done it shows very clearly the reason for the achievement problems is the individual parties, not the school having a concentration of poverty, the individual family background of those children. those same children are put in a different environment, they would still 10 to struggle in many cases. the best solution for those kinds of schools is to make sure that we have the resources, we have the teachers, we might have to have some districts paid teachers more to go into a more typical area. frankly, we have to work on the poverty problem. the poverty problem in families these are the things that calls lower achievement. we have to work on those problems. host: we have been talking about desegregation in schools. our guest has been david armor.

thank you for being with us this morning. that is all for "washington journal" this morning. we will be back tomorrow morning at 7:00 eastern to take your calls. have a good day. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] . .

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>> this was the second time that the court heard the case. earlier this year a two judge panel from the ninth circuit overturned laws because they were disproportionately affecting minorities. this is just over one hour.

>> good afternoon. we are here they hear the argument [unintelligible] and we have judged gould appearing by video from seattle. >> good afternoon to all of you. >> is counsel ready? he may proceed. >> may it please the court, i am from the naacp legal fund. i would like to reserve five minutes for a bottle. this is a very rare case in which three factors have acted together to establish liability for the denial of section 2 of the voting rights act. plaintiffs have established substantial evidence that the pronounced racial disparity that every phase of the criminal- justice system in washington

cannot be explained away by race neutral non-discriminatory factors. second, they have failed to offer any alternative explanations or contest any aspect of the plaintiffs record, which the district court recognized as compelling evidence of racial discrimination in the criminal justice system. significantly, the district court what it -- recognized that there was an interaction with racial inequality and criminal justice systems to shift in the quality to the political process. taken together, this is the essence of the vote denial claim with the totality of the circumstances established an external to voting interacted with qualifications to result in the nile to the right to vote on account of race. this is not a case of challenging the general validity of the law, but that disparity among established a

cause of action under section two. arguing that the law was used as a tool for racial discrimination. >> the theory finds that the entire criminal justice system in the state of washington is intentionally discriminatory against minorities? >> that is not right. what the evidence shows is that the disparity in criminal justice system arise from an resulted in discrimination on the account of race. >> there is no finding or contingent of intentional discrimination, even at the level -- the level of the criminal justice system? >> that is right, your honor. >> all in effect? >> relieved from the burden.

what the evidence shows here is the racial disparity in the justice system in washington that are not justified by actual participation. >> [unintelligible] say that that is not enough? >> they are not sufficient and you would not, what is significant here is that the district court distinguished the evidence in this case from salt river. their accord was constrained by the nonexistence of every factor in the court. to find the racial discrimination here, the evidence of the property was found in the disparity of this case that rose from the resulting discrimination. >> let me ask you, on the issues before the court i recognized you come here in a posture of

having presented substantial and impressive evidence before the district court, but you are also doing that on a landscape that clearly permitted this kind of a claim to fall within section two. my question now that we are back as a bank court with section 2 on the table, why should we part company from the other circuits with respect to the viability of such a claim? >> because that is the plain language of the requirements of section 2. it applies to any voting qualification without exception and it is equally plain that the disenfranchisement law is a voting qualification. constituting the entirety of the analysis. >> what do you do with section four with precise potential disqualification here?

it seems that we cannot read section two without taking it all, but you might have a way to reconcile that and i appreciate hearing your view. when you look at congress having taken into account, which i thought that is what section four did, looking at the issue, there you have almost a specific range. >> the supreme court is cautious against using legislative history from one establish used to interpret another, so it cannot be construed for passage of section four. calling out disenfranchisement in section four does not mean that they are exempt from section two's coverage. the argument is that the plan language requires us to follow

statutory interpretation where it is played on its base and the sole function is to enforce the plain terms as recently explained by the supreme court, that the authoritative state of congress is the context and not the statute. >> let me ask you about the statute. it says that no voting qualification or prerequisite to voting. if you just look at the words without looking at the history, which is what we all know congress is concerned with, that the southern states use these to disenfranchise black people from voting. look at the words. disenfranchisement is not a qualification or prerequisite, it is a disqualification for people that have previously been qualified. if we go beyond this statute and

we look at not legislative history, which i agree with you is dubious for the usual reasons, plus the reason that none of the legislative history says that they meant to get rid of felon disenfranchisement in 65 or 82. but if we look at other statutes, the national voter registration act of 1993, the help america vote act of 2002, they both have provisions requiring the federal government to assist the states in felon disenfranchisement enforcement. when i look at the package together, what i get is a history where these felon disenfranchisement laws were adopted, not for the purpose of excluding black voters, but white voters as southern states used to exclude voters because there were black, without

needing any indirect tricks. all the states excluded felons. for the states that excluded blacks from voting, every single person excluded from voting on account of disenfranchisement was white. i think it is extraordinary to try to read the words which do not seem to apply it in light of other legislation that makes it clear that the words do not apply and a history that makes it clear that the words were never meant to apply to mean the opposite. >> the text of the voting rights act captures pretty clearly the disparity. >> why do you need to speak to qualifications like paying colfax's as opposed to this qualifications? hal>> i think it is a distinctin

without a difference. the reality is that washington imposes the felony disenfranchisement qualification. >> suppose that you could prove that most of the people that left louisiana and mississippi and went to chicago were black. or a much higher proportion of blacks than whites left the southern states where they were discriminated against. would that mean that leaving the state and becoming a non- resident was prohibited? >> in this case they were able to trace the discriminatory impact of the discrimination was a viable claim under section two. >> someone in chicago for 10 years would still be entitled to vote in the bnl or mississippi because the non-residency disqualification would be

covered by 1973? >> it requires a voting qualification, but in your hypothetical the result would have to be a discriminatory account on the result of race. looking at a later congressional enactments, the supreme court has also cautioned against looking at a later congressional enactments. in a different context. >> they said that congress cannot say in 2010 what it meant in 1973. >> or 2006 or 1993. >> congress is not saying what it meant, they are simply passing laws that plainly require the fed some assist the states with felony disenfranchisement. >> in 1980 congress set out to expand a lot that was enacted to eradicate discrimination from

