holder, his politics, his values, there will be more racial jerry meandering rather than less, and so, you know, the court could see that on the horizon, and take the issue up. mike, why don't you talk to that though, because -- >> -- to stewart, the con grewens is an open ended vessel and whether it's discrimination against the disabled or others, they've looked hot both the backdrop and whether or not there was other laws that addressed it effectively and whether or not this law was di disproportion, so the argument would be if up until 2006, you didn't need this addition, which essentially overturned ashcroft and said you can't diminish the ability of minority preferred candidates and they also overturned a case which i argued, gold bolger two, which

says he can look at discriminatory purpose, p would seem to me perfectly rational for the court so say even if you justify unamended section 5 in 2006, surely you've got to provide some additional justification for ratcheting up the burdens on the covered jurisdictions and you haven't been able to do that as part of your justification effort, regardless of whether this particular district is going to face those issues. >> stewart, let me just say one more thing on that. the way it was amended if 2006, it invited the justice department to go return to what i think were appalling patterns of calling anything and everything that it did not like in the way of districts, intentional discrimination and it never had to give any reasons and of course, suspected intentional discrimination does. you don't have to actually have any evidence. i mean, one of the things i

would like to see is in cases of where there is intentional discrimination, use the amendment, but in the way the -- if the justice department goes back to finding intentional discrimination everywhere and any w and you know -- anywhere and you know, again, we're back to the kind of egregious jerry meandering that the court had a problem with in the 1990's. and then those cases petered out. >> the alternative, just to make it clear, if they uphold section 5 as now, they could also say of course we're not resolving the question of the validity of the 2006 amendment, so at a minimum, it would be nice, if they reserved that question for a challenge that did squarely confront it in the redistricting

cycle. >> curt levy, committee for justice. as abbey alluded to, you know, probably the -- well, we don't want judges and we don't want congress writing redistricting, but we want the civil servants in the justice department doing it even less. justices may be ill suited in congress, may hide under their desk, but most of the civil servants according to people who have worked there, some of whom are in this room, are one step short of little acorn activists, so i assume they're going to be extremely angry if the supreme court overturns section 5. and i assume they're not going to take it sitting down, what would you expect them to do? i mean, it's obviously harder to bring a lawsuit than to, you know, just dot, preclear, and there of course are some checks on them from the political fol

folks, but hard to imagine they won't be up to some sort of mischief, so i ask michael and abbey, what sort of mischief do you speculate or predict? >> two object vows points, i think there will be a strong effort for the administration to "fix," get a constitutional section 5. my own view is that the doa on the hill. if you apply anything remotely resembling the old formulas, it covers hawaii and over other state is out and everything else is the kind of horse trading that i don't think you'll ever get through the house in my own view. but the other obvious point is the one you alluded to, sort of a reenergized section 2 relitigation effort. well, they won't win cases where they've got the burden of proof. their track record in the supreme court is not as good as the washington nationals. i mean, they are note -- and you know, again, from myselfish perspective, i'm like bring it on. prove racial block voting, because you have to find

black-white elections, of course, obama versus mccain and i'm like, what do we have, 43%, so they're going to have a tough time winning these cases in a way that sticks in the supreme court and the reality is, i mean, i don't know if you're supposed to say this publicly on c-span, there's not a whole lot of intentional discrimination going out there. think about the jurisdictions that are affected. i forget the number rick gave but it was like 31% to 45% of represented democrats in the south are black. you think that efor must constituency group is going to let their white compatriots get away with shenanigans? i view it as an implausible hypothetical. these southern legislatures have changed. they've changed dramatically. that's not to say of course in local communities, at the county level, but that's not what you were talking about. that's not what kept the section 5 people busy. i think they hardly ever sue at that level anymore, so in terms

of congressional or straight redistrictings, you're going to see what we saw in 2000, which was hardly any elections after bowlinger two and the one case they brought was georgia v. ashcroft, they won in the georgia supreme court and at the lost in the supremes. >> i want to respond to that a little because it raises the great question of what, if anything,, should congress do, going forward, if the court holds current section 5 unst. louis. i agree -- unconstitutional. i agree with michael that the initial instinct would be to try to fix section 5 and to find a formula that updates the statute to where there are genuine racial problems today. i tend to think that it's a mistake to go down that route for a couple of different reasons, and i have an alternative route. i would prefer to see congress go. it's a mistake because number

