This week the Senate Judiciary Committee will hold hearings on the reauthorization of the Voting Rights Act of 1965 (VRA), the historic Civil Rights legislation with key provisions set to expire in 2007. After those hearings, the committee members should act quickly to pass bipartisan legislation similar to language already passed by their counterparts in the House.
The House Judiciary Committee recently acted to pass a bipartisan reauthorization of VRA, H.R. 9, the "Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006," by an overwhelming vote of 33 to 1. H.R. 9 would extend and amend VRA to protect and preserve the voting rights of all Americans.
H.R. 9 includes the following important provisions: extends Section 5 preclearance and restores the original meaning "to protect the ability of such [minority] citizens to elect their preferred candidates of choice"; extends Section 203 language assistance provision, which requires counties with more than 5 percent or 10,000 language minority citizens to provide voting assistance in a language other than English; and extends Sections 6-9, which empowers the Department of Justice to send federal observers to ensure that citizens are able to exercise their right to vote.
To help this important legislation pass this year, the Center for American Progress would like to offer members of the Senate Judiciary Committee the following questions as a guide for their hearings this week.
Potential Questions on Section 5 of the Voting Rights Act
1. What will be the short and long term impact on minority voters if Congress does not renew the expiring provisions? Do you think a failure to renew the provisions will risk allowing more blatant discrimination?
2. How will H.R. 9 protect minority voters over the next 25 years?
3. There are some individuals and organizations that believe the expiring provisions are no longer needed since minority registration and turnout rates have increased substantially since 1965 and 1982, and significantly in covered jurisdictions, but where's the evidence? Specifically:
(A) Are these the only statistics on which Congress relied when enacting and reauthorizing the temporary provisions in 1965 and in subsequent years? What other evidence was considered by Congress during its consideration of extensions on previous occasions? Is similar evidence before the Committee in 2006? Is H.R. 9 an adequate remedy for the evidence of continued discrimination in voting presented to the Committee?
(B) Do the registration and turnout statistics alone sufficiently demonstrate that we as a nation have reached a point where we can say with confidence that minorities will continue to progress in the electoral system without the protections afforded by the expiring provisions?
4. The House record shows that the need for the protections afforded by the expiring provisions has increased in the last 25 years, but is that in fact the case? For example, the record shows that there have been more objections interposed by the Department of Justice in the last 25 years than between the years 1965 and 1982. There have also been more voting changes withdrawn from review in the last 25 years as a result of further inquiry conducted by the Department of Justice. In addition, there have been more Section 5 enforcement actions undertaken by the Department of Justice and private citizens in the last 25 years, and more federal observers have been assigned to covered jurisdictions in the last 25 years than between 1965 and 1982. This is the type of evidence Congress looked to and used to support its previous efforts to reauthorize. Specifically: Does this evidence still adequately measure the effort to discriminate in 2006? And does the increase in use of the temporary provisions, such as Sections 5 and 8, justify extending these provisions for an additional 25 years?
5. In 1982, Congress amended the bailout provision to ensure that the temporary provisions were not overbroad. Since then, 11 counties in the covered state of Virginia have utilized the process to terminate coverage. Do you believe that the process to terminate coverage will continue to be feasible for other jurisdictions to bail out over the next 25 years?
6. Is there anything in the record to support altering the formula to include new jurisdictions or to apply the preclearance requirements and federal observers to jurisdictions across the country?
7. In 1966, the Supreme Court, in South Carolina v. Katzenbach, emphasized Congress' broad authority under Section 2 of the 15th amendment to remedy the problem of racial discrimination in voting. Do you believe that Congress continues to have the authority to remedy racial discrimination in voting? Does the record justify Congress using this authority to continue the temporary provisions for an additional 25 years?
8. H.R. 9 will make changes to several of the expiring provisions, most noticeably to the current federal examiner and observer provisions. These moves should prompt the following questions:
(A) How effective have federal examiners been in the last 25 years in terms of registering minority voters? Can the increase in minority voter registration rates be attributed to the federal examiner program?
(B) How will terminating the federal examiner program impact minority voters?
(C) Will the change have any impact in covered jurisdictions? For example, does striking the provision affect their covered status? Does it impose any additional burdens on covered jurisdictions?
(D) Will terminating the federal examiner program have any impact on the Department of Justice and its ability to implement the remaining temporary provisions, such as Section 5 and Section 8?
(E) How important have federal observers been in protecting minority voters? How important will they be in the next 25 years? How will the change authorizing the Attorney General to directly certify jurisdictions for federal observer coverage impact the Department of Justice or the Office of Personnel Management to assign observers? Will the change impact minority voters? Will the change impact covered jurisdictions? Will covered jurisdictions certified for federal observer coverage still have the ability to terminate coverage as jurisdictions certified for examiners currently do?
9. How costly is it for plaintiffs to pursue voting discrimination cases? How fact-intensive are these cases? Can the information be compiled by lay persons? How costly are experts? How does H.R. 9 remedy this problem? Would the change bring the Voting Rights Act up to date with other civil rights laws?
10. Is the provision of expert fees in the voting context consistent with other civil rights legislation governing other categories of civil rights litigation?