voting. >> i have two questions about current developments, recent developments that may or may not affect what we do. the first questions whether or not the court should wait for the supreme court to act on the petition in simmons and galvin, which is pending. the solicitor general has been asked for her brief. the second is the amendment of the washington statute so that the washington statute so that in fact it is really just prisoner disenfranchisement. presumptively, once someone is no longer incarcerated, they are generally restored the right to vote. would you comment on those two elements of the analysis? >> the supreme court might be waiting to see what the court

does on this matter. [laughter] [applause] >> i would not be sure about that. >> you do not want to win here. >> on the second question, the aclu points out that washington amended by and continued non- incarceration of people continuing to live under custody, meaning in effect that there are more people living under disenfranchisement. it actually disenfranchises more people that are not incarcerated the incarcerated. >> which one is before? your claim has to do with which version? the one that is moot? >> not at all. what it does not do is alleviate

the racial discrimination in the criminal justice system, nor does it prevent -- >> i hear your argument, but my question is if the original statute is delayed live issue before us. >> absolutely. the amended statute did not remove the discrimination from the washington criminal-justice system, nor did it alleviate -- >> answer with respect to the amendment statute. >> it does not cure the ill. >> which statute is the statute that we have to decide? >> 29.08, the statute challenged in this case. the amendment statute has a similar number. >> how can you constantly make a decision about statute that has been referred -- repealed? if there is a controversy from

the beginning, what did not have to be about a statute as it now is? >> it is the statute that we now challenge. >> the evidence presented to the district court applies equally to the statute. >> that is right. we have been able to show in the context of prosecution, for example, is that even considering statutory prosecutorial misconduct with relevant variables, prosecutors in washington state recommend the blacks are more likely to be charged with an offense and research -- receive a longer prison sentence with blacks spending 50% more incarceration time. >> i am still stuck at the threshold question as to whether this is even covered under

section two. looking at richardson, the holding at the exclusion of felons from the vote has a permanent sanction. how can we ignore that with expression from the supreme court? >> without challenging the general validity of disenfranchisement, there is the inevitable role of racial applications. the richardson case in section two does not prohibit this court from applying for three reasons. >> first of all, section 2 of the 14th amendment does not but i cannot do so on a discriminatory basis. the 15th amendment itself does not carve out an exception.

alternately rejected by that exception, the third reason tella as a recently pointed out, access to the constitution and the reconstruction congress prohibited certain states from disenfranchising statutory symbols >> let me go back to the congressional language in my question to you about reading the polls. section four, in which the

adoption distinction was made between covered and the non- covered jurisdiction. it seems to me that you have a bizarre paradox with respect to disenfranchisement laws if they were somehow meant to be included under section two and he did not in the other non- covered your sections -- jurisdictions. how do those pieces fit together, particularly given this distinction that was made and continues to be made over a long time the best example of what congress intended was not

to see if they have but the question is how we sit together to attack this with a scheme. in the best example to be learned from section four looking at the job, exempting the preliminary qualifications. there is scrutiny under section two, congress acted we feel that

fell in disenfranchisement boswell in the position. we would be creating a search that would surely get the supreme court's attention. how would you distinguish the other three circuits reasoning from what we have before us? >> these other three circuits, first, second, and 11th, starting one minute ago -- >> i was actually going to do it again. [laughter] in those three circuits, after disregarding statutory

interpretation, justice sotomayor explained that it was clear to anyone reading this section that it applied to all voting qualifications without exception. it is equally clear that felony disenfranchisement laws are voting disqualifications. just as those propositions were declared to cover the entire analysis intended to capture all qualifications. >> what is the remedy that she wished? but are you seeking in order that where felons disenfranchisement disproportionately impacts blacks. that all felons must vote? >> on this record and it not

only with the constitution, they struck out under every one. the record requires that this court in july. >> i had a question about how to understand that section, because the violation is by showing that the political processes are not equally open. what you seem to be saying is that once you show that a voting standard results in disproportionate fax from one racial group to another, it translates automatically into a showing of the political process that is effective. is that correct?

>> they are entitled to the election here and valued participation that does not have access to the ballot box at all. returning to the example of the prosecutor and the evidence shown in the context of prosecution, in this case we have shown prosecutors recommending blacks that are similarly situated whites spend 50% more time incarcerated.

>> the question in my mind is about getting it out quickly and cleanly. the critical -- criminal-justice system, unlike anything i can think of in this context, is a unique animal with built-in protection. so, if the prosecutor has prosecuted selectively, there is a remedy for that. if the investigation has been based upon evidence obtained through discriminatory means, there is a remedy for that. you cannot be tried by a discriminatory jury. once convicted of, it's not exactly bumping up against the notion that you are trying to say, which is that at the end of the day, without having achieved remedy during the process, the

conviction should not stand. >> i do not see the claims and raising grief. >> i did not say that it did, but i said it was bordering on a peculiar notion. >> this is not a collateral attack. we are talking about a violation of section 2 rights. >> precisely. if this were upheld through final determination in the entire criminal justice system in the state of washington, why would that not be a launch pad for collateral facts on judgments if you are convicted by a system that is based on discrimination? you have a bigger problem than not voting. -as pointed out in hayden. >> which was misguided, because

the standard for counting criminal conviction is essential discrimination. the evidence here shows the effect of racial discrimination in the criminal justice system disproportionately denies the right to vote. >> your argument follows then that felon disenfranchisement laws are fine so long as the state prosecutes and convicts more whites and people of other races other than blacks and hispanics, who were in the record in this case. it is not felony disenfranchisement that is the problem or that defendants are innocent of the felonies and were only convicted because of racial discrimination, it was because not enough white felons are being caught. your argument is, by implication, that these laws are just fine so long as they can

big enough whites. >> that states have the authority to disenfranchise their citizens so long as they do not do so on a discriminatory basis. >> all felons, regardless of race? are disenfranchised. -- all felons, regardless of race, are disenfranchised. >> the criminal justice system is being injected into the process and i think there is a provision for a great example in the way that the congress looks at racial discrimination and how it has shifted from the voting process into the political process. >> the district court here, should we not use that in looking at the evidence to look at more than section 5? is it your position that factor 5 is not a bellwether in a case like this?

easier to correct on the remedy? >> the senate factors as considered in their totality, no single senate factor was foundered. the senate proceeded to count them against the pertinent context of the illusions as almost all of them look to the effectiveness of both cast by racial minorities. >> you have about three minutes left. did you want to say? >> i wanted to reserve five minutes.

