The Voting Rights Act of 1965, As Amended: Reauthorization Issues

The Voting Rights Act of 1965, As Amended: Reauthorization Issues

Order Code RL33425
CRS Report for Congress
Received through the CRS Web
The Voting Rights Act of 1965, As Amended:
Reauthorization Issues
Updated October 4, 2006
Garrine P. Laney
Analyst in Social Legislation
Domestic Social Policy Division
L. Paige Whitaker
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

The Voting Rights Act of 1965, As Amended:
Reauthorization Issues
Summary
With the signature of President Bush on July 27, 2006, H.R. 9 was enacted into
law — P.L. 109-246, the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King
Voting Rights Act Reauthorization and Amendments Act of 2006. Among other
provisions, this act amends the Voting Rights Act of 1965 by reauthorizing the
temporary provisions for 25 years, until 2032.
Congress enacted the original Voting Rights Act of 1965 (“VRA” or “the act”)
to protect the voting rights of all Americans. While the VRA is a permanent federal
law, it contains some temporary provisions: the coverage formula and “preclearance”
procedures (Sections 4 and 5), the assignment of federal examiners and observers
(Sections 6 through 9), and the bilingual election assistance requirements (Section
203), all of which would have expired in 2007. Since 1965, Congress has amended
the act to, among other purposes, expand the formula that determines which states
and political subdivisions are covered by its provisions, prevent enforcement of any
election law that would have a racially discriminatory effect, provide voting
assistance for language minorities, and extend the expiration dates. This report
discusses the temporary provisions of the VRA and analyzes legislation that has
reauthorized them.

Policy issues for the 109th Congress included whether to reauthorize and/or
modify the VRA, particularly the temporary provisions, and the impact of two
Supreme Court decisions, Reno v. Bossier Parish (“Bossier II”) and Georgia v.
Ashcroft, on Section 5. Two initially identical bills (H.R. 9 and S. 2703, “The Fannie
Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization
and Amendments Act of 2006”) were considered with provisions to reauthorize, to
the year 2032, VRA’s provisions regarding preclearance, the assignment of federal
election observers, and bilingual election assistance requirements. The bills included
provisions to terminate the federal examiner provisions. They also sought to clarify
what is meant by denying or abridging the right to vote of covered individuals, and
to allow the prevailing party in a VRA case to receive reasonable expert fees and
other litigation expenses.
Other legislation introduced in the 109th Congress included H.R. 997, the
English Language Unity Act of 2005 (Representative Steve King), and H.R. 4408,
the National Language Act of 2005 (Representative Peter King). H.R. 997, in part,
would have established English as the official language of the United States, and
would have required the Secretary of Homeland Security to issue for public notice
and comment a proposal to test the ability of candidates for naturalization to speak
and understand English. H.R. 4408 would have provided for English to be the
official language of the U.S. government, and would have repealed the bilingual
election assistance provisions of the VRA. Both bills were referred to their
appropriate committees, but saw no further action. This report will be updated as
events warrant.

Contents
Most Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of P.L. 109-246 (H.R. 9), the Fannie Lou Hamer,
Rosa Parks, and Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act of 2006 . . . . . . . . . . . . . . . . . . . . . . . 3
Title and Congressional Purpose and Findings . . . . . . . . . . . . . . . . . . . 3
Requirements for Use of Election Observers . . . . . . . . . . . . . . . . . . . . . 3
Termination of the Use of Federal Observers . . . . . . . . . . . . . . . . . . . . 4
Elimination of the Use of Federal Examiners . . . . . . . . . . . . . . . . . . . . 4
Conforming Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Reconsideration of Section 4 by Congress . . . . . . . . . . . . . . . . . . . . . . 5
Criteria for Declaratory Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Litigation Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Extension of Bilingual Election Assistance Requirements . . . . . . . . . . 7
Data Used to Determine Jurisdictions
Covered by Bilingual Election Assistance Requirements . . . . . . 10
Other Proposals Introduced in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . 11
Congressional Activity on H.R. 9 (P.L. 109-246) . . . . . . . . . . . . . . . . . . . . . . . . 11
Floor Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Norwood Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Gohmert Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
King Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Westmoreland Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Committee Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Temporary Provisions of the Voting Rights Act of 1965,
As Amended, Prior to Passage of P.L. 109-246 (H.R. 9) . . . . . . . . . . 16
Coverage Formula and “Bail Out” Provision — Section 4 . . . . . . . . . . . . . 16
Coverage Formula . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
“Bail Out” Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Preclearance Procedures — Section 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Federal Examiners and Observers — Sections 6 through 9 . . . . . . . . . . . . . 19
Termination of Use of Federal Examiners — Section 13 . . . . . . . . . . . . . . 19
Bilingual Election Assistance Provisions — Section 203 . . . . . . . . . . . . . . 20

The Voting Rights Act of 1965,
As Amended: Reauthorization Issues
Most Recent Developments
On July 27, 2006, President Bush signed into law the Fannie Lou Hamer, Rosa
Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments
Act of 2006 (H.R. 9; P.L. 109-246), which, among other provisions, reauthorizes the
temporary provisions of the act until 2032. This report focuses primarily on the
provisions of the new law. An appendix at the end of the report provides a more
detailed explanation of the temporary provisions of the Voting Rights Act, before
they were amended and extended by the 109th Congress.
Background
In response to evidence that some states and counties had denied many citizens
access to the ballot because of their race, ethnicity, and language-minority status,
Congress enacted the Voting Rights Act of 1965 (“VRA” or “the act”) to protect the
voting rights of all Americans. Major provisions of the act prohibit enactment of any
election law that would deny or abridge voting rights based on race, color, or
membership in a language minority. The act creates a right of action for private
citizens or the government to challenge discriminatory voting practices and
procedures (Section 2). For jurisdictions covered under its provisions, the VRA
prohibits the use of any test or device as a condition of voter registration, and
includes protection for language minorities (Section 4), requires federal review of any
change in law affecting elections before putting such a law into effect (Section 5),
and enables the Department of Justice (DOJ) to send federal examiners to list eligible
voters for registration (Section 6). The VRA also provides for the assignment of
federal election observers to any jurisdiction where a federal examiner has been
assigned (Section 8), and provides that, under certain conditions, a state or political
subdivision must provide bilingual election materials and assistance to limited-
English speaking residents (Section 203).
Although the Voting Rights Act of 1965 is permanent federal law, it contains
some temporary provisions. In response to concerns regarding the constitutionality
of some aspects of the act, the 109th Congress provided expiration dates for certain
provisions. These temporary provisions include parts of Section 4 (42 U.S.C. §
1973b), Section 5 (42 U.S.C. § 1973c), Section 6 (42 U.S.C. § 1973d), Section 7 (42

