The number of elected officials is still extremely small, despite the historic breakthroughs; and even the substantial number of local black officials includes relatively few in the most important policymaking posts such as county supervisor. In many counties, the registration levels for black voters are still way below the rest of the community. Dramatic incidents of violence are infrequent, but there remains substantial evidence of intimidation and economic dependence on the local power structure which deters registration.

Most importantly, the progress which has been made is precarious. The hard-won base of black political power is still too fragile to be shorn of the Voting Rights Act and its protection.

The number of new laws to which the Attorney General has objected has not declined. In fact, the rejections for the first 6 months of 1974 were running well above the rate for 1973. But, these numbers do not fully reflect either the deterrent role played by the act or the continued threat of discriminatory action should the act expire.

In the first place many changes still are not submitted for preclearance. Just this year, the Justice Department concluded a study of laws passed in 1971 by the Mississippi Legislature and found over 100 which should have been submitted.

Second, some of the submissions have already been modified after informal discussions with the Department's representatives, or changes are negotiated after submission. The objectionable aspects are removed, but they do not show up in the figures as formal objections. In Georgia, the initial redistricting plan for Atlanta would have made it more difficult for Congressman Young's candidacy, but substantial changes were required by the Department as a condition of approval.

Finally, although it is hard to document, I know those who work on the front lines under the act are convinced that the mere existence of section 5 has prevented some devices from even being submitted. In Virginia, the Attorney General now tries to monitor submissions from local jurisdictions to screen obviously objectionable proposals. It is true that the act prohibits changes which have either the purpose or the effect of discriminating against black voters. But all too often contemporaneous legislative history, or the absence of any other reasonable explanation for the particular new scheme, provides strong evidence of a deliberate intent to dilute the potential impact of the new black vote.

Even the gains in voter registration would be imperiled if the act is allowed to expire. Efforts to purge the rolls through questionable reregistration requirements have been mitigated somewhat by review under section 5.

The question then, in my mind at least, is not whether to extend the Voting Rights Act, but how long it should be extended. In essence, I am urging an additional 10 years' extension to allow the law to operate through the redistricting and reapportioning which will follow the 1980 census. It will only be at this point that an adequate and true evaluation of the accomplishments of the act can be made.

In summary, it is my strong belief that it would be both shortsighted and premature to repeal the basic safeguards of the Voting Rights Act now, in the guise of updating it. In 1970, Father Theodore

Hesburgh, president of Notre Dame and then Chairman of the Civil Rights Commission warned Congress that if we gutted the act or eliminated section 5, we would be turning back the clock to 1957.

That warning is a useful reminder today. Those who would have us abandon section 5 for alternatives under which the Department might sue to challenge questionable State laws, would set us back to the very conditions which led to the creation of the Voting Rights Act in the first place.

We must not turn back the clock.

Thank you, Mr. Chairman.

Senator TUNNEY. Thank you, Senator Scott.

One of the attacks that is made on the legislation by those representatives of the States that are covered under sections 4 and 5 is that the law does not have uniform applicability. Senators and Representatives and others who argue with this point of view say that they do not object to the Voting Rights Act insofar as it has uniform applicability, but it should not single out certain States, certain jurisdictions or sections of the country, for special treatment.

Do you care to address yourself to that specific argument that is going to be made during the course of these hearings and later on, in the floor debate? In your statement you have addressed yourself to the Voting Rights Act in general terms. Would you care to add anything with respect to specific arguments that you ought to have equal coverage of all the States and no longer identify certain States or jurisdietions as bad boys?

Senator ScorT of Pennsylvania. We have established under the act certain guidelines which have an impact in various parts of the country, not simply in the South. Alaska is a good illustration of it. I would favor the adherence to a set of guidelines-the committee being free to consider whether the guidelines are just and fair and applicable. But in this act, and for the purpose of this extension, we should adhere to the principle of guidelined application, that if there are those who feel other States should be covered and would be willing to support new legislation to that effect, if I felt that it would further remove discrimination, I would be glad to support it. But I would be fearful of having attempted to change the guidelines under the guise of making it more broadly applicable. It might in fact, make it more narrowly applicable under subsequent court decisions. And, therefore, I would not jettison the valuable court decisions already under this legislation.

