[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
ENFORCEMENT OF THE VOTING RIGHTS ACT
IN THE STATE OF TEXAS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
MAY 3, 2019
__________
Serial No. 116-18
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
38-078 WASHINGTON : 2020
--------------------------------------------------------------------------------------
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking
SHEILA JACKSON LEE, Texas Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana, Ranking
ERIC SWALWELL, California Member
MARY GAY SCANLON, Pennsylvania LOUIE GOHMERT, Texas
MADELEINE DEAN, Pennsylvania JIM JORDAN, Ohio
SYLVIA R. GARCIA, Texas GUY RESCHENTHALER, Pennsylvania
VERONICA ESCOBAR, Texas BEN CLINE, Virginia
SHEILA JACKSON LEE, Texas KELLY ARMSTRONG, North Dakota
James Park, Chief Counsel
Paul Taylor, Minority Counsel
C O N T E N T S
----------
MAY 3, 2019
OPENING STATEMENTS
The Honorable Steve Cohen, Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 2
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 4
WITNESSES
Ernest Herrera, Staff Attorney, Mexican American Legal Defense
and Educational Fund
Oral Testimony............................................... 8
Prepared Testimony........................................... 10
Gary L. Bledsoe, President, NAACP Texas State Conference
Oral Testimony............................................... 16
Prepared Testimony........................................... 19
Jayla Allen, Chair, Rock the Vote
Oral Testimony............................................... 24
Prepared Testimony........................................... 26
Michael T. Morley, Assistant Professor, Florida State University
College of Law
Oral Testimony............................................... 32
Prepared Testimony........................................... 35
Mimi Marziani, President, Texas Civil Rights Project
Oral Testimony............................................... 49
Prepared Testimony........................................... 51
Jerry G. Vattamala, Director, Democracy Program, Asian American
Legal Defense & Education Fund
Oral Testimony............................................... 61
Prepared Testimony........................................... 63
Jose Garza, Garza Golando Moran, PLLC
Oral Testimony............................................... 73
Prepared Testimony........................................... 75
APPENDIX
Item for the record submitted by The Honorable Sheila Jackson
Lee, Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 102
Items for the record submitted by Gary Bledsoe, President, NAACP
Texas State Conference......................................... 103
Items for the record submitted by Michael Morley, Assistant
Professor, Florida State University College of Law............. 120
Item for the record submitted by Roberta L. Cohen, State Policy
Advocate, Texas National Council of Jewish Women............... 133
ENFORCEMENT OF THE VOTING RIGHTS ACT IN THE STATE OF TEXAS
FRIDAY, MAY 3, 2019
House of Representatives
Subcommittee on Constitution, Civil Rights,
and Civil Liberties
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 10:00 a.m., in
Room 114, Barbara Jordan-Mickey Leland School of Public
Affairs, Texas Southern University, 3100 Cleburne Street, McCoy
Auditorium, Houston, Texas, Hon. Steve Cohen [chairman of the
subcommittee] presiding.
Present: Representatives Cohen, Nadler, Green, Jackson Lee,
and Garcia.
Staff present: James Park, Chief Counsel, Keenan Keller,
Senior Counsel, Will Emmons, Professoinal Staff Member.
Mr. Cohen. Good morning, everybody. The Subcommittee of the
Judiciary Committee of the United States Congress on the
Constitution, Civil Rights, and Civil Liberties is hereby--and
I would first like to recognize your provost, Mr. Kendall
Harris.
Mr. Harris. Good morning, everyone.
Voice. Good morning.
Mr. Harris. Welcome all to the historic campus of Texas
Southern University. On behalf of our president, Dr. Austin
Lane, I would like to thank everyone for joining us today for
this House Judiciary Subcommittee on Constitution, Civil
Rights, and Civil Liberties official hearing on the Enforcement
of the Voting Rights Act in the State of Texas.
I would like to thank Chairman--I would like to thank
Chairman Cohen for hosting it here at Texas Southern
University. Of course, our very own representative, Sheila
Jackson Lee, thank you very much. But we also would like to
recognize and thank everyone that is on the panel today, along
with Representative Sylvia Garcia, Chairman of our United
States House Judicial Committee, Representative Jerry Nadler,
and our very own representative, Al Green. Thank you very much.
Thank you to the witnesses that will be testifying
throughout the hearing, for your testimony will bring value and
direction to this committee.
Holding this event on a college campus is quite
extraordinary, for the topic of civil rights has been somewhat
lost as a priority for this generation. Many assumptions are
made by our students, but the awareness of civil liberties must
be in their forward consciousness.
So, on behalf of the students, staff, faculty, and
administrators of Texas Southern University, I thank you for
allowing us to host this hearing. If there is anything that is
required of us, please let us know.
Thank you very much.
Mr. Cohen. Thank you, Mr. Provost. We appreciate your
hospitality, and we certainly were inspired by the Mickey
Leland and Barbara Jordan statements, and history that we are
able to see. And we are honored to be here.
This committee has come to order. Without objection, the
chair is authorized to prepare recesses of the subcommittee at
any time.
I welcome everyone today to this field hearing on the
Enforcement of the Voting Rights Act in the State of Texas.
Before proceeding, I ask unanimous consent that Representative
Al Green be permitted to fully participate in this hearing,
including the ability to sit on the dais, and ask questions of
witnesses in accordance with subcommittee procedures.
Hearing no objection, I will now recognize myself for an
opening statement.
I thank all of you for attending today. This field hearing
is part of a series of hearings of the Judiciary Subcommittee
on the Constitution, Civil Rights, and Civil Liberties, which
we will be holding over the course of the 116th Congress, to
assess the present need for a reinvigoration of the
preclearance requirement of Section 5 of the Voting Rights Act
of 1965.
Section 5 requires certain jurisdictions with a history of
voting discrimination against racial and language minority
groups, which up until 2013 would have been those
predominantly, though not exclusively, in the Deep South, to
obtain approval of any changes to their voting laws or
procedures from the Department of Justice, or the U.S. District
Court for the District of Columbia, before such changes could
take effect.
The purpose of this preclearance requirement is to ensure
that jurisdictions that were most likely to discriminate
against minority voters, and I can tell you, and you probably
well would suspect that it is those states that are formerly
part of the Confederacy that still harbor those same feelings
through their children, and grandchildren, and others, that has
unfortunately been historically passed down generationally,
that those states would bear the burden of proving that any
changes in the voting laws towards minority voters were not
discriminatory before such changes could take effect. This
means that they couldn't take action, impede an election, and
then force people to sue, and have dilatory tactics, and get
through the election in an improper fashion.
By placing the burden on jurisdictions with this history of
discrimination to prove their innocence, Section 5 rightly
prevented potentially discriminatory voting practices before
taking effect--from taking effect before they could harm
minority voters. And they did this throughout the South, and
they liked to keep doing it. And that is what we are trying to
work against.
In this way, Section 5 proved to be a significant means of
protection for the rights of minority voters. That is why
Congress has repeatedly reauthorized Section 5 on an
overwhelming bipartisan basis, most recently in 2006, when we
passed the Voting Rights Authorization--Reauthorization by a
vote of 390 to 33, in the Senate by 98 to nothing. That was in
2006, and it was a republican-controlled House. And I think a
Republican-controlled Senate, too, and yet it was overwhelming
390 to 33.
Unfortunately, the Supreme Court effectively gutted Section
5, when in the Shelby County v. Holder decision struck down the
coverage formula that determined which jurisdictions would be
subject to the preclearance requirement of Section 5. As a
result, Section 5 has remained--remains dormant unless and
until Congress approves a new coverage formula.
While Section 2 of the Voting Rights Act, which prohibits
discrimination of voting, remains in effect, it is by itself
less effective and a significantly more cumbersome way to
enforce the Voting Rights Act. Most importantly, plaintiffs
cannot invoke Section 2 until after an alleged harm has taken
place, thereby, eroding the effectiveness of the Act.
The foregoing brief history of Section 5 explains why we
are here today in Texas. Texas was a covered jurisdiction under
the Voting Rights Act in pre-Shelby County days. Perhaps not
surprisingly, within 24 hours after the Shelby County decision
was handed down, Texas announced its intention to enact a
strict photo identification law, which would have a
disproportionate adverse impact on minority voters. So, Texas
quickly swung into action and showed why Texas is a state we
should visit, and why Texas is a problem state.
The Texas State Advisory Committee on the U.S. Commission
on Civil Rights found in 2018 that there were barriers to
voting in Texas in three major areas: Voter registration,
access to and administration of polling places, and language
access. Looking at barriers to voter registration alone, the
committee found, among other things, that Texas was the 44th
worst state in the nation of voter registration, with only 68
percent of eligible voters registered to vote, that it
implemented voter procedures with a disparate impact on Latino
voters, that there was low registration rates due to public
discourse about voter fraud, that it enacted measures to chill
efforts to conduct voter registration drives, and that there
was widespread misinformation and confusion against citizens
regarding voter registration.