CRS-2
U.S.C.§ 1973e),1 Section 8 (42 U.S.C.§ 1973f), Section 9 (42 U.S.C.§ 1973g),2
Section 13 (42 U.S.C. § 1973k),3 and Section 203 (42 U.S.C. § 1973aa-1a).
Congress extended the expiration dates of the preclearance provisions in 1970, 1975,
and 1982, and the bilingual election assistance provisions in 1982. The 1982
amendments also provided for Congress to “reconsider” the special administrative
provisions of the act in 1997 (the preclearance of election law changes and the
assignment of examiners and election observers), and provided that these provisions
shall expire on August 6, 2007. In 1992, Congress amended the VRA to change the
formula that determines when election officials must provide bilingual assistance to
a selected language minority. It also extended provisions of Section 203 (bilingual
election assistance provisions) to 2007, making the expiration date coextensive with
the rest of the temporary provisions of the act.4
At present, jurisdictions in 16 states are covered by Section 4(b) of the VRA;
in some cases, an entire state is covered. Although many southern states are covered,
notably, Arkansas, Tennessee, and West Virginia are not covered. Furthermore,
some jurisdictions in non-southern states — Arizona, Alaska, California, Michigan,
New York, New Hampshire, and South Dakota — are covered by Section 4(b).5
1 Section 7 provides for federal examiners for each political subdivision to examine
applicants concerning their qualifications for voting. If found qualified to vote by an
examiner, the applicant must be listed as an eligible voter and the examiner must issue a
voting certificate to the applicant. A person certified as eligible to vote can be removed
from the list, however, if the person’s right to vote has been successfully challenged or if
the examiner determines that the person has lost his or her eligibility to vote.
2 Section 9 provides that a hearing officer appointed by and responsible to the Director of
the Office of Personnel Management (OPM) shall hear any challenge to a voter eligibility
listing and, based on rules the Director prescribes, make a determination. Further, the
Director prescribes rules and regulations governing the times, places, procedures and form
for placing and removing a person from the eligibility list. The Director also has subpoena
power to require the attendance and testimony of witnesses and the production of
documentary evidence relating to challenges to eligibility listings.
3 Section 13 provides that whenever either the Attorney General notifies the Director of
OPM or whenever the U.S. District Court for the District of Columbia determines that all
persons listed by an examiner for a political subdivision have been placed on the voting
registration roll, and that there is no longer reasonable cause to believe that a person in a
political subdivision would be deprived of or denied the right to vote on account of race,
color or membership in a covered language minority group, eligibility listing procedures
must be terminated. A political subdivision may petition the Attorney General for
termination of listing procedures or may petition the Attorney General to request the
Director of the Census to conduct a survey or census to determine if voter discrimination
is still occurring. The U.S. District Court for the District of Columbia also has jurisdiction
to require such a survey or census. If the Attorney General refuses to request the survey or
census, the U.S. District Court for the District of Columbia can, if it deems the Attorney
General’s refusal to do so is arbitrary or unreasonable.
4 For further analysis of the VRA provisions, see CRS Report 95-896 GOV, The Voting
Rights Act of 1965, As Amended: Its History and Current Issues, by Garrine P. Laney.
5 Jurisdictions covered under Section 4(b) are listed in 28 C.F.R. Pt. 51.54, Appendix.

CRS-3
Summary of P.L. 109-246 (H.R. 9),
the Fannie Lou Hamer, Rosa Parks,
and Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act of 2006
The 109th Congress considered whether to modify the VRA, extend and/or
modify its temporary provisions, and address recent Supreme Court holdings in Reno
v. Bossier Parish (“Bossier II”)6 and Georgia v. Ashcroft,7 which had affected
enforcement of Section 5 of the act. Some provisions of P.L. 109-246 amend the
Voting Rights Act of 1965 by extending the expiration dates to 2032 of the
preclearance provisions and bilingual election assistance. Other changes relate to
assignment of election observers, their duties, and their reports (Section 3(a)); the
conditions under which the assignment of observers can be terminated (Section 3(b));
elimination of the use of federal examiners (Section3(c)); and allowance of
reasonable expert fees and other litigation expenses (Section 6). Following is a
summary of provisions of P.L. 109-246, which was enacted into law on July 27,
2006.
Title and Congressional Purpose and Findings. Section 1 sets forth the
title, and Section 2 sets forth the congressional findings and purpose: to ensure, as
guaranteed by the U.S. Constitution, that all citizens have the right to register to vote
and to cast a meaningful vote.
Requirements for Use of Election Observers. Section 3(a) amends
Section 8 of the Voting Rights Act of 1965 (42 U.S.C. § 1973f) (relating to the
assignment of observers, their duties, and their reports). The Director of the Office
of Personnel Management is required to assign the necessary number of observers to
a jurisdiction whenever (1) a court has authorized appointment of observers to a
political subdivision, or (2) the Attorney General certifies that residents, elected
officials, or civic participation organizations of a political subdivision have submitted
written meritorious complaints that a covered jurisdiction is likely to deny or abridge
the right of voters covered by provisions of the VRA, or (3) in the Attorney General’s
judgment, the assignment of observers is necessary to enforce the 14th or 15th
Amendment of the U.S. Constitution. Among other factors, the Attorney General can
consider whether the ratio of nonwhite persons to white persons registered to vote
within the subdivision appears to be reasonably attributable to violations of the 14th
or 15th Amendment, or whether there is considerable evidence that the political
subdivision is making bona fide efforts to comply with these amendments.
Section 3(a) further provides that such election observers must be assigned,
compensated, and separated, without regard to any statute administered by the
Director of OPM, and that their services must not be considered employment for the
purposes of any statute administered by the Director of OPM, except the provisions
of 5 U.S.C. § 7324, which prohibit partisan political activity. After consulting with
6 528 U.S. 320 (2000).
7 539 U.S. 461 (2003).

CRS-4
the head of the appropriate department or agency, the Director of OPM is authorized
to designate suitable persons in the official service of the United States who agree to
serve as observers. Observers at elections are authorized to enter and attend any
place an election is held in a political subdivision to observe whether persons who
are entitled to vote are allowed to do so; and to enter and attend any place for
counting votes cast at any election to observe if votes cast are being tabulated
correctly. In addition, observers can investigate and report their findings to the
Attorney General and, if a court authorized the appointment of observers, to the
court.
Termination of the Use of Federal Observers. Section 3(b) amends
Section 13 of the VRA (relating to termination of listing procedures, basis for
termination, and survey or census by the Director of the Census Bureau). It provides
for a political subdivision to petition the Attorney General to terminate the
assignment of observers. Termination of the assignment of observers can occur
under the following conditions:
! for observers appointed before enactment of the law or under
provisions of the VRA, whenever the Attorney General notifies the
Director of OPM or whenever the District Court for the District of
Columbia determines in an action for declaratory judgment brought
by a political subdivision8 that there is no longer reasonable cause to
believe that persons covered under provisions of the VRA will be
deprived of or denied the right to vote; and
! for court-appointed observers, upon the order of the authorizing
court.
Elimination of the Use of Federal Examiners. The primary purpose of
federal examiners was to register voters who were the victims of discrimination. On
the other hand, election observers were responsible for overseeing the voting process.
New provisions of the VRA no longer require the use of federal examiners in
proceedings to enforce the act or in determining a person’s eligibility to vote.
Section 3(c) eliminates the use of federal examiners, in most cases substituting
observers, instead. Wherever “examiners” appears in Section 3(a) of the VRA (42
U.S.C. § 1973a(a)) — concerning authorization to appoint federal examiners —
Section 3(c) inserts “observers.” In Section 4(a)(1)(C) of the VRA (42 U.S.C. §
1973b(a)(1)(C)) — concerning suspension of the use of tests or devices in
determining eligibility to vote — Section 3(d) inserts “or observers” after
“examiners.” Further, Section 3(d) amends Section 12(b) (42 U.S.C. § 1973j(b)) of
the VRA, concerning civil and criminal sanctions for destroying, defacing,
mutilating, or altering ballots or official voting records by striking “an examiner has
been appointed” and inserting “an observer has been assigned.” It also amends
Section 12(e) of the VRA (42 U.S.C. § 1973j(e)) — relating to the Attorney General
enforcing the counting of ballots or registered and eligible persons who are prevented
8 This is a political subdivision for which the Director of the Census Bureau has determined
that more than 50% of the nonwhite persons of voting age residing in it are registered to
vote.

