We did include another recommendation along this line, in which I am personally very much interested. That was that the "Congress should amend the Voting Rights Act to provide for civil penalties or damages against State and local officials who violate section 5 of the act by enforcing or implementing changes in their electoral laws and procedures without having first obtained preclearance from the Attorney General of the United States or the District Court for the District of Columbia." In other words, I think that that would put more teeth into section 5. If the State and local officials understood that they would be subject to civil penalties or damages if they failed to make the submission of proposed changes to the Department of Justice or to the District Court for the District of Columbia, they might accelerate their activities in terms of getting these submissions to the Government.

Senator TUNNEY. When the Justice Department witnesses appear, we will question as to why they have not been more aggressive in their section 5 coverage. Section 5 deals only with changes in voting procedures that are discriminatory. What about the discriminatory procedures that existed prior to the passage of the Voting Rights Act in 1964? Has there been any assessment made of those procedures? This is a good time to break here since there is a vote on. When we come back, you can answer that question.

Mr. FLEMMING. We have a recommendation on that, and I would be glad to discuss it with you.

Senator TUNNEY. We will be back probably in 10 minutes. The subcommittee will stand in recess.

[A brief recess was taken.]

Senator TUNNEY. Please proceed.

Mr. FLEMMING. In response to the question you addressed to us just before the recess, I would like to call attention to the fact that one of the recommendations in our report reads as follows: "The Department of Justice should bring lawsuits to end discriminatory practices which are not prevented by section 5," and our comment is as follows: "Many of the discriminatory practices which the Commission found were instituted prior to November 1964, and therefore are not subject to the requirement of preclearance. Most of the burden of the litigation to remove these practices has fallen on private parties. Where appropriate, the Department should initiate litigation."

To give you one example, Mississippi passed legislation in 1962 making automatic elections at large rather than by ward. While changes like this have often received objections under section 5, no suit was brought against the at-large election system until the Lawyers' Committee for Civil Rights Under Law brought suit in 1973. Although the Department has intervened in this suit, the burden of the litigation has fallen primarily on the private organizations.

It seems to me that the suggestion that we made relative to section 3 might help here also, particularly if private citizens are not only given the opportunity to institute a suit, but also a provision for recovering the costs of the suit.

Mr. Hunter had his attention called to another pre-1964 situation in Georgia which we might discuss.

Mr. HUNTER. We point out in the report that Macon, Ga., is 37-percent black, and elects a 15-member city council. This city council is

selected at large, but the members must reside in particular districts. This is a feature that is also objected to under section 5, and may be quite discriminatory since it means that minorities in a particular neighborhood, although the representative of their district must live there, he or she is chosen by the whole city. So, the white majority controls it. In Macon, of the 15 city council members, none is black; while in the State legislature more recently, they have had to have single member districts, there are some black members.

A private lawsuit was brought against this system, and the plaintiffs there alleged that "race is a constant and dominant factor in elections in Macon, and that whites do not vote for black candidates; and where black candidates oppose white candidates, whites consistently vote for the white candidates regardless of their relative qualifications."

A private suit was brought here. The Justice Department did not enter the suit to help out, and the suit failed recently. I was just told this over the phone last week.

The problem was that the private attorneys were not able to come up with the proof that was necessary. This was more, I believe, a failure of counsel to have the time and energy to do the work than a failure in the merits of the case.

More recently, just before our report was published, a suit was brought in Albany, Ga. It is 39 percent black and has a seven-member city council, also elected at large and also with residence requirements. This system was also instituted before 1964. In Albany also there are no blacks on the city council. Here was a private suit brought by the Georgia Legal Services. This litigation is now underway.

As of April first, when I talked to the lawyer down there, the Justice Department had not entered the suit. They hope that the Justice Department will enter it to help out.

There are other examples from other States, North Carolina, Alabama, and Louisiana, for example, where at-large elections were instituted before 1964, where they are discriminatory, and where the Justice Department has not filed suit to bring this to an end.

Senator TUNNEY. That is interesting.

With respect to private litigation under section 3, are you suggesting that we amend the act?

Mr. FLEMMING. Yes, Mr. Chairman. It is our suggestion that, in addition to the Attorney General, private citizens have the opportunity of filing suit under section 3. It is also our suggestion that the act be amended as to provide for covering costs, using the normal approach to that.

Senator TUNNEY. What about the Spanish speaking problem?

You indicated that you were prepared to offer some testimony that you had not offered to the House.

Mr. FLEMMING. In my opening statement. I referred to a letter that we had addressed to the chairman of the Subcommittee of the House Judiciary Committee, in which we indicated that we agree in substance with a proposal of a draft bill that Mr. Pottinger has submitted to that subcommittee.