11. How effective is Section 5 under current Supreme Court precedent in preventing discriminatory voting changes from being enforced by covered jurisdictions? How has Section 5 been weakened? Can Section 5 be restored? Does H.R. 9 restore Section 5 to its full strength?
12. How difficult is it for the Department of Justice or the United States District Court for the District of Columbia to administer Section 5 under the existing standard of review? Is the standard more or less difficult to apply now compared to the standard in place during previous years? Will H.R. 9 make it easier for the Department of Justice or the United States District Court for the District of Columbia to apply the preclearance requirements set out by Section 5? Why? Is the standard of review set out by H.R. 9 new to the Department of Justice or the District Court?
13. H.R. 9 restores the "discriminatory" purpose standard to Section 5, such that any voting change made with a discriminatory purpose cannot be precleared under Section 5. What impact will this change have on minority voters? How difficult will it be for the Department of Justice or the United States District Court for the District of Columbia to administer? Does the change impose any additional burdens on covered jurisdictions? Is this intent more or less consistent with the way the standard was interpreted and applied prior to 2000?
14. In 2003, the Supreme Court, in Georgia v. Ashcroft, introduced a new standard of analysis into Section 5. Under the new standard, the Court held that Section 5 preclearance review involved the assessment of a number of factors, including examining whether "such change increased or decreased minority voters ability to influence a candidate, such that the candidate would be willing to take the minority's interest into account."
(A) How administrable is the standard established by the Supreme Court in Georgia v. Ashcroft? How does it deviate from the standard set forth by the Supreme Court in 1976, in Beer v. United States, which was the standard followed by the Court for nearly 30 years?
(B) Is the standard set out by the Georgia v. Ashcroft Court consistent with the preclearance objectives of Section 5?
Potential Questions on Section 203 Language Assistance Provisions of the Voting Rights Act
15. If Congress allows Section 203 expire, what will be the impact on language minority citizens? Would you describe the election environment language minority citizens will most likely experience without Section 203's assistance?
16. How do Section 203's requirements assist language minority citizens? What impact will H.R. 9 have on language minority citizens?
17. H.R. 9 makes one change to Section 203. It identifies the American Community Survey as the data source for Section 203 coverage determinations. In making these determinations, H.R.9 specifies that determinations are to be made using data collected on a rolling five-year average. What impact will this change have on language minority voters? What impact will it have on covered jurisdictions?
18. Some have expressed concern that Section 203 determinations are not reviewable by the courts. Should these determinations be reviewable? How feasible is it for covered jurisdictions to bail out from Section 203 coverage?
19. Some have also expressed concern that Section 203's definition of limited-English proficiency is overbroad in that it covers language minority citizens who are unable to speak English "adequately." Is this concern warranted?
20. There are some who maintain that Section 203 deters citizens from learning English and that citizens should be speaking and understanding English, especially naturalized citizens who must learn English as part of the requirements for becoming a citizen. How would you respond to this comment? Does Section 203 deter citizens from learning English? Should the most fundamental right in our country be conditioned on an understanding of English?
21. In 1975, 1982, and 1992, Congress enacted and reauthorized Section 203, which prohibits English-only elections and requires that bilingual assistance be provided in covered languages, based on evidence that the educational disparities and disparate treatment experienced by language minority citizens in this country contributed to their limited proficiency of the English language, illiteracy rates above the national average, and low graduation rates, all of which contributed to low voter registration and turnout rates. Have the educational conditions for the covered language minorities (Asian, Alaskan Native, Native American, and people of Spanish descent) in this country improved so much that Section 203's assistance is no longer necessary? Are states and local governments devoting the resources necessary to help language minority citizens improve their understanding of English? Are schools ensuring that language minority students get the support they need so that illiteracy and graduation rates improve?
22. How can we ensure that jurisdictions are not overwhelmed in their attempts to comply with Section 203? Do you have recommendations on how to make Section 203 more manageable?
23. How costly is it to comply with Section 203?
24. How helpful is the Department of Justice in working with covered jurisdictions to determine what assistance is required?
25. How does the Department of Justice administer Section 203? How does it identify whether jurisdictions are in compliance with Section 203's requirements? It has been reported that the Department of Justice engages in a "surname" analysis to determine the number of potential voters and the appropriate assistance to be provided by a covered jurisdiction. Is this true? What are the benefits of conducting this analysis? Isn't this profiling? Shouldn't jurisdictions be working with the minority communities to determine how best to provide assistance to members of these communities rather than just using a blanket surname approach, which can result in wasted resources?
26. How receptive have communities with the requisite concentration of language minority citizens been to the assistance provided to those citizens with limited English proficiency? How can language minority citizens be assisted, while at the same time ensuring that jurisdictions are not burdened?
27. How can we expect citizens who do not speak English to understand ballots that are confusing to fluent English speakers such that they are able to cast an informed vote?
28. What is the impetus for the Department of Justice's increased enforcement efforts under Section 203? Are jurisdictions failing to comply? What efforts does the Department take to work with jurisdictions before engaging in litigation? How many Section 204 enforcement actions has the Department pursued?
29. What factors support the continuing need for language assistance?