one, the supreme court is going to -- current section 5 doesn't do nearly as much work as people think anyway. the fight here is to a large extent, is symbolic fight. there are various symbols at stake, but only .02% of the changes that the justice department has to preclear now end up not being precleared. so i don't -- i don't know whether it's worth putting a lot of energy into that route for people like me who do want to strongly protect voting rights. number one. number two, that model, and this is what abbey mentioned at the outset, comes out of a world in which the perception was the national government should only be dealing with racial discrimination in the voting area. that's of the limit of national power to deal with voting. in 1965, that was of the understanding. since 1965, we have enacted statutes that are based on a very different understanding, which is there's now a recognition that there's national, political power to enact things like the help america vote act, the national

voter registration act. these are national statutes, they are uniform in application, and they don't sickle out racial -- single out racial discrimination for national protection. it's very hard to prove what the reasons are that people are being denied the right to vote. if you have limit the oversight to that reason, you have all sorts of constitutional problems, tha kind of in the background, so my view has been that instead of trying to reconfigure section 5 in response to the decision, i would like to see congress push for legislation that would protect people's access to the ballot box in a universal and national way and to deal with some of the real issues we know about voter registration an various other kinds of issues. there may be disagreements in the room with where the problems -- about where the problems are, but i think that would be the right direction to go and i think it would do more to protect people's voting rights on the ground than even a

reconfigured section 5, if you can figure out what it should look like, one, and two, if you could actually get it through congress, and three, if you could get if through the supreme court at the end of the day. >> let me safe something on that. i agree that a reconfigured second 5 is ridiculous. i don't know what the trigger would be. they haven't updated it since -- the trigger is low voter turnout, total. much is black, below 50% and the use of literacy tests and it was reverse engineered. those who framed the 1965 act knew perfectly well that in the south, the use of fraudulent literacy tests would depress total turnout, below 50%, an they got the states exactly right an they updated that trigger, so for the last time in 1975, so it rests on the 1972 turnout for years, and that's

absolutely absurd, and as either pike or rick said, if you did it -- if they rested the trigger on turnout figures, below 50% today, the turnout would be hawaii. but rick, what bothers me about your response is there is a greater confidence on your part that congress would rush in, with -- they will rush in with something that in fact is well thought out, that is -- >> as compared to what? as compared to letting the missouri legislature do that. that's the question. one way to look at this is we have a system that i think we would never create on a blank slate today, which is a system that even for national elections, leaves so much of the regulation and the

administration in the hands, not just of the states, but of the hands of local governments, including of the county canvassing boards and broward county holding up ballots, you know, to look at them, and i think that that's obviously a product of our history. that wasn't a willingness to give the national government of the power to legislate on these kinds of issues and it's a path dependent fact. i think with it comes to national elections, well be better off, it would be a more sensible system, to struggle over certain kinds of issues, like access to the ballot box issues, you know, what kinds of identification should or shouldn't be necessary. and resolve it at the national level, at least for national elections, instead of going through these endless highly partisan, incredibly divisive fights at the state legislature level. that's really the question. it's not that congress, you know, as you know, i'm not sitting here singing congress's praises or how they reacted in

2006, but, you know, you're going to have it done somewhere and i would rather have it done there. >> the other thing is you said look, only 2% of submitted changes are not precleared. >> the point -- .02%. >> but that's because all these jurisdictions know what they have to do in order to get their changes precleared, but then they've got to move forward with elections. they can't afford to litigate the situation, to argue with the justice department, legally and politically impossible for them to do so. so they do what they know the justice department will insist on, sore the percentage of objections is incredibly small.

>> i'm roger clay with the center for quality opportunity. one of the problems with section 5 now is that it has an an effects test, which means that it makes things illegal under the voting rights act that are not illegal under the constitution, and that creates the con gruence and proportional problems. but it also has a couple of bad practical problems. one is something you all have talked about, it sort of refocuses on race race consciousness an encourag encous racial segregation of voting districts through racial jerry meandering, but the other thing is it allows the justice department the flexibility to go after proposed voting practices and procedures, that may have a

disproportionate effect, but which may also be perfectly legitimate. for instance, the use of anti-voter fraud measures, is often asserted to have a racially disproportionate effect and that's debated whether that's even true, but it certainly allows the justice department to get into the business of vetoing anti-voter fraud measures. so i guess my question to all of you have is, to what extent is the effects test problematic, and to what extent should the supreme court, you know, be weighing the problematicness of the effects test, both with respect to the encouragement it gives to racial segregation of voting districts, but also with respect to the potential abuse for fighting things like voter