I think I can sum it up by using the language that he used to describe how a proposed section in his bill would operate. He said:

Subsection (c) is amended to add a new definition of the phrase "test or device." A jurisdiction may be determined to employ a test or device if: (1) more than

5 percent of the persons of voting age residing in the jurisdiction are determined by the Director of the Census to be members of a single minority race or color, the native language of which is other than English; and (2) the jurisdiction in the Presidential election of 1972 provided any ballots, voting or registration notices, registration forms, or voting or registration instructions to voters printed only in the English language without providing printed translations of such voting and registration materials in the native language of the protected race or color group, as defined in this subsection, i.e., which represents more than 5 percent of the voting age population of the jurisdiction.

The amendment provides however, that if a jurisdiction provided all of the enumerated election and registration materials, bilingually, except ballots, the jurisdiction would not be deemed to have employed a test or device if it provided sample ballots bilingually and allowed voters to use them while they voted.

The third paragraph of subsection (c) provides that the Director of the Census shall determine which jurisdictions contain the requisite minority populations as required by this subsection, and also had less than 50 percent voter participation in 1972, as required by subsection (b), within 60 days of enactment of this Act; and that this determination is effective upon publication in the Federal Register and is not subject to review in any court.

The proposed fourth paragraph of subsection (c) provides that the Attorney General shall notify the chief legal officer of any State or political subdivision which may be covered by Section 4 because of the determination of the Director of the Census. This provision places the burden on these States and political subdivisions to demonstrate that they did not conduct English-only elections in 1972. If the Attorney General does not receive sufficient evidence that the State or subdivision has not held English-only elections within a specified time, then he shall certify that the jurisdiction used a test or device as defined in the second paragraph of the subsection. The subsection further provides that the determination of the Attorney General shall be effective upon publication in the Federal Register, and that it shall be reviewable by a three judge court of the District Court for the District of Columbia.

In discussing this section further, he states:

The proposed amendments to section 4 provide a triggering mechanism which would bring jurisdictions within the coverage of section 4 if, (1) there are large concentrations of persons who are members of a single minority race or color the native language of which is other than English. This classification would include persons of Spanish heritage, Asian Americans, American Indians, and Eskimos.

Then he goes on to discuss the election and registration material as being printed only in English. I think that that is the substance, at least, of what he is proposing. Maybe I should just add this to my comments. He says:

The Director of the Census would be required to determine which jurisdictions had large concentrations of such racial and language minorities based upon the 1970 decennial census. In determining which jurisdictions had the requisite concentration of persons with Spanish heritage, the Director of the Census should use the Spanish heritage identifier. This identifier is a compilation of three identifiers used in three different areas of the United States. It includes persons of Puerto Rican birth or parentage in New York, New Jersey and Pennsylvania; persons of Spanish language or Spanish surnames in Texas, Arizona, California, Colorado and New Mexico; and persons of Spanish language in the other 42 States and the District of Columbia. Although use of this identifier will result in some undercounting and some overcounting, depending upon the specific identifier in these locations, it is preferable to the "Spanish origin" or "Spanish mother tongue" identifiers.

At the risk maybe of oversimplifying it, I would just say this. I know that some bills have been introduced by Congressman Badillo and other members of the House subcommittee which endeavor to get at this problem by specifically identifying in the law persons of Spanish heritage, or whatever term-persons of Spanish origin. I think that the approach that I have just identified as coming from Assistant Attorney General Pottinger is preferable because under

this approach the Congress does not write into law an identification of one particular group; and under this approach the persons of Spanish heritage clearly would be included. It would also be possible to include American Indians and Eskimos, as we understand it.

In other words, this would provide just as much coverage as far as the Spanish heritage group is concerned as would be provided by the bill introduced by Congressman Badillo. But in addition to that it would be possible for some American Indians and Eskimos to be included.

Senator TUNNEY. Asians as well.

Mr. FLEMMING. Here, there is a problem. Clearly they come under that definition. But, as I understand it, they might not qualify in terms of less than 50 percent registering or voting at the 1972 Presidential election. They might qualify under the 5 percent in some counties of California, for example. But in those counties, as I understand it, probably more than 50 percent registered and voted during the election. But if the situation developed where less than 50 percent voted, or registered and voted, then, of course, it would be applicable. Senator TUNNEY. Go ahead, sir.

Mr. FLEMMING. I might say that our staff is making a detailed analysis of this proposal, and we have identified some changes that we think could improve it. And if you would like, we would be very happy to supply our analysis to the subcommittee.

Senator TUNNEY. Yes, we would like to have it, because we are going to be needing it as we consider Pottinger's proposal in contrast to the proposal that was introduced in the Senate by Senator Bayh. And we ought to have some better understanding of what the holes are in any of the legislative proposals from your point of view.

Mr. FLEMMING. We will be very happy to provide you with an analysis.

Senator TUNNEY. I want to thank you very much, Mr. Flemming, for your excellent testimony. I am sorry it was interrupted by votes. I have nothing to offer other than that it is one of the reasons that we could well do with a systems management study of the Congress to get the most effective use of Congressmen and Senators.