CRS-5
from voting — by striking “examiners” or “examiner” from each place they appear
and inserting “observers” or “observer.”
Conforming Changes. Section 3(e) makes conforming changes to the VRA.
It amends Section 4(b) of the VRA (42 U.S.C. § 1973b(b)) by striking “Section 6”
and inserting “Section 8.” Because P.L. 109-246 repeals Section 6 (concerning the
appointment of federal examiners) in the original VRA, Section 3(e) amends Section
12(a) and (c) of the VRA (42 U.S.C. §§ 1973j(a)) and 1973j(c)) by striking Section
7 (which relates to federal examiners examining applicants for registration) from the
act. Section 3(e) also amends Section 14(b) of the VRA, which states that no court,
other than the District Court for the District of Columbia or a court of appeals in any
proceeding under section 1973g (Section 9), shall have jurisdiction to issue any
declaratory judgment pursuant to Sections 4(a) or (b) or any restraining order or
temporary or permanent injunction. Section 3(e) strikes “a court of appeals in any
proceeding under section 9.”
Reconsideration of Section 4 by Congress. Section 4 amends Section
4(a) of the VRA (42 U.S.C. § 1973b(a)(7), (8)), to extend the expiring provisions of
the law for an additional 25 years after the effective date of P.L. 109-246. It also
requires Congress, 15 years after the effective date, to reconsider Section 4.
Criteria for Declaratory Judgments. Section 5 responds to two United
States Supreme Court decisions, Reno v. Bossier Parish (“Bossier II”)9 and Georgia
v. Ashcroft,10 which had affected the enforcement of Section 5 of the VRA.
According to the congressional findings provision in Section 2 of the new law, the
“effectiveness of the Voting Rights Act of 1965 has been significantly weakened” by
the Court’s two decisions, which had “misconstrued Congress’ original intent” in
enacting VRA, and had “narrowed the protections” under Section 5. Section 5 of the
VRA is a statutory mechanism designed to eliminate possible future denials or
abridgements of the right to vote based on racial discrimination. It is limited in
scope, as it applies only to those states or political subdivisions that are considered
“covered” under Section 4(b) of the act. In order to obtain preclearance of a
proposed electoral change from the Department of Justice or the U.S. District Court
for the District of Columbia, a covered jurisdiction must demonstrate that the
proposal does not have “a discriminatory purpose or effect.”11
In its 1976 decision, Beer v. U.S., the U.S. Supreme Court interpreted the
Section 5 preclearance standard to mean that a proposed electoral change cannot have
the purpose or effect of leading to a “retrogression in the position of racial minorities
with respect to their effective exercise of the electoral franchise.”12 In its 2000
decision, Reno v. Bossier Parish (“Bossier II”), the Court concluded that in light of
the language of Section 5 and its holding in Beer, Section 5 does not prohibit
preclearance of a redistricting plan that was enacted with a discriminatory, but
9 528 U.S. 320 (2000).
10 539 U.S. 461 (2003).
11 42 U.S.C. § 1973c.
12 425 U.S. 130, 141 (1976).

CRS-6
nonretrogressive, purpose.13 As the Bossier II Court noted, in Beer, it considered the
question of whether a reapportionment plan that would have a discriminatory, but
nonretrogressive, effect on the rights of black voters should be denied preclearance.
In Beer, according to the Court, it reasoned that Section 5 must be read in view of its
purpose of “insuring that no voting-procedure changes would be made that would
lead to a retrogression in the position of racial minorities with respect to their
effective exercise of the electoral franchise,” holding, therefore, that “a legislative
reapportionment that enhances the position of racial minorities with respect to their
effective exercise of the electoral franchise can hardly have the ‘effect’ of diluting or
abridging the right to vote on account of race within the meaning of § 5.”14
According to the Court, it concluded in Beer, that “in the context of a § 5 challenge,
the phrase ‘denying or abridging the right to vote on account of race or color’ — or
more specifically, in the context of a vote-dilution claim, the phrase ‘abridging the
right to vote on account of race or color’ — limited the term it qualified, ‘effect,’ to
retrogressive effects.”15
In Georgia v. Ashcroft,16 the Supreme Court in 2003 had further construed the
“nonretrogression” standard under the Section 5 preclearance provision in the context
of redistricting, finding that a plan providing minority voters with an opportunity to
elect candidates of their choice can comply with Section 5 requirements. According
to the Court, in addition to the creation of “safe” districts where minority voters
constitute well more than 50% of eligible voters (also referred to as “minority-
majority” districts), the effective exercise of the franchise can also be achieved by
spreading out minority voters over a greater number of districts, thereby creating
more districts in which minority voters can have the opportunity — but not a near
certainty — of electing candidates of their choice.17 Section 5, the Court announced,
affords the states the flexibility to choose one theory of representation over the other:
“[e]ither option ‘will present the minority group with its own array of electoral risks
and benefits’ and presents ‘hard choices about what would truly ‘maximize’ minority
electoral success.’”18 Hence, under Georgia v. Ashcroft, even if a proposed
redistricting plan reduces the number of minority-majority districts, the plan can
nonetheless satisfy the preclearance requirements of Section 5. In evaluating a
proposed change under Section 5, a court should assess “the totality of the
circumstances” and “not focus solely on the comparative ability of a minority group
13 528 U.S. at 341.
14 Id. at 329 (quoting Beer v. U.S., 425 U.S. 130 (1976)).
15 Id.
16 539 U.S. 461 (2003). For further discussion of Georgia v. Ashcroft, see CRS Report
RS21593, Redistricting and the Voting Rights Act: A Legal Analysis of Georgia v. Ashcroft,
by L. Paige Whitaker.
17 Id. at 482 (emphasis added).
18 Id. at 480. Elaborating, the Court observed that, on the one hand, a smaller number of safe
districts with a majority of minority voters may virtually guarantee the election of the
minority group’s preferred candidate, while on the other hand, spreading out minority voters
over a greater number of districts may create greater opportunity to elect candidates of
choice. Id.

