In addition to those who lack elementary education, many persons with schooling lack facility with formal written English. These include people whose usual language is not English, such as Native Americans, Puerto Ricans, and Mexican Americans and the millions of minority citizens of voting age who received unconstitutionally inferior educations that discriminatorily affect their ability to satisfy literacy requirements.

The potential of literacy tests to disfranchise otherwise qualified voters is real. Their right to vote is now dependent on the suspension of tests and devices under the Voting Rights Act. The voting rights of many persons in these groups are already undermined by the failure of election officials to provide adequate and effective assistance in voting. Expiration of the literacy test suspension threatens to eliminate their voting rights altogether.

The Commission believes that the literacy test suspension must be extended. There is no indication that the integrity of governments or their ability to function has been damaged by the participation of illiterate and non-English-speaking citizens. On the contrary, our system of representative government is strengthened by the inclusion of all citizens in the political process. Our system is based on the belief that the people themselves can best identify and express their needs and interests. Since all persons have access to information about public issues other than the printed word, illiterate and non-English-speaking citizens can vote intelligently. Since people who read and write English with difficulty are also likely to have little access to other forms of political influence, casting a ballot may be their only opportunity to participate in their government. Depriving these citizens of their voting rights will not make them literate in English or make them better citizens; it will only exclude them from the political process. We urge Congress to extend the suspension of literacy tests.

The Federal examiner program has also facilitated the registration of minorities in jurisdictions covered by the Voting Rights Act. Examiners list for registration persons who meet State qualifications that have not been suspended by the Voting Rights Act and are otherwise consistent with Federal law. The Attorney General has used examiners sparingly; indeed, most examiners were used during 1965-67 in a limited number of Southern counties with extremely low or nonexistent black registration. In some majority black counties such as Lowndes and Wilcox in Alabama, Madison Parish, Louisiana, and Coahoma County, Mississippi, listing by examiners brought black registration from 0 up to white levels.

Examiners may be sent, however, to any jurisdiction covered by the act if the Attorney General finds their presence necessary to enforce the 15th amendment. In some cases the potential of assignment of examiners has stimulated the registration of minorities and made actual use of examiners unnecessary. The Commission believes that the examiner program is still a useful and necessary part of the Voting Rights Act. More vigorous use of examiners can help to overcome the disparities in white and black registration in many covered jurisdictions, to increase minority registration where it is particularly low, and to offset burdensome registration procedures and practices that have a discriminatory impact on minority citizens.

The Voting Rights Act also authorizes the Attorney General to send observers to jurisdictions that have been designated for examiners. The observers act as poll watchers and report to the Justice Department on the conduct of elections. Observers have been used in 61 counties in Alabama, Georgia, Louisiana, Mississippi, and South Carolina in State and local primary and general elections since 1966. In 1974 the Justice Department sent 430 observers to watch regular and special elections in 14 counties. In four counties observers were used for the first time in 1974. During the most recent State elections in Mississippi, in 1971, 959 observers were used in 20 counties. There will probably he a need for observers when Mississippi has its next regular State election in 1975.

The continuing use of observers is some indication of their continuing importance. Minority persons interviewed by Commission staff in some jurisdictions that have not had observers reported a real need for them. Observers, particularly when their presence is made known to the minority community, can help to ensure the fairness and the appearance of fairness of elections, especially in areas with a history of racial turmoil or in elections where minorities have a chance to win major offices.

It is reasonable to expect continuing increases in minority political activity in jurisdictions covered by the Voting Rights Act. In some jurisdictions with predominantly minority population minorities have begun to win elections. Here observers can help to ease the transition from exclusive white control to a shar

ing of power. In other jurisdictions, however, minorities have made so little progress that observers are necessary simply to encourage minority political participation.

Section 5 of the Voting Rights Act, the provision requiring preclearance of changes in electoral laws in covered jurisdictions, has become the centerpiece of the act. Section 5 was designed to block the imposition of new discriminatory devices. Congress developed section 5 in the light of a long history that saw Federal statutes and court decisions effectively nullified by legislative ingenuity in areas determined to resist the command of the 15th amendment. The list of Attorney General objections to changes in electoral laws is testimony to the wisdom of Congress in including section 5 among the remedies of the Voting Rights Act and to the continuing need for its protections.

Section 5 requires that jurisdictions submit changes in their electoral laws to the United States Attorney General or to the District Court for the District of Columbia for a determination that the changes are not discriminatory in purpose or in effect. In almost all cases jurisdictions have submitted changes to the Department rather than to the court. Vigorous enforcement of section 5 dates from 1971, when regulations were implemented. (28 C.F.R. Part 51)

Under section 5 the Attorney General has 60 days from the time a submission is complete to make his determination. The burden of proof with respect to the nondiscriminatory nature of a change rests with the submitting jurisdiction. If the Attorney General is unable to make a determination that a change is not discriminatory, he must object to it. Jurisdictions faced with objections may submit additional justification for their changes, may modify them, or may seek favorable determinations in the District Court for the District of Columbia.