Additionally, Texas has been the subject of a number of
lawsuits, both historically and in recent years, charging the
legality of its congressional state legislative district maps,
jerrymandering. The state has been accused of engaging in
intentional racial jerrymandering in minority vote. Dilution
and such litigation is ongoing.
There has been recent litigation against Texas as voter ID
laws and effort by state election officials to purge voter
rolls of those, and that it concluded were non-citizens. In a
move by one Texas city, that had been formally been covered
under a covered jurisdiction subject to pre-clearance of
Section 5, to add at-large city council districts in an alleged
effort to dilute minority representation.
Texas is the second largest state in the nation, one that
owes a substantial population increase in recent years to a
growth of its racially ethnic minority populations. The rise of
the alleged discriminatory voting practices that I mentioned
have a serious implication for the citizens of this state, but
also highlight the need for enforcement of the Voting Rights
Act. And that means the onus is on Congress.
And while I don't want to necessarily give--I want to give
a true picture of where these issues stand, and Texas is
certainly one of the worst, but so you don't have the worst
complex, I want you to know my state of Tennessee has done some
really dreadful things as well, and just passed an awful law
that makes it criminal to register people in mass voter drives,
registration drives, criminally and civilly liable, if you make
errors in those registration drives. And that is really pretty
unconscionable to make it criminal to register people to vote,
and maybe leave off a spot, just because of negligence. And it
is jerrymandering all over.
But Congress needs to create a new coverage formula that
will reinvigorate the Act's most important enforcement
mechanism, this preclearance requirement. Examining the record
of voting rights problems here in Texas is an important step in
the process.
And I want to thank my chairman, Chairman Nadler, who has
been historically involved in this issue, and is really mostly
more responsible than anyone other than Congresswoman Jackson
Lee for us being here today. And he is a great leader on our
committee. And Chairman Jackson, Chairman Jackson Lee, who has
been a great leader, too, and somebody who I have learned much
from in my 13 years in Congress.
I thank our witnesses and our members for being here today.
Our other members, Mr. Green and Ms. Garcia, are outstanding
members and friends. And I saw Ms. Fletcher, and I think she
wants to come, too. So, hopefully, she will attend.
So, I look forward to our discussion. And now our full
committee has an opening statement. Mr. Nadler, you are
recognized.
Mr. Nadler. Well, thank you very much. Thank you, Chairman
Cohen for calling this important field hearing. Let me just say
one thing before I start, it probably surprises most people to
know that Manhattan--I represent the district of Manhattan, in
Brooklyn. Manhattan, Brooklyn, and the Bronx were subject to
Section 5 preclearance by decision of the Supreme Court in
1982, which surprised everybody, but it was--it was justified.
And no one objected. No one got upset by it. You know,
everybody said, ``Okay. Fine.'' And we were covered until,
unfortunately, Shelby County.
The Voting Rights Act of 1965 is considered by most civil
rights advocates the most effective civil rights statute ever
enacted by Congress. In recent years, however, the Supreme
Court has gutted one of its central provisions, the
preclearance requirement. And other court decisions and
enforcement activity have weakened the act in significant ways.
That makes restoring the vitality of the Voting Rights Act of
critical importance.
In 2006, when I was ranking member of this subcommittee, we
undertook an exhaustive process to build a record demonstrating
unequivocally the need to reauthorize the VRA, which was then
expired. As we moved forward, and we did reauthorize it, and
Chairman Cohen announced the vote, for 25 years. It was
authorized for 25 years in 2006. But, of course, we had Shelby
County.
As we move forward with similar efforts today, the
distressing record of enforcement activity in Texas demands
that reappear here in Houston to accept expert testimony on the
current state of voting rights in America, and particularly in
Texas.
Although advocates readily refer to the state's long
history of discrimination against Latino and African-American
citizens, it is the state's recent record of voting
enforcement, with multiple findings of intentional
discrimination at the state level, which demands scrutiny as we
build a record supporting Voting Rights Act reauthorization
legislation.
The Voting Rights Act contains two primary methods of
enforcement. Section 2 enables the government or a private
party to bring an action in court alleging discriminatory
voting practices. Section 5, preclearance, requires certain
jurisdictions with a history of discrimination to submit any
changes to their voting laws or practices to the Department of
Justice for prior--or to the federal district court in
Washington, for prior approval to ensure that they are not
discriminatory.
Before the Voting Rights Act, states and localities passed
voter suppression laws, secure in the knowledge that it could
take many years before the laws could be successfully
challenged in court, if at all. As soon as one law was
overturned, another would be enacted, essentially setting up a
discriminatory game of Whack-a-Mole. Preclearance is an
essential tool in preventing this dangerous practice.
Preclearance was effectively gutted in 2013, however, when
the Supreme Court issued its disastrous decision in Shelby
County v. Holder, which struck down the formula for determining
which states and localities are subject to the preclearance
requirement. In its absence, the game of Whack-a-Mole
predictively has returned. Historically, Texas has led the
nation in several categories of voting discrimination,
including recent Section 5 violations and Section 2 challenges.
Since the 1982 Voting Rights Act reauthorization, Texas and
its political--the 1982 Reauthorization--Voting Rights--since
its 1982 authorization, Texas and its political subdivisions
have faced over 200 voting rights challenges, and in every
decade since 1970 the state of Texas has passed one or more
redistricting plans after the decennial census that have been
declared either unconstitutional or in violation of the Voting
Rights Act.
The subject matter over which the Department of Justice
rejected voting changes submitted under Section 5 offers an
overview of the challenges to minority voting rights in Texas.
Discriminatory voting changes that were halted by Section 5
ranged from statewide voting changes, such as racially
jerrymandered redistricting, to local changes involving
restrictive election rules, relocating polling places to make
them less accessible for minority residents, and methods of
electing officials that disadvantaged minority voters.
Historically, the Section 5 preclearance process has also
had an important deterrent effect against voting discrimination
in Texas. Texas had far more proposed voting changes that were
withdrawn following a request by DOJ for additional information
than any other jurisdiction during the 1982 to 2006 reporting
period. These withdrawals include at least 54 incidences in
which the state eliminated discriminatory voting changes after
it became evident they would not be precleared by the Justice
Department.
Following the suspension of Section 5 preclearance
resulting from the Shelby County decision, Texas was one of the
first states to exploit the gap in federal voting rights
coverage. At the time the state was facing a Section 5
enforcement action for its 2011 redistricting plans in a D.C.
district court, and the ruling that its voter identification
law, SB-14, violated Section 5.
Within mere hours of the Shelby County ruling, then Texas
attorney general, now Governor Greg Abbott, announced that the
state would immediately move to reinstate the photo ID law.
With the elimination of Section 5 preclearance, both the photo
ID and redistricting cases shifted to Section 2 cases, and have
been the subject of ongoing litigation since that time.
The recent experience of voting rights litigation in Texas
is instructive for the nation, and it demonstrates the need for
examining the existing structure of the act. After even a
cursory review of the record, one clear fact emerges, reliance
on Section 2 litigation alone fails to adequately protect the
interest of minority voters.
After nearly a decade of non-stop litigation over
redistricting and voter identification, minority voters in
Texas have not yet had their rights fully vindicated. At least
one discriminatory statehouse district remains unremedied. And
the current voter ID statute, in the words of one Fifth Circuit
judge, still carries the taint of discrimination.
Today's hearing gives the subcommittee an important
opportunity to hear from witnesses directly involved in major
voting litigation during the post-Shelby County Section 5
transition. This hearing, however, is only the beginning of our
inquiry into Texas VRA compliance.
I am pleased that we have such a distinguished panel of
witnesses, whose testimony will assist us greatly in
understanding the continuing need for reauthorization of the
Voting Rights Act. The experience here in Texas demonstrates
just how deeply the loss of Section 5 preclearance cuts into
the federal protection of the right to vote. That is why I hope
that members on both sides of the aisle and in both chambers of
Congress will come together, and pass legislation to restore
the full vitality of the VRA.
The last time the VRA was up for renewal it was 2006, and
Steve Jabbitt, a conservative republican from Cincinnati, was
the chairman of the Subcommittee on the Constitution, Civil
Rights, and Civil Liberties. I was the ranking member. And he
presided, and I was with him. Had hundreds of hours of
hearings, compiling a 15,000-page record in order to give us
the record that the Supreme Court told us we need to justify
the VRA, to justify a particular Section 5.
We reenacted it by a vote of 390 to 30, whatever it was,
overwhelmingly. I hope that Republicans will again find the
inner voice that led them to support this renewal back in 2006.
We must use this opportunity to promptly craft a
legislative solution that enables the Justice Department to
effectively enforce the rights of minority voters within the
contours of the Constitution. While this is not an easy
challenge, given the gravity of the issues involved, and our
long history of bipartisan cooperation in this endeavor, it is
one that I believe our committee will and must meet with
success.