CRS-7
to elect a candidate of its choice,” the Court held.19 As commentators have observed,
the Court in Georgia eased the burden on jurisdictions seeking preclearance under
Section 5.20
In response to these Supreme Court rulings, it appeared that Section 5 of the law
was drafted to define and clarify congressional intent with regard to “denying or
abridging the right to vote” of individuals in covered jurisdictions. Section 5 of the
law amends Section 5 of the VRA (42 U.S.C. § 1973c) by dividing the section into
four subsections. Section 5(a) of the law amends Section 5 of the VRA by striking
“does not have the purpose and will not have the effect” and inserting “neither has
the purpose nor will have the effect.” Section 5(b) of the law amends Section 5 by
providing that any voting qualification or prerequisite to voting, or standard, practice,
or procedure concerning voting that has the “purpose of or will have the effect of
diminishing the ability of any citizens of the United States” because of race, color or
limited-English proficiency, “to elect their preferred candidates of choice, denies or
abridges their right to vote.” Section 5(c) of the law provides that the term “purpose”
in subsections (a) and (b) must include “any discriminatory purpose.” Section 5(d)
of the law clarifies that the purpose of subsection (b) of this section is to protect the
ability of citizens covered by the VRA “to elect their preferred candidates of choice.”
Hence, it appears that the intent of Section 5(c) of the law is to reverse the
Bossier II decision by requiring denial of preclearance of electoral changes with “any
discriminatory purpose.” Likewise, it appears that Section 5(d) of the law endeavors
to reverse the Court’s holding in Georgia v. Ashcroft, by denying preclearance of any
voting change that has the purpose or would have the effect of denying minority
voters the ability to “to elect their preferred candidates of choice.”
Litigation Expenses. Section 6 amends Section 14(e) of the VRA, which
presently allows, at the court’s discretion, the prevailing party (other than the United
States) to receive a reasonable attorney’s fee as part of the costs of any action or
proceeding to enforce the voting guarantees of the 14th or 15th Amendment. The law
adds provisions to also allow reasonable expert fees and other litigation expenses.
Extension of Bilingual Election Assistance Requirements. Section
7 amends Section 203(b)(1) of the VRA (42 U.S.C. § 1973aa-1a(b)(1)) to extend the
bilingual election assistance requirements for limited-English speaking citizens for
25 years, until 2032.
Public policy concerns that were raised regarding extension of Section 203
included whether bilingual language assistance is needed and the costs for a covered
jurisdiction to provide such assistance to voters. There are many jurisdictions that
provide bilingual language assistance to voters that have kept the costs of such
assistance to a minimum, and do not object to Section 203. Others have expressed
19 Id.
20 See Richard L. Hasen, Congressional Power to Renew the Preclearance Provisions of the
Voting Rights Act After Tennessee v. Lane, 66 OHIO ST. L.J. 177, 203 (2005). See also
Pamela S. Karlan, Georgia v. Ashcroft and the Retrogression of Retrogression, 3 ELECTION
L.J. 21, 30 (2004).

CRS-8
concern about providing such assistance. At congressional hearings on the VRA, one
witness had argued that requiring bilingual language assistance should not be
necessary because “The United States is an English-speaking country in which
virtually all of its citizens speak, read, and understand the English language.”
Further, he had stated that immigrants have to learn English in order to become
naturalized citizens.21
Other witnesses, however, had testified that there are many limited-English
speaking Americans who are native-born, such as Hispanics and some American
Indians. Also, Puerto Ricans, whose primary language is Spanish, are U.S. citizens.
Some limited-English speakers are persons who were born in this country when many
ethnic communities were segregated. Living in barrios or on reservations, they had
little need to leave their communities and enter the larger English-speaking one. As
a consequence, while they understand some English, they are not fluent enough in the
language to use it to vote. Other limited-English speakers include older naturalized
citizens who have lived in this country for decades, but are not fluent in English. To
become citizens, they can receive an exemption from taking the examination for
naturalization in English.22 These witnesses cited statistics indicating that substantial
percentages of Hispanics speak a language other than English at home, and that a
sizeable percentage of Asian Americans are limited-English speakers. Because the
demand for classes that teach English far exceeds the availability of such classes and
also for other reasons, they supported the extension of bilingual language assistance
provisions of the VRA.23
Chris Norby, an elected official from Orange County, California, had expressed
concerns about the costs of providing bilingual assistance to certain voters. He had
argued that the method for determining which voters are non-English speaking
needed to be amended. At present, the Census form offers the following selections
to determine how well a person speaks English — “Very Well, Well, Not Well or
Not At All.” If a person indicates on the Census form that he or she speaks English
“Well,” then the person is deemed a limited-English speaker. Norby had proposed
that a person who indicated “Well” be judged sufficient to vote without language
assistance. According to Norby, Orange County, which he represents, currently must
translate election materials into Spanish, Vietnamese, Chinese, and Korean. If the
standard for determining who is a limited-English speaker were not changed, he
anticipated having to provide language assistance in other languages as well
(depending on future immigration patterns), which, according to him, could cost
millions of dollars.24
21 Testimony of K.C. McAlpin, Executive Director, ProEnglish, U.S. House Judiciary
Committee, Subcommittee on the Constitution, Nov. 9, 2005.
22 8 U.S.C. §1423(b)(2).
23 Testimony of Juan Cartegena, General Counsel, Community Service, U.S. House
Judiciary Committee, Subcommittee on the Constitution, Nov. 9, 2005; and Karen K.
Narasaki, President and Executive Director, Asian American Justice Center, U.S. House
Judiciary Committee, Subcommittee on the Constitution, May 4, 2006.
24 Testimony of Chris Norby, Supervisor of Elections, Orange County, California,
(continued...)

CRS-9
Deborah Wright, Registrar-Recorder/County Clerk of neighboring Los Angeles
County, California, however, had offered a different perspective on providing
bilingual assistance to limited-English voters. Identifying Los Angeles County as
“the largest and most diverse local election jurisdiction in the United States,”25 she
had testified that in addition to English, the county is required to assist voters in six
other languages — Chinese, Japanese, Korean, Spanish, Tagalog (Filipino), and
Vietnamese. Many of these limited-English voters cannot read or write in any
language. According to Wright, in assisting limited-English voters, the county
translates written materials, collaborates with key community-based organizations,
and provides oral assistance at voting locations. Voters can gain access to translated
election material by telephone or at a website. In collaboration with 104 community-
based organizations, the county is able to identify those neighborhoods and voting
precincts that require specific language assistance. Using this information, the
county recruits and trains poll workers from neighborhoods with a heavy
concentration of voters who speak languages other than English. The county also
provides oral assistance to Armenian, Russian, and Khmer (Cambodian) voters
(although the VRA does not require the county to do so) to enable voters who want
to participate in the electoral process. Wright had stated that the costs of providing
English assistance to voters was slightly less than 10% of the county’s annual
election expenses. According to her, these costs were “reasonable in light of the
challenges the county faces.”26
Some supporters of extending Section 203 had stated that the costs of bilingual
assistance were minimal, and that an implemented Section 203 responded to the
needs of all U.S. citizens, including the unique needs of citizens from Puerto Rico,
and makes for a healthy government.27
The Government Accountability Office (GAO), formerly the General
Accounting Office, mailed surveys on the types of bilingual voting assistance
provided in the general election of 1996 to 422 jurisdictions that were covered under
the VRA. Of 292 jurisdictions that responded to its survey, 272 of them provided
bilingual voting assistance.28 Of the respondents, 213 provided written and oral
bilingual voting assistance; 45 provided only written; 14 provided only oral; and 20
24 (...continued)
“Multilingual Ballot Requirements Need Clarification,” Testimony of Juan Cartegena,
General Counsel, Community Service, U.S. House Judiciary Committee, Subcommittee on
the Constitution, May 4, 2006.
25 Testimony of Deborah Wright, Registrar-Recorder/County Clerk, County of Los Angeles,
California, U.S. Senate Judiciary Committee, June 13, 2006.
26 Ibid.
27 Testimony of Juan Cartegena, General Counsel, Community Service, U.S. House
Judiciary Committee, Subcommittee on the Constitution, Nov. 9, 2005; Margaret Fung,
Executive Director, Asian American Legal Defense and Education Fund, Senate Judiciary
Committee, June 13, 2006.
28 United States General Accounting Office, Bilingual Voting Assistance, Assistance
Provided and Costs, GAO report GGD97-81 (Washington: May 1997), p. 2. (Hereafter,
cited as GAO report.)

