United States. Congress. House. Committee on the J.

Voting rights : hearings before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first and second sessions, October 14, 1993, May 11, and 25, 1994 online

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VOTING RIGHTS



HEARINGS

BEFORE THE

SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST AND SECOND SESSIONS



OCTOBER 14, 1993, MAY 11 AND 25, 1994



Serial No. 74





ECEIVED



Mat 2 7 :::3




inted for the



'"'"^ I.

f the Commi



BOSTON PUBL '.LIBRARY

iBOyE RWMEMTDOCW IS DEPARTMB,



mittee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1994



For sale by the U.S. Government Printing Office
tendent of Documents, Congressional Sales Office, Washington. DC 20402
ISBN 0-16-046396-3



Y(^ .T$Ci/l ■/02/7V

VOTING RIGHTS



HEARINGS

BEFORE THE

SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OP REPRESENTATIVES

ONE HUNDRED THIRD CONGRESS

FIRST AND SECOND SESSIONS



OCTOBER 14, 1993, MAY 11 AND 25, 1994



Serial No. 74




ECEIVED



Mat 2? :::3



BOSTON PUBL:. LIBRARY

GOVERfilMENT DOCU^* TS DEPARTMEK-

* ■ ' ! I 1*11 <■' m, . I . . ._____n__i»..-^




inted for the



mittee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1994



For sale by the U.S. Government Printing Office
tendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-046396-3



COMMITTEE ON THE JUDICIARY
JACK BROOKS, Texas, Chairman



DON EDWARDS, California
JOHN CONYERS, JR., Michigan
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES, New Jersey
MIKE SYNAR, Oklahoma
PATRICIA SCHROEDER, Colorado
DAN GLICKMAN, Kansas
BARNEY FRANK, Map- '
CHARLES E. SCHI
HOWARD L. BER^
RICK BOUCHER,
JOHN BRYANT, '
GEORGE E. SAN(
CRAIG A. WASHI
JACK REED, Rho
JERROLD NADU
ROBERT C. SCO!
DAVID MANN, O:
MELVIN L. WAT
XAVIER BECERR



HAMILTON FISH, JR., New York
CARLOS J. MOORHEAD, CaUfomia
HENRY J. HYDE, IlUnois
F. JAMES SENSENBRENNER, JR.,

Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania



Si



PATRICIA SCHR(
BARNEY FRANK,
CRAIG A. WASH]
JERROLD NADU



KF 4S93 .A2 V94 1994
United States. Congress.
House. Cormittee on the
Votir "-*^^s



DATE



KF 4R







HAMPDEN LAW LIBRARY

50 State St, P.O. Box 559

Springfield, MA 01102-0559

(413) 748-7923



DfMCO



CONTENTS



HEARINGS DATES

Page

October 14, 1993 1

May 11, 1994 83

May 25, 1994 339

OPENING STATEMENT

Edwards, Don, a Representative in Congress from the State of Texas, chair-
man, Subcommittee on Civil and Constitutional Rights 1

WITNESSES

Baer, Arthur A., director. Voting Rights Project, Puerto Rican Legal Defense

and Education Fund, Inc 90

Broadus, Joseph E., assistant professor, George Mason School of Law,

Fairfax, VA 55

Chavez, Anthony, director. Voting Rights Project, Mexican American Legal

Defense and Education Fund 357

Cooper, Charles, partner, Shaw, Pittman, Potts & Trowbridge 355

Davidson, Chandler, professor of sociology. Rice University 345

Durbin, Thomas M., legislative attorney, American Law Division, Congres-
sional Research Service 86, 342