>> alright, we will hear from the state now. >> may it please the court, i would like to begin with the question of whether the voting rights act applies the felons, and we believe strongly that it does not, of the same conclusion reached by the first, second, and 11th court of appeals. in the first instance, the plain language of the voting rights act makes it clear that it does not apply to felony disenfranchisement. focusing on the language in section two a, a case involving the election of judges, one must read 2 a and 2b together, and when you do you see how to apply them, referring to the political process that is equally open and

referring to the opportunity to participate in the process. >> subsection a states the type of rules or procedure that could be covered if the person exists. b is about what you have to prove. >> correct. >> but is not about the theory that can be pertained to. why is a lot of this kind not one of the following -- a voting qualification, a prerequisite to standard, or practice for procedure? >> for the purposes of the voting rights act, it is about felony disenfranchisement. >> sort of the ultimate answer, but not an explanation, why is

there not a law that says that people who have certain status or who have engaged in certain behavior are no longer entitled to vote? why does not -- why does that not count as the procedure in voting? >> the right to vote does not extend to felons in the first instance, it was boss previously and are not in the class of citizens who have had meaningful opportunities to participate in the process. the exact opportunity that was reached by previous courts. >> because of the felony >> because of the felony disenfranchisement, that is not an answer, it is a response. >> therefore you cannot vote, therefore you cannot cover? >> it is sanctioned in amendment 14, section 2. >> i think you are saying that

good moral character is a qualification for voting. >> is expressly address as being impermissible under the voting rights act. that is the section where you would have expected them to address it. >> you do not have to have that good of a moral character, but it must be non-felonious? a qualification, but because they did not mean that it should not count? >> the language of the washington state constitution refers to losing the right to vote for committing felonies. that is the issue here. moral character is not the language used in our state constitution. it is language that was address by the congress in section four. >> i do not think you understood the thrust of the question. i understood your argument to concede, that not committing a felony was a voting

qualification. for your argument, not really to be a plain language argument, but the legislative intent based on other things, i am trying to find out exactly where. >> the reason we think there is a plain language exception within the scope is the language in section two taken with section 2a, referring to the goal of congress to see that citizens have an opportunity to participate in the challenged qualification or practice with violations established based on totality of circumstances. not equally open to participation by those protected by subsection a. >> pointing out the fact that there was opportunity to participate. you cannot go in and hold up signs for your favorite

candidate, calling people and telling them to vote for them if they are in prison. >> correct, if they are in jail they do not have a meaningful opportunity to participate. in the first instance we make it plan language argument. most courts also choose to examine the legislative history, held relevant by the other courts. >> i would like to present you with a hypothetical. suppose there is a state that has never had a lot like this before. and the legislators said that they know that they cannot have a poll tax anymore or a literacy tax, but there is a good way to keep racial minorities from having their fair share of the

process. passive felony disenfranchisement law for the express purpose of making sure that we have fewer minority voters. if that is something that is covered by section 2 of the voting rights act or not, if not, why not? >> this is pretty much the situation of hunter and underwood. they simply had to look to equal protection for the explicit prohibition on voter discrimination. whether it is intentional discrimination, you would refer first of all to the 14th and 15th amendments therefore you would not have to go to the voting rights act. >> what would you find out if it was prohibited by statute? >> if there was potential discrimination, it is

conceivable that this could be said yes, it violates the voting rights act but i do not think it would reach that question. >> but there is no proof here that the political process has been tainted as it was in section 2b, or are you saying not even to think about it? >> it is not title -- hypothetical. the district court found expressly no discrimination in washington. 2006 they found circumstances in the remarkable assets of any discrimination in washington. >> it sounds like a hypothetical

argument. >> in passing that this and fight -- disenfranchisement voting provision, do you have it handy or remember it well? page 10, and i had discussion with opposing counsel, the courts have found compelling evidence of racial discrimination and bias in the washington criminal-justice system. [inaudible] based solely on statistics and sufficient evidence for a vra

claim the court finds express' conclusions on civil data admissible, relevant, and persuasive. is this a finding of intentional discrimination by the state of washington? >> no, it is not. >> you agree with opposing counsel that this is not intentional. talking about racial discrimination, it connotes to my mind an active state of mind as opposed to disparity.

i have read that sentence as a finding of intentional discrimination in the criminal justice system in washington. you do not see it that way, i gather that for coat -- opposing counsel does not either. if there is no intentional discrimination, then without conventionality regarding voting requirements how you get

coverage under section 2. >> we do not know how it brings it within section two. >> let's say that i was questioning the word disparities' vigorously and we can discuss that. right now let's say that that question has been set aside as undisputed with quite clear undisputed with quite clear evidence that the criminal- justice system operates in a disparate non-discriminatory. is that enough to a, to a, to a bring a section two violation? >> no, it is not.

