in the 1970 extension of the act, so it is perfectly true that the bulk of the enforcement activity has been in the South. History explains the reason for that, but it cannot be said to be a regional law, and we ought not blame that.

Mr. Chairman, I do understand that, limitations of time are attached. With your leave, I will ask that my testimony be printed in the record.

Senator TUNNEY. It will be, without objection.

[The prepared statement of Senator Hart, follows:]

PREPARED STATEMENT OF SENATOR PHILIP A. HART

Mr. Chairman, I am very pleased to have the opportunity of appearing today with Senator Scott on behalf of our bill to extend the Voting Rights Act, S. 1279. The hearing agenda for this important issue is a crowded one. You will be hearing from witnesses with first hand knowledge of how the Act has operated and why it must be extended. So I will keep my remarks this morning brief and ask that the full text of my statement be reprinted in the hearing record.

First, let me express my confidence that this subcommittee under your leadership, Mr. Chairman, will continue the tradition established by Senator Ervin of thorough, fair hearings on all matters within its jurisdiction. Although Senator Ervin opposed the Voting Rights Act and made that clear, the hearings on extension of the Act which this subcommittee conducted in 1969 and 1970 were comprehensive and evenhanded and a full record was developed in support of the Act's renewal. It is equally important this time that a record be made on the issue of further extension of what has been called "the most successful civil rights law of all time."

The history of the Voting Rights Act, and its first extension in 1970, is well known. But it deserves brief review as the backdrop for the issues now before the Subcommittee.

When it enacted the 1965 Voting Rights law, Congress confronted a longstanding evil, which had been perpetuated in the South for almost one hundred years by pervasive and ingenious defiance of the Constitution. Three earlier civil rights laws, in 1957, 1960 and 1964 had failed to remedy blatant discrimination in the electoral process. These acts provided the Attorney General with power to institute lawsuits against voter discrimination. But this case-by-case method was ineffective for several reasons. The Justice Department had to spend thousands of man hours challenging a single election procedure and had the burden of proving discriminatory intent, often confronted by a hostile local jury. Even where a case was won, a new device often had been fashioned by the time the old tactic had been enjoined.

In sum, the situation for the Attorney General was like the poor greyhound at the racetrack who can never quite catch the mechanical rabbit. Black voter registration in Mississippi had only risen from 4 percent in 1954 to 7 percent in 1964. A drastic solution was needed for a drastic problem. The Voting Rights Act presents a comprehensive answer based on a set of complementary remedies. First, there was a ban on literacy tests and similar devices. Second, federal examiners could certify eligible voters for registration where local officials were recalcitrant. Third, federal observers could be sent on election day.

Most important, the burden of compliance was shifted from the Justice Department to the local authorities. This is the heart of the Act, the so-called "preclearance provision" of Section 5. Before implementing any new law which affected minority voting rights, the local authorities must prove to the Attorney General or a three-judge court in Washington that it is not discriminatory in purpose or effect. Thus the status quo is frozen until the Justice Department has a chance to review the new law.

This history is important for the Subcommittee to keep in mind, Mr. Chairman, because some of the suggestions you will hear for updating the Act would, in fact, turn back the clock to the futile case by case litigation which has already been tried and found wanting.

The Voting Rights Act is constitutional. Some may still question that decision, but under our system the issue is settled. The Supreme Court has reviewed each major provision and has sustained every one of them in South Carolina v. Katzenbach (1966); Katzenbach v. Morgan (1966) and Allen v. Board of Education.

Finally, we should remember the Voting Rights Act is national, not sectional legislation. It is national in two senses. The special remedies apply automatically to any state or county covered by a special formula known as the "trigger." Most of the covered areas are in the South, but by no means all. The trigger covers areas from Arizona to New York City, and the redistricting of state assembly seats in New York has been modified to gain the Attorney General's approval under section 5. Moreover, all of the remedies are also available in any area not covered by the trigger if a court finds discrimination in any separate suit brought under the 14th or 15th Amendments.

Congress has already renewed the Act once. By 1970 substantial progress had been made but there was a long way to go. Even where registration rose, new techniques appeared to dilute the impact of the added black vote. Many officials in the covered areas showed an earnest desire to comply but the intent to circumvent the Act shown by others made clear its protection was still necessary. The Act was extended in 1970 for an additional five years, and, after a sharp controversy, the trigger provision and preclearance sections were retained intact.

In the past five years, the Act has continued to prove successful. The number of black voters and black elected officials has continued to rise dramatically. The question before us now is whether the task is finished, or at least completed to a point where the protection of the Voting Rights Act is no longer needed.

It is tempting to conclude that this unusual federal interference with local government has done its work and need not be extended. Its own successful impact seems to suggest that conclusion. But I am convinced it is still desperately needed. I am afraid the record still reflects a widespread intent to undo much of our accomplishments. In the remainder of these remarks, let me touch briefly on that record.

The Subcommittee faces four basic issues:

(1) Should the Voting Rights Act, that is, the trigger and preclearance provisions be extended? (The generally available relief following a court finding of discrimination is already permanent.)