fraud. >> they're deferring to me for a change. i have want to take a cheap shot back at pike ham, so remind me to do that. but let me actually try to respond first. when the supreme court upheld this effects test, it wasn't an era in which those effects were linked with a context in which it was reasonable to infer discriminatory purpose from those effects, but there's no question that that's a part of the statute that's going to become more vulnerable, given the courts doctrine on these issues, to the extent it gets used more aggressively. now, this links back to exactly what i was saying a moment ago about the future of legislation in this area, which is if you tie legislation to race, and to disproportionate effects along the lines of race, you get into the questions you raise, but

bush v. gore confirms something that's been true for 35 years in american constitutional law which is the right to vote is a fundamental right to vote constitutionally, since the 1960's and that means congress has the power to enforce and protect the right to vote as a fundamental right, generally speaking. it doesn't have to do it only when there's racial discrimination other show a tie to purposeful racial discrimination. so these issues about anti-vote -- anti-fraud laws, for example, i don't think the legality of those laws should turn on whether you can or cannot show a racially disproportionate effect. i think it should turn on whether the fundamental right to vote is infringed bylaws like that or whether there's adequate justification its for laws like that and i think the answer ought to be the same in georgia or washington or ohio, as to whether a law like that in national elections is valid or not. so this -- your question sort of

puts me back to wanting to emphasize that i think the future here, whatever people think of the fraud access debate, the future ought to be thinking about these issues in general terms. not -- and i don't -- not really debating whether there is or isn't a disrow portionate racial effect. do we need this kind of requirement or not? if it's older voters or poor voters who are disenfranchised without justification, if my mind, the law is just as offensive if there are other voters who are disenfranchised illegitimate live by these laws. and i have to defend academics for one second against michael. and i guess the alternative -- what's et al. tentative to defending incoherence. it's having rigid, simple, simple minded, yes-no answers to everything, so to defend incoherence, if you're like abbey and ambivalent about some of these kinds of questions and

think, look, these are racial lip drawn districts have various sorts of costs, which ashby has identified, -- abbey has i'd, but american legislatures in states that are 35% minority that have, you know, 5% minority representation, that's a problem too. and michael says well, it will all be fine, because whatever the demographics of different districts, we're going to get relatively represented legislatures, maybe, maybe, but we don't know, because we don't have much experience because these 35% minority districts haven't existed since 1990 because of the voting rights a act. so you know, my instinct which is also one that comes from ambivalence, want to see this regime softened up at the margins, and i think any hard social problem results in what you might call incoherent muddle be through policies, instead of going to one of the supreme

polar positions, which i think is michael's alternative. so that's the incoherence. >> i'm a black and white guy. >> yes, gentleman back here. >> i'm patrick wilson. i'll make an observation first and just as a political hack, i'll say very often that black students that i work with in d.c., they are sometimes accused of being acting white when they try to overachieve. it's something that abbey has written about many times and as a white lit co, i would vastly sometimes, if we talk about successes and the achievements of minorities, but particularly blacks, we're considered to be racist. if you say what you have done in a very dissipationate way, that we have -- dispassionate way -- all of that aside, my question

is, what about the outlier demographics. i remember with i have came to capitol hill, jesse helms received about 48% of the black vote in north carolina in his last election, that is incongruence. in my home state of missouri, senator kit bonds received about 40% of the african-american vote as a conservative white republican. what i don't get and how it fits into this debate, what we would call outlier behavior fit into the analysis of what makes a balanced representation in these districts. >> on the precise issue of racially polarized voting, it's flexible an dynamic definitions. brendan had one definition in the squiggles plural and the lower courts have been vowing welling it ever since. the default things is one that

rick and abbey alluded to is there are significant difference. one test is would he won the election if only black people had voted, so even in your example of 48%, that would still be considered racial live polarized voting. he got 40% of the black vote but 60% went to his opponent. so the minority preferred candidate is his opponent and even the significant inroads by unless you've achieved either majority, another way to look at it is people say there's a coalition, hispanics are supporting democrats, that's the hispanic preferred candidate, but in a lot of elections, the democrat would only get 60% of the hispanic vote. blacks would say, give 95. so you have a 35% gap and i would argue if whites gave the democratic candidate 25%, then they're just as close to the hispanics as the blacks are, but that's not the way the courts look at it. which a long way of telling you