simply not enough to establish a claim of vra. what the judge below did in his foot note, apologizing to employment discrimination in which there is an entitlement under the civil rights act but not the appropriate standard under the voting rights act, where you have to apply results and show, and connections between the voting practice and qualification, which clearly has not been cited as explaining away most of the disparities, most of which are explainable by legally relevant facts, saying that they are not designed to uncover the causes and are left with a set of experts that cannot explain it through legal

factors so we assume that the remaining disparity is the result of discrimination as pointed out. >> often that is how we make decisions in real life, when you extrude all of the possible probabilities and the improbable is only left in two as we operate in that way in real- life. residents can get positive proof of something, so you say what are the likely causes there for life is finite and possibility is everything, so you move on by saying it must be this other thing. congress applied a totality of

circumstances test in which disparities alone are not enough. they refused to look beyond factor 5, which the district court analyzed under the totality of circumstances, even though he did find compelling evidence that the disenfranchisement olaw. >> significantly there is generally no evidence for inclusion. is that an accurate statement of facts in terms of going with legal arguments? >> we did focus on the legal

arguments as observed in the briefing. secondly and most importantly, is not enough to prove the following disenfranchisement, which is the conclusion reached by the district court. the district court judge found that there was enough under factor 5 but not enough under the totality of the circumstances. he did look at the other relevant factors. >> if one assumes that that was deciding under the claim of section 2, what would be your position? position? >> we would argue that the evidence is not sufficient under section 2 to include the balance in the violation of

civil rights acts. the ratio of african-americans incarcerated in the general population, that is a 1980 figure. indicating responsiveness of judicial and political systems. most of the studies that they rely on were studies commissioned by washington state itself, by the minority justice commission, created expressly to address concerns about this proportionality in the criminal- justice system because of concerns made over racial profiling. resulting in several amendments to state law that had the effects.

the totality of the overall effect a more than 50% reduction in proportionality. >> on the record? >> er189 for the original three-one ratio, er 130 for the ratio dropping to 4.22. we do not have the 2007 figures in the record. >> the fact that you are giving us right now, are they in front of us? >> should we take judicial notice? >> i would ask you to take notice.

>> with proper promotion? >> the sentencing commission. >> that me ask you about something else. what did the state put on planets summary judgment papers related to the other senate factors? >> we brought in evidence of the state's history of favorable civil rights organizations brought to 1990. no evidence has been provided of racial polarization. we show that washington voters supported president obama in

2008, elected an african- american chief executive of the largest county in the state, an african-american to be the mayor of the largest city in our state. the fact that the 2009 amendments to the disenfranchisement law was adopted. >> what is your response to the issue raised earlier about the non-statutory form assuming that there is a claim system. if that is the version of the law, what is your response to the opposing counsel argument that the amendment has made things worse? >> we believe that the current version of the law is the version of the law before this

court for the purposes of this case. effectively joining the current law, it must be the current law for the support amended in 2009. secondly, i do not believe that opposing counsel has made things worse, i think that they said that there are still a lot of people who are disenfranchised who are not incarcerated, who are supervised. a majority of states that disenfranchise do so while they are in prison. that is the most common practice in the united states today. the reason for that is the policy decision that because there aren't community supervision, they can be pulled back if they violate the terms of their release and policy decisions have been made to allow them only to have voting registration that is invalidated as it would be difficult because some of these individuals are in and out of jail while on

supervision for minor and large violations of supervised release. the state of washington legislature is greatly reducing the number of felons affected with the 2009 amendments with a policy decision to keep supervised felons within the scope of the state law. >> how does this apply to federal felonies? >> federal felonies are not covered by our law. if they move into our state, then they are on federal parole. the language of the statute refers expressly to those individuals on supervision convicted in a state court in washington. similarly, if a convicted felon moves into our state from another state and is still on parole from another state, they are not covered by a law that is disenfranchisement in washington.

>> no thank you. [laughter] >> you argue that the act does not apply, but i have heard mr. haywood in his argument saying that it does not matter, so far as this case is concerned, putting aside for a moment whether the evidence was substantial or not, there was a showing of discrimination that was enough. your response? >> we do not believe that it is enough to suddenly bring policy franchise laws to the voting rights act as we do not believe that congress intended to apply, unless there is a showing of intentional discrimination. we discussed that hypothetical a few minutes ago to consider the felony enfranchisement lot for discriminatory purposes. in that case one cannot reach,

as the court did in underwood, addressed under the 14th and 15th amendments. >> the problem with that argument is that we have that very case right now. the business of the 14th and 15th amendment claims leave the voting rights act claim. the case you are saying cannot possibly occur is the one that you are arguing. let's all due respect, i am saying that the case of potential -- >> all due respect, i am saying that the case of potential discrimination is not the one before us. >> what happens if we disagree with counsel on both sides and moved to the sentence on page 10 regarding the finding in the administration of the criminal- justice system, leaving in place the intention to

discriminate, thereby the intentional discrimination in the criminal justice system. >> in that case we would ask for a complete totality of the circumstance analysis has declined to do. we believe that you reach the same conclusion. >> disparity, you said, had to be the other factors. the hypothetical that you just addressed to me included -- >> i understand. he said that if the sentence merely showed disparity, i asked what if it was read as intentional and we balanced other factors as well?

>> what i hope that i said was that it could not be proved by factor disparity. the court has been clear that by votes in blood -- voting rights cases, if it is a physical disparity you do not even prove that one factor. >> i think this was ships passing in the night. if i understood the thrust of the chief judge's question, if the felon was disenfranchised it was passed through the intention of discrimination at the time in the 1860's when the first version was passed, the criminal justice system without discriminating so the the effect of a combination of the two was, as a practical matter, disproportionate in its exclusionary effects.

of the right of some to participate in the political process, is this merely a legal inquiry? >> i think that proof has to be provided that the results test for felons franchise as operated for that to come in. >> but then you run into this problem of the 1982 change from 1983 and the language resulting in at. >> yes, the amendments were clearly aimed that the court, saying that intentionally was no longer the test. courts that looked at the language said that you do not satisfy results by showing physical disparities. >> what you were asked about was an intent to discriminate in criminal law enforcement.

some good/bad sheriff in charge of law enforcement telling the deputies that work for him, ignore all of those white suburbs, they are all well- behaved, nice folks, justin for staloff in the black areas. >> except there is no evidence. >> hypothetically let's expose it -- let's suppose there was. >> then we would look at the totality of circumstances. first i would look at the language itself. analyzing discrimination of the criminal-justice system of the flight of historical circumstances and broad environments, it does not necessarily even rise to the position. even in this case where there are physical disparity iies, 80% are claimed as legally relevant factors. >> the posture of the cases that came to was in the district,

which was a grant of a summary judgment for the defendant and the plaintiff. in the context of that, it seems you are looking at the summary judgment factor. the court goes on to state that it is compelling, so how do you reconcile the language in light of the procedural posture in which the case comes up to us? . .

