Chairman Chabot, Representative Nadler, and distinguished committee members. Thank you for the honor and opportunity to testify before the committee today.
In anticipation of congressional hearings on the reauthorization of section 5 of the Voting Rights Act, the Project on Fair Representation at the American Enterprise Institute commissioned two eminent social scientists to gather data on the state of minority participation in the election process in the jurisdictions covered by section 5 of the VRA, and, additionally, to compare and contrast those data with jurisdictions not covered by the act.
The authors of this study, Prof. Keith Gaddie of the Univ. of Oklahoma--who will be testifying to the committee this afternoon--and Prof. Charles Bullock of the Univ. of Georgia will present their completed findings by the end of 2005. For today’s hearing Mr. Chairman, I respectfully offer the Committee their study of the state of Georgia. I ask it be placed in the record.
The Bullock-Gaddie study of Georgia, and the other state studies soon to follow, analyzes a handful of election criteria including but not limited to: black and Hispanic voter registration rates; black and Hispanic election turnout rates; success and failure of black and Hispanic candidates compared to the success and failure of white candidates; white cross-over support for minority candidates; and racial polarization levels using three different methodologies.
Although I have the hard data for only Georgia today, our preliminary analysis indicates that the other section 5 states are more-or-less comparable. Here are some of the highlights of our findings:
- Rates of black voter registration and participation at the polls currently exceed the rates for white voters in the state of Georgia and the nation as a whole.
- Black and white candidates running as Democrats in Georgia draw comparable support from white voters irrespective of the candidate’s race.
- In the three most recent elections for which comparisons are available, Georgia black registration is approximately five percentage points higher than for non-southern blacks.
- Estimates of racial voting patterns in Georgia congressional races held during the last fifteen years or so show African-American candidates consistently polling thirty or more percent of the white vote and ninety or more percent of the black vote. Georgia has a total of 34 officials who are elected statewide. Nine of these officials are African American. All of these African-Americans have won statewide elections with substantial white support.
What can we conclude from these data? To quote from a recent law review article, “Bull Connor is dead.” And so is every Jim Crow-era segregationist intent on keeping blacks from the polls.
In 1965, Congress was able to easily make a factual finding of rampant racial discrimination in the election arena aimed at blacks throughout the Deep South. By today however, the data simply do not support a similar finding. Furthermore, applying the same methods of analysis that we used on the covered jurisdictions to non-covered states such as Tennessee, Arkansas, and New Mexico and to subjurisdictions such as Queens County, New York and Volusia County, Florida among others reveals no differences between them.
Mr. Nadler noted last Thursday (Oct. 20, 2005) that the committee is attempting to build a record for the inevitable legal challenge to section 5. Building a record for reauthorization is different from building a rationale for reauthorization. The data we have analyzed are indisputable: the rates of minority participation and the success of minority candidates indicates that minorities in the covered jurisdictions no longer struggle against patterns of discrimination as they go about exercising their political rights. It is noteworthy that since 1998, the Department of Justice has brought nearly four times as many section 2 lawsuits against non-covered jurisdictions as against covered ones. Although some would note this may be due to section 5’s power in the covered states, it also suggests that problems remain unaddressed outside of section 5’s net. If the problems that remain are national in scope, then to focus on only particular jurisdictions makes no policy sense and aggravates federalism concerns. If the problems remain regional or remain only in even more widely scattered jurisdictions, then applying the statute’s preclearance provisions where they are no longer justified also aggravates federalisms concerns. The data from Georgia simply don’t justify the stringent and unique infringement on federalism principles that the Court recognized in beginning with South Carolina v. Katzenbach and continuing to City of Boerne v. Flores, and other cases. Additionally, it is too speculative, and cannot be substantiated by a congressional factual inquiry, for Congress to renew section 5 based upon a fear that without it, the covered jurisdictions would return to the practice of disenfranchising blacks and Hispanics.
