understood. it must be con grew end proportional. in northwest austin. latest shall be a county case agreed that it must be proportional. section five must be a proportional remedy to achieving the franchise for minorities. when section five was passed in 1965, we were 100 years after the 15th amendment. we were in a extreme state of discrimination. a mayoral candidate asked white voters to shoot in their tracks any african-american voters. alabama was 19% registration rate. white voting in these states was well over 50% higher.

how did these states achieve rampant diseven francement of blacks? the voting rights act outlawed. it was a continuous effort by the south over 100 years to change and amend the voting practices to disfranchise african-american voters. these literacy tests would ask things. the examples are how many bubbles are in a soap bar or ask the african-americans to read the content of the beijing daily. which is in mandarin. this is when section five is proposed as a remedy to the 15th amendment rights. it would seem at that time as an extreme remedy. it was passed for five years. chief justice warren when the

section five was first up for constitutionality called it an uncommon exercise of congressional power that would not have been appropriate absent the conditions and unique circumstances present in the jurisdictions. in the sense, hugo black describes, some of the states cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities for policies. some of the constitutional structure to draw any state and federal power almost meaningless. one was the federal government had certain specific and limited powers and no other powers to be reserved to the states respectively or the people. despite the discrimination going on at the time section five was adopted, the supreme court and president and the justice department all recognized its

temporary need. recognized it was a remedy justified by the times it was passed. i argue it was a proportional response to the voting in 1965. section five of the voting rights act was constitutional and passed and remained constitutional for some time after that. and sometimes good legislation produces good rules, which section five did. near immediately after section five was adopted, mississippi, which as i previously said in 1964 had 7% black registration. jumped to 60% within three years. alabama went to 53%. the situation continued to improve over the years that section five was enforced. to the state now where the covered jurisdictions in the south. the state legislation are 31 to

45% african-american. a previous one-part system of democrats has evolved in a two-party system. the reasons -- besides the times changing, the reasons why i want to argue there is unconstitutional today are two-fold. they cannot be distinguished in terms of discrimination presently occurring. section five does not address modern voting problems. so, the jurisdictions that are currently covered are not currently the jurisdictions that generally experience the most egregious voting rights allegations. in 2000, the main allegations were coming from florida. in 2004, the main were coming from ohio. neither which are covered jurisdictions. registration, turn out and office rates in cover versus non

cover are inn distinguish able. pre-clearance denials. i know one of us thinks that is a valid basis on which to judge the discrimination occurring. denials have dropped from 4% to .2% despite the increase in requests for pre-clearance. findings of intentional discrimination since 1992. there have been 24. 11 of those have come from cover jurisdictions. 13 have come from uncovered jurisdictions. more section two cases are brought in uncovered states than covered states. secondly, it does not remedy modern voting wrongs. i think this was exemplified better than i can do than our speaker from the law center that current complaints of discrimination are basically

across the country. they are not generally found -- they are found in the covered exclusively found in the covered states. we heard wisconsin mentioned a number of times. rhode island, minnesota, new hampshire. new hampshire is partially covered. but the claims of discrimination now a days are registration and voter problems. provisional ballots and errors in tabulation. reliance on old technology. poor ballot design. these things, not only are they not covered, but they are exacerbated by section five p - pre-clearance. if a polling place has out dated tap legislation machines, it

behooves these jurisdictions to keep the status quo in place. they will not have to amend those problems and this exacerbates the problems that are most often cited as cases of discrimination in voting. but there are a lot of other problems with section five that both the supreme court and scholars have talked about, including the coverage formula which has been 1972. how it difference the states with the constitutional framework within the states. it has been argued that it causes harm to minority politics and the list can go on. so, i believe that section five is unconstitutional. it will come before the supreme court most likely next year. all of the justices have signed on to at least some of the complaints that i have laid

forth. i expect it to be ruled unconstitution unconstitutional. thank you. >> i have a power point, but i have no object. >> you are about to get one. ask and you shall receive. >> thank you. hello. take a deep breath. cleansing breath. this is a really good panel because i don't agree with anybody on it [ laughter ] >> nina, i thought we were co-counsel. >> we are co-counsel. i want to say thank you very much for bringing me here. i want to thank the university, the law school, whatever the slipper is. i want to thank alex and pam, especially. as which co-counsel, she has done the heavy laboring on a number of briefs that we have done at the supreme court. how do you go forward? >> the right button. >> the right button goes forward. partisanship? not so much. i don't agree.