>> you listed a variety of ways in which you believe the state refuted those. is that something that should have been decided on summary judgment? is this really a summary judgment case in this context? judgment case in this context? >> we think it is given the absence of any proof of intent analogy and the fact that even the statistical disparities are explained by legally relevant factors. they do not prove factor 5.

even if fact 5 proves, you have to look at the other facts and conclude that the remarkable absence of any official discrimination is there. the court did not have a difficult time deciding that it is not within the ambit of the vra because of the other factors. the district court judges willing to give the benefit of the doubt on factor 5. he said even if we give them that, we have compelling evidence, the rest of the evidence overwhelmed factor five, including the fact that washington law does not violate. >> when a case comes to us on summary judgment with a substantive flaw, we take into account the totality of circumstances. what is our standard of review? >> we are duke in the first

instance that the vra does not apply. the court does not have to reach that to conclude that the state -- i think the court does not need to reach it because the vra does not apply to our state law. under the standard of the supreme court. none of the other circuit courts have reached it either. >> thinks you. -- thank you. >> mr. haygood, you have 50 minutes. >> the evidence reflects compelling discrimination. discrimination on account of race.

>> use said unintentional? >> discrimination on account of race. our argument is that the impact of the disenfranchisement law results in discrimination. >> disparity not discrimination. >> it is more than disparity. these disparities a rise from and results in discrimination. >> you are mincing words. even there is an intent to discriminate region either there is an intent to discriminate, the system in washington intentionally discriminate based on race, or the other possibility is that there are disparities with no intent. >> congress expressly amended the voting rights act in 1982. >> i am not asking about congress.

>> it does not require an intent test. >> there is no intent then? >> say that again. >> what do you think the situation is here? is there disparity or discrimination? >> racial discrimination. the district court recognized compelling evidence of discrimination. >> let's suppose that is true. let's suppose that when we read let's suppose that when we read section 1943 -- 1973 that we look at the totality of the circumstances, what i am wondering is whether history is one of the circumstances within that totality. as i understand it, all of the states since the beginning of their existence have exploded felons from voting -- excluded felons from voting. i believe that until recently, all democracies have, starting with athens.

is that among the circumstances that can be considered within the totality? >> the challenge is not to the general validity felons disenfranchisement. the challenge is the way that race plays an incremental role in washington's law. notwithstanding the substantial record assembled, the defendants have never contested any act. none of the facts raised in the record. >> what do you make of their argument that without intentional discrimination, if you do not get back to 5 at all? >> that is not supported by section two. that is a results test. in the context of prosecution, prosecutors have recommended this enfranchisement 50% longer than similarly situated whites.

>> in what sense of a similarly situated? >> this is controlling for all past criminal convictions were there have been aggravating factors. these are similarly situated blacks and whites better treated differently by washington's criminal justice system. prosecutors recommend that similar situated blacks spend 50% more time incarcerated than whites. in the context of voting this means that prosecutors recommend disenfranchisement 50% longer for blacks and whites. that his record to under 13- 214 -- that is a record 213- 214. it is compelling evidence of discrimination. in washington state, 24% of

african american men and 15% of the entire black population are disenfranchised. the argument made by opposing counsel is they are not in the record. the record reflects compelling evidence of discrimination impacting voting. the only question is whether the compelling evidence requires summary judgment as a matter of law. at the supreme court, the defendants the lawyer to review the defendant's failure to -- affects the validity. >> all rise. >> all rise.

>> this afternoon, a discussion on the 2010 midterm election. mike allen will be there along with representatives from google and facebook. the u.s. senate gavels in at 2:00 eastern for an hour of speeches before considering whether to bring up legislation that would provide tax incentives for companies that move overseas operations to the u.s.. lives in the coverage is on c- span -- live coverage is on c- span 2. the panel on the golf is meeting today. they will cover who is in charge of making critical decisions. that is live right now.

the afternoon session will be live here on c-span. the epa administrator testifies along with the interior secretary. the afternoon session begins at 1:30 eastern here on c-span. "the communicators" continues to look at privacy and telecommunications policy with a discussion on strengthening the federal law that affects data collection. that is tonight on c-span 2. >> the palestinian president said today that he will meet with the arab league next week. there is an israeli moratorium construction that has ended. he said it has to happen for peace negotiations to succeed. this is 20 minutes. this is 20 minutes.

>> in the name of god, the merciful. majesties, excellencies, ladies, and gentlemen. it gives me pleasure, mr. president, to extend to you our congratulations on your election as president of this session, wishing you every success in fulfilling your tasks. we would also like to extend our greetings to his excellency for his valuable efforts to bring his presidency of the general assembly's 64th session. assembly's 64th session.

also express our appreciation to the secretary general and the work of different bodies in different fields. on this occasion, we highly appreciate the work done by the united nations body, particularly the united nations relief agency for palestinian belief. it works to provide essential services to the palestinian refugees who for more than 60 years have been waiting for redress of their plight and the realization of the right to return to their homes and properties. i am fully aware that the agenda of the united nations general assembly is replete with matters and issues of pressing concern to the entire human race and our planet, particularly those related to our complex wars,

people living under foreign occupation, the realization of the right to self- determination, clos -- climate change, global warming, natural disaster, and global and economic financial crises. all of this takes place at a time when we're witnessing the call for the revitalization of the united nations and particularly for the reform of the security council in order for it to become more representative and surely embody the current international situation. that is especially in light of the emergence of new powers that must be represented in the security council to enhance its role and efficacy in maintaining international peace and security. there's also significant discontent over the non- compliance by some states with resolutions. it is a matter that requires

the international community to take a vigorous and effective measure to compel these countries to respect the resolutions and implement them to put an end to foreign occupation, to put an end to colonization and exploitation to promote the values of freedom, justice, tolerance, peaceful coexistence, and combat extremist and and terrorism. united nations has a fundamental role to play in promoting relations between peoples and fighting them towards investment and community development in infrastructure, to fight poverty, unemployment, the disease, and epidemics, and to counter the legal risks to humanity in the future of our planet in its entirety. mr. president, ladies and gentlemen, our people and our