Fung, Margaret, executive director, Asian American Legal Defense and

Education Fund ; 360

Geis, Christopher, cooy editor, Winston-Salem Journal, and former director

of Media Research, North Carolina Democratic Party 20

Glasser, Ira, executive director, American Civil Liberties Union 349

Griffith, Benjamin, Esq., Griffith & Griffith, Cleveland, KS 115

Hair, Penda D., assistant counsel, NAACP Legal Defense and Education

Fund 333

Hampe, Carl, Esq., Paul, Weiss, Ridtind, Wharton & Garrison 360

Jackson, Rev. Jesse, president and founder, National Rainbow Coalition,

Inc 353

Jones, Elaine 306

Karlan, Pamela, professor of law, University of Virginia School of Law 214

Kennedy, Randall, professor. Harvard University Law School, Cambridge 47

Lichtman, Allan J., professor of history, American University 192

Markman, Steven, Miller, Canfield, Paddock & Stone, Detroit, MI 213

Norrell, Robert J., director. Center for Southern History and Culture, and

associate professor of history, University of Alabama, Tuscaloosa, AL 6

OHourke, Timothy, professor. Department of Political Science, Clemson

University 352

Samp, Richard, general counsel, Washington Legal Foundation 305

Snow, Tony, columnist 347

Spaulding, Kenneth, Esq., Spaulding & Williams, 1984 North Carolina

congressional candidate, Durnam, NC 37

St. Cyr, Bemadine, New Roads, I^ 200

Taylor, Stuart,Journalist, Legal Times 211

Whitaker, L. Paige, legislative attorney, American Law Division, Congres-
sional Research Service 89, 343

Wright, Brenda, director, Voting Rights Project, Lawyers' Committee for Civil

Rights Under Law 348



(III)



IV

Page

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARINGS

Baer, Arthur A., director, Voting Rights Project, Puerto Rican Legal Defense

and Education Fund, Inc.: Prepared statement 93

Broadus, Joseph E., assistant professor, George Mason School of Law,
Fairfax, VA: Prepared statement 58

Durbin, Thomas M., legislative attorney, American Law Division, Congres-

sionaj Research Service:

Chart — History and Evolution of Congressional Reapportionment and Re-
districting 87

Outline of issues 308

Frank, Hon. Barney, a Representative in Congress from the State of Massa-
chusetts: Map of Fourth Congressional District of Massachusetts 311

Geis, Christopher, copy editor, Winston-Salem Journal, and former director
of Media Research, North Carolina Democratic Party: Prepared statement .. 25

Griffith, Benjamin, Esq., GrifRth & Griffith, Cleveland, KS: Prepared
statement 117

Hyde, Hon. Henry J., a Representative in Congress from the State of Illinois:

Opening statement 3

Karlan, Pamela, professor of law, University of Virginia School of Law:
Prepared statement 216

Kennedy, Randall, professor, Harvard University Law School, Cambridge:

Prepared statement 50

Lichtman, Allan J., professor of history, American University: Prepared state-
ment 193

Norrell, Robert J., director, Center for Southern History and Culture, and
associate professor of history. University of Alabama, Tuscaloosa, AL:
Prepared statement 11

Spaulding, Kenneth, Esq., Spaulding & Williams, 1984 North Carolina
congressional candidate, Durham, NC: Prepared statement 42

St. Cyr, Bemadine, New Roads, LA: Preparea statement 202

APPENDIX
Statement of David I. Wells 381



VOTING RIGHTS



THURSDAY, OCTOBER 14, 1993

House of Representatives,
Subcommittee on Civil and Constitutional Rights,

Committee on the Judiciary,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:09 a.m., in room
2226, Raybum House Office Building, Hon. Don Edwards (chair-
man of the subcommittee) presiding.

Present: Representatives Don Edwards, Jerrold Nadler, Henry J.
Hyde, Howard Coble, and Charles T. Canady.

Also present: Representative Melvin L. Watt.

Staff present: Catherine LeRoy, counsel; Melody Barnes, assist-
ant counsel; and Kathryn Hazeem, minority counsel.

OPENING STATEMENT OF CHAIRMAN EDWARDS

Mr. Edwards. The subcommittee will come to order.

I believe I am one of the few Members left who was here when
we passed the greatest civil rights law in our history. I think the
Voting Rights Act of 1965 compares favorably with the omnibus bill
of 1964. And it completely turned around our country in terms of
voting rights for African-Americans. It has been remarkably suc-
cessful and there has been no dissension throughout the land on
how very successful it was.

In 1982, was it Mr. Hyde, that we amended it and made it
stronger. Mr. Hyde and I traveled throughout the country and held
hearings in all different parts of the country, and we found serious
deficiencies at that time in the Voting Rights Act as it was being
administered, and we came back and passed amendments in 1982
that brought the Voting Rights Act back to full strength. And it has
been something in American history that has made us very proud
throughout the world.

The problem this morning is that — and we are going to start a
series of hearings — in June of this year there was what some of us
consider a rather bizarre decision by the U.S. Supreme Court. Cer-
tainly it was an unfriendly decision to voting rights. And the name
of the case was Shaw v. Reno. And it has become the topic of great
discussion in the country, and we have to look at it and see the im-
plications and what is down the way.

Beginning today, this subcommittee is going to conduct a series
of hearings to discuss the Voting Rights Act and the issues that
have been brought up by the Supreme Court in the Shaw case.