If a jurisdiction attempts to enforce a change in its voting laws without first obtaining section 5 clearance, the Attorney General or private parties may move in a local Federal court to enjoin its enforcement. As the requirements of section 5 have become more widely known, the level of submissions has increased. It is clear to the Commission, however, that noncompliance with the Voting Rights Act through failure to submit changes in electoral laws remains a problem in enforcement of the act.

Section 5 objections have been entered to changes in voting laws, practices, and procedures that affect every stage of the political process. For example, there have been objections to changes such as annexation of white population to offset the growth of black population in a city; relocation of polling places to sites that inconvenience or otherwise discriminate against minority voters; abolition of offices to which minorities might be elected; converting elective offices into appointive ones to avoid the election of minorities; and imposition of burdensome filing fees. By far the greatest use of section 5 has been to block potentially discriminatory changes in district boundaries, local methods of election, and other voting rules.

Political structure and voting rules are not necessarily neutral. Control of decisions about structure and rules can be used and has been used to perpetuate white political dominance by minimizing the chance for minority success at the polls. A jurisdiction may seem to conform to the letter of the law by permitting minority registration and voting but rob that participation of its meaning by structuring the system against minority political victories.

The use of multi-member State legislative districts and the institution of mechanisms such as at-large elections, numbered posts, staggered terms, and candidate residence, majority vote, and full-slate requirements in many jurisdictions covered by the Voting Rights Act often have had the purpose or effect of diluting the impact of increased minority voting strength brought about by the act. Section 5 has provided an effective means of combatting imposition of such discriminatory devices in recent years in jurisdictions in almost every State wholly or partially covered by the act.

The use of section 5 against discriminatory districting plans is a major factor in the increased size of minority legislative delegations. For example, after a section 5 objection, New York adopted an apportionment plan that facilitated the election of a Puerto Rican assemblyman from East Harlem. A section 5 objection to Congressional district lines in Georgia resulted in a new plan that gave blacks a reasonable opportunity to win a seat. Representative Andrew Young won that seat and became the first black member of Congress since Reconstruction from a Southern State covered by the Voting Rights Act. Section 5 objections to State legislative districting plans led to increased numbers of black State legislators in Georgia and in the South Carolina House of Representatives.

Section 5 objections to at-large elections and various dilutive devices have resulted in the increased numbers of blacks sitting on county governing bodies and school boards throughout the covered Southern States. In other instances section 5 objections and Federal court decisions or Federal court decisions alone have had similar results. In sum, the history of section 5 determinations indicates that the increase in black elected officials in the covered Southern States has been more the result of the enforcement of Federal law than of voluntary action by the States.

The requirement of section 5 submission of changes has deterred some jurisdictions from instituting discriminatory changes. Other jurisdictions, however, continue to make changes of types that the Attorney General has often found objectionable. For example, in 1973 Mississippi enacted a new legislative districting plan. The new plan makes extensive use of multi-member districts, numbered posts, and residence requirements despite the fact that there have been numerous section 5 objections to these devices and that courts have often found their use discriminatory. Similarly, the Attorney General objected repeatedly in 1973 and 1974 to changes submitted by Georgia towns involving the use of staggered terms, majority requirements, and numbered posts. That jurisdictions continue to institute changes to which the Attorney General and the courts have often objected is clear indication of the need to continue the protections offered by section 5 and the Voting Rights Act.

The Commission believes that the continuing high level of section 5 objections is evidence of the persistence with which some jurisdictions covered by the act continue to resist fulfillment of its purposes. The types of changes to which objections are most often made are not ad hoc responses to isolated events but are carefully chosen methods of regulating the political system at the local or State level. It seems reasonable to infer that the politically experienced persons who institute these changes are aware of their discriminatory impact. In any event, the Voting Rights Act reaches discriminatory effect as well as discriminatory intent and through section 5 provides some protection against such efforts to perpetuate white political dominance and minimize minority political influence.

The record of section 5 enforcement is largely the record of the last 4 years. The Justice Department has developed expertise that affords real protection against real threats to minority voting rights. Section 5 was designed and has been implemented to thwart the imposition of new techniques of discrimination. Its effectiveness is due in part to the realism its enactment reflects. Given the record, there is no reason to believe that the danger of imposition of new discriminatory devices and practices has passed. The Commission believes that section 5 will continue to be critical in protecting the rights of minorities in covered jurisdictions, particularly in the many areas where minorities have yet to fully marshal their voting strength.