region are facing extremely serious problems that continue to push them into the corner of violence and conflict, wasting chance after chance to address the problems of the people of the region and obtain comprehensive, genuine solutions. because of the mentality of expansion and domination which still prevails in the ideology and policies of israel, the occupying power, that continues to occupy our land, making noncompliance with the resolute ions of the u.n. and general security council their standard policy. such disrespect has rendered

ineffective the resolutions. it has undermined the credibility of the united nations and deepened the predominant view that there is a policy of double standards being applied, particularly with regard to the question of palestine and that israel is the state above the law that can flout all of these resolutions and relentlessly carry out its oppression, detention, killings, demolition of homes, blockades, settlement expansion, and the expansion of the apartheid wall, violating and undermining the rights of our people in their own homeland. mr. president, ladies and gentlemen, the ancient city of jerusalem, capital of the independent state of palestine designated by a decision of unesco as one of the world's

human heritage sites that require protection is subjected by israel, the occupying power, to actions of distortion of reality on the ground, the destruction of landmarks, cemeteries, and religious, and spiritual identity of this holy city in all aspects. it is at an accelerated pace with the aim of increasing the historical character and pre- empting negotiations. this is in addition to the continued excavation work under the mosque, the demolition of homes, the deportation of the population, and the imposition of the siege to isolate it from its natural palestinian

surroundings to control it geographically and demographically. this is a matter that greatly provokes our people. ger in theuse for anch air of world. it constitutes a serious obstacle to the goal of peace and security. -- it is a cause for agn in th region is a cause for anger in the arab world. all of these things must be put to an end. it is also the case with regard to the situation in the gaza strip that has been subjected to an unprecedented blockade in violation of international law and united nations resolutions, in addition to being subjected to this, grave is really

military aggression has raeliely -- grave is reall military aggression has resulted in severe destruction of the infrastructure. nearly 75% of the working force in the gaza strip have become unemployed and are completely dependent upon international aid. the israeli blockade has prevented the people in gaza from reconstructing their homes in spite of the fact that the international donor community has pledged approximately $5 billion to finance reconstruction. this blockade against the gaza strip must be lifted immediately and completely. the tragedy and suffering of our people must be ended as soon as possible. while we welcome the efforts of the international independent

fact-finding mission established by the human rights council and the conclusions of the panel of inquiry with regard to the aggression against the freedom flotilla carrying humanitarian assistance to our people in gaza, we also hope that the panel of inquiry established by his excellency will submit its report to the security council. i must also add to all of the above the fact that there remain thousands of palestinian prisoners languishing in israeli jails and detention centers. these are all fighters of freedom and peace. the suffering must be ended.

the suffering of the folks must be ended. it is essential to do so to create a conducive environment for the attainment of peace. we cannot reach a peace agreement that does not liberate all of these litanies from their chains. mr. president, ladies and gentlemen, in spite of all this and the historic injustice inflicted upon our people, the desire to achieve a just peace that guarantees the achievements of national rights, freedom, and independence has not and will not diminish. our wounded hands are still capable of carrying an olive branch picked from the rubble of the trees.

our people aspire to living in peace and security on national soil and palestine, to build its life in the future of its generations. we are keen on the establishment of the comprehensive and lasting peace based on what is right, justice, and the resolutions of the international legitimacy. the sediment that leads to the state of palestine enjoying its sovereignty and authority -- we want a settlement that leads to the state of palestine into an is sovereignty and authority and peace in the middle east. the proceeds from our general desire to realize the

comprehensive and lasting peace in the region, we have decided to entire into final legacy asians. we will make every effort to reach an agreement for palestinian and israeli peace within one year. the arab peace initiative, the road map, and vision of the two- state solution. we have reaffirmed, on behalf of the palestine liberation organization, our commitment to the option of just peace and our sincere intention to make these negotiations a success, in spite of all the difficulties and obstacles that stand before us. the international community should look of the reasons for the failure of the political process and the inability to reach the desired goals. restoring credibility to the

peace process requires mainly compelling the government of israel to comply with its obligations and commitments and cease all settlement activities and abandoned the annexation-apartheid wall and put the end to the policy of blockade and closures that restrict the lives and movement of our people and deprive them of their basic human rights. our demand for the cessation of settlement activities, the lifting of the blockade, and putting an end to illegal israeli policies and practices do not constitute pre- conditions that are alien to the peace process. rather, they are consistent with

the implementation of obligations and commitments that have been agreed and reaffirmed by all resolutions adopted since the very start of the political process. of theseimplementation obligations and commitments will create a conducive environment for the success of the new associations. it will give credibility to the pledge to implement the final agreement. israel must choose between peace and the continuation of the settlements. mr. president, i reaffirm our readiness to continue as we have always done to make every possible effort so that these news stations will achieve the desired aims and objectives in tackling of final status issues.

jerusalem, the refugees, the settlements, water, security, in addition to the release of all prisoners, and in a manner that realizes freedom, independence, and justice for the palestinian people in their homeland, rectifying and lifting the historical injustice inflicted upon it. we have a view to achieving security and safety for all neighbors and to achieve a just peace in the entire region in order to usher in a new era of prosperity. rectifying the political process can only be achieved if the can only be achieved if the international community takes

responsibility for ending israeli occupation, the longest occupation ever in contemporary history. we must ensure our people's right to self-determination in their own independent sovereign states based on the 1967 borders. we must achieve a just solution to the plight of the palestinian refugees. all of this must be done to the implementation of the principles of the charter of the united nations and the implementation of the security council and general assembly resolutions, in addition to the advisory opinion and international human rights laws. on the ground of the occupied palestinian territories.