CRS-10
did not provide any assistance. Explanations for why these jurisdictions did not
provide assistance included the following:
! inability to identify individuals who need assistance;
! no one needed assistance or ever sought assistance; and
! the belief that they were exempted from providing assistance.
According to GAO, written assistance was provided by 258 jurisdictions in the
form of bilingual or separate translated ballots, voting instructions and signs at
polling places, and bilingual notices in newspapers. Those 227 jurisdictions that
provided oral assistance used bilingual employees and volunteer assistants and, less
often, hired special interpreters.29
For its survey, GAO requested that jurisdictions only provide actual costs of
bilingual voting assistance, not cost estimates. Because the VRA does not require
a covered jurisdiction to maintain data on the costs of providing bilingual voting
assistance, most jurisdictions were unable to report the actual costs of language
assistance. Of the 64 jurisdictions that were able to provide cost information, GAO
reported that 34 provided the total costs of bilingual assistance and that the remaining
30 provided only partial costs. GAO found that these reported costs varied greatly.
Several counties that provided oral assistance used bilingual workers at elections, and
as a consequence reported no additional costs. On the other hand, Los Angeles
County, California (which, according to Deborah Wright, Registrar-Recorder/County
Clerk, has nearly 4 million registered voters)30 provides (both to language groups that
the VRA requires the county to assist and some that the act does not require them to
assist) written and oral bilingual assistance at a cost of more than $1.1 million.
Hawaii and Florida reported total costs in 1996 for bilingual voting assistance of
slightly more than $23,000 and nearly $8,000, respectively.31
Data Used to Determine Jurisdictions Covered by Bilingual Election
Assistance Requirements. Section 8 amends Section 203(b)(2)(A) of the VRA
(42 U.S.C. § 1973aa-1a(b)(2)(A)), which relates to states and political subdivisions
covered by the VRA. Formerly, the Director of the Census Bureau used a formula
that was based on census data to determine whether a state or political subdivision
is covered by the bilingual election assistance requirements. The new law, however,
strikes “census data” and inserts “the 2010 American Community Survey census data
and subsequent American Community Survey (ACS) data in five-year increments,
or comparable census data.” The ACS is a new national survey that is designed to
provide more recent data on demographic changes in communities.
29 Ibid., p. 3.
30 Testimony before the Senate Judiciary Committee, June 13, 2006.
31 GAO report, pp. 3-4.

CRS-11
Other Proposals Introduced in the 109th Congress
On March 1, 2005, Congressman Steve King introduced H.R. 997, the “English
Language Unity Act of 2005.” H.R. 997, in part, would have made English the
official language of the United States. In addition, it would have provided for a
uniform English language rule for naturalization, whereby all citizens would have to
be able to read and understand in English the Declaration of Independence, the U.S.
Constitution, and all laws of the United States.32 The bill would have provided that
only under extraordinary circumstances, such as asylum, would any exceptions to this
provision be allowed.
On November 18, 2005, Congressman Peter King introduced a similar bill, H.R.
4408, the “National Language Act of 2005.” Among other provisions, H.R. 4408
would have provided for English to be the official language of the U.S. government,
and would have repealed the bilingual election requirements of the VRA. Both bills
were referred to their appropriate committees, but saw no action.33
On June 28, 2006, Congressman Stearns offered H.Amdt. 1145 to H.R. 5672,
the Science-State-Justice-Commerce Appropriations Act, FY2007. This amendment
would have prohibited funding to enforce Section 203, the bilingual assistance
provisions of VRA. Debate on the amendment focused on assimilation of limited-
English American citizens and the cost of providing bilingual assistance to them. By
a vote of 167 to 254, the House rejected H.Amdt. 1145.
Congressional Activity on H.R. 9 (P.L. 109-246)
On July 20, 2006, the Senate passed H.R. 9, a bill to reauthorize the temporary
provisions of the Voting Rights Act of 1965 for 25 years, without amendment (98 to
0). Earlier, on July 13, the House had passed H.R. 9 by a vote of 390 to 33. Four
amendments to the bill were proposed and rejected. The House rejected H.Amdt.
1183 (the Norwood amendment) by a vote of 96 to 318; H.Amdt. 1184 (the Gohmert
amendment) by a vote of 134 to 288; H.Amdt. 1185 (the King amendment) by a vote
of 185 to 238; and H.Amdt. 1186 (the Westmoreland amendment) by a vote of 118
to 302.
H.R. 9 was originally introduced on May 2, 2006, by Congressman
Sensenbrenner, and the following day, Senator Specter introduced an identical
companion bill in the Senate, S. 2703. H.R. 9 was amended and approved by the
House Judiciary Committee by a vote of 33 to 1. The bill, as amended, was reported
(H.Rept. 109-478) from the committee on May 22, 2006. The committee-approved
32 The Immigration and Naturalization Act currently requires applicants for naturalization
to demonstrate their English abilities, although certain waivers are allowed. See CRS
Report RS20916, Immigration and Naturalization Fundamentals, by Ruth Ellen Wasem.
33 For further discussion, see CRS Report RL33356, English as the Official Language of the
United States: Legal Background and Analysis of Legislation in the 109th Congress, by
Charles V. Dale.