I yield back the balance of my time.
Mr. Cohen. Thank you, Mr. Nadler. To give you an idea about
how much the Congress has changed, when that 2006 law passed
330-somethning to 33, it was overwhelming republican majority.
Later, we had a voting rights reauthorization introduced, I
guess it was about 2010, or 2011, or 2012, and you needed--to
be a cosponsor of the bill, you needed to find a republican to
be a cosponsor with you so it would be balanced, an equal
number of republicans and democrats on the bill.
I wanted to be on the bill. So, there had already been
about five republicans on it, and I went to find a republican,
and I have lots of republican friends. I searched all over. I
must have asked 35 people to be a cosponsor so I could be a
cosponsor. It would have been easier to find that airplane that
crashed in South Asia than it was to find another republican
for the Voting Rights Act. And that was just 6 or 7 years
later. That is how much they have changed, and how difficult it
has become.
Before we get to the witnesses, I want to recognize Mr.
Ryan, who is the county attorney here, and we thank you for
your attendance, and you work on this issue. And I understand
Mr. Freeman, Professor Freeman, taught Barbara Jordan. And did
you teach Ms. Garcia as well? You did good. Thank you, sir.
[Laughter.]
Appreciate you being here.
For the witnesses, we welcome you, and thank you for
participating in today's hearing. Your written statement will
be entered into the record in its entirety, and I ask you to
summarize your statements in five minutes.
Before proceeding with the testimony, I remind each witness
that you are under oath, and if what you say is false, you can
be subject to perjury, unless you are the attorney general of
the United States. [Laughter.]
Our first witness is Ernest Herrera. Mr. Herrera is a staff
attorney for the Mexican-American Legal Defense Education Fund,
which has an acronym, MALDEF, where he has served as public
defender and associate district attorney in New Mexico. He has
litigated cases involving congressional redistricting and
voting rights. He received his JD from the University of New
Mexico School of Law, and a BA in political science and Latin
American studies from Columbia University. Mr. Herrera, and you
are recognized for five minutes.
STATEMENTS OF ERNEST HERRERA, STAFF ATTORNEY WITH THE MEXICAN
AMERICAN LEGAL DEFENSE AND EDUCATION FUND; GARY L. BLEDSOE,
PRESIDENT, TEXAS NAACP; JAYLA ALLEN, CHAIR, ROCK THE VOTE,
PRAIRIE VIEW A&M UNIVERSITY; MICHAEL T. MORLEY, ASSISTANT
PROFESSOR, FLORIDA STATE UNIVERITY COLLEGE OF LAW; MIMI
MARZIANI, PRESIDENT OF THE TEXAS CIVIL RIGHTS PROJECT; JERRY
VATTAMALA, DIRECTOR OF THE DEMOCRACY PROGRAM AT THE ASIAN
AMERICAN LEGAL DEFENSE AND EDUCATION FUND; JOSE GARZA, VOTING
RIGHTS COUNSEL, MEXICAN AMERICAN LEGISLATIVE CAUCUS IN THE
TEXAS HOUSE OF REPRESENTATIVES
STATEMENT OF ERNEST HERRERA
Mr. Herrera. Thank you, Mr. Chairman, and Chairman Nadler.
Mr. Chairman and members of the subcommittee, thank you for the
invitation to testify regarding the enforcement of the Voting
Rights Act in Texas from the perspective of a civil rights
attorney.
My name is Ernest Herrera, and I am a staff attorney at
MALDEF. Since our founding as a nonpartisan civil rights
organization in 1968 in San Antonio, Texas, MALDEF has served
as the leading organization that litigates voting rights cases
on behalf of Latinos across the United States. Today, Latinos
constitute the largest racial minority group in Texas.
According to the most recent U.S. Census Bureau estimates,
Latinos constitute approximately 40 percent of the Texas
population and 29 percent of the Texas eligible voter
population.
As the Latino community and other racial minority
communities have grown and expanded their share of the Texas
electorate, the state of Texas, and some local jurisdictions
have sought to impede Latino's access to the ballot. Over the
years, MALDEF has been involved in landmark voting rights
litigation in Texas and beyond, including Supreme Court
victories in 1973, 2006, and 2018.
However, following the U.S. Supreme Court's decision in
Shelby County, MALDEF and Latino voters have faced greater
obstacles to securing fair election systems. Now it is private
litigants, individual Latino voters, and groups like MALDEF who
must bear the significant burdens of monitoring discriminatory
election changes, and challenging them in court.
One example involves MALDEF's recent successful challenge
of an unconstitutional redistricting in Pasadena, Texas, just
down the road. Three weeks after the Shelby decision, the mayor
of Pasadena, Johnny Isbell, announced a plan to change the
method of electing members to the city council. The mayor chose
to change the election system in Pasadena precisely because, as
he declared at the time, ``DOJ can no longer tell us what to
do.''
In order to prevent the emergence of a Latino majority city
council, the mayor proposed and the city's electorate approved
converting two single-member district positions on the city
council to at-large seats. Shifting these seats from single-
member districts to at-large voting solidified Anglo control
over the council even as the city became majority Latino in
population.
Before the Shelby decision in 2013, Pasadena would have
been required to submit this change for preclearance. And in
past years, the U.S. Department of Justice had denied
preclearance for similar conversions from single-member
districts to at-large seats by cities in Texas.
After Shelby, Pasadena was not required to secure
preclearance, and the discriminatory change went into effect
immediately upon enactment.
On behalf of several Latino voters, MALDEF filed suit in
2014 challenging Pasadena's new election system. The discovery
process was time-consuming and expensive. Nina Perales and I
took and defended 35 depositions. In January 2017, the federal
court ruled that Pasadena intentionally discriminated against
Latino voters in adopting the change and its method of
election, and that the change also had the effect of illegally
diluting Latino voting strength.
The court ordered Pasadena to restore its previous method
of election, and bailed in the city under Section 5, through
the next redistricting cycle, until 2023. That ruling still
stands.
In the end, Pasadena spent $3.5 million in attorney's fees.
Resolution of the controversy took just short of 3 years.
Compared to the previous preclearance regime, the Pasadena case
took a drastic toll on the city, draining its financial
resources, and fraying relationships between community members.
At the same time, MALDEF battled for its Latino clients in
the Texas redistricting litigation. Although, Texas's
congressional and state redistricting plans were initially
blocked under Section 5 in 2012, the U.S. Supreme Court vacated
that decision following Shelby, and we were forced into
litigation that is still ongoing today, including a hearing
yesterday on preclearance.
Most recently, MALDEF took Texas to court in February of
this year to challenge the state's attempt to purge close to
100,000 naturalized U.S. citizens from the voter rolls. We
represented Latino voters, who proudly took the oath of U.S.
citizenship at naturalization ceremonies, and then just as
proudly registered to vote.
Texas targeted those same voters, we know from evidence in
the record, for elimination from the rolls because they were
born outside the United States. With other litigants, MALDEF
secured a temporary restraining order that halted the voter
purge. And this past Monday, we ended the case and the purge
with a favorable settlement for the voters. As with
redistricting, this debacle of a voter purge would never have
gone into effect if Texas was required to preclear its changes
in election practices.
Thank you again for your time, Mr. Chairman.
[The statement of Mr. Herrera follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Herrera, you were perfect on the
five minutes. [Laughter.]
I have somebody out here giving me some clues of the time.
You all don't. In Congress, we have a green light that says you
are on, a yellow light that says you have got a minute, and a
red light that says you are over. We don't have it, so what we
are going to do, if you get--when you get to a minute, I am
going to put my water down like this. [Laughter.]
And when you get to the red spot, I am going to go like
this. So that is going to be your clues.
Mr. Gary Bledsoe is our next witness. He is president of
the NAACP, the best civil rights organization that has ever
been created, and lives today as well. The Texas State
Conference, and has served in that role since 1992.
He has also been a member of the NAACP's national board
since 2003, serving with my good friend, Julian Bond, one of my
heroes of all time. And Ben Hooks, from Memphis, another star,
and Maxine Smith. Do you know Maxine?
Mr. Bledsoe. Very well. Very well.
Mr. Cohen. Yeah. She is a smart----
Mr. Bledsoe. She is our education chair for many years.
Mr. Cohen. My friend and a great--he has served as acting
dean of the Texas Southern--Thurgood Marshall School of Law,
and a member of the Board of Regents for Texas Southern
University. Has his JD and his BA from the University of Texas,
in Austin. And you are recognized for five minutes. And I
appreciate your work.
STATEMENT OF GARY L. BLEDSOE
Mr. Bledsoe. Thank you, Mr. Chairman, and welcome to Texas
Southern. I want to first say that I am so proud to see that
you have two of our alums that are there with you. We are very
proud to say that both Congresswoman Garcia and Congressman Al
Green are there. And I must say that I am also honored to be
here with two persons I have had the honor to represent in
litigation. And that is Congresswoman Jackson Lee, and my
friend, Al Green. So, I am so thankful for that.