all that constitutes legitimate terms for any successful negotiations leading to a final peace system. mr. president, ladies and gentlemen, our people in spite of the great suffering hold steadfast to the right to their land and national soil. at the same time, they are determined to restore the national unity between the two parts of our homeland. we're making every possible effort to restore unity through dialogue and the honorable efforts deployed by our brothers and friends, particularly the arab republic of egypt. we will spare no efforts on our part to put an end to the division resulting from the coup against palestinian

legitimacy to institute democracy as the firm foundation, as an indispensable foundation and our political life. we will also bear responsibility in building national institutions for our independent state and building our national economy, and in insuring the safety of our citizens under a national authority based on the rule of law, accountability, transparency, and justice. we shall also continue to uphold all of our obligations in accordance to the road map and agreements reached between the two sides. in conclusion, it is necessary in this regard to express our appreciation to all those who have contributed in sponsoring

and supporting the peace process. i would like to express my special thanks to his excellency, president barack obama of the united states of america, who has reaffirmed in his statement two days ago that the two-state solution and the necessity for the freeze on settlement activities as well as to establish an independent state of palestine that will enjoy full membership in the united nations. on this occasion, we reaffirm our readiness to cooperate with american efforts in order to lead the political process to success and reach a comprehensive and lasting peace in the region. however, we also believe that there is need to pay special tribute to the united nations that has preserved our cause and extended a helping hand to our people, adopted resolutions and

decisions that constituted a basis that cannot be bypassed in the search for comprehensive peace. we call upon the united nations to continue playing its essential role until the rights are upheld and our people have regained their usurped rights and peace prevails in our entire region. like to reiterate our greetings and appreciation for your tireless efforts and solidarity with the just cause of palestine as well as the pledge that we will continue to hold on to peace to which we and all peoples of the region aspire. we ask god to bless us with the future in which we will all enjoyed peace, security, and stability. made peace and thus blessings

and mercy be upon you. goeache and d's blessings and mercy be upon you. >> and request protocol to escort his excellency. >> more from the united nations. the haitian president spoke of the u.n. on friday, mainly about the relief efforts following the january earthquake that killed more than 200,000 people and left close to 1 million homeless. he spoke for about 20 minutes. on behalf of the general assembly, i have the honor of welcoming rene preval, president

of the republic of haiti and invite him to this assembly. >> mr. president, mr. secretary general, at your excellences comet heads of state and governments -- your excellencies, heads of states and governments, may i first feature be to the memory of hundreds of thousands of haitians and those who came to help, the united nations staff,

about 100 u.n. staff? i would mention specifically the special representative of the secretary general. they all lost their lives during the earthquakes that struck 80 on january 12 blast. truck haiti on truck haiti on january 12 last. every human tragedy offers the possibility of solidarity. on behalf of the people of haiti and my personal behalf, i would like to thank all of the people and governments across people and governments across the world , ranging from the dominican republic to the ends of the earth who came to our assistance.

the assistance was crucially important for us, particularly during the first few weeks when there was a very extreme sense of need and urgency. may i also thank haitians living abroad in new york, paris, and many other corners of the earth who joined the great movement of international c solidarity and to mostly, trying to make sure that their commitment would be long standing, set up structures so that they could help our country as it rebuilds.

i would be remiss not to pay special tribute publicly to the people of haiti themselves. they are a people who have been deprived of everything and yet demonstrated the immeasurable wealth of their humanity. towns that were destroyed were not pillaged or lifted. the people demonstrated such dignity and kindness, such exemplary stamina in their exemplary stamina in their suffering, such boldness, courage, devotion, solidarity, and self-sacrifice. they loved the other. i think that is how we have to describe the acts of heroism of the haitian people.

let us show our respect for them. them. my country has had a unique history since it emerged immediately after the war of independence which took the life of 1/3 of our people and caused unprecedented material destruction in the wake of the american and french revolutions of the 18th century, our country challenged the human race to recognize the universal nature of the proclamation of human rights. that is the right to freedom, dignity, and equality, making patients -- haitians free men

and women. 04. nation was born in 18 0 although it was port and since then has been deprived in material terms, it has never hesitated to offer evidence of solidarity to peoples struggling for their freedom. for example, greater columbia known today as venezuela, ecuador, panama. under the leadership of francisco miranda and then simone bolivar. despite our limited resources, haiti has always demonstrated is full belief in the one tness

of the human race. that is why we fully appreciate the men's movement of solidarity and compassion of the international -- the men's movement of solidarity and compassion of the international community from the moments right after the earthquake right up to the commitments made on march 31 at the new york conference where a commitment was made to participate in rebuilding haiti on the basis of the plan of action offered by the government of haiti. with assistance from the international community and support from the united nations, we have set up a commission to coordinate resources for rebuilding.

it is an important strategic mechanism for helping the transparently and carefully the resources mobilized within the international community to support our country as it rebuilds. the commission has already adopted over 30 projects on education, health, infrastructure, and so forth. about $1 billion worth of projects. may i extend my thanks to those countries and agencies that have followed up on commitments to make financial contributions. a trust that this will be done by others also to help us respond quickly to the over 1

million haitians still living in tent cities and temporary shelter. mr. president, your excellencies, ladies and gentlemen, distinguished delegates, we have just held an important high-level meeting on the development goals. 10 years ago when 189 countries met here to agree to achieve the 8 millennium development goals by the year 2015, the international community was actually in agreement on what the world should look like 2015.

it would be a world well on the way to reducing extreme poverty, where children and mothers would not have to die because of lack of health care, where all children would be able to go to school, where millions of people would stop dying of hunger every year, where women would be able to flourish in a society without any gender-based discrimination. that vision was the right one because it focused on human dignity as being at the very heart of all development programs and the agenda of international cooperation. that vision also provided countries and their partners in the international community with

a clear, straightforward structure for planning development and organizing cooperation with the countries that were committed to help achieve the goals. achieve the goals. while significant progress has been made in the right direction, five years before 2015, there is still a long road to travel. this is because of the developed countries not fully living up to the financial commitments made for the millennium goals. what am i to say about the

trillions of dollars that have been swallowed up in bloody and unjustified wars over the last 10 years? what am i to say about the defense budgets which every year are much more than what would be needed to attain the millennium goals? what am i to say about the incalculable amount of money but simply evaporates in speculation with the virtual economy is arrogantly taking over from the real economy? are we going to continue sacrificing the well-being and life of millions of human beings, the future of planet earth, to this culture of fear and greed?

