INTRODUCTION I. BACKGROUND ON SECTION 5'S EVOLUTION: SECTION 5 BOTH BEFORE AND AFTER THE 2006 REAUTHORIZATION, AND THE SENATE JUDICIARY COMMITTEE REPORT A. Section 5 and the Beer Retrogression Standard B. Pre-Reauthorization: Adoption of the Deferential Ashcroft Standard C. 2006 Reauthorization: Overturning Ashcroft and Attempting To Return to Beer Retrogression D. Appended Post-Passage Senate Judiciary Committee Report: An Attempt To Narrow Section 5's Applicability II. CONSEQUENCES OF ADOPTING THE POST-PASSAGE SENATE JUDICIARY COMMITTEE REPORT'S NARROW INTERPRETATION OF SECTION 5: RISKING REINSTATEMENT OF ASHCROFT'S DEFERENTIAL STANDARD A. "Ability to Elect" Absent the Senate Judiciary Committee Report B. "Naturally Occurring Majority-Minority Districts" III. DETERMINING WHAT TYPE OF LEGISLATIVE HISTORY THE APPENDED COMMITTEE REPORT SHOULD CONSTITUTE A. Characterizing the Report as a Typical Committee Report Entitled to Significant Deference B. Viewing the Report as Akin to Postenactment Legislation Accorded Little to No Deference 1. Case Law for Same-Congress Individual Legislator Statements 2. Case Law for Subsequent Congressional History. IV. ANALYZING WHETHER THE COMMITTEE REPORT ACCURATELY REPRESENTS THE INTERPRETATION OF SECTION 5 BY CONGRESS AS A WHOLE A. Congress Represented by the Sponsor of the Enacted Bill's Language B. Congress as the Median Congressional Voter C. Congress Represented by Enacted Statutory Language CONCLUSION INTRODUCTION
As a sacred symbol of electoral equality and democracy, the Voting Rights Act (VRA) (1) has long been regarded as "the most effective civil rights statute" ever promulgated by Congress. (2) Section 5 of the VRA ("Section 5") has been called the "crown jewel" of the Act, (3) uniquely targeting only certain jurisdictions--eight states and various other counties and townships (4)--with some of the country's worst histories of voting discrimination, and requiring that these jurisdictions submit any election-related changes for approval by the federal government. (5)
In Georgia v. Ashcroft, (6) however, the Supreme Court adopted a more deferential approach that may well have robbed Section 5 of its enforcement power regarding legislative redistricting. (7) In response, many civil rights scholars and advocates urged Congress both to reauthorize and to strengthen the provision before it was due to expire in 2007. (8) Congress allayed such fears on July 13, 2006 by passing the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (VRARA). (9) Congress not only reauthorized Section 5 for another twenty-five years with the near-unanimous support of both houses, (10) but it also explicitly condemned Georgia v. Ashcroft for misconstruing Section 5. (11)
Nonetheless, civil rights advocates and proponents of Section 5 may still have reason to worry. After the VRARA bill passed and only one day before President Bush signed the bill into law, the Senate Judiciary Committee issued a report (the Senate Judiciary Committee Report or Senate Report) (12) on the virtually identical Senate version of the bill. (13) The Senate Report interpreted the language of the reauthorized Section 5 narrowly, while two individual Republican senators argued that the legislative process was too time-pressured and politically charged to enable Congress to craft an adequate Section 5. (14) The Senate Report cannot be said to represent the views of the entire committee, however. Not only did one Republican Senate Judiciary Committee member refuse to sign the Report, (15) but the Democratic members of the Judiciary Committee never received a version of the final Report containing the narrow interpretation of Section 5 retrogression before the Report was filed. (16) Ultimately, the published Senate Report included a fervent dissent to an earlier version of the Report. This dissent, signed by all eight Democratic Senators on the Senate Judiciary Committee, denounced the Senate Report as inaccurate, postenactment legislative history not deserving of judicial consideration. (17)
Still, given that there is considerable debate among scholars as to which retrogression standard (18) the reauthorized Section 5 established, and that the text of the legislation, the floor debates, and the House Committee Report (19) fail to provide any further guidance or alternate understanding, this appended Committee Report may become pivotal in cases challenging the reauthorized Section 5's constitutionality. (20) If the Court adopts the Senate Report's narrow interpretation, Section 5's preclearance enforcement provision (21) is more likely to be held unconstitutional, which is exactly the result that civil rights advocates and many supporters of the bill aimed to avoid. (22)