CRS-12
amendment to H.R. 9 added a section requiring the Comptroller General to study and
report to Congress on the implementation, effectiveness, and efficiency of Section
203 of the VRA. With the exceptions of this new section and the titles of the bills,
the two bills, H.R. 9 (as amended) and S. 2703 (as reported, amended, by the Senate
Judiciary Committee on July 19, 2006) contained the same provisions. For more
information on congressional consideration of S. 2703 and H.R. 9, including the four
amendments that were defeated on the House floor, see below.
Floor Action
Norwood Amendment. Congressman Norwood’s amendment would have
amended Sections 4 and 5 of the VRA. It would have changed the formula that
determines which state or political subdivision is covered by the preclearance
provisions of the VRA by basing it on voter registration and voter turnout statistics.
The VRA’s current formula, however, is based on a state or political subdivision’s
historical record of voting discrimination against minorities who are covered in the
act. The Norwood amendment would have provided that the preclearance provisions
would have applied to a state or political subdivision:
! where the Attorney General determines that a state or political
subdivision maintains a test or device;
! or the Director of the Census determines that less than 50% of
citizens of voting age who reside in a state or political subdivision
were registered on November 1 of “a critical year”;
! or less than 50% of those citizens voted in the presidential election
of a critical year.
The amendment would have defined a critical year as the three years in which the last
preceding presidential elections took place. Also, once a preclearance determination
had been made, the amendment would have prohibited any judicial review and would
have allowed that determination to become effective upon publication in the Federal
Register.
Proponents of the Norwood amendment argued that the current formula that
determines which jurisdictions are covered under the preclearance provisions of the
VRA is outdated. Reportedly, some southern Members of Congress objected to their
states having to submit changes in electoral procedures to DOJ for approval, stating
that despite their efforts to improve in this area, the south continues to be treated
differently from the rest of the country.34 A different view on this issue is that much
of the progress that has occurred in addressing voting discrimination in covered
jurisdictions is directly attributable to enforcement of Section 5 of the VRA.
Supporters of this argument pointed to the number of objections from DOJ since
1982 to some covered jurisdictions’ proposed electoral changes in procedure or law
34 Jonathan Allen, “In Senate, It’s Deja Vu All Over Again on Voting Rights Act
Extension,” The Hill, June 28, 2006; Seth Stern, “Efforts to Curtail Voting Rights Act
Persist,” CQ TODAY, June 28, 2006; Lynn Westmoreland, “Voting Rights Act: Punitive
Approach No Longer Needed,” The Atlanta Journal-Constitution, May 29, 2006, p. A17.

CRS-13
as evidence of the continued need for Section 5. Their view is that without Section
5 of the VRA, voting discrimination in covered jurisdictions would likely occur.35
One reason for enactment of the original Voting Rights Act in 1965 was to
respond to the creative, changing, and effective efforts of some states to deny African
Americans access to the voting booth or to diminish their presence there. Prohibiting
voters from registering to vote and intimidating voters who attempted to vote was
quite effective then. Among tactics used today to accomplish that objective,
however, are urban annexations and redistricting. The Norwood amendment, in
relying on voter registration and voting turnout records for the past three presidential
election years (1996, 2000, and 2004), did not appear to address voting
discrimination in jurisdictions that were likely to use these tactics. Rather, in using
the voter registration and voting turnout records for the past three presidential
election years (1996, 2000, and 2004), the Norwood formula would have, for
example, subjected a state — Hawaii — to the preclearance provisions of the VRA
that had never been subjected to these provisions before.36
At present, 16 states are covered by Section 5 of the VRA — eight states in their
entirety (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina,
and Texas) and eight states with political subdivisions that are covered (California,
Florida, Michigan, New Hampshire, New York, North Carolina, South Dakota, and
Virginia). According to U.S. Census Bureau data for the presidential elections of
1996 and 2000, for each of these years, Hawaii would have been covered by the VRA
based on provisions of the Norwood amendment. In Hawaii, 47.4% of citizens of
voting age population were registered in the presidential election of 1996, and 44.1%
of citizens of voting age population voted in the election of 2000.37 Data are not
available to determine if political subdivisions of a state would have been covered
under provisions of the Norwood amendment. In addition, it would have been
hypothetically possible for the Attorney General to have determined that a state or
political subdivision has used a test or device and, thereby, would have been covered
by the Norwood amendment.
Gohmert Amendment. The Gohmert amendment would have reauthorized
and extended the temporary provisions of the VRA (which were scheduled to expire
on August 6, 2007) to August 6, 2016, rather than 2032 as provided in H.R. 9.
During debate on the amendment, Congressman Gohmert argued that earlier
congressional authorizations were for five-, seven-, and 15-year periods. He stated
35 Tyrone Brooks and Charles Steele, “Voting Rights Act: Safeguards Should Not Be
Eliminated,” The Atlanta Journal-Constitution, May 29, 2006, p. A17; Testimony of Debo
Adegbile, Associate Director of Litigation, NAACP Legal Defense and Educational Fund,
Inc., U.S. Senate Judiciary Committee, June 21, 2006.
36 Press release, Laughlin McDonald, “ACLU Challenges Lawmakers Who Aim to Gut
Voting Rights Act, Says Proposals Would Eliminate Historic Federal Protections,”
American Civil Liberties Union, June 23, 2006 [http://www.aclu.org/votingrights/
index.html].
37 U.S. Census Bureau, Historical Time Series Tables, Table A5 — Reported Voting and
Registration for Total and Citizen Voting Age Population, by State for Presidential
Elections: 1972-2004.

CRS-14
that Congress needs to review provisions of the VRA more often since, according to
him, the Supreme Court has established that it will “regularly change the playing
field and regularly change the rules” concerning the VRA.38 In response,
Congressman Sensenbrenner stated that testimony and evidence presented at 12
hearings on the VRA support extension of the temporary provisions for 25 years.
According to him, it would allow a “meaningful change” in the voting process to be
measured and would make “eradication of discrimination in the voting process an
achievable goal.”39 Also, the 25-year period would meet the Supreme Court’s
requirement of a large set of data for analysis to justify reauthorizing the VRA.
Further, Congressman Sensenbrenner stated that the Gohmert amendment, if adopted,
would nullify the current incentive provided in the VRA to encourage covered
jurisdictions to maintain a non-discriminatory voting record for 10 years in order to
be eligible to bail out from coverage.
King Amendment. The King amendment would have deleted Sections 7 and
8 of H.R. 9, which relate to multilingual ballots and American Community Survey
census data. Removing these sections from H.R. 9 would have allowed bilingual
assistance provisions of the current Voting Rights Act to expire on August 6, 2007.
Debate on the King amendment explored many of the same issues discussed earlier
in this report on bilingual election assistance. (See “Extension of Bilingual Election
Assistance Requirements, “ pp. 7-9). In support of his amendment, Congressman
King stated that local electoral jurisdictions, not the federal government, should make
decisions on whether to provide foreign language ballots, which his amendment
would have allowed. Further, those U.S. citizens who are not fluent in English could
bring an interpreter of their choice into the voting booth to assist in interpreting the
ballot.
Westmoreland Amendment. The Westmoreland amendment would have
amended Section 5 of the VRA by requiring the Attorney General to annually
determine whether each state and political subdivision covered by the preclearance
provisions of the act can bail out of coverage. Further, it would have required the
Attorney General to inform both the public and each state or political subdivision of
whether it can bail out. Where a state or political subdivision seeks to bail out of
coverage, the amendment would have allowed such bail-out if the Attorney General
determined that a state or political subdivision met the requirements. The
Westmoreland amendment would have retained the current criteria for bailing out of
coverage. In requiring the Attorney General each year to determine every state or
political subdivision that would be eligible for bail-out, however, the Westmoreland
amendment would have shifted responsibility from the state or political subdivision
to DOJ. To implement provisions of this amendment, it appears that DOJ might have
needed to increase its staff to conduct the necessary research and analysis. It does not
appear that the Westmoreland amendment would have addressed the issue of
additional DOJ resources.
Debate on the Westmoreland amendment centered on the small number of
jurisdictions that have bailed out of VRA coverage, the costs for DOJ to enforce
38 Congressional Record, July 13, 2006, p. H.5186.
39 Congressional Record, July 13, 2006, p. H.5187.