(2) If the Act is extended, for what length of time-five years or ten? (3) Should the literacy test ban be extended or made permanent?

(4) Should additional provisions be added to meet special problems of Spanishspeaking Americans?

The opponents of extending Sections 4 and 5 stress the marked increase in black voters and black officials. But a closer look reveals that, as Assistant Attorney General for Civil Rights Stanley Pottinger has observed, the gains are less impressive than they seem at first blush. The latest report of the Civil Rights Commission, The Voting Rights Act: Ten Years Later, shows that black registration still lags behind levels for white voters and that the gap is still dramatic in many rural counties. The fear of violence is not completely a memory in the worst place; more common is intimidation based on the economic dependence of many blacks in small towns and rural areas, which is hard to exaggerate. Nor are election day problems a thing of the past. In 1974 Federal observers were sent to 14 counties throughout the South.

The dramatic increase in the number of black officials, it must be remembered. started from a base of almost zero. Blacks are still drastically underrepresented in federal, state and local offices.

Many of the local offices now held by blacks are not important policy posts such as county supervisor or city councilman.

Second, the more impressive gains have only come about because of the Act's safeguards. For example, some of the most significant posts now held by blacks in covered jurisdictions were won only after initial redistricting plans and other devices which would have prevented those victories were rejected under the Voting Rights Act and modified to give blacks a real chance to realize their fair share of political power.

Third, it is clear that the gains in both voters and political office are fragile. They come after a hundred years of political subjugation. All it would take is a new redistricting or change in the rules for a particular elective office, or a new oppressive form of reregistration, to wipe out the progress so proudly cited. The Subcommittee's main focus, in this regard should be the objections made by the Attorney General under Section 5 to new laws proposed since we were last told in 1970 that the Act was no longer necessary. While doing so, however, the Subcommittee should keep in mind several ways in which the frequency of formal objections fails to reflect fully the need for the Act. Many of the objections deal with a proposed change, such as statewide redistricting which would

have affected many offices. Moreover, some proposals have been modified after informal consultation with the Department of Justice and before being formally submitted. Others have been modified after submission in order to obtain approval. They do not show up as an objection. There is evidence that still other proposed changes were considered but never submitted because they were clearly objectionable under the Act. Finally, you will learn from other witnesses that a large number of changes have still not been submitted for approval despite the clear requirements of the Act and the pronouncement of the Supreme Court. One more point deserves special emphasis. Some of the election law changes involve such tactics as making councilmanic seats at large instead of by district, gerrymandering, making elective posts appointive, or using sophisticated devices to dilute the impact of a cohesive black vote. Unlike the vivid brutality of snarling police dogs and water hoses, such tactics may seem part of the normal rough and tumble of politics-techniques used by the "ins" against the "outs" from time immemorial. The point is that they are here being used to offset the effect of the Voting Rights Act and to perpetuate the political conditions which resulted from persistent denial of Constitutional Rights. They must be viewed in that context. As the Supreme Court said in the Allen case:

"The right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot.”

Surveying this experience, the Justice Department of the present Administration recommended extension of the Act fully intact.

President Ford concurred and has recommended extension legislation embodied in S. 407, which was introduced by Senator Griffin. I think the record which can be developed before this Committee fully supports President Ford's conclusion that despite substantial progress, and I quote: "Our experience indicates the need to extend once more the key sections of the Act."

The next question is whether there should be a five year or a ten year extension of the trigger and other special provisions. The bill which Senator Scott and I have introduced, like the Rodino-Edwards bill in the House, calls for a ten year extension. This was the recommendation of the Civil Rights Commission in its latest report. The main reason for the longer period is that the decennial census in 1980 will require another round of redistricting throughout many of the covered areas. If the trigger and preclearance provisions expire at that point, blacks will lose the key safeguards of the Act and be subject to discriminatory redistricting. This proved a pervasive problem in the early 1970's after the last census. Indeed, in some cases, redistricting plans have yet to be approved under Section 5.

But the Subcommittee will have to weigh the record made on this point and determine whether a ten year extension is appropriate. In the meantime, the fact that the Administration bill calls for only a five year extension should not obscure the basic agreement that the safeguards must be extended intact.

The third issue you face is whether to make the literacy test ban permanent. Our bill would. Many jurisdictions still have tests on their books. There is no indication the use of such test has been abandoned and would not be resorted to again if the Act's ban expired. It is difficult to understand why the ban should not be made permanent. The finding Congress made in 1970 that such tests impact discriminatorily on minorities has been upheld by the Supreme Court. We also know such tests are inherently subject to abuse. And we know that increasingly the coverage of politics by electronic media make literacy less and less important for an informed voter decision. I am convinced that these reasons which supported a nationwide ban in 1970 would also make a permanent ban constitutional if Congress found it appropriate to implement the Fourteenth and Fifteenth Amendments.

Finally, the Subcommittee faces an intricate problem in regard to the legitimate complaints of Spanish speaking Americans about denials of full access to the political process.