Senator SCOTT of Virginia. Well, if the Senator will yield.

Senator Scott, you are aware of Virginia's problems, I am quite sure, being a native of Virginia even though you represent Pennsylvania. And it is my understanding that the only reason that Virginia is covered by this act is not for any specific act of discrimination, but because less than 50 percent of the people voted in the 1964 election.

Now could that not be because we have been a one-party State since Reconstruction, and not because of discrimination? Is that fair to a State like Virginia?

Senator SCOTT of Pennsylvania. I would be willing to have the subcommittee, of which I am a member, consider the question of changing the date. It seems to me there is a good argument to fix the year

1970, for example, or 1972-but I want to know what impact that has on court decision. If it does not affect court decisions, and if we could be more realistic in determining a later year than we did have the development of a two-party system, I would be interested in seeing what could be done then.

Senator SCOTT of Virginia. Thank you.

Senator TUNNEY. One thing I want to point out is that one component of the trigger formula was that the jurisdiction had a test or device to prevent people from registering to vote and then voting. The test or device did not have anything to do with whether or not the State had a one party system since Reconstruction. It had to do with whether or not there was discrimination, and the test or device was used to

Senator SCOTT of Pennsylvania. I think the test is whether there is now discrimination; whether we need to protect ourselves as we have done.

very

Senator TUNNEY. I think you have raised a very good question, Senator Scott. The problem, as I see it, is that some fine civil rights laws were passed during Reconstruction, but over a period of the next 30 years the laws were either repealed or ignored to the point that by the turn of the century there was really no effective way in many parts of the country to enforce the rights of blacks. We can say it took 25 or 30 years to see the abrogation of those very fine civil rights laws that were passed during the Reconstruction period. Now we have experience of 10 years of the Voting Rights

Act.

Do you think that is long enough to have rooted out the vestiges of discrimination that existed between the end of that first period and prior to the time that the Voting Rights Act was passed in 1965?

Senator SCOTT of Pennsylvania. I think that the further 10-year period is desirable because for 5 years you had very little hard case law on which to rely.

Senator BAYH. Will the Senator yield? As you know, when we extended the act, we not only used the 1964 figures, but the amendments included 1968 figures which included some jurisdictions that were not covered in the original act. Also, I think it is important to emphasize that a State is not convicted of eternal sin because of previous transgression. I do not buy that. I would like to feel we are moving toward a time when we could either opt out the States that are covered, or cover the whole country.

Any State does have the opportunity to remove itself from the list by meeting the standard contained in the act and going to district court. They can remove themselves from the jurisdiction of the act, and I would hope that the day would come when all of the covered States would meet that test, and we would not need this kind of act. Senator Scort of Virginia. Mr. Chairman, if the Senator will yield, it is my understanding that what they have to prove is that there has been no discrimination within that State for a period of several years, and it is very difficult to prove that no precinct anywhere in the State has discriminated when there is no allegation of discrimination. The burden of proof is an affirmative one to prove there has been no discrimination anywhere in the State-it seems to me that the burden should be reversed.

Senator BAYH. If my colleague would just let me respond, I understand this concern, and I hope the time will come when Virginia is not covered by the act. How difficult would it be for a county to prove that they had not used a test or device for 5 years?

Senator SCOTT of Virginia. You mean some literacy test? Is this what you are

Senator BAYH. Discriminatory test or device as described under the provision of the act. Would it be too difficult to prove that the county election officials have not used such discriminatory tactics?

Senator SCOTT of Virginia. It is a matter of judgment as to whether it is discriminatory or not. We in Virginia do not feel that the literacy test was discriminatory. It is used in many States outside of the States covered by this act.

It is my understanding that Viginia did have a case, it went to the Supreme Court, and I believe that the attorney general of our State testified in the House. Undoubtedly, he will be here to testify and to represent our State before this subcommittee, but it is my understanding that he must go to the Federal district court here in the District of Columbia, not within our own State, or to the Attorney General of the United States.