First of all, let me say that, Mr. Chairman, I was really
glad to hear you say, I think Chairman Nadler indicated this,
that Texas has never really given full rights of citizenship to
its African-American citizens. And obviously that is true as
well in reference to our Latino citizens. So, we continue to
fight that battle.
And I must make this point here very clear, that Texas was
not originally applied to the Voting Rights Act, but when the
great Barbara Jordan became a member of the United States
Congress, Texas was ultimately joined in 1975. But since the
passage of the act in 1965, Texas has been found guilty of
discriminating against minorities every single decade.
What is interesting is Congresswoman Eddie Bernice Johnson
testified in the redistricting litigation that what occurred in
1970, what occurred in 1980, what occurred in 1990, it was
discrimination by democrats. And since that time, it has been
discrimination by republicans. But it doesn't matter who is in
power, the maps that are passed do not do justification for
African-Americans and Latinos.
And I think if--when we talk about the need for coverage in
Texas, I don't think we need to go any further than take a look
at the LULAC v. Perry opinion in 2006. And we look at that
opinion, it primarily looked at CD 23, out in Southwest Texas.
And CD-23, they said, was discriminatorily constructed. And
so, what did Texas do? Five years later, at the very, very,
very first instance that Texas had to redistrict, it did the
same thing again. And that is a finding that is still standing
from the three-judge panel in San Antonio. So, I think that
shows that clearly we are in need of support.
Secondly, I want to say that in terms of the voter
identification litigation, it is extremely important to note
that even though the intentional discrimination findings have
not been upheld by the Fifth Circuit, the effects findings have
been upheld. And what is occurring in voter identification is
really criminal in our state. Because right here in Harris
County we had so much bellicosity coming from public officials
threatening to prosecute individuals wrongfully if they made a
mistake on filing an affidavit saying that they were not able
to obtain an identification. The compromise that we came up
with Judge Ramos in order to go forward and have the election
2016.
And so, with that kind of intimidation tactics that even
the Texas attorney general has engaged in, it presents a
chilling effect on minorities in terms of the exercise of their
vote. And there hasn't been any real basis or any showing of
any vote fraud. The law in Texas adequately covered that issue
to begin with.
I do want to say that one of the things I want to add to
the record is one of our professors has a law review that was
published in the Southern California Law Review, Darnell
Wheaton, Larry Darnell Wheaton. And I think it lays out the
ridiculous idea behind these voter ID laws that actually exist.
But these voter ID laws, you know--and I do want to put this in
the record.
In 2009, there were a group of us that met in Austin over
many, many months. MALDEF was part of the meeting group, and
was led by two individuals, Todd Smith, who was a republican,
and Rafael Anchia, with the democrat. And we came up with a
reasonable voter identification law that wouldn't have the
disparate impact that could address this alleged integrity
issue that is out there, but that would be fair to voters. And
that was rejected.
I explain that a lot more in my written testimony, but
because of time I won't go into it too much. But let me say
that one of the things that these laws should always have, they
should have--the votes should be counted, and it should--the
burden should be on the government to disprove the person.
Because when you have provisional votes, those are just
like--they are not worth anything. Eighty-five, ninety percent
of provisional votes are never counted. So, you give somebody
some feeling that their vote is going to be counted when you
give them a provisional ballot, but they don't have the time
and the opportunity to go and to make a difference.
We were also concerned by actions for state officials. Many
laws have been passed to make it more difficult to get
identifications in Texas. More impediments were put on
individuals to get driver's licenses renewed. The laws were
changed so that the individuals who prevailed in a county
allowed that party to designate who would be the election
officials at the precinct level.
And we find all kinds of intimidation and discrimination
that are occurring in the precinct level, many right here in
Harris County. And we see where election judges don't enforce
the law.
We had one instance of an individual who was----
Mr. Cohen. By the election judge, you mean the
administrator or a judge, or whatever----
Mr. Bledsoe. Well, in each precinct there is someone who
runs the precinct, and that is----
Mr. Cohen. And that is called a judge?
Mr. Bledsoe. And that is called a judge. Right. And that
individual has the power of appointing clerks and making
decisions. And you find people who are hostile to people in a
community going into those communities and actually taking
over, and wreaking all kinds of havoc within those communities.
And so that has created a real problem at the precinct level
for people being able to vote.
We got involved in reference to the Coba Commission,
because the Coba Commission was a real problem, and so with the
Coba--I see you holding the gavel up, Mr. Chairman. [Laughter.]
So, I am ready to end here. But let me just say that since
Shelby County there have been innumerable instances of all
kinds of intimidation and voter suppression that have occurred
throughout the state. So many different kinds. And Pasadena is
not alone. We also had the same thing happening in Odessa and
other places, but I think everyone knows without a Section 5,
minority voters are in jeopardy in Texas.
Thank you.
[The statement of Mr. Bledsoe follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir. Just like Congresswoman Jackson
Lee sometimes has a voice that reminds me of Barbara Jordan,
yours has inflections on occasion that remind me of Julian
Bond, and I had no way to cut you off. [Laughter.]
Mr. Bledsoe. Well, he is my mentor, so--he was.
Mr. Cohen. Ms. Jayla Allen is chair of Rock the Vote, and
is a student at Prairie View A&M. She is a plaintiff in a
lawsuit against Waller County, Texas, alleging that it provided
less favorable treatment in terms of voting opportunities for
students at Prairie View when compared to other voters in
Waller County, thereby discriminating against African-American
and young voters.
Ms. Allen, thank you for your advocacy, and you are
recognized for five minutes.
STATEMENT OF JAYLA ALLEN
Ms. Allen. Thank you. Good morning, Chairman Cohen,
Chairman Nadler, and members of the subcommittee. My name is
Jayla Allen, and I am a proud undergraduate student at Prairie
View A&M University, a historically black university in Prairie
View, Texas, not far from where we are today.
Thank you for the opportunity to testify before the
committee on the importance of voting--on the Voting Rights Act
in my home state of Texas.
I am here today as a young person, a student, a voter, and
a passionate advocate of voting rights. I am chair of Rock the
Vote, and a member of IGNITE, an organization that seeks to
increase woman's involvement in politics on our campus. I am
also one of the five plaintiffs who are currently suing the
county where Prairie View is located in Waller County for its
anti-democratic attempts to restrict the voting rights of
Prairie View A&M University students.
As an undergraduate student, an aspiring civil rights
lawyer, and a black woman, the Right to Vote was of profound
personal importance to me. Along with many of my classmates I
strive to engage--encourage other students to become engaged on
our campus and in local and state affairs to participate in
candidate forums, and most important of all, to exercise their
fundamental rights to vote, a right that our ancestors and many
of our grandparents were long denied.
I believe in voting. And as a student leader, I assist and
encourage other students to vote, because I know that voting is
an expression of our power and our ability to elect
representatives who will make policies that will transform our
lives and the communities for the better.
Members of the committee, if you have yet to visit Prairie
View A&M University, I sincerely encourage you to do so. My
classmates and I are engaged in democracy, excellent, and
encourage you--excellent academics, and are aware of our
history, where we--what we expect from our country, and what
has been promised to us. We will inspire you and challenge you,
and we understand the value of our votes.
While I urge other young people to register to vote and
become engaged with the democratic process, there are pervasive
systems in place that make it difficult, if not impossible, for
far too many of us to do so. This particular history of Prairie
View A&M University is located in a predominantly black city of
Prairie View, and its relationship with Waller County is
largely one of the ever evolving, but still yet attempts to
suppress the vote of predominantly young black communities in a
county where the overall population, and most of our elected
officials are older and white.
Most recently, just before the early voting period begun in
October 2018, it became clear to my classmates and I that our
university had not been provided nearly enough voting hours. We
are a student body of more than 8,000 people. Many of us have
incredibly busy schedules and do not own cars. Campus is the
center of our lives. Because of this, many of my predecessors
at PV fought hard for an on-campus voting location, and finally
obtained one in 2013.
That on-campus early voting location is a lifeline for
students who seek to participate in our democracy. Last fall,
when county officials refused to provide even one day of early
voting at the location during the first week of the two weeks
of early voting, it became clear that it was an intentional,
orchestrated attempt to prevent black students from voting once
again.
With the support of the NAACP Legal Defense and Education
Fund, and the law firm of Norton Fulbright Rose, my classmates
and I are seeking remedy to this injustice. As you may know,
LDF was founded in 1940 by Thurgood Marshall, who later became
the first black U.S. Supreme Court Justice.
In the nearly 80 years since LDF has been a leader in the
struggle to secure, protect, and advance voting rights for
black voters and other people of color, beginning with Smith v.