The report upon which this statement is based investigates the status of minority voting rights only in jurisdictions now covered by the Voting Rights Act. The Commission is aware of the considerable interest in possible amendment of the coverage formula of the Voting Rights Act to include jurisdictions containing substantial Mexican American populations. The Commission now believes that there is enough evidence to warrant the inclusion of jurisdictions having large Mexican American or Spanish heritage populations that have been denied full participation in the election process.

A number of factors have led us to this conclusion. Last summer Commission staff conducted preliminary research on the problems of political participation of Chicanos in Texas. A staff memorandum has been prepared describing and evaluating the information obtained in Texas and in a few other areas. This memorandum will be submitted to the Subcommittee as soon as the Commission's statutory procedures for protecting persons who might have been defamed in the memorandum have been completed. It will be available before the close of these hearings. In addition, testimony presented during recent hearings held by the Subcommittee on Civil Rights and Constitutional Rights of the House Judiciary Committee has added to the evidence of discrimination against Mexican Americans in the Southwest. Reports of the California State Advisory Committee to the Commission, reports of the Voter Education Project's Texas Field Representative, and court cases also reveal denial of the voting rights of Spanish-speaking citizens in some areas.

The Commission, in its preliminary investigation of the States not covered by the Voting Rights Act, focused primarily on Texas. The State of Texas has a substantial minority population, comprised primarily of Mexican Americans and

blacks. Texas also has a long history of discriminating against members of both minority groups in ways similar to the myriad forms of discrimination practiced against blacks in the South.

Turnout in recent Presidential elections in Texas (1960-1972) has been below 50 percent of the voting age population. Indeed, the only reason that Texas was not covered by the Voting Rights Act in 1965 or in 1970 was that it employed restrictive devices other than a formal literacy requirement. A generation ago numerous suits were required to eliminate the Texas white primary Nixon v. Herndon, 273 U.S. 536 (1927); Nixon v. Condon, 286 U.S. 73 (1932); Grovey v. Townsend, 295 U.S. 45 (1935); Smith v. Allwright, 321 U.S. 649 (1949); Terry v. Adams, 345 U.S. 461 (1953)] More recently a Constitutional amendment and a suit brought by the Department of Justice pursuant to Congressional instructions contained in section 10 of the Voting Rights Act were required to eliminate the poll tax [United States v. Texas, 252 F. Supp. 234 (W.D. Tex. 1966)] Subsequently, the State retained most of the restrictive features of the poll tax in its system of annual registration. This new registration system was eliminated through private litigation in the Federal courts. [Beare v. Smith, 321 F. Supp. 1100 (S.D. Tex. 1971)]

The number of Chicanos elected to office is minute, not only in Texas, but in other Southwestern States as well. Less than 9 percent of the State legislators in Texas are Spanish surnamed, whereas over 18 percent of the population is of Spanish heritage. In California only 5 percent of the legislators are Spanish surname, compared to over 15 percent of the population. (See Attachment 10.) Mexican American representation on county governing bodies is even lower. In California, only 4 percent of the county supervisors is Spanish surnamed. Only 76 of 1,016 (7.4 percent) of the county commissioners in Texas are Mexican American. (See Attachment 11.)

Commission staff visited two south Texas counties with substantial Mexican American populations. In those countries, they were told, Mexican Americans encounter problems similar to those facing newly enfranchised blacks in many Southern States. Precise data do not exist, but registration of Mexican Americans reportedly is very low. Chicano citizens report that inadequate and ineffective use of bilingual personnel and deputy registrars impedes registration.

Chicano voters and candidates have complained of uncooperative registrars, inadequate or nonexistent bilingual materials relating to elections, fear of economic reprisal for political activity, inadequate and inconvenient polling facilities, location of polling places where Chicanos are not usually welcomed, the presence of police at the polls, the lack of adequate bilingual assistance, and the difficulty in obtaining lists of registered voters. In addition, liberal electoral laws are nullified by inadequate and unsympathetic local implementation. Such problems discourage the exercise of voting rights, particularly by those who are newcomers to politics by virtue of previous exclusion from the political process. Mexican Americans in south Texas, like blacks throughout the South, must overcome the effects of past discrimination as well as present efforts to minimize the impact of their political participation.