This Comment will examine whether the Senate Judiciary Committee Report should be considered legislative history relevant to interpreting Section 5's scope and evaluating the provision's constitutionality. Part I will provide a historical and legislative background of Section 5 of the VRA before and after its reauthorization in 2006, and will describe in detail the appended Senate Judiciary Committee's Report. Part II will then examine which retrogression standard the reauthorized Section 5 established in the absence of the Senate Report, as compared with the narrow standard articulated by the Report. Such an analysis highlights how critical the Senate Report, if considered authoritative legislative history, could be in determining the scope and enforcement power of Section 5. Part III will consider which type of legislative history, if any, the Senate Report should constitute, and, thus, what level of deference it is owed by the judiciary. After all, each type of legislative history the Report might constitute, be it a committee report or postenactment legislative history, would entitle the report to a different level of authoritativeness. Because the Senate Report does not concretely fall into either of these categories, Part IV will then evaluate whether the Report represents Congress's collective understanding of Section 5, employing three models that consider, respectively, whether the bill's sponsor, the median voter, or the bill's explicit language best represents congressional intent. Under each of these models, the Report fails to represent congressional intent accurately, leading to the conclusion that the Senate Judiciary Committee Report should not factor into judicial decision making. Instead, the Report raises the same bootstrapping concern as postenactment legislation, which the Court has repeatedly refused to consider as relevant legislative history.
BACKGROUND ON SECTION 5'S EVOLUTION: SECTION 5 BOTH BEFORE AND AFTER THE 2006 REAUTHORIZATION, AND THE SENATE JUDICIARY COMMITTEE REPORT
Section 5 and the Beer Retrogression Standard
By requiring each covered jurisdiction to have its election laws "precleared" by federal officials or judges, Section 5 of the VRA empowers the federal government to prevent covered jurisdictions from enacting discriminatory voting standards, procedures, and practices. Although the original VRA already designated when a jurisdiction should be entitled to preclearance, (23) the Supreme Court in Beer v. United States (24) narrowed Section 5's enforcement powers by establishing what has come to be known as a "non-retrogression" standard, which prevents covered jurisdictions from weakening minorities' existing electoral position and voting power. (25) Beer established that Section 5 preclearance relies solely on the discriminatory effects of voting-related changes, ignoring intent. To evaluate effects on minority voting strength, courts engaging in Beer Section 5 analysis have generally compared the number of majority-minority districts--districts in which a single minority group makes up more than fifty percent of the voting age population--before and after the proposed voting or districting change. (26)
However, this method may not be the best way of advancing the VRA's underlying purpose and evaluating minority voting strength. In fact, there is significant debate among election law scholars as to whether minorities' electoral interests are best served by majority-minority districts. Proponents of majority-minority districts argue that, both empirically and from a policy standpoint, these districts constitute a better safeguard against minority vote dilution than "influence" or "coalition" districts. (27) Influence districts are defined by the Supreme Court as ones in which minority voters, who constitute as little as twenty-five percent of the overall population, "may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process." (28) Meanwhile, the Ashcroft Court defined "coalition" districts as "communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice." (29) In contrast, other scholars argue that "packing" minorities into a few districts actually dilutes minorities' electoral influence, while dispersing minorities into "influence" or "coalition" districts increases their ability to elect their candidates of choice due to coalitions they build with white voters. (30)
Pre-Reauthorization: Adoption of the Deferential Ashcroft Standard
Confronting doubts as to the viability of using majority-minority districts to measure minority voting strength, in 2003 the Supreme Court modified the Beer retrogression standard in Georgia v. Ashcroft. (31) Supported by many prominent African-American Democratic legislators and admittedly aimed at increasing the number of Democratic Senate seats, the redistricting plan involved in Ashcroft, which the Georgia State Senate had adopted after the 2000 census, dispersed minorities from...