These hearings are going to give us the opportunity to talk with
activists, attorneys, scholars, and others. And we are honored to

(1)



have several distinguished witnesses here this morning. And we
hope that the testimony will give us greater insight into this very
important issue.

Mr. Hyde.

Mr. Hyde. Thank you, Mr. Chairman.

In this hearing, we will briefly explore the issue of race and the
distribution of electoral power.

From the Declaration of Independence to the fourteenth amend-
ment to the 1964 Civil Rights Act, our founding documents and our
laws have consistently recognized the principle of individual equal-
ity. For years, this Nation has taken steps towards racial equality
based upon the fundamental premise that the law should treat all
individuals equally, that men and women should be judged by the
content of their character, in the words of Martin Luther King, Jr.,
rather than the color of their skin. Equal protection of the law.

We recognize that ours is not yet a color-blind society. Some of
our witnesses today, however, seem to question whether a color
blind society is achievable or even desirable. I only know that
Americans of all races reject the idea of racial preferences, and
most Americans are, at best, uncomfortable about drawing gerry-
mandered political districts based on the race of the inhabitants.
Such districts create the implicit assumption that perhaps we are
not equal after all, if people of one race can only be represented by
someone of the same race.

And one might say of the same gender. The Voting Rights Act
started out as an effort, an incredibly successful effort, to tear
down artificial barriers to voter participation of southern blacks. It
has since been transformed into an effort to maximize the strength
of minority votes. And there are some, such as law professor Lani
Guinier, who argue that the Voting Rights Act requires more than
proportionate representation.

Properly interpreted, she argues that the Voting Rights Act re-
quires that minorities obtain a proportionate share of legislative
successes. I believe that view was repudiated and shown to be out
of the mainstream when President Clinton withdrew her nomina-
tion to head the Civil Rights Division of the Department of Justice.

Access to the ballot, without respect to race, is not a complex
public policy question, (jerrymandering to maximize minority office
holding is. We need to be careful that the cure doesn't turn out to
be more fatal to the patient than the disease.

I want to thank the chairman for holding a hearing on this very
important issue, and I look forward to the testimony of the wit-
nesses.

[The opening statement of Mr. Hyde follows:]



OPENING STATEMENT

OF

CONGRESSMAN HENRY J. HYDE

Thank you, Mr. Chairman.

In this hearing we will briefly explore the issue of race
and the distribution of electoral power.

From the Declaration of Independence to the Fourteenth
Amendment to the 1964 Civil Rights Act, our founding documents
and our laws have consistently recognized the principle of
individual equality. For years this nation has taken steps
toward racial equality based on the fundamental premise that the
law should treat all individuals equally ~ that men and women
should be judged by the "content of their character" rather than
the color of their skin.

We recognize that ours is not yet a color-blind society.
Some of our witnesses today, however, seem to question whether a
color-blind society is achievable or even desirable. I only know
that Americans of all races, reject the idea of racial
preferences and most Americans are, at best, uncomfortable about



4



drawing gerrymandered political districts based on the race of
the inhabitants. Such districts create the implicit assumption
that perhaps we are not equal after all, if people of one race
can only be represented by someone of the same race.

The Voting Rights Act started out as an effort - a
incredibly successful effort - to tear down artificial barriers
to voter participation of Southern blacks. It has since been
transformed into an effort to "maximize" the strength of minority
votes. And there are some, such as law professor Lani Guinier,
who argue that the Voting Rights Act requires more than
proportionate representation. Properly interpreted, she argues,
the Voting Rights Act requires that minorities obtain a
proportionate share of legislative successes. I believe that
view was repudiated and shown to be out of the mainstream when
President Clinton withdrew the nominiation of Ms. Guinier to head
the Civil Rights Division of the Department of Justice.

Access to the ballot without respect to race is not a
complex public policy question: gerrymandering to maximize
minority officeholding is. We need to be careful that the cure
does not turn out to be more fatal to the patient than the



disease — that packing minorities into racially gerrymandered
districts does not make government less responsive to their
needs.



I want to thank the Chairman for holding a hearing on this
very important issue and look forward to hearing the testimony of
the witnesses.



6

Mr. Edwards. Thank you very much, Mr. Hyde. In a future
hearing, in the near future, we intend to have Professor Guinier
here to explain her point of view, which is very interesting and
challenging.

Mr. Coble.

Mr. Coble. No opening statement.

Mr. Edwards. Mr. Canady.