CRS-15
provisions of the amendment, the amount of power the amendment would have
delegated to DOJ, and provisions of the amendment that would have required DOJ
to consent “to the entry of judgment” and perhaps, thereby, limit the ability of DOJ
to act in a case based on newly discovered evidence.
Committee Action
On July 19, 2006, the Senate Judiciary Committee marked up S. 2703, the
Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act of 2006. An amendment offered by Senator
Coburn that was defeated by voice vote would have provided that persons who
indicate that they speak English “well” in response to the Census Bureau’s inquiry
would not be considered limited-English proficient under Section 203 of the VRA.
The committee unanimously reported the bill, as amended. Instead of considering
S. 2703, the Senate Majority Leader Bill Frist called up the House version, H.R. 9,
for floor debate.
Prior to floor consideration of H.R. 9, the House Committee on Rules reported
two special rules — H.Res. 878 and H.Res. 910 — providing for consideration of
H.R. 9, as well as setting procedural parameters for its consideration. The first
special rule, H.Res. 878, only allowed two specified amendments, the Norwood and
Westmoreland amendments. On June 27, this rule was tabled because House
Republicans were unable to agree on it. Subsequently, on July 13, the committee
reported H.Res. 910, which in addition to the Norwood and Westmoreland
amendments allowed for two more amendments — the Gohmert and King
amendments. The King amendment had previously been rejected by the House
Committee on the Judiciary (see amendment number 109 below). On July 13, the
House adopted H.Res. 910.
On May 10, 2006, the House Judiciary Committee reported H.R. 9, to
reauthorize the temporary provisions of the VRA for 25 more years. An amendment
sponsored by Congressman Issa was adopted by voice vote to require that a study of
the implementation and effectiveness of Section 203 be conducted within one year
of enactment of the bill. Congressman Steven King offered two amendments relating
to the bilingual assistance provisions of the VRA. One amendment (amendment 109)
would have deleted Sections 7 and 8 of H.R. 9 that relate to bilingual language
assistance and replacement of the decennial long-form census with the American
Community Survey in determining the triggering of Section 203’s bilingual language
assistance requirements. This amendment was rejected by a vote of 9 to 26. The
second amendment (amendment 110), which would have reauthorized the bilingual
assistance provision for six years, was also rejected by a vote of 10 to 24.
Hearings. On July 13, 2006, the Senate Judiciary Committee held a hearing
on “Renewing the Temporary Provisions of the Voting Rights Act: Legislative
Options After LULAC v. Perry,” a case concerning congressional redistricting in
Texas that the Supreme Court recently ruled on. This was the eighth in the
committee’s series of hearings on the temporary provisions of the Voting Rights Act.
Other hearings held on April 27, 2006; May 9, 2006; May 10, 2006; May 16, 2006;
May 17, 2006; June 13, 2006; and June 21, 2006, addressed whether the temporary

CRS-16
provisions of the VRA are needed, legal issues related to their reauthorization, and
modern enforcement of the VRA.
From October 2005 to May 2006, the House Judiciary Committee,
Subcommittee on the Constitution, has held 11 hearings to examine the impact and
effectiveness of the Voting Rights Act of 1965, as amended, and to determine
whether the act is still needed. The history, scope, and purpose of the VRA were
reviewed. The subcommittee examined temporary provisions of the act, including
those on federal examiners, the assignment of observers at elections, the coverage
formula of Section 4, and bilingual assistance. The hearings also examined the
preclearance provisions of Section 5 and the judicial evolution of the retrogression
standard.
Appendix
Temporary Provisions of the Voting Rights Act of 1965,
As Amended, Prior to Passage of P.L. 109-246 (H.R. 9)
This appendix discusses the temporary provisions of the VRA before the 109th
Congress amended the act.
Coverage Formula and “Bail Out” Provision — Section 4
With the enactment of Section 4(a), the framers of the Voting Rights Act sought
to stop the practice of discouraging black registration and voting. Section 4(a)
prohibits the use of all literacy tests and any other “device,” such as a voucher
requirement, as a condition for voter registration in states and political subdivisions
of states that are subject to the coverage formula of the VRA (Section 4(b)).40
Coverage Formula. The coverage formula was adopted to determine which
states and political subdivisions of states would be covered by the act. Low
registration and voting statistics in jurisdictions requiring literacy tests and devices
were attributed to the discriminatory application of those tests and devices. Section
4 provides that a state or political subdivision is considered covered under Section
4 if (1) it maintained a test or device as a condition for voter registration, on
November 1, of 1964, 1968, or 1972, and (2) either less than 50% of citizens of legal
voting age were registered to vote or less than 50% of citizens voted in the
presidential election held in the year in which it used such a test or device.41 A
jurisdiction is considered to have used a test or device on November 1, 1972, if more
than 5% of its citizens of legal voting age were of a single language minority and it
40 42 U.S.C. § 1973b.
41 42 U.S.C. § 1973b(b).

CRS-17
conducted its elections with exclusively English language materials or assistance.42
American Indians, Asian Americans, Alaskan natives, and persons of Spanish
heritage are considered to be members of language minority groups.43
“Bail Out” Provision. Section 4 also contains a provision that permits a
jurisdiction to be released or “bail out” from coverage if it can show a record of
abiding by the VRA. Since 1965, these provisions have been amended to extend the
expiration dates of the temporary provisions and, in 1970, 1975, and 1982, to change
the triggering date in the coverage formula to November 1 of 1968, 1972, and 1980,
respectively. With the change in the triggering date, more jurisdictions were covered
under the VRA. In 1975, the term “test or device” was modified to cover a state or
jurisdiction that provided registration or voting material in English-only where the
Director of the Census Bureau determined that more than 5% of citizens of voting
age residing there were members of a single language minority.44 Also that year, the
term “language minorities” or “language minority group” was defined as American
Indian, Asian American, Alaskan Natives, or of Spanish heritage.45 To bail out, a
state or political subdivision that would otherwise be covered by the bilingual
assistance provisions had to obtain a declaratory judgment from the District Court of
the District of Columbia that, during the past 10 years, the jurisdiction’s English-only
elections had not discriminated against limited-English speakers who are covered by
the VRA.46
The 1982 amendments to the VRA extended the expiration date for bilingual
assistance (which prohibits the use of voting materials in English only in certain
jurisdictions) and limited coverage to determinations made by the Director of the
Census Bureau that are based on 1980 and subsequent census data.47 A jurisdiction
seeking exemption from VRA coverage must seek a declaratory judgment in the U.S.
District Court for the District of Columbia, demonstrating that during the previous
10 years, it
! did not use a test or device in the state or political subdivision;
! submitted all proposed voting changes to the Department of Justice
or the U.S. District Court for the District of Columbia for review;
! had no rejections of a proposed change from DOJ or the U.S.
District Court for the District of Columbia;
! had no adverse judgements in lawsuits claiming voting
discrimination;
! had no consent decrees or agreements that stopped a discriminatory
voting practice;
! has had no pending lawsuits claiming voting discrimination; and
42 42 U.S.C. § 1973b(f).
43 28 C.F.R. Pt. 51, § 51.2.
44 42 U.S.C. §1973c.
45 42 U.S.C. §1973l.
46 42 U.S.C. §1973aa-1a.
47 42 U.S.C. §1973aa-1.