Allwright, Thurgood Marshall's successful Supreme Court case
challenging the use of white-only primary elections in Texas
back in 1944, LDF has been fighting to overcome the
discriminatory barriers to the full, equal, and active
participation of black voters.
Among Texas County, Waller County stands out as its
primarily shameful history of judicially recognized
discrimination against black voters at Prairie View A&M
University. When the 26th Amendment was ratified and PVAMU
students between the ages of 18 and 21 became eligible to vote,
county officials changed the rules so that student voters would
require to fill out a residency questionnaire documenting that
their own family owned property in the county.
It wasn't until 1979 when the Supreme Court stepped in and
the students in Waller County, in fact, students across the
country could finally vote without the constraints of
discriminatory residency questionnaires. Since then, Waller
County has attempted to prevent PVAMU students from exercising
their fundamental rights to vote by repeatedly discriminatory
burdens and barriers to their access and their franchise.
As the 2018 midterm revealed, Texas counties like Waller
has not abandoned the shameful practices that have made voting
extremely difficult and historically for Prairie View A&M
University students. During this historic election, Waller
County officials have failed to provide black students with or
similar adequate voting opportunities that are provided to
white and older residents. Thank you.
[The statement of Ms. Allen follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Ms. Allen. And thank you for your
efforts.
The next witness is Mr. Michael T. Morley, assistant
professor of law at Florida State University. He teaches and
writes in the areas of election law, Constitution law,
remedies, and federal courts. Received his JD from Yale in
2003. Senior editor of the Yale Law Journal. Served on the Moot
14. Received the Thurmond Arnold prize for best moralist in the
Morris Tyler Moot Court of Appeals.
Received his BA from Princeton University. He also served
as law clerk for a U.S. Court of Appeals judge in the 11th
District, and a special assistant in the U.S. Army's Office of
the General Counsel.
Mr. Morley, you are recognized for five minutes.
STATEMENT OF MICHAEL T. MORLEY
Mr. Morley. Chairman Cohen, Chairman Nadler, and members of
the committee, thank you very much for inviting me here today
to testify concerning the Voting Rights Act. As this committee
is well aware, the Voting Rights Act is one of the most
important and most successful laws Congress has ever enacted.
Within two years of its passage, a majority of voting age
African-Americans were registered to vote in every southern
state. Today, African-American participation in the electoral
process has become--has risen to levels comparable to that for
Caucasians. It is extremely rare for a law to make such
profound progress on such a critical social problem.
In recent years, the Supreme Court has called into question
the constitutionality of various aspects of the Voting Rights
Act. Opinions from some individual justices, including in cases
arising under Section 2 of the act, voice concerns about
applying a disparate impact standard, particularly in the
context of voting rights.
In NAMUDNO v. Holder, the court expressed federalism-
related concerns about requiring states and municipalities to
obtain preclearance for changes to their voting laws under
Section 5. And, of course, in Shelby County v. Holder, the
Supreme Court invalidated Section 4(b) of the VRA, which
identified the covered jurisdictions subject to Sections 5's
preclearance requirements.
Congress, including this committee, is considering various
alternatives for replacing the coverage formula, and adopting a
new one to determine the applicability of Section 5's
preclearance requirements.
I urge this committee to adopt a coverage formula that the
Supreme Court will uphold under its ruling in City of Boerne v.
Flores. Any new coverage standards should be based primarily on
a jurisdiction's recent history of constitutional violations,
meaning intentional racial discrimination with regard to the
electoral process.
Section 3 of the VRA already allows jurisdictions to be
bailed into preclearance requirements on a case-by-case basis
for engaging in such discrimination. A new coverage standard
should not be based on a jurisdiction's violations of Section 2
of the Act, if they are based exclusively on a disparate impact
theory of liability, especially when such findings arise in the
context of vote dilution cases.
Because the VRA applies to----
Mr. Nadler. Excuse me. Be based on that, could you say why
it shouldn't be based on that.
Mr. Morley. That is exactly what the rest of my testimony
is about.
Mr. Nadler. Okay. Very good.
Mr. Morley. Because the VRA applies to elections at all
levels of government, Congress enacted the law pursuant to its
powers under Section 5 of the 14th Amendment and Section 2 of
the 15th Amendment. Both of these provisions allow Congress to
enact appropriate legislation for protecting constitutional
rights.
The Supreme Court has held that only intentional racial
discrimination in voting violates the 14th and 15th Amendments.
Facially neutral laws adopted for race-neutral purposes that
have racially disparate impact, according to the court, do not
violate the Constitution.
The City of Boerne v. Flores, returning to Attorney
Nadler's question, holds that laws enacted pursuant to
Congress's power under Section 5 of the 14th Amendment must be
congruent and proportional to preventing actual violations of
constitutional rights. This is much narrower than the standard
the Supreme Court previously used during the civil rights era
in upholding the VRA's constitutionality.
To maximize the chances a new coverage formula will survive
review under Boerne. It should be crafted to target
jurisdictions that have engaged in actual constitutional
violations, meaning intentional racial discrimination
concerning voting rights. Going beyond that, and imposing
coverage on jurisdictions that violate Section 2, only under a
disparate impact theory, would impose preclearance requirements
on jurisdictions that haven't actually violated anyone's
constitutional rights.
The Supreme Court has struck down many laws for exceeding
Congress's Section 5 powers, including provisions of the
Violence Against Women Act, the Americans with Disabilities
Act, the Age Discrimination and Employment Act, the Family
Medical Leave Act on the grounds they were overbroad, sweeping
in too much state conduct that didn't actually violate the
Constitution.
This committee has an opportunity to prevent the same thing
from happening to the VRA. Put another way, Section 2 of the
VRA's prohibition on election laws with disparate impact is a
prophylactic protection. It prevents states and localities from
adopting certain constitutionally valid laws in order to
provide an extra layer of protection for the underlying
constitutional rights.
Section 5 preclearance requirements are also another
prophylactic protection. They require the Department of Justice
or federal court to review changes in coverage jurisdictions,
election rules, and procedures to ensure they don't have a
discriminatory purpose, or diminish people's ability to elect
preferred candidates based on race.
In McCutcheon----
Mr. Cohen. Quickly.
Mr. Morley. In McCutcheon v. FEC, the Supreme Court
cautioned about adopting prophylactics upon prophylactics. That
was a First-Amendment case. Similar reasoning could apply with
regard to federalism.
In conclusion, in light of Boerne v. Flores and its
progeny, if Congress adopts a replacement formula for
triggering Section 5 preclearance, it should be tailored to
jurisdictions that have engaged in intentional racial
discrimination and not those found to violate Section 2's
prophylactic restrictions on laws with disparate impacts.
Thank you very much.
[The statement of Mr. Morley follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir. Ms. Mimi Marziani----
Ms. Marziani. That is correct.
Mr. Cohen [continuing]. Is the president of the Texas Civil
Rights Project, previously directed the voting rights program
for multiple political campaigns, and committees, also
overseeing compliance with election law. Served as council for
the Democracy Program of the Brennan Center for Justice at NYU
School of Law, where she litigated election law cases in
federal courts across the country, including before the United
States Supreme Court. In that role, she worked to promote
voting rights.
She received her JD Cum Laude from NYU School of Law, and
her BA--dynamite, dynamite----
Ms. Marziani. Vandy. I know.
Mr. Cohen [continuing]. When Vandy starts to fight, down
the field, with blood to yield for Vanderbilt University. My
alma mater.
Ms. Marziani, you are recognized for five minutes.
STATEMENT OF MIMI MARZIANI
Ms. Marziani. Thank you. It is a great honor to be here
this morning and testify before the subcommittee. As noted, I
draw my testimony from my experience as president of the Texas
Civil Rights Project and appear on behalf of that organization
today.
I also bring my experience as chairwoman of the Texas State
Advisory Committee to the U.S. Commission on Civil Rights, so I
appreciate you talking about our report. And as a professor of
election law and policy at UT, I have a lot of thoughts about
what you just said. And I also bring my decades-long career in
voting rights and election reform.
So, in Texas, since Shelby County, the voting rights of
people of color and language minorities have suffered since the
preclearance provisions were rendered inoperable. And we have
heard a little bit about the court findings and the photo ID
cases and the redistricting cases that have concluded as much,
based on voluminous records.
So today I wanted to highlight a couple of newer laws and
policies by the state that create additional barriers to
voting, and are almost certainly disproportionately born by
communities of color.
First, I am going to talk about a 2019 policy targeting
naturalized citizens to be purged from the voter registration
rolls. This is a litigation that TCRP, and MALDEF, and others
work together to happily resolve. Second, I want to talk about
a 2017 law eliminating straight ticket voting, which is more
commonly used by voters of color. And third, I want to talk
about a 2017 state law that creates a new class of election
crimes that will expand the power and discretion of the Texas
attorney general, and increase the already high legal risk for
Texans engaged in voter registration drives, again, which are
disproportionately used by communities of color.