Mr. FLEMMING. It is a great privilege to appear before you. I do want to say, if there is any additional help that the Commission or Commission staff can give you as you consider this very important issue, we will be more than happy to provide it.

Senator TUNNEY. Good. We will be in touch with you as we consider these various proposals that are going to be made on the Spanish speaking. I also want to get in touch with you respective to the citizens provision that you are suggesting.

Thank you very

much.

[The prepared statement of Arthur S. Flemming with attachments follow:]

PREPARED STATEMENT OF ARTHUR S. FLEMMING, CHAIRMAN, U.S. COMMISSION ON CIVIL RIGHTS

I am Arthur S. Flemming, Chairman of the United States Commission on Civil Rights. With me today are Mr. John A. Buggs, Staff Director for the Commission, Mr. Lawrence B. Glick, Acting General Counsel and Mr. David H. Hunter, an attorney and member of the Commission staff. I appreciate the opportunity to speak to you today in support of the extension of the Voting Rights Act of 1965, as amended in 1970.

52-004-757

Since the Commission was established in 1957, it has been especially concerned with the problem of ensuring the voting rights of minority citizens. Numerous hearings and reports of the Commission have documented the difficulty of fulfilling the 15th amendment command that the right of citizens to vote "shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Political Participation, issued in 1968. traced developments in voting rights in the Southern States in the early years after enactment of the Voting Rights Act.

In January the Commission published a report entitled The Voting Rights Act: Ten Years After, which is an extensive assessment of the current status of minority voting rights in jurisdictions in the South, Southwest, and Northeast that are covered by the act. In this document the Commission has made a number of recommendations to Congress and agencies of the executive branch which we believe will foster minority political participation. Today I will address myself directly to the legislation before this subcommittee.

The Voting Rights Act is a symbol of national commitment to the full participation of all citizens. Its importance is more than symbolic, however. It has led directly and indirectly to significantly increased opportunity for minority citizens to participate in the political process. The Voting Rights Act has worked, but its work is not yet over. The Commission believes that the Voting Rights Act must be extended and that there is good and sufficient reason for Congress to extend it for 10 years as proposed in S. 1279 rather than the five years proposed in S. 407. In addition, the Commission believes that the special remedies of the Voting Rights Act are also required in certain other areas of the country to provide greater voting rights protection for Mexican Americans.

The Voting Rights Act prohibits racial discrimination in voting everywhere in the United States. Certain provisions of the act are temporary, enacted in 1965 for five years and then extended in 1970 for an additional five years. These provisions, and the national suspension of the use of tests and devices as a condition for registering and voting enacted in 1970, will expire in August 1975 unless Congress extends them.

The expiring provisions are the heart of the Voting Rights Act. Section 4 provides a formula by which States or local jurisdictions are made subject to the remedial mechanisms of the act. That section suspends the use of tests and devices prerequisite to registration and voting in jurisdictions where voter registration or turnout for the Presidential elections of 1964 or 1968 was less than 50 percent of the voting age population. Section 5 freezes the electoral laws, practices, and procedures of jurisdictions covered under section 4 as of November 1964 or November 1968. Under section 5 no covered jurisdiction may enforce a change in its laws affecting voting without a determination by the United States Attorney General or the District Court for the District of Columbia that the change is not discriminatory in purpose or effect. Sections 6 through 9 authorize, but do not require, the Attorney General and the Civil Service Commission to send examiners and observers to covered jurisdictions to list eligible voters for registration and to observe the conduct of elections.

If these provisions expire, covered jurisdictions would be able to remove themselves from coverage by showing in the District Court for the District of Columbia that they had not used a discriminatory test or device for ten years. Thus, jurisdictions covered in 1965 could remove themselves in 1976, jurisdictions covered in 1966 could remove themselves in 1976, and so on. Attachment 1 indicates the dates of coverage for all jurisdictions covered under the act. Expiration of the temporary provisions of the Voting Rights Act and removal of jurisdictions from its coverage would mean the following: Jurisdictions could resume the use of tests and devices as a prerequisite to registration and voting; jurisdictions would not be required to submit changes in their electoral laws for section 5 clearance before enforcing them; and the authority of the Attorney General to send examiners and observers to these jurisdictions would lapse.

In addition, expiration of the national suspension of tests and devices would mean that States throughout the Nation could resume the use of existing tests or devices or could institute tests or devices. Attachment 2 lists the States that retain tests or devices in their constitutions or statutes.

The Commission believes that expiration of the Voting Rights Act would be a serious step backward. The process of full enfranchisement of minority citizens is well underway at last. Ten years, however, has not been enough time to overcome centuries of exclusion. Resistance to minority political participation has abated, but it has not been eradicated. Evidence compiled by the Commission indicates that progress under the act has been real, but limited and uneven, and