Questions of policy and constitutionality must be carefully explored during these hearings to determine the most effective and appropriate solution to these problems.

But above all, the precious protection of the present Act must be preserved. To end its successful operation-either by failing to renew it, or by weakening its key provisions in any way-would strike a serious blow to the struggle for fullfillment of our Constitution's proud promises.

Senator TUNNEY. Senator Hart, how do you feel about extending the coverage of the act to other than those groups originally contemplated in the legislation? I am thinking now about groups in those parts of the country where there is a very low voter turnout in heavily populated Spanish-speaking communities.

Senator HART. We must go to subcommittee or ultimately the full committee for the resolution of that question. I would join Senator Bavh.

The principle is clear and compelling. We should seek to insure the right to vote for everyone, whatever the dialect or the color. This subcommittee will develop a record, bearing first on the constitutional limitations that attach. As I remember the debate on the Voting Rights Act originally, we hung our principal hook on-we used as our principal hook the 15th, not the 14th amendment, although subsequently the courts have suggested, as I remember it, the 14th itself based on our findings would justify the actions, the very dramatic intrusion on state sovereignty that the act did contain.

But the constitutional question is whether the 15th amendment does in fact with its "race and color" clause reach an ethnic group. I do not know.

But both the constitutionality and the policy of including in the extension we proposed the additional reach intended to protect against discrimination and insure the right to vote of those of Latin extraction, it simply has to be determined.

In my prepared statement you will find-if anybody reads it-I have expressed full confidence in your leadership to bring us through these difficulties.

Senator TUNNEY. I certainly appreciate that. I appreciate the question being referred to the subcommittee, Senator Hart. It is a matter to which we have to give a lot of consideration because there are some that suggest that we should protect the Spanish-speaking citizen in separate legislation, not attached to this bill, which had a very clear import when it was originally passed.

I gather from your comments that you have yet to make up your mind as to whether or not you would like to see the Spanish speaking

Senator HART. If I could be sure that the effort would not contribute to the loss of the extension which I believe overwhelming or produce a court decision which would later torpedo the whole ship or any part of it, the answer is easy. We hang it on the end.

The trick is in resolving correctly the effect that the inclusion would have. The principle is right itself, for that reason, I identify myself with Senator Bayh's amendment to establish an amendment in agreement with the proposition.

We all have lived through stormy times as it relates to what can and cannot be done to delay civil rights legislation.

Senator TUNNEY. One last question before I turn to Senator Hruska. Could you tell the subcommittee why you feel that the 10-year extension is a viable period, rather than the 5 years that was used in the original law in 1965 and again in 1970?

Senator HART. We have several reasons. First, the Civil Rights Commission itself the fact that in 1980 you have redistricting again with all that it portends. If there is not a continued requirement which,

as I said, caught New York attempting to gerrymand, I suppose the word is for it, the potential of the 1980 census and its consequences more than anything else, and the wisdom of the Civil Rights Commission itself.

I think that, if I may be permitted to excerpt one very brief piece out of the prepared testimony-I promise not to-the administration to its credit has recommended extension, but for 5 years only, and yet it is my understanding that the Assistant Attorney General in charge has acknowledged the validity of the arguments or the merit in the argument for a 10-year extension.

My colleague from Michigan, Senator Griffin, is the principal sponsor of the administration language. His language-I make that excerpt for the reason that it confirms, I think, Senator Scott's-makes more explicit Senator Scott's suggestion that the effort this time is wholly bipartisan, including the executive branch.

Senator TUNNEY. Thank you.

Senator Hruska?

Senator HRUSKA. Although I have no questions at this point, I would comment on the question you asked of Senator Hart, with your permission.

It was 5 years ago, I believe, that an attempt was made to amend this law in regard to sections 4 and 5, and in effect make the statute on voting rights of citizens in America subject to the same statutory protection or the same statutory jurisdiction, throughout the country. There was, in my judgment, a very good case made for that position. It did not prevail, but I want to say that I do hope that there will be sustained a further effort along that line.

Ten years ago and I was here at that time-I took some part in the drafting of the original bill. Even at that time, it was offensive to my previously held principles and ideals on the Constitution and the equal treatment of all citizens to have included sections 4 and 5. I do believe they should be deleted, and that the statute should have uniform applicability. The temper of the times, however, were such that those sections were included. I think they are outdated today. I think they are on false premises.

There has been a change of circumstances, and conditions. It is not well to interfere with the sovereign rights of States as this statute admittedly does in many respects, at a time when the need for such special circumstances and conditions as prevailed 10 years ago, are no longer existent.

I thank you for the opportunity to make that general characterization.

Senator TUNNEY. Senator Bayh.

Senator BAYH. Mr. Chairman, I just want to express my appreciation to our distinguished colleague from Michigan. As a relatively new Member of the Senate and a junior member of the Judiciary Committee, I remember well the 11th hour at which the committee reported a measure which had been forged after long hours of diligent effort. I know nobody on this committee who gave more of himself to effect the successful legislative inclusion of the 1965 Voting Rights Act than the distinguished Senator from Michigan.