Posted on Nov 10, 2005

Testimony of Representative Tyrone L. Brooks, Sr. Georgia House of Representatives, District 63 President, Georgia Association of Black Elected Officials Before the House Committee on the Judiciary Subcommittee on the Constitution A Remedy for Georgia v. Ashcroft Wednesday, November 9, 2005 I want to thank the committee for giving me an opportunity to express my views on the important issues facing the Congress as it considers extending the special provisions of the Voting Rights Act scheduled to expire in 2007. As a 25 year member of the Georgia legislature (House District 63) that passed the redistricting plans that were the subject of the Georgia v. Ashcroft litigation, I am especially pleased to address and try to clear up some misconceptions about the role of the black legislative caucus in the enactment of those plans. Much progress has indeed been made in recent time in minority voting rights and office holding in my state, and in the South, but it has been made in large measure because of the existence of Section 5 and the other provisions of the Voting Rights Act. Had there been no federal intervention in the voting and redistricting process, it is unlikely that most southern states would have ceased their practices of denying and diluting the black vote. The fact that Section 5 has been so successful is one of the arguments in favor of its extension, not its demise. As important, the temptation for manipulation of the law in ways that will disadvantage minority voters is as great and irresistible today as it was in 1982, when Congress last extended Section 5. Removal of the federal oversight that Section 5 provides would doubtlessly result in a significant erosion in minority voting rights. That is evident, I think, from the fact that Georgia has received a total of 80 objections under Section 5 since the last extension of the preclearance requirement. A list of the state's Section 5 objections is attached. And just this year, the state enacted a photo ID requirement for voting in person that will without doubt deter or prevent a disproportionate number of minorities from voting, as well as the elderly and the disabled. It is not only difficult for many people to get a photo ID, but it costs $20 and is in essence a fee for voting. Fortunately, the federal court recently issued an injunction prohibiting use of the photo ID requirement, which it said was in the nature of a poll tax. Many people have asked me, "what new strategies and schemes do you think the states will come up with to suppress the minority vote?" My state didn't bother to come up with anything new, but reenacted one of the most blatant measures adopted after Reconstruction to suppress the black vote - the poll tax. I want to add that there was no evidence whatever presented to the legislature of the need for a photo ID requirement for in-person voting. The arguments that the state recently made in the Supreme Court in Georgia v. Ashcroft are also very disturbing. They demonstrate a continuing disdain for the Voting Rights Act and a willingness to disregard the interests of minority voters. The state argued that Section 5 as applied by the federal court was unconstitutional. It said the retrogression standard of Section 5 should be abolished, that majority black districts were no longer needed, and that minorities should never be allowed to participate in the preclearance process. As a long time member of the Georgia legislature and current chair of the Georgia Association of Black Elected Officials, I can confidently say that if we abolished the majority black districts for the state legislature, we would do away with most of the black legislators. The same would be true of black elected officials at the county and local levels. The argument that the state made in its Ashcroft brief failed to take into account how extensive racial bloc voting is, and that when a district is changed from majority black to majority white it depresses the level of black political activity. The enthusiasm, the spirit, the sense that blacks have a chance are all diminished. A formerly majority black district, particularly one without a black incumbent, would have a different voting pattern after it became majority white. Abolishing majority black districts would cause a significant reduction in the number of black office holders. The state's advocacy of such a position is, alone, a compelling reason for extending Section 5. The most notable exception to the pattern of blacks losing in majority white districts, and which the state relied upon in its Ashcroft brief, have been judicial elections. Judicial elections, however, are unique in that they are subject to considerable control by the bar and the political leadership of the state. Candidates are essentially preselected through appointment by the governor to vacant positions upon the recommendation of a judicial nominating committee dominated by the bar. The chosen candidate then runs in the ensuing election with all the advantages of incumbency. Judicial elections are low key, low interest contests in which voters tend to defer to the choices that have previously been made. Robert Benham, elected to the court of appeals in 1984 and the state supreme court in 1990, and Clarence Cooper, elected to the court of appeals in 1990, were preselected in this manner. Benham received special treatment in other ways. The governor felt they could sell Benham in the white community, with the support of the bar and the Democratic leadership, because nobody knew he was black. The plan was to get out the vote in the black community in the traditional way, but to ignore race in the white community. Benham's picture could appear only on brochures distributed in the black community and there could be no endorsements of Benham by Maynard Jackson, Julian Bond, Jesse Jackson, or anybody in the civil rights community. The ability of preselected blacks to win low key judicial elections does not, however, translate into the ability of blacks to elect candidates of their choices in majority white state house and senate districts. Georgia argued strenuously that its 2002 senate plan could not be deemed to dilute minority voting strength because black legislators supported the plan. But the support of the plan by black legislators should not be confused with their support of the state's arguments in the Supreme Court that majority black districts could be abolished, or that the retrogression standard should be abandoned, or that minority "influence" could be a substitute for the ability to elect. Most of the members of the Legislative Black Caucus voted for the senate plan as a way of maintaining Democratic control of the legislature and holding onto committee chairs, and because any reductions made in their own districts did not compromise their reelection or the ability of minority voters to elect candidates of their choice. The overriding goals of the Democrats were to protect incumbents and increase the number of Democratic seats by not wasting the black votes in existing majority black districts. And while black caucus members agreed to the population reductions, they would never have agreed to the abolition of majority black districts. Black caucus member Bob Holmes, who has served in the Georgia House for 31 years, has said that "No one would have gone for that. There would not have been a black vote for that." Notably, the black civil rights leadership of the state, including NAACP, Southern Christian Leadership Conference, RAINBOW/PUSH, Concerned Black Clergy, Georgia Association of Black Elected Officials, Georgia Coalition of Black Women, and Georgia Coalition for the Peoples' Agenda, filed an amicus brief in the Supreme Court urging it to affirm the decision of the lower court rejecting the state's senate redistricting plan. They asked the Court to reject the state's arguments for repeal of the retrogression standard, the abolition of majority-minority districts, and excluding minorities from the preclearance process. Most tellingly, black members of the legislature who had voted for the state's plan gave their full support to the filing of the amicus brief and said that it was the correct position for the civil rights community to take. I made a statement at the time that: We fully supported the filing of the amicus brief by the civil rights groups. We voted for the state's plan for political reasons, but we were appalled by the arguments the state made in its brief in Georgia v. Ashcroft. There is no question that abolishing the majority black districts would turn the clock back. The preservation of the majority black districts is critical to minority office holding and minority political participation. As its president, I can speak for the Georgia Association of Black Officials and say that we strongly disagreed with the state's arguments in the Supreme Court. I would urge this committee to support legislation restoring the protection lost under Section 5 as a result of the Georgia v. Ashcroft decision, by making clear that the retrogression standard of Section 5 protects the ability of minority voters to elect representatives of their choice. The ability to influence the election of candidates is not an acceptable substitute for the ability to elect. I also want to echo the sentiments of my colleagues that Georgia v. Ashcroft provides an extremely vague and difficult standard to administer.