let's talk about texas. here is my position. republican versus democrat. outmoded thinking. this is not a reflection of texas. this will become vestigial everywhere else. i think where the real issue is and where people need to be paying attention is on latino population growth and latino political mobilization and the challenges of incumbents to both political parties and leadership. let's start with context. this is latino population growth between 2000 and 2010. it is very similar to la tino growth from 2000. green is african-american. yellow is other non-hispanic. the smallest growth is white alone, not hispanic. we call anglos in texas. if you combine both decades, we

have not gained a seat, anglos have grown by 1.1 million in texas. let's start from there. you will see from the west which is 16. overpopulated by 16,000. big west texas is 23. the love of my life and the subject of litigation, overpopulated by over 150,000. district 20, over by 13,000. 28, out of loredo, 153,000. then corpus christi to brownsville, texas. overpopulated by 43,000. if you add up the overpopulation of these existing latino majority districts, you get

three quarters of a district. this is a challenge of the districters who did not want to increase the number of latino opportunity districts. so here is the seventh district and the one we proposed which runs from san antonio to east austin. this was the idea that the leadership thought was a good idea. they incorporated a versus of it in the congressional map that the state passed. this was opposed vigorously by the democratic leadership. it goes in and gets latinos out of the district of a current angelo congressional incumbent. alex, where did you go? what is his name? lloyd doggett. lloyd was not included in this district, but was planning to move in and run and did not want to run in a latino majority

district and face a latino majority. let's talk about dallas/ft. worth. where the angelo population of dallas county dropped over 200,000 in the decade. here you have a lot of latino population that runs east/west. which is why you see the state's enacted plan carving districts north and south. you see districts scooping from the south and you see districts scooping from the north. the one i want to point your attention to is the district from the south in denton county. the lightning bolt down into the latino areas of tarrant county. it is still about partisanship, isn't it in they want to try to break up democrats and put them in republican districts. i want to show you how carefully

this line carves through tarrant county to pick up the red areas which are latino voting majority block groups compared to african-american citizen voting age block groups. the lightning bolt only gets latinos and leaving african-americans in other districts where their vote is diluted as well. i know you care about congress and that's what it about. anybody here from texas? where are you from? >> college station. >> you have to love it. we're going to talk about the county in south texas. you don't care about the house map. i do. look at the orange district in the middle. that is nemo. that is 34% hispanic voting citizen. it is next to another hispanic voting age majority district hd

34. it shares with an angelo majority district. keep your eye on nemo. oh, he's gone. look what happened? they shoved all of the latinos over in hd 34. as many as they could. nemo has disappeared and broken up and is no longer there. there he is. now he's gone. and this was what was done in the state's enacted map. if anybody needs a definition of retrogression. that is retrogression. here are the antlers in el paso. 77 is the latino majority district. 78 is the district that is barely latino majority, but represented by a state representative that is not a candidate of choice. how do you protect a guy in 78 who is not a candidate choice in an 80% latino county? you go with antlers and you get

most of his latino precincts leaving behind a latino minority district in a very heavily latino county. i love the antlers. these antlers do not line up with precincts. they split 14. they don't hug the mountain as originally tried. they do line up very well with the highest concentration of block groups with hispanic citizen. here is a failure to add a new valley house seat. the top map is the house enacted. lots of seats in the rio grand area. there was enough overpopulation in the existing districts to create a whole new district right there inside two counties. the state did not do it. we proposed what you see is the big purple on the bottom map.

that was the additional district that cameron and idalgo county had enough population for but which was never drawn. what is at stake in that is in cameron and idalgo county. that picture was taken by one of my witnesses who in the trial began to weep on the stand when he told the story of a priest having giving the last rites to a boy burned in a fire and the police could not come because the streets were not paved. when we think about redistricting as maps and lines and colors and numbers, that's what it is about. that is the difference between having another seat in the valley and another voice in austin compared to not. so the three-ring circus. what did you call it? the trifecta? >> yes. >> we challenged the plans in texas the western district of

texas in san antonio. it has been a long road since july. we went into a very compressed discovery period. lots of exchanging of things. lots of depositions. we tried the case on the first workday after labor day. we tried it into mid-september and then we did post trial briefs. we did more briefing in another mini trial. by that time, the state of texas was under way with its lawsuit in the washington d.c. federal court seeking pre-clearance from the courts. i have to disagree with ellen here. if they submitted the plans, the doj would have objected. as doj objected to the house plan in 2001 under bush ii. we would have gotten an objection. texas in its wisdom chose to go to court and filed an unsuccessful summary judgment. we filed that case january 17th until the day before yesterday.

in the middle of all that was the appeal interim maps. we have to have elections and we have an early primary elections in texas. they are held the first week in march. the backed up deadlines including under the new military voters and precinct and all of that bring us into october 2011 which is why the district court in texas, you may wonder, include interim plans in november because we have very early election deadlines. the political parties are putting a lot of pressure on the district court in san antonio because they need to hold their political conventions in june. prior to that, they need to select their delegates. that is what they do. besid besides nominating people, they

select for the kconvention. we tried to stay on schedule somehow. we will see if we do. there is now a new april 3rd primary date which we which or may not be able to make. we are trying. one of the things and you heard people talk about racially polarized voting. there is a lot of racially polarized voting in texas. we cannot slap a partisan label on what is going on here. what is important to us is the racially polarized voting within primaries. because of that, non latino incumbents are very concerned about losing the primary to a latino challenger. for example, not just in the congress plan where we were proposing an additional district that was opposed by the democratic leadership and democratic incumbent, the same thing happened in the house. we still have incumbent in a district that is