Mr. Canady. No opening statement.

Mr. Edwards. I believe all of the members of the panel should
come up and sit down at the witness table. We welcome all of you.
I am going to ask Mr. Hyde to introduce our first witness, Profes-
sor Norrell.

Mr. Hyde. Thank you, Mr. Chairman.

Our first witness, Robert J. Norrell, is the director for the Center
of Southern History and Culture and an associate professor of his-
tory at the University of Alabama in Tuscaloosa.

His work focuses on the history of the South and of American
race relations. Mr. Norrell's first book, which discussed the civil
rights movement in Tuskegee, won the 1986 Robert F. Kennedy
Book Award. His lectures on democracy and race in 20th century
America are the basis of a forthcoming book from Oxford Univer-
sity Press.

Our second witness

Mr. Edwards. Why don't we introduce them as they speak.

You are all asked to keep your statements relatively short be-
cause we are always short of time around here. But without objec-
tion, all of your statements, both your statements, will be made a
part of the permanent record.

And, Professor Norrell, you may proceed.

STATEMENT OF ROBERT J. NORRELL, DIRECTOR, CENTER
FOR SOUTHERN HISTORY AND CULTURE, AND ASSOCIATE
PROFESSOR OF HISTORY, UNIVERSITY OF ALABAMA, TUSCA-
LOOSA, AL

Mr. Norrell. Thank you, Mr. Chairman. I would like to focus
my remarks on the significance of electoral forms and governing
processes to politics in this country,

Mr. Edwards. I believe the mike should be a little closer to you.
Thank you. Bring it right up close.

Mr. Norrell. Thank you.

My written testimony goes on into some explanation how, after
generations of having the vote denied to African-Americans, the
Voting Rights Act of 1965 finally opened access to the ballot and
led to the enfranchisement of blacks and other minorities near the
level of other Americans. And the recently enacted National Voter
Registration Act should enhance, further, the goal of opening ac-
cess to the franchise among Americans.

The full enjoyment of democratic rights, however, have always
depended on more than access to the ballot. Like men through the
ages have contemplated the nature of government power, the
southerners, Thomas Jefferson, James Madison, and James C. Cal-
houn, understood that electoral forms and governing processes af-
fected the influence of the ballot, the forms, and processes often



making the vote much more or much less potent in achieving de-
sired ends.

The separation of power and responsibility of the U.S. Congress
is perhaps Mr. Madison's and other Founders' clearest acknowledg-
ment of the importance of governmental forms and processes of the
creation of just and lasting democracy.

Mr. Calhoun's penetrating arguments for the minority rights of
southerners, many made within this great institution, also testified
to the importance of the forms and processes of government for en-
suring the consent of the governed.

As inheritors of the political wisdom of Jefferson, Madison, and
Calhoun, white southerners in the post-Civil War South knew well
the relationship between the right to vote and the exercise of real
political power. But in the aftermath of war and in the midst of
several million freed African- Americans, these white southerners
created antidemocratic electoral forms and processes to cancel out
the Democratic rights of the freed people.

Allow me to offer a few examples of antidemocratic devices from
my own State, Alabama, to suggest the pattern that held through-
out the South.

In Mobile, municipal elections were changed from single member
districts to at-large arrangements after white-supremacist Demo-
crats regained power from black-supported Republicans.

In Montgomery, the city changed its size to remove black voters
from the city in order to remove black voters from this municipal
decisionmaking processes.

Judges, commissioners, and voter registrars in some counties
were changed from elective positions to appointed positions by the
governor in order to remove those offices from the control of black
majority electorates. Some counties set bonds for ofBce holders
higher than African-Americans could provide, and thus they were
not allowed to occupy offices to which they had been duly elected.

Congressional districts were gerrymandered to consecrate black
voters in a single district in order to minimize black representation
in Congress. And during the mid and late 1870's and after the di-
rect primary was instituted in Alabama expressly to regain white
political supremacy, the direct primary helped democratic can-
didates earn legitimacy as the choice of the majority of whites.
None of these forms were inherently racist. Often they were meant
to subvert the will of a black majority. But at others they meant
to enhance the authority of a white majority. But in every case,
they were put to a white supremacist purpose.

In the 1940's in Alabama and throughout the South, whites took
renewed interest in applying antidemocratic forms and procedures.
African-Americans having been largely disfranchised in the South,
it became apparent in the 1940's that African-Americans were
mounting a challenge to disfranchisement. Inspired by the intense
national discussion of democratic values as the United States chal-
lenged fascism and racism in Asia and Europe in World War II,
southern blacks began to protest against the denial of their right
to vote by filing suits against disfranchisement. In 1944 blacks in
Texas succeeded in getting the U.S. Supreme Court in the case of
Smith V. Allwright to declare the white primary as method of
disfranchisement.



