize and modify the provisions of the Voting Rights Act to address the voting rights problems of the 21st century. It is particularly important therefore, that these new provisions be strictly interpreted.

The ``ability . . . to elect their preferred candidates of choice'' language in new subsections 5(b) and 5(d) prevents the elimination of what the Supreme Court called ``majority-minority districts'' in Georgia v. Ashcroft, in exchange for the creation of what it called ``influence districts.'' Neither the language of new subsections 5(b) and 5(d) nor the ``any discriminatory purpose'' language of new subsection 5(c) requires the creation of or locks into place ``influence'' or ``coalitional'' districts, however. The concept of ``influence'' or ``coalitional'' districts is far too amorphous to impose as a requirement of Federal law. Imposing such new restrictions on the redistricting process would prove both unworkable and unconstitutional.

I agree with the comments made earlier this afternoon by Senator McConnell, Senator Hatch, Senator Kyl, and Senator Cornyn. We must remember that we are reauthorizing the Voting Rights Act not creating a ``gerrymandering rights act.'' The bipartisan support for this bill indicates that both Republicans and Democrats do not expect or intend it to be interpreted to advantage one party or the other.

Although the Voting Rights Act is now 40 years old, many of my constituents have vivid recollections of discrimination at the ballot box, and they have strong memories of the civil rights movement that led to the most historic changes that were encapsulated in the Voting Rights Act. These are wonderful people. They love America and are proud of the changes in Alabama and our Nation. They have a strong attachment to the Voting Rights Act. All Alabamians want to see the progress continue. In light of the wrongs that have occurred in the past and out of respect for those who placed their very lives at risk for change, I will vote in favor of H.R. 9.

BREAK IN TRANSCRIPT

http://thomas.loc.gov