45% voter registration. there are no other latino majority districts around there. let's take these folks and put them inside and bump them up to 50%. who was the most aggressive opponent about that? theres were some latino who were concerned about the latino population within their districts. which translates into pressure to change some of their policy positions. if your district is 40% latino or 45% latino or 48% latino, you cannot run around saying deport everybody. that's not going to work. there is a pressure there to change the policy positions to seek out the support of your latino constituents. there is some reaction and you will see it in the texas plan of trying to draw districts that have some latinos in them, but not enough to be able to change the outcome of the election for

an incumbent who doesn't want to change policy position in the general election. so you see lots of different kinds of fracturing in the plans to meet those ends. that is why you can see, apox on both houses with respect to democrats and republicans. this is basically what i just told you. and the potential large amounts of flexibility in latinos have in texas with partisanship. we have not had the same experience as california. you know there is a lot of mobility here, but people are not sure how to respond. what we are seeing right now on the part of both political parties is not by reaching out or being inclusive position wise but fracture incumbents. what latinos have done? we have been litigating a lot since july in just this state.

we have formed together into coalitions to try to accomplish the litigation. there is a lot of awareness. don't be fooled. there is a lot of awareness that the vra is being invoked by both political parties to serve their own political ends. why is the press still reporting this as democrats versus republicans? because they are very confused and they are not paying attention. they haven't seen or haven't recognized the increasing mobilization of the latino community. they are very distracted by democrats versus republicans. nobody is paying attention to what is going on in court. i read stuff that is completely not reflecting what is going on in court both in media and sometimes in the academy. also you get a lot of drum beat from the political operatives this is about democrats getting screwed or this is republicans something else. i don't think it is that. then, of course, at the end, the

vra has outlived its utility. it is really helping us. i'm not going to agree utility. we have strong claims in the case. i'm looking to the future. that is what it is about. that's what it is about. my son is 15 years old. he came with me today. he will vote soon. but not too soon. he won't be -- he won't after we die in texas, but notfo he will be voting in this decade. it is not just my own interest in casting aniluted vote. that is where we are going. i think there will be greater latino participation in primaries, and in generals. we will present a tremendouson growth. i think both political parties will have to wise up and stop fracturing and start reaching

out. what is the ideals forhe latino community? knock on your door and say i want your vote. hopefully that will cause the latino-ization of both political platforms. thank you. >> i want to give the panelists to respond to each other and we will take questions from the floor as well. i don't know. maybe start in reverse order. nina, is there anything you want to ask joshua or ellen? >> i don't think i have any questions. >> okay. joshua, did you have questions for nina or ellen? >> same. >> i guess i'll ask ellen if you have questions. i guess you all have answers.

not so many questions. >> i feel slightly off. nina was just a force here. want to back up with something that joshua said. i think one of the difficulties in the section five constitutionality question is the claim that why don't the cover jurisdictions look worse than the non-covered? pam made a powerful point this morning about that. about deterring effects. i think the numbers areyou are regulated system and non-regulated system. one of the things about that debate obscures is i would be really concerned, the covered jurisdictions had more section two ca

regulatory regime in place that is shielding and blocking all sorts of stuff. i think in some ways if it continued thethere. so i think in some ways if the -- to continue to look at 1965, it would be crazy to stick with that system. it wouldn't be doing ad purpos. i think we agree on -- so i'll stop there. >> first, it was the situation in 1965 that authorized this. the court at that time recognized it as an extreme temporary remedy. i don't think anybody here is of 1965.pinion that the state of i don't think anybody would argue that it's the same as in 2012. so the first point would be -- the remedy that section 5 is is not justified by the current times despite the existence of

some discrimination. but more importantly i think what the state of the south today and that so many black elected officials are present in the south is that the discrimination that would need to occur to disenfranchise blacks would have to be done by the black elected officials themselves. and it would have to be done on the backs of -- with legal organizations like maldeath and others out there fighting for the rights of minorities on a regular basis. i don't see that the deterrence effect being covered today is justified givef race relation in the south today. >> the thing that -- that's puzzled me for a long time is the sort of question of what

should decide when section five's usefulness is outgrown and what it is that makes section five such an extreme remedy? as i understand the argument that people who think section 5 is such an extreme remedy, the state can't put the plan into effect until it gets precleared. as you quoted you have to go to washington with a hat in their hand like beggars. is the problem that somehow federalism says jurisdiction should be put into -- put the burden on voters who have been denied the right to vote to come forward? i never figured out if it's the burden of the proof or the timing issue that leads people to think that section 5 is an extraordinary remedy. i'm still trying to figure out about the preclearance regime. i understood the

extraordinary -- what the supreme court thought was extraordinary in 1965 was that the federal government was chopping out literacy tests without any proof that there was anything wrong with a particular test. i never understand how that got translated into section 5 preclearance regime being extreme. i wonder if the panelists think that why's that so extreme, because that goes to burden of proof and timing in most cases. in most cases where there's an objection, presumably a plaintiff would be able to challenge and section 5 has changed the timing and burden of proof. it hasn't changed the ultimate outcome nearly as much as if we got rid of section 5 as it would assume. what is