In my written testimony I actually said that Texas had the
worst laws around voter registration drives. Unfortunately, we
may have just ceded that to Tennessee. Crazy times.
So, without Section 5, all of these laws in Texas have been
enacted despite their retrogressive effects. So, indeed, a
federal court has now ruled that the state's efforts to target
almost 100,000 voters in an elicit voter purge use, and I'm
quoting, ``The power of the government to intimidate perfectly
legal naturalized American.''
In Texas, nine in ten naturalized citizens are people of
color. Of course, large majorities are also language
minorities. But the state proceeded with a sloppy ham-handed,
that's the court's word, it is not mine, ham-handed purge
effort despite this obviously disparate impact. At worst, the
disparate impact, indeed, was a feature of this program, and
not just a bug.
In 2017, state lawmakers passed a law to eliminate
straight-ticket voting apparently with the hopes that voters in
urban areas would skip down ballot races. We have done a
preliminary analysis of voting data in San Antonio which shows
that voters of color use straight-ticket more than Anglo
voters, and that is regardless of party preference.
It is also well known, and I see Representative Green
nodding, that in Harris County here, where we have the largest
non-white population in the entire state, there are
particularly long ballots because of the number of judicial
seats that are at play every election cycle.
So not only does removing straight-ticket voting have a
retrogressive effect, but it also guarantees that we will have
longer lines in the largest communities of color in Houston in
the next election. And this law is set to go into effect in
2020.
Finally, and despite whatever information you have
nationally, in Texas there is no doubt that Texas's voter rolls
are much older and whiter than the population at large, and,
indeed, than the citizen voting age population--voting age
population. And one reason for this is because Texas
criminalizes voter registration drives, even though black and
Latino voters are twice as likely to use voter registration
drives to get registered.
Since just before the Shelby County decision, the state has
continued to ratchet up rules to make the process of organizing
drives complicated, confusing, and wrought with legal
liability. And then in 2017, the state created a new class of
felony crimes to penalize simple mistakes made by organizers
and volunteers when they were trying to register their
neighbors to vote.
The predictable results of this law will be to further
decrease voter registration drives and penalize communities of
color. Without preclearance the full impact of these laws is
actually not known right now. The information rests with
government actors. But I know enough to be confident that these
measures would have been subjected to heightened scrutiny by
any U.S. attorney general serious about enforcing the Voting
Rights Act.
Thank you again for having me this morning, and I'm, of
course, happy to answer any questions you all might have.
[The statement of Ms. Marziani follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you so much. You made Vanderbilt proud.
Ms. Marziani. Ah. Thank you. [Laughter.]
Mr. Cohen. Mr. Jerry Vattamala is director of Democracy
Program at Asian-American Legal Defense and Education Fund. He
served as the lead attorney in Favors vs. Cuomo, a federal
redistricting case in New York, resulting in more Asian
majority and influence districts at all legislative levels.
He also litigates cases concerning violations of Sections
203 and 208 of the Voting Rights Act, regularly meets with the
board of elections across the country to ensure full compliance
with federal and local language assistance provisions.
He received his JD from Hofstra, and his BS in computer
engineering--computer engineering from Binghamton University.
You will be recognized for five minutes. Thank you.
STATEMENT OF JERRY G. VATTAMALA
Mr. Vattamala. Thank you, Chairman. Thank you, members of
the committee for allowing me to testify this morning, and put
forth the Asian-American perspective, a perspective that is
often ignored or looked over.
I am the director of the Democracy Program at the Asian-
American Legal Defense and Education Fund, AALDEF. We are
headquartered in New York. We are a national organization. Our
mission is to protect the civil rights of Asian-Americans
through litigation, advocacy, community organizing, and
education.
We conduct an Asian-American exit poll. It is a national
exit poll. We surveyed over 8,000 voters in the last mid-term
election, and we were in numerous poll sites in Texas,
including in Houston, Dallas, and Austin. The focus of our work
really revolves around language assistance, specifically the
language assistance provisions of the Voting Rights Act's
Section 203 and Section 208. And we tend to be involved in
cases that are targeting naturalized citizens, because
oftentimes we, along with the Latinx community, are the largest
percentage of the naturalized citizen community in a state.
We were co-council with MALDEF, representing OCA Greater
Houston, and the Asian-American community in this recent voter
purge case that settled on Monday. One of the reasons that we
were involved again is the targeting of naturalized citizens
here in Texas. Almost 52 percent of naturalized citizens in
Texas are Latinx, about 29 percent are Asian-American, only
11.6 percent are non-Latino white, right, so we saw what the
impact of this voter purge would have on the Latinx and Asian-
American communities.
I also wanted to direct you to footnote 21 in my testimony
that was submitted. This is a document that MALDEF put
together, it is on their website, of the admissions by Texas
officials that it knew that U.S. citizens were on its purge
list. Not 1, not 2, but at least 25,000. Likely more than that.
So, it shows the impact that this is going to have, and they
knew that they were targeting citizens. We were pleased with
the result to settle that case.
We also, as I mentioned, talk about we are involved with
cases that involve Section 203 and Section 208. Asian-Americans
traditionally and currently have to rely on Section 208 to
receive language assistance. One thing that we have noticed
from our Asian-American exit poll and poll matching program,
just about a third of all Asian-American voters that we survey
are limited English proficient, meaning that they read or
understand English less than very well. And that means they
oftentimes will need some type of language assistance in order
to vote.
The threshold to be covered under Section 203, which once
you are covered, you will have translated materials,
interpreters, is pretty high, and Asian-Americans oftentimes
cannot meet those thresholds. So, in Texas only two counties
are covered under Section 203 for Asian language assistance,
Harris County, for Chinese and Vietnamese, and Tarrant County,
for Vietnamese.
Back in 2015, we filed litigation against the state of
Texas, OCAV Texas, for Texas's violation of Section 208 of the
Voting Rights Act. Now there is not too much litigation around
Section 208, because all it simply allows you to do is be
assisted by a person of your choice inside the voting booth, if
you need that assistance.
If you cannot see the ballot, if you cannot read the
ballot, or if you cannot mark the ballot, you are allowed under
the Voting Rights Act to be assisted by any person of your
choice inside the voting booth. Oftentimes, almost always,
Asian-Americans are assisted by their minor children.
The state of Texas had a law that required all interpreters
to be a registered voter in the county in which they were
providing their service, clearly, in conflict of Section 208.
We had to sue and litigate this case. We won at the district
court level and won at the Fifth Circuit Court of Appeals, and
received attorney's fees in that case. Just another example of
something that is very easy to comply with, but Texas refused
to comply with it, and we had to litigate to obtain the rights
that are available to voters under the Voting Rights Act.
ALDEF has limited resources. We litigate cases around the
country where we think Asian-American voters are being
targeted, or there is an impact, disproportional impact on
them. We will continue to play the Whack-a-Mole game, and go
all over the country, including Texas. You know, as I had
mentioned, we are a national organization. We are headquartered
in New York. We are coming down to Texas too often, right? And
we will work with MALDEF, the Texas Civil Rights Project, LDF,
all the other groups here to try and keep playing this game of
Whack-a-Mole.
We are looking to DOJ for assistance. It is not coming, and
I don't think it is coming under this Administration. So, we
need Section 5 to prevent a lot of these things that could have
been preventable from happening.
So, I thank you for allowing me to testify. I look forward
to answering your questions. Thank you.
[The statement of Mr. Vattamala follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir. Mr. Jose Garcia is a member of
the law firm of Garza--Garza--excuse me--Garza Golando Moran.
He represents government entities in federal litigation,
including 1st-Amendment and 14th-Amendment issues,
redistricting federal voting rights, and civil rights. He's
argued twice before U.S. Supreme Court, taught voting rights
seminars as an adjunct professor at two law schools, received
his law degree from St. Mary's University, we welcome you, and
you are recognized for five minutes.
STATEMENT OF JOSE GARZA
Mr. Garza. Thank you, Chairman Cohen.
Mr. Cohen. You are welcome, Mr. Garza.
Mr. Garza. Chairman Nadler, members of the committee, I am
honored to have been asked to come and testify before this
committee. It is an honor also to be on the campus of Texas
Southern, and to see so many young attorneys on our table as a
veteran of the civil rights fight. It is good to see that there
are young lawyers coming in behind us to take up the mantel on
these very important issues.
My testimony today, I would like to emphasize a couple of
things that I think merge together the importance of the
Section 5 of the Voting Rights Act, and what happens when it
gets taken away from us.
In the voter ID case, for example, that has been mentioned
numerous times in the testimony and in the opening statements,
we had a situation where Section 5 worked. The state of Texas
adopted the voter ID law in 2011, and instead of seeking
justice of department preclearance, filed a lawsuit in
Washington, D.C. to seek preclearance. It failed. It was unable
to enforce the provisions of the voter ID law because of
Section 5.