have it's strictly a numbers game, which almost inevitably, even with you're talking about the unusual kind of crossover vote, results if a finding of racial live polarized vote beings even though the average person looking at it would say this is not something to be ashamed of, this is where people are ignoring race and coming across and that's the final point i'll make about these. everybody is very proud of the fact that now blacks can get elected in 30% districts, ok? but the inherent problem with the notion that you should have had mandate these 30% districts is of course, those are the jurisdictions where we have the fewest problems, right? if a black candidate could get elected if a 25 -- in a 25% or 30% district, that means the vast majority of "outdoor wisconsin" are opened up to candidates of other races and those are the districts, because the minority preferred candidate can get elected that would be subject to this judicial fiat, whereas if you had stark racial

polarized voting there's no cans they can win 25% and iconly, the courts wouldn't be able to look at that situation, so you're penalizing one of the ultimate pervis i have arguments is you've penalizing the -- because they can now elect a minority candidate where minorities are a clear minority of the electorate. >> well, i mean, maybe i said it before, i don't think i did. i mean, the ways i can problem with to whole -- basic problem with this whole definition of racial live polarized voting, it's taken the issue of racism out of the question of racist voting. and i didn't have a chance to talks about section 2, i was very glad that mike did, but -- and rick, i don't remember whether you about as well, but i mean, section 2 started out, as it was written, and there was

all sorts of promise from the civil rights groups at the time of the hearings, that what that provision would be about was simply those he rare jurisdictions in which racism overwhelmed the political process. and you know, so it was all about racism, it was all about racism distorting politics. and in the end, as justice o'connor has said, it became simply a measure to insist on racially and ethnicically proportionate representation and the whole definition of racial polarization, getting away from racism, is part of that picture. >> the last question here.

>> i think much of what i have to say here is -- [inaudible] i think the question is the criteria for preclearance. which is essentially to say, there's a pragmatic question here. you just stated it. the preclearance forces people not to want to get into litigation over their changes and therefore, they do things in compliance. if you don't have that preclearance in south carolina, georgia, other than athens and atlanta, most of alabama, mississippi, and northern louisiana, above new orleans, you know, will there be the back sliding, you know, without that coercion? that doesn't make majority-minority districts, you know, the only real potential remedy, but to does make -- does

provide some course for us. the only other thing i wanted to say is i deeply agree with richard on the whole question that we need a national law on registration, and voting, you know, to deal with some of the other problems, but i think we have still have problems in certain parts of the south. >> well, a couple of thoughts. first, i'm sympathetic to a part of what you're saying if that you're separating out issues of access to the ballot box to the issues of redistricting and part of the reason this debate gets so distorted and so polarized to use that word, is we have a hard time keeping those two phoenixes separate. i'm very much in favor of aggressive laws for protecting access to the ballot box. i'm actually willing to think about preclearance regimes for

voter registration laws on a nationwide basis, and where the standard is not a racial effects standard, but kind of a burdens and benefits to protect the fundamental right to vote. i think if congress had focused on access to the ballot box if 2006, and left the redistricting issue aside, the supreme court's reaction to the statute might have been very, very different, because there's a lot more con cessors -- consensus to access at the ballot box. second thing i wanted to say is you bring up something i wanted to mention to come back to michael, which is part of the reason for my resistance to accepting a black or white position, as he put it, is it's an enormously vast country, you have rural areas of mississippi an of georgia, which are not like new york city, and i would like to see a voting rights act regime, which is much more flexible and dynamic, you know,

that recognizes these kinds of differences, even though i realize that it won't lead to, you know, simple bright lines tests, and part of the frustration with congress in 2006 is that it was unable to get to square one and even think about any of these kinds of distinctions, which is why i don't think it's going to get a very receptive audience from the supreme court. >> well, let me just say, one word on that. rick, i mean, it does seem to me that if, wars i'm sure there are, -- as i'm sure there are, pockets in the rural south, where there continue to be racist voting, fine, we have section 2 of the voting rights act, we have the 14t 14th amendment. laps i knew, the 14t 14th amendment hadn't been repealed. i mean, there are other -- there are mechanisms other than section 5 to go after such problems.

>> and just to footnote that point. section 2 as roger pointed out earlier is a results test. you don't have to prove intent. really what you have to establish is we could be a majority in a single member district an we're losing elections. it's not a very onerous burden to ferret out these pockets of lingering racism in my view. >> well, if i can just respond for a minute. those of us, and i'm sure this includes michael, who have been involved in voting rights act litigation under section 2, now how unbelievable live expensive and time consuming it is in fact, and if you're talking about a rural county -- >> you've got 150 justice department lawyers sitting around staring at maps, as they struck down section 5. >> oh, if you eliminate section 5 and have the justice department litigate, take on the responsibility, it's interesting -- it would be interesting to explore that has a possibility. one of the attractions of a preclearance regime, very different from the one we have