CRS-18
! had no federal examiners assigned.48
The 1982 amendments also changed the bail out provision so that for the first
time, counties, within otherwise covered states, could have the opportunity to bail out
from coverage independently. By adding the phrase “or political subdivision,” the
statute currently provides that in order to be released from coverage, a covered
jurisdiction would have to prove that “no such test or device has been used within
such State or political subdivision for the purpose or with the effect of denying or
abridging the right to vote on account of race or color.”49
Under the 1984 standard,50 eleven jurisdictions in Virginia have bailed out of
coverage under Section 4(b) of the VRA. They are the counties of Augusta,
Frederick, Greene, Pulaski, Roanoke, Rockingham, Shenandoah, and Warren, and
the cities of Fairfax, Harrisonburg, and Winchester.51
Preclearance Procedures — Section 5
Congress also recognized that covered jurisdictions could limit the effectiveness
of the black vote in ways other than by preventing a person from registering to vote.
For instance, polling places could be located in white neighborhoods but not in black
neighborhoods, and electoral districts could be gerrymandered in such a way that
blacks would not comprise a majority in any electoral district. Section 552 of the act
is intended to prevent enforcement of any election law with racially discriminatory
effect that was enacted after November 1, 1964.53
Specifically, Section 5 prohibits a covered state or political subdivision from
putting into effect “any voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting different from that in force or effect on
November 1, 1964” before first submitting the change in election law for
“preclearance” either to the Justice Department or to the U.S. District Court for the
District of Columbia (in an action for declaratory judgment) in order for DOJ or the
court to determine if such a law would deny or abridge the right to vote on account
48 The 1982 VRA Amendments included new requirements for bail-out of preclearance
provisions that became effective Aug. 6, 1984 (42 U.S.C. § 1973b(a)); the Voting Rights
Act Amendments of 1982 (P.L. 97-205).
49 42 U.S.C. §1973b (emphasis added).
50 The “standard” is based on VRA provisions that existed at the time a jurisdiction sought
bail-out from preclearance requirements. The 1984 standard is the effective date to bail out
of preclearance requirements as provided in The Voting Rights Act Amendments of 1982
(P.L. 97-205).
51 This information was provided by the Department of Justice on Apr. 13, 2006.
52 42 U.S.C. § 1973c.
53 U.S. Congress, House, Committee on Rules, To Extend The Voting Rights Act of 1965
With Respect to the Discriminatory Use of Tests and Devices, hearings on H.R. 4249, 91st
Cong., 1st sess. (Washington: GPO, 1969), p. 3, (Statement of Representative Celler,
Chairman of the House Judiciary Committee).

CRS-19
of race or color.54 In order to object to an election law change submitted for federal
preclearance, the Justice Department or the U.S. District Court for the District of
Columbia need not find that the jurisdiction intended to discriminate against minority
voters; it need only determine that implementation of the law would, in fact, result
in the denial or abridgement of voting rights. If the Justice Department does not
object to the proposed law within 60 days after a jurisdiction submits it for review,
then the jurisdiction may put the law into effect.
Federal Examiners and Observers — Sections 6 through 9
Sections 6 through 9 concern federal examiners and observers. Section 655
provides that if a covered jurisdiction is suspected of racially discriminating against
voters, the act authorizes the Attorney General to assign federal examiners to help
register voters and to assign federal observers, provided by the Office of Personnel
Management (OPM), to monitor voting on the day of the election. Section 756
provides for federal examiners to review an applicant’s qualifications for registration,
the placement of eligible voters on official lists, and the removal of the names of
ineligible persons from registration lists. Section 857 provides for assignment of
observers at elections, their duties, and reports. Observers are assigned to polling
places simply to watch voting and vote counting procedures. If they observe
discriminatory treatment of individuals covered by the VRA, they are not allowed to
intervene, but must report their observations to OPM. Section 958 provides a process
by which challenges can be made to an eligibility list prepared by an examiner.
Termination of Use of Federal Examiners — Section 13
Section 1359 provides a process to terminate use of federal examiners in political
subdivisions covered by the act. The use of federal examiners shall cease whenever
the Attorney General notifies the Director of OPM, or whenever the District Court
for the District of Columbia determines in an action for declaratory judgment
(brought by any political subdivision where the Director of the Census Bureau has
determined that more than 50% of the nonwhite residents of voting age are registered
to vote) that all persons listed by an examiner for a political subdivision have been
placed on the voting registration roll, and that there is no longer reasonable cause to
believe that persons will be deprived of or denied the right to vote on account of race,
color, or because of limited-English speaking ability.
Wherever a court has authorized the appointment of federal examiners in a
covered political jurisdiction, a political subdivision may petition the Attorney
General for termination of listing procedures and request the Director of the Census
54 42 U.S.C. § 1973c.
55 42 U.S.C. § 1973d.
56 42 U.S.C. § 1973e.
57 42 U.S.C. § 1973f.
58 42 U.S.C. § 1973g.
59 42 U.S.C. § 1973k.

CRS-20
Bureau to take a survey or census of the political subdivision to determine whether
there is a further need for federal examiners. The District Court for the District of
Columbia is also authorized to require the Director of the Census Bureau to conduct
a survey or census of the political subdivision. If the court deems the Attorney
General’s refusal to request such a survey or census to be arbitrary or unreasonable,
it can require the Director of the Census Bureau to do so.
Bilingual Election Assistance Provisions — Section 203
In 1975, by adding Section 203,60 the bilingual election assistance provisions,
Congress sought to increase the participation of language minorities in elections, and
established that language minorities are considered a protected class under Section
2. Specifically, Section 203 prohibits a covered state or political subdivision from
providing voting materials only in the English language. It provides that a state or
political subdivision is covered under this subsection if the Director of the Census
Bureau determines, based on census data, that
! more than 5% of the citizens of voting age of such state or political
subdivision are members of a single language minority and are
limited-English proficient;
! more than 10,000 of the citizens of voting age of such political
subdivision are members of a single language minority and are
limited-English proficient; or
! in the case of a political subdivision that contains all or any part of
an Indian reservation, more than 5% of the American Indian or
Alaska Native citizens of voting age within the Indian reservation
are members of a single language minority and are limited-English
proficient; and
! the illiteracy rate of the citizens in the language minority as a group
is higher than the national illiteracy rate.61
60 42 U.S.C. § 1973aa-1a.
61 Id.