In 2013, when the Supreme Court announced Shelby, as was
mentioned earlier, Governor Abbott immediately announced that
it would be enforcing the provisions of the voter ID law.
Now we have talked in general terms about the importance of
enforcing these provisions and of blocking discriminatory
election laws. In my capacity as one of the lawyers in the
Section 2 portion of the lawsuit against the voter ID case, I
came in contact with, and we presented evidence to the court of
real-life impact of this law.
One of my clients, an elderly, extremely poor resident of
South Texas, of Sebastian, Texas, Mr. Margarito Lara, testified
in that court about the honor, and the pride, and the joy that
he had from walking to his house. He didn't have an automobile,
didn't have the IDs that Texas required, but he had a voter
registration card.
And he would walk to the polling place, and the polling
place workers knew Margarito Lara, and they welcomed him to the
polling place. And they said, you know, they had coffee with
him. They conversed with him. This was one of the pleasures of
being a United States citizen, is going and casting his vote in
every election in his adult life.
And in 2013, when Governor Abbott decided to enforce the
provision, there was an election that year. And that was the
first election in the life of Margarito Lara that he ever
missed. We tried that case in 2014, and in October of 2013,
Judge Ramos, from Corpus Christi ruled that the law was illegal
under Section 2 of the Voting Rights Act, and unconstitutional
under the 14th Amendment.
The state of Texas sought a stay from the fifth circuit of
that order, and it was granted. And in November of 2014,
Margarito Lara missed his second election in his life. In his
life. That was the second election that he missed.
There was a third election in 2015, before we finally got
not just the Fifth Circuit, but the court of the Fifth Circuit
to rule that the voter ID law was illegal. Margarito Lara
passed away in 2015. The last three elections of his life he
was unable to vote because of the voter ID law in Texas. And
because it took that long to litigate a Section 2 case against
the voter ID law.
Section 5 has real impact----
Mr. Nadler. Could you tell us why he couldn't get a voter
ID?
Mr. Garza. So, Margarito Lara was an elderly Mexican-
American in a rural community of South Texas, Sebastian, as I
mentioned. He didn't have a birth certificate. He testified in
the--at court that he couldn't afford to go get--to pay for
what was required in order for him to get a delayed birth
certificate so that he could take that and secure the voter ID
law that the state of Texas required.
One of the things that was really moving about his
testimony is that he was embarrassed to tell the court that it
was something that he could not afford, that his wife literally
lived month to month off the subsistence that they secured.
So, let me close with this. Frederick Douglass once said
that ``Power gives nothing without demand.'' The Voting Rights
Act, Section 5, demands that states and local jurisdictions not
discriminate. We need that coverage back.
Thank you.
[The statement of Mr. Garza follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Garza, and thank you to all of
our witnesses. We will now go into a five-minute rule for
questions from our panelists. Normally, I recognize myself for
five minutes. That is the power of being chairman. But I am not
going to do that, because we are here in Texas, and I am first
going to recognize your alumnus, or alumna, Ms. Garcia, for
questions.
Ms. Garcia. Thank you.
Mr. Cohen. Valuable member of our committee. Thank you for
sending us. Ms. Garcia.
Ms. Garcia. Thank you, Mr. Chairman, and to Chairman
Nadler, thank you for working on getting this field hearing
here.
Obviously, you know, Texas likes to brag about a lot of
things, but in this area, it is just almost shame on us for
always being in the leader of the pack, if you will, on the
amount of complaints that go to the civil rights division.
I know that when I testified before the Senate Judiciary
Committee on the extension of the Voting Rights Act, I knew why
I was chosen, because I was there representing a state with so
many problems. I knew it wasn't my charm and good personality.
[Laughter.]
Ms. Garcia. It was about----
Mr. Nadler. It could have been.
Ms. Garcia. It could have been, but it is doubtful. And
nothing new has happened since then. In fact, I think it is
even getting worse. So for me, the most troubling part is that,
as it has evolved, as you said Dean Bledsoe, it, you know, we
started out with the Civil Rights Act, and we started out with
targeting of African-Americans to keeping them from the ballot,
you know. Nobody wants to be first on anything. Nobody wants to
be the leader, but it happened, and then it has evolved now to
Latinos, and now we are moving to naturalized citizens. We are
moving to Asians.
I mean this is not a competition. This is about making sure
we have access to the ballot. And having experienced some of
this myself, I was kind of reflecting on a purging letter that
I got telling me that I may not be eligible to vote, because
they had gotten driver's license records and voter records, and
it didn't match.
And I see my friend, Gerry Birnberg down there, you
remember all those letters we got, Gerry. So, I have gotten one
of those letters. So, we may have settled the issue on the
purging letters that you are talking about, but they can still
do those kinds of letters.
I remember going to vote in the runoff for mayor, for Mayor
Turner, was ready to go vote for him. They were not going to
let me vote because they insisted that my name was not on the
voter rolls. And I looked at them, and I said, ``Get real. I am
a state senator, you know. You have to be eligible to vote to
run for office.'' And they were just--but for me staying in
there, and fighting them, and yelling--almost yelling and
screaming did I finally get to vote provisionally.
Provisionally. And then finally things got settled because they
discovered they had made a mistake. Of course, I accused them
of having double books, and a number of other things, but these
things happen.
When I went to vote for myself in the primary for Congress,
there was another scheme that we haven't talked about, and that
is when they consolidate precincts. And they consolidate more
in the precincts of people of color, and they don't tell you
that they have moved them. And then when I got there about
9:00, there was a line a mile long, and I thought, ``This is
great, all these folks are here to vote for me.'' But they
weren't. [Laughter.]
They were in line because they had not started at 7:00
because the machines were down. And that the--they were having
a hard time getting enough technicians to go to all the problem
spots. Think of the number of voters who gave up.
So, all things are very real. And my question to all of
you, all of you can, very quickly, because I am running out of
time, you know, what is the one thing that you would want us to
do in Congress to just kind of get a handle on all of this, and
just very quickly, we will start with you, Mr. Herrera.
Mr. Herrera. Thank you, Representative Garcia. Of course,
it is from your district that we have seen so many problems,
and the ones----
Ms. Garcia. I know.
Mr. Herrera [continuing]. You have mentioned, and in
Pasadena. And as one of--a local councilman in Pasadena said, a
Latino councilman, who had served in the military, wanted to
fight for his community, said in the lawsuit to me, ``This
fight is one of, we feel in the Latino community, of moving
goalposts. Every time we get closer to full franchise, they
move the goalposts farther back.
But to answer your question, Representative, I think that
in MALDEF we are for a reauthorization, preclearance that pulls
in jurisdictions with a recent historical mechanism. The bad
actors that we know, who have done things, Tennessee and Texas,
in the last decade or two, and also something that where
jurisdictions have committed known practices. So, we call that
our belt and suspenders approach, covering everyone that--
covering all the areas where there may be these violations. So,
I think that is part of it.
But I also think there--there has to be something done in a
much broader sense, perhaps, to address these registration
issues, which seem to be happening in Texas, but also in other
parts of the country.
Ms. Garcia. Okay. Gary.
Mr. Bledsoe. I think that is a great question, and what I
would say would be we need Section 5. And when I look at Shelby
County, and try to understand their decision--it is such a bad
decision. When the Supreme Court says there is no foundation
for Section 4, when there is 18,000 pages of testimony, expert
reports that is in evidence.
So, I think that since we look at the Supreme Court, that
has now gotten to be more conservative than it was in 2013, I
think we need to have a real solid database record. And so to
the extent that this committee or others can have taskforces,
or identify individuals who can help collect data and
information to show, I think just hearing today, you just open
up the newspaper, and you'll see everyday something going on,
whether it is Senate Bill 9, over at the legislature right now,
there are things that continue to happen every day, but they
need to be pooled together, so that that will give you all--
empower you to get something passed at your level, and maybe
provide for bipartisan support.
Ms. Garcia. Thank you. Jayla, anything you would want to
add?
Ms. Allen. Yes. Thank you, Representative Garcia. Restoring
the Voting Rights Act, I believe, is something that needs to be
done on a greater level. But also, speaking from a student
leader, and someone who is just 20 years old, I believe that to
address the problems that there are with voting and the voter
suppression that is going on, I speak for the students at
Prairie View A&M University, but I speak for students, and
minorities, and women everywhere, just like the students who
are in this very room.
So when we have problems with voting, it is not only at a
level of--at your level, but also discouraging students at 18--
between the ages of 18 and 24. If they don't start voting at
those ages, it is almost very difficult for them to form that
habit, and to become civically engaged later on in their years.
Thank you.
Ms. Garcia. Thank you. Professor, anything you want to add?