what am i to say about the fact that official development assistance continues to fall? in 2005, the developed countries committed to doubling the amount by 2010. what happened to the decision to encourage a more open trading system when assistance to farmers in developed countries is over three times the amount of official development assistance? globalization began centuries ago with colonization in the importation of african captives who were to work as slaves in sugarcane and coffee plantations were the product would then be exported to the west with the north region or to the north.

that is globalization that began then. it needs to be reinvented. mr. president, mr. secretary general, your excellencies, ladies and gentlemen, the time has come for us to invent a new kind of globalization based on the simple concept of common humanity, based on trust, cooperation, and mutual respect. it is respect for our environment and all forms of life living and our environment. we have to do away with the vision and approach that sees profit as a veritable god, the reduces citizens to being

simple consumers, that reduces planet earth to being a colony destroyed by ourselves. the global village will not be able to survive forever if it's fashionable neighborhoods are side-by-side with wretched slums where humanity is wallowing and dissolving. it would be in north and south economically. in haiti, we're living on an island in an area that is swept by hurricanes. we are particularly worried about global warming and climate anomalies that go along with it. there have been more frequent

and devastating cyclones. there is a rising sea level. our poor people still going to have to pay for the unbridled appetite for energy of the wealthier brethren? are the poor people going to have to give up on the efforts to improve their standard of living in order to feed the consumer frenzy of the so-called developed countries? the war against drugs is actually a few little skirmishes in the consumer countries but full-scale bloody battles in the for production and transit. the very existence of these states is sometimes jeopardized.

are the countries of the south going to continue to be categorized as responsible for the production and transit of illegal drugs when the actual engine for that profitable trafficking is the demand for drugs in the countries of the north? what are we to say of arms trafficking from the north to the south, supportive of the illicit drug trafficking? we have to provide the answer to those questions. we cannot sidestep those questions much longer without rushing to our common doom. our only remaining hope is hope

for a renewed humanism, perceptive humanism including all life and the environment, the environment we depend on and for which we bear some responsibility. cooperation does offer some hope. i would urge leaders in the countries of the south to further develop cooperation for the well-being of their respective peoples. mr. president, your excellencies, ladies and gentlemen, some of the statements i have heard at this section of the general assembly would suggest that there is an emerging, a growing awareness of what is needed for a new vision of a new humanity of course as

always, we must make sure the commitment and actions are aligned with rhetoric. this is the moment when haiti consider that we wish to see the embargo against the cuban people lifted. the embargo has been condemned in many resolutions adopted by this general assembly. in addition, it is contrary to the values that we advocate here in terms of international trade. in terms of international trade. i would be remiss if i were not, on behalf of the haitian people, to convey my condolences to the many peoples who have suffered from natural disasters recently. chile, pakistan, and others.

ladies and gentlemen, i would like to end by referring to the elections that will be taking place shortly as mike term draws to an end -- as my term draws to an end, and at the end of a particularly difficult year for the people of haiti. it is important that this difficult procedure be followed properly, calmly, transparently, and fairly so as to consolidate our young democracy. i would appeal to all of those involved nationally and internationally so that all together we can hold our elections successfully. thank you very much. [applause] >> on behalf of the general assembly, and wish to thank the president for the republic of

haiti for his speech. i would ask the representatives to remain seated while the escort the president. but the japanese prime minister also spoke on friday at the u.n. general assembly in new york city. he outlined his government's priorities including nuclear disarmament and peace keeping efforts. he spoke for about 20 minutes. >> i have great pleasure in welcoming the prime minister of japan, his excellency of japan. i invite him to address the

general assembly. [applause] >> distinguished delegates, ladies and gentlemen, i extend my heartfelt congratulations to the assumption of the presidency of the general assembly. i also express my appreciation to his excellency for his efforts in the previous session. i would like to express my respect for his leadership. 65 years ago in the aftermath of the second world war, japan faced the same challenges that confront developing countries. japan received a lot of support from the international community in its struggle to overcome them.

it is for this reason that japan harbors strong sentiments regarding the achievement of the millennium development goals, the main theme of the general assembly this year. at this time, the international community is facing a series of challenges that include poverty, hunger, infectious diseases, proliferation of weapons of mass destruction, regional conflicts, and global environmental issues. it is an honor for me to have this opportunity to share with you my thoughts regarding the role that japan should play in the international community building on our own experiences. let me start by discussing the philosophy i cherish. that is that the primary role of the leader of the country should be to create a society in which

human suffering is reduced to the minimum. i believe it is the duty of all political leaders to minimize to the extent possible the sources of human suffering such as poverty, disease, and conflict. with this philosophy in mind, i shall now discuss japan's contributions in four areas. development, the global environment, nuclear disarmament and non- proliferation, and peacekeeping and peace building. mr. president, the first area of contribution is assisting the development of the developing countries. after the second world war, japan achieved economic reconstruction only in part to international assistance.

later with economic growth, japan became one of the major economic powers. with such a street behind, with such a street behind, japan cannot overlook the realities of the world today where 1 billion people suffer from hunger. nearly 1 million people die each year of malaria and poverty keeps 72 million children out of school. japan attaches a great importance to achieving the mdg's. i attended the summit the day before yesterday and announced the new contributions and the health and education area as commitments. there is the desire to save all fledgling lives and unable of children to go to school.

we will provide $5 billion u.s. in health assistance and $3.5 billion u.s. dollars in education assistance over the course of five years. our commitment will be up to $800 million to fight aids and malaria. assistance in the area of education will provide a high- quality environment for education to more than 7 million children. japan will continue to work comprehensively on development assistance in accordance with the concept of human security. we will lead the efforts of the international community towards meeting the mdg's. as part of these efforts, japan proposes to convene an international conference in japan next year and ordered to strengthen the coordination

among a broad range of stakeholders, including governments, international , andizations, and ngo's fall upon the high level plenary meetings. reinforcing assistance to africa in particular where progress is slow is one of the priorities of the international community. attaining the mdg's in africa is an important pillar of the process. japan is enhancing its efforts in fields such as health, water, sanitation, education, and food. in order to steadily implement our commitments, including the doubling our support to africa by 2012, japan will continue to strengen