We are discussing a sovereign State going hat in hand to the Federal capital and getting permission to do something-the city of Richmond, for example, has not held an election for 8 years. I am not going to take up time of the committee when we have other witnesses, but I do want to merely say this is a matter of deep concern to the people of Virginia, and, Mr. Chairman, I will have a number of amendments before this action is taken by the committee.

Senator Scort of Pennsylvania. I thought the inclusion of Alaska was an unfortunate result of the guidelines.

Senator TUNNEY. Do you have any further questions?

Senator BAYH. No; Mr. Chairman, I would just like to suggest that the provisions of the act do provide for a State to be removed if it can prove that those vehicles which were the most flagrant violations have not been used. I think the Senator from Pennsylvania pointed out that in the early hearings we had ample evidence of those devices which will permit someone who has never gone to a school to pass a literacy test, and someone who has a Ph. D. whose face happened to be the wrong color, are not permitted to pass them.

That is why that particular triggering device is used for a removal. We will have a chance to discuss this with the Senator from Virginia and others.

Senator Scort of Virginia. Mr. Chairman, if I might say, I believe that literacy tests were removed by law in Virginia several years ago and were also omitted from the new constitution of Virginia. I do not believe there is any basis for the continued inclusion of Virginia. I think it is based on the fact that less than 50 percent of the eligible persons voted in the 1964 election.

Senator SCOTT of Pennsylvania. That is why I suggested that Virginia's voting percentage ought to be looked into if it is the one remaining objection, the percentage of voting in Virginia. As I pointed out, the attorney general now tries to monitor submissions from local juris

dictions to screen obviously objectionable proposals, so Attorney General Miller is on the job down there, and I think it will be interesting to hear his testimony.

Senator TUNNEY. Thank you very much, Senator Scott. I know that you have to leave. I appreciate your being here.

Senator Hart?

TESTIMONY OF HON. PHILIP A. HART, U.S. SENATOR FROM THE STATE OF MICHIGAN

Senator HART. Mr. Chairman and members of the committee, you know the hard fact is that under this Voting Rights Act certain jurisdictions have proved that they were entitled to get out from under the formula, and others have not. That is just a fact of life, and we talk about the burden of proof. The jurisdiction simply denies that practices within that jurisdiction are the result of conscious efforts to discriminate the tests have not been used-merely by an affidavit.

The burden then shifts to the Department of Justice to prove that that is not the fact, and in fact instances A, B, C, and D discrimination has occurred. The act in this sense is completely useful and with respect to the question of whether it is a regional act, if the chairman would permit me, I would like to read a brief answer to that because it is an answer I have been carrying around in my pocket practically for 7 or 8 years now.

Every once in a while, one of our colleagues will jump at me, as I am sure some of you are jumped, with a plea to be reasonable and stop discriminating and write a law that is national. This is a nationwide matter. It is not regional. In the first place goes the answer, the special remedies of the act such as preclearance of new laws, observers for elections or Federal examiners are available in two ways. They are automatically available to counties or States under the trigger of section 4, but they are available also in places not under the special trigger coverage. They are available as part of the relief which the Attorney General can request in a discrimination case under the first section. If the court finds a discrimination, it can order any of these same remedies, so it is national law in that sense.

Second, the trigger formula has covered sections of the United States, as Senator Scott has reminded us, as these charts will continue. to remind us, the committee. The trigger formula has covered sections. of the United States in the Northeast, Southwest. Alaska, and Hawaii. In 1964 and 1970 many such counties were certified by the Attorney General and that pursuant court to obtain release from the trigger coverage as they sued, and they got out.

Moreover, not all the areas outside of the South have managed to make that leap out of original sin, as somebody suggested. Several counties of New York remain under the trigger and are subject to section 5 preclearance right now. That is not the South.

As a result, a redistrict by the New York State Legislature was modified to obtain the approval of the Attorney General under section 5 in the early 1970's, and finally of course literacy tests, which we would make permanent, became an automatic nationwide prohibition