Some on the committee and various witnesses have argued that a felon, having paid his penalty to society, deserves the right to vote and be treated no differently from his fellow citizens. Yet, why shouldn’t this principle apply to the covered jurisdictions? The forty-year penalty of section 5, completely justified in 1965, deserves to be lifted today. After all, Congress recognized in 1965 that section 5 was a temporary, emergency provision. It was to remain in effect for only five years. What more must a state like Georgia do in order to be treated no differently from other states?
The election data and federalism principles are not the only reasons for letting section 5 expire. There are other compelling good government reasons as well. During the last fifteen years, as judges, legislative bodies, and federal bureaucrats got in the habit of stretching the meaning of the VRA to reach any and all ends they considered desirable, the groundwork was laid for abuses. What started out as a tool to prevent anyone from being turned away at the ballot box because of skin color has turned into a means of second-guessing perfectly legitimate, nonracial policies.
The pinnacle of section 5 abuses occurred after the 1990 census and the cycle of redistricting that followed. The Department of Justice, aided by the old-line racial advocacy groups and some in the Republican Party, began to distort the VRA to require a "max-black" redistricting outcome. In other words, the preclearance provision of section 5 became a sword, rather than a shield, in the hands of government bureaucrats whose single-minded goal was not ending racial discrimination but guaranteeing racial and ethnic proportionality in every legislative body for which they had control. The result was the creation of dozens of racial gerrymanders--Rorschach-test-like bug splats--that systematically harvested blacks and Hispanics out of multiracial communities to form safe minority districts.
In a series of cases beginning with Shaw v. Reno and culminating in Georgia v. Ashcroft, the Supreme Court has marginally attempted to bring some sanity back to the law. In Shaw, the Court in 1993 found that a "reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who have little in common with another but the color of their skins, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group--regardless of their age, education, economic status, or the community in which they live--think alike, share the same political interests, and prefer the same candidates at the polls.”
Ten years later, the Court found in Georgia v. Ashcroft that the retrogression standard that had been used by DOJ to force the strict maintenance of minority percentages in newly redrawn voting districts was wrong, noting that "the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters."
In my opinion, section 5 has degenerated into an unworkable, unfair, and unconstitutional mandate that is bad for our two political parties, bad for race relations, and bad for our body politic. Here are some of the reasons why section 5 should expire:
- The emergency that precipitated the temporary provisions of section 5 has passed. Blacks throughout the covered jurisdictions register to vote and participate at the polls in numbers nearly identical to sometimes exceeding white voters.
- The worst abuses of the Jim Crow era--such as poll taxes, literacy tests, and grandfather clauses--are permanently banned in other sections already. Moreover, any voter and the Department of Justice can challenge any discriminatory election policy or statute using section 2 of the act. It is permanent and applies to every state in the nation.
- Section 5 has contributed to the ever-growing lack of election competitiveness, resulting in safe-seats-for-life for incumbents of both parties. Section 5 requirements are one of the key reasons a newly-created bipartisan, independent redistricting commission in Arizona was unable to fulfill its mandate to create competitive legislative and congressional districts. This in turn contributes to the creation of ideologically polarized voting districts.
- Section 5 has evolved into a gerrymandering tool used by Democrats and Republicans to further their party’s election prospects. It is nearly impossible today under section 5 to tease out racial electoral issues from partisan electoral issues, as we have recently witnessed in a handful of redistricting lawsuits from Texas to Boston.
- Section 5 has had the effect of insulating white Republican officeholders from minority voters and issues specific to minority communities; and, in turn, it insulates minority elected officials from white voters.
- Section 5 does not address in any way the long list of election issues that have surfaced during the last five years: hanging chads in Florida; long lines of voters in Ohio; too few poling places on college campuses in Wisconsin.
Mr. Chairman, Mr. Nadler, I look forward to providing the committee our full report later this year. Additionally, I wish to include in my written statement Chapter 1 from Abigail Thernstrom’s seminal work, Whose Votes Count? Affirmative Action and Minority Voting Rights (Harvard University Press). Dr. Thernstrom serves with me as co-director of the Project on Fair Representation at the American Enterprise Institute.
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