8

In response to this challenge, rising challenge of African-Ameri-
cans in the 1940's and 1950's, southern whites began to adjust
their electoral forms in order to minimize black voters influence.
The main thrust of this was to create electoral forms that gave
maximum influence to majorities.

The clear and correct assumption on the part of white south-
erners in the 1940's and 1950's was that white majorities would be
able to ensure white control over elective office. Whites in black
belt areas in the 1940's and 1950's were genuinely fearful of living
under black rule.

As you noted, I wrote a book about one such place, Tuskegee, AL,
which sits in a county which has historically been more than 80
percent black. And in 1957 the city officials attempted a drastic
change to protect themselves from a black majority. They gerry-
mandered the town's boundaries to remove all but 12 of its 400
black voters.

In the case of Gomillion v. Lightfoot in 1960, black citizens of
Tuskegee argued that the gerrymander had the effect of
disfranchising them. Mr. Justice Frankfurter wrote that the ines-
capable human affect of this essay in geometry and geography was
to deny colored citizens and only colored citizens from their voting
rights, allowing the gerrymander to stand, Frankfurter wrote,
"would sanction the achievement by a State of any impairment of
voting rights whatsoever so long as it was cloaked in the garb of
realignment of political subdivisions."

With the Gomillion decision, the Federal judiciary entered what
Justice Frankfurter had earlier called the political thicket of elec-
toral forms and processes in order to guarantee the democratic
rights of black Americans.

The passage of the Voting Rights Act of 1965 signaled, again, to
some southern whites that it was time to rearrange electoral forms
and process in order to minimize or dilute the impact of millions
of new black votes. And what sometimes appeared to be a rerun
of post-reconstruction Southern history. State legislatures in the
South instituted electoral devices that enhanced the influence of
white majorities: at-large elections, numbered-post provisions, and
multimember districts. Once again, offices were changed from elect-
ed to appointed positions.

But history didn't repeat itself. Using the powers of the Voting
Rights Act to ensure that black votes were meaningful, black voters
appealed these decisions to the Federal judiciary, and the courts
have acted generally to assure that the black votes have the same
impact that the white's did.

The U.S. Justice Department used its authority to assess the im-
pact of electoral changes prior to their implementation in Southern
States, a power that has not only overturned some actions, but it
has also forestalled the creation of forms and procedures that di-
lute black political strength.

In recent months, the stream of progress that began to flow in
1965 toward a just democracy for African-Americans and other mi-
norities seems to have been diverted. In the case of Presley v.
Etowah County Commission, the U.S. Supreme Court allowed a
change in the governing processes of a county commission in Ala-
bama that effectively stripped a black commissioner of his main au-



thority. The Court chose to make a distinction between voting and
governance which the court ruled was beyond the reach of the Vot-
ing Rights Act unless intentional discrimination was proved.

The history of my State and region teaches clearly that electoral
forms and governing processes must be held strictly accountable to
standards of racial equality as we hold voting registration if we in-
tend to create a just democracy. The Presley decision makes it
harder to achieve that end.

So too, I think to some of the positions taken during the national
discussion of voting rights that accompanied the nomination of Pro-
fessor Guinier to head the Justice Department's Civil Rights Divi-
sion. Professor Guinier's advocacy of electoral forms that promoted
minority representation and empowerment, limited voting and cu-
mulative voting, super majorities, were portrayed as radical and
even un-American. The treatment of Guinier's views was
ahistorical. The highest political value in this republic, as conceived
by James Madison and the Founders and explained most clearly in
the Federalist Papers, was not ruled by the majority but consent
of the governed.

To be sure, consent often was given by a majority vote; but the
Founders also sought to earn the consent of minorities by creating
a form of minority government that assigned some power to a mi-
nority interest. The opponents of Guinier exalted majority rule at
the expense of the more fundamental principle of the consent of the
governed.

In the recent decision of Shaw v. Reno the court objected to con-
gressional redistricting plan in North Carolina on the basis of its
apparently exclusively racial person. The court naturally looked to



Online LibraryUnited States. Congress. House. Committee on the JVoting rights : hearings before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first and second sessions, October 14, 1993, May 11, and 25, 1994 → online text (page 1 of 41)