The voting rights of Chicanos in some parts of Texas have also been denied by dilution of their voting strength through the use of voting rules frequently found objectionable by the Attorney General when used in jurisdictions covered by the Voting Rights Act. Texas makes widespread use of devices such as at-large election with numbered posts and majority requirements which often have the effect of limiting the success of minority voters at the polls. In 1973 the United States Supreme Court upheld a lower court finding that the use of multi-member districts for election of State legislators discriminatorily diluted the votes of Mexican Americans in Bexar County (San Antonio) and of blacks in Dallas County. [White v. Regester, 412 U.S. 755 (1973)] More recently, the lower court has also held that multi-member legislative districts deny equal access to the political process for Mexican Americans and blacks in El Paso, Corpus Christi, Lubbock, Fort Worth, and several other Texas counties. [Graves v. Barnes, 378 F. Supp. 640 (W.D. Tex.), prob. jur. noted sub nom. White v. Regester, 412 U.S. 94 S. Ct. 2601 (1974) (No. 73-1462)] In sum, the preliminary information developed by the Cominission with respect to Mexican American political participation in Texas indicates that discrimination apparently still infects the electoral process in some parts of that State.

In addition to its interviews with Chicanos in Texas, the Commission staff interviewed Spanish-speaking citizens in counties in California, New York, and Arizona that are covered by the Voting Rights Act and in jurisdictions in New

Jersey that are not covered. The staff also interviewed Native Americans in two covered counties in Arizona.

It is clear from these interviews that the practice of conducting registration and voting only in English does impede the political participation of voters whose usual language is not English. The failure of the States to provide adequate bilingual assistance through bilingual registration and election officials, bilingual registration forms, ballots, printed election materials, and publicity undermines the voting rights of non-English-speaking citizens and effectively excludes some otherwise qualified voters from participating in elections. Recent court decisions with respect to New York City, Chicago, Philadelphia, Buffalo, and cities in New Jersey have required the development of bilingual election systems to ensure the voting rights of Spanish-speaking citizens. Some jurisdictions have begun to provide limited bilingual assistance in some stages of the voting process. In jurisdictions the Commission staff visited, however, the modest bilingual assistance and materials provided were clearly inadequate and election workers were not sufficiently trained in their responsibility to assist non-English-speaking voters. For example, Coconino County, Arizona provided only one interpreter for 13 voting booths in a predominantly Navajo precinct during the November 1974 election. Some election officials in Monterey County, California during the same election did not know how to use the Spanish translation of the ballot.

The tools of the Voting Rights Act have been effective in combatting discrimination against minorities in the covered States and counties. These remedies, especially section 5, would also be effective in other areas. The Commission therefore favors amending the Voting Rights Act to provide the automatic protection of the Act to the additional areas where the need has been shown.

In addition, Mr. Chairman, the Commission would like to draw your attention to the provision of the Voting Rights Act as passed in 1965 that was designed to give the full protection of the act in so-called pockets of discrimination— areas with problems of discrimination in voting but that were not covered by the act's trigger. Section 3 of the Voting Rights Act allows the Attorney General, in voting rights litigation, to ask a court to authorize any of the special remedies of the act. Although section 3 has never been used, we believe that it could be useful to combat discrimination in areas that Congress chooses not to include in the act's automatic trigger.

To facilitate the use of section 3 the Commission recommends the amending of section 3 to authorize private litigants, and not just the Attorney General, to seek section 3 remedies. To further facilitate the use of section 3-and private voting rights litigation generally-we recommend that the Voting Rights Act be amended to provide for attorney's fees in voting rights litigation. Attachment 12 is a staff memorandum discussing the use of section 3 and the amendments we propose.

The Voting Rights Act has opened the political process to minority participation in most jurisdictions covered by the act. After centuries of exclusion blacks in many areas of the South have taken the first steps toward full and free exercise of their voting rights. Many native Americans and Spanish-speaking citizens in covered jurisdictions have been able to register and vote for the first time. The remedies of the Voting Rights Act have proven their potential, but discrimination in the electoral process in jurisdictions covered by the act has not yet been eradicated. It would be tragic indeed to seize upon the real but limited progress of the last ten years as an excuse for removing the protections of the Voting Rights Act. To stop the momentum of political inclusion, to force newly-enfranchised minorities into the position of having to defend the gains of the past ten years rather than being able to build upon them would betray the solemn national commitment embodied in the Voting Rights Act.

Congress should extend the Voting Rights Act for ten years. The lesson of the last ten years is that real progress takes time. The changes that must yet result if the purposes of the act and the promise of the 15th amendment are to be fulfilled are so fundamental that ten years is a more realistic period than the five years proposed by the administration. Progress under the act has been modest.

In some areas minorities are just beginning to participate in the political process and will need all the protections of the act as much as other areas have needed them these last ten years.

Furthermore it is clear that dilution of minority voting strength through districting that is discriminatory in purpose or effect is widespread and constitutes a continuing threat to minority voting rights. Between the 1980 census and 1985,