Mr. Morley. I think funding is a critical piece of the
picture. I think that if Congress is able to make available
funds to local jurisdictions that might face declining tax
bases, they will not have to make some of the tradeoffs that we
have been hearing about, about combining--about combining
polling places, eliminating polling places.
If we make funding available to local jurisdictions to have
adequate staff, to have modern voting machines, and either for
other aspects of the process, like free postage for absentee
ballots, as well as even if you need a birth certificate to get
a voter ID, to me, it is unconscionable that you should have to
pay for that, that having--that if you are going to have voter
identification requirements, being able to obtain a free birth
certificate in order to do that seems to be an important piece
of the picture. So, making that funding available, I think,
would be a critical supplement to the VRA.
Ms. Marziani. Thank you. I feel like I unfortunately had
too many presentations lately about why our democracy is in
trouble. So, I could go on and on, but I will say we absolutely
need preclearance restored, so that we are not backsliding.
I also believe that this is a moment where we need
affirmative expansive solutions, such as those contained in
H.R. 1. I think that is an extraordinarily important piece of
legislation that could, indeed, match the Voting Rights Act of
1965, if we could get that passed.
So, I would really encourage folks to keep a close eye on
that bill.
Ms. Garcia. Thank you.
Mr. Vattamala. I would say, you know, echoing again, yes,
obviously, preclearance, we need the coverage back. As Chairman
Nadler mentioned, New York, certain counties recovered. We
actually had multiple instances where we successfully used
Section 5 to protect Asian-American voters in New York City.
But one thing that we are thinking about is federal
observers from the DOJ, having them stationed in poll sites,
and getting more cooperation with them. Whatever you could do
on that front I think would be appreciated. We have seen
decline in numbers of discriminatory incidents when we have DOJ
observers at poll sites where we know there is going to be a
large number of Asian-American or Latinx community voters.
Ms. Garcia. Mr. Garza.
Mr. Garza. So, I think that the problems that we have faced
in litigating under the Voting Rights Act are so many that
there can't be just one thing that this committee or that the
Congress does to fix the Voting Rights Act.
One of the things that I think is really important is to
revisit the standards--in addition to Section 5 is revisit the
standards under Section 2. The interpretations that have come
out of the Fifth Circuit, and in many instances, unfortunately,
buttressed in the Supreme Court, make litigating under Section
2 as difficult as it was when the amendment to Section 2 was
enacted in response to Bolden.
We are back at that stage, where it is almost impossible,
not because there isn't discrimination, but because the
standards that have been established by jurisprudence, by our
courts, make it extremely difficult, extremely expensive, and
extremely long to litigate a case under the Voting Rights Act.
Ms. Garcia. Thank you. Thank you, Mr. Chairman.
Mr. Cohen. Thank you, Ms. Garcia. I now recognize the next
member on our panel on the committee, and that is Ms. Sheila
Jackson Lee, who needs no introduction.
Ms. Jackson Lee. Let me thank the chairman very much, and
what a bittersweet moment, Mr. Birnberg, if I could ask for a
moment, so I can get your name on the record. But what a
bittersweet moment, but an emotional moment for me to be here
at the historic Texas Southern University, founded in the ashes
of segregation, how pleased I am to be here with these powerful
students representing the progeny and the historic leaders of
all that we have invested, the blood, the sweat, and tears.
So, I will take a moment to be able to thank all the
witnesses, and thank both Chairman Cohen and Nadler, and my
colleagues that have joined me. I am very glad to have been
part of creating the opportunity for this field hearing here in
the field hearing here in the 18th Congressional District. And
I want to acknowledge Vince Ryan, who has been so effective in
dealing with injustices in our county; President James Douglas,
of the NAACP; the provost, and head of the Mickey Lehman
Center, we thank you; Dean Bledsoe, in particular, for Thurgood
Marshall School of Law; Gerry Birnberg, who has been
outstanding in his work; Rhonda Skillern-Jones, Doris Ellis,
other leaders in law enforcement; and particularly Aaron
Dallas, Marcus Nash, and Brianna Spaulding, who has helped us.
And Ms. Greenley, who is here, who has been a fighter for
the justice of women, who has been blinded by a domestic
violence act, and knows that elections count, and voting count.
And we are just so grateful for your presence here, and hope to
see you later on this evening. I wanted to make mention of you
as well. So, I will quickly thank you so very much.
And then, of course, Thomas Freeman, a professor, won the
highest award from the Congressional Black Caucus. Our oldest
professor, teacher, Barbara Jordan, who we know what her work
resulted in. And I just wanted you to be in this historic
voting rights hearing.
Let me say that it has been an honor to be on the Judiciary
Committee and work on the reauthorization with the leaders who
are here, to be able to work on language in this legislation,
and to see the mighty vote that we got, and a republican
president who signed it. We are here to make the record that
there is need and to follow Judge Ginsburg's admonition that
just because polio may not be in place, it does not mean you
need to get rid of the vaccination.
I will say to you that the legislation was named in this
last time after Fanny Lou Hamer, Rosa Parks, Coretta Scott
King, Cesar Chavez, and I put in Barbara C. Jordan, who put
Texas in, William C. Velasquez, and Dr. Hector P. Garcia,
Voting Rights Act reauthorization, and Amendment Act of 2006,
to capture all these heroes.
What you may not know is standing in the courtroom the day
after the Shelby case was issued, fighting against the
elimination of North Independent School District, an all-black
school district and board, and it was because of the Shelby
case and the lack of preclearance that they threw that board
out, and closed that school district to the sadness of all of
the people.
So here is my question for you all, and I would appreciate
it, Mr. Garza, you gave me pain of that gentleman who wanted to
vote, and it happens every day, purging happens every day. Can
I just particularly ask you the question of the pain of not
having preclearance and being confronted with the oppression of
not being able to vote.
I will start with you, Ms. Allen. Mr. Garza, I would like
to hear from you. And Mimi, I think we saw each other in South
Texas, if I am not mistaken. What is the pain of being purged,
being a citizen, and being purged, and also being challenged by
an individual citizen because of a law in Texas that I don't
like your last name? It is Islamic. It is Asian. It is
Hispanic. It is African. And we don't like your last name, and
I am going to challenge you, because you don't seem like you're
an American.
Ms. Allen, speak for all the students, and the pain, and
indignity of the insults that you have experienced.
Ms. Allen. Thank you, Representative Jackson Lee. The pain
is--it is hard to put into words almost. As a student leader, a
precinct chair, someone who is leader of Rock the--chair of the
Rock the Vote, every day I encounter voter registration--I mean
I put on voter registration drives, and I encounter students
who come to me and say, ``Well, Jayla, I can't vote today, and
I couldn't vote because my name wasn't on the ballot,'' or
``Because they have told me that I have been--my registration
card has been thrown out due to addresses that have been given
to us to specifically put on there, but it is the wrong
address.''
So, you have students who are coming to campuses, are
leaving home for the very first time, and are looking to vote
for the very first time, and as soon as they get to the ballot,
they are to register, they come across all these problems. And
they are ultimately turned away, and denied their fundamental
right of voting on their college campus. And if they are not
necessarily denied, then they are denied their polling place on
the actual campus.
So, these students, especially like freshmen, or not even
just freshmen, but anybody who doesn't have access to a car,
who has to go off of campus to vote, they once again have
been--has been hit with a roadblock of being able to vote for
the very first time.
So, the pain is incredible. I mean you hear students tell
you stories about how their families haven't necessarily had
the, not necessarily the right, but also just the push of
voting, and being civically engaged. When they come to you, and
they say, ``Well, I want to change that, I want to become
civically engaged, I want to spread that to my family, and the
children that I will have one day,'' but they go to vote, and
they are ultimately turned away, I mean the pain isn't just
with one student or a couple of students, it spreads across the
campus. It spreads across the county, and ultimately, this
country, and speak for the thousands of students, or the
thousands of minorities who are running into these problems.
Ms. Jackson Lee. Thank you. The preclearance impact.
Woman in Audience. Excuse me. Is there anyone who wants to
say anything here?
Ms. Jackson Lee. Witnesses. She was asking----
Mr. Cohen. We have questions from the panel, and then maybe
later we can have some comments, if that is what you would like
to make.
Ms. Jackson Lee. Thank you.
Ms. Marziani. Thank you. As I shared with you in South
Texas when we were preparing to sue the state over the voter
purge, I spoke with a woman, a naturalized citizen, who has
been politically active with a close ally of the Texas Civil
Rights Project, a group called the Workers Defense Project. And
this woman has organized on behalf of domestic workers.
And she very much wanted to participate in the lawsuit. She
had been targeted by the state. She was extraordinarily upset,
because she so values her United States citizenship. But we
spoke, and it is just seared in my brain. It was a Sunday
evening. I could hear both of our kids in the background. And
she was scared to participate in the lawsuit. She was scared,
because she had already been targeted. She was scared because
she thought, and asked whether the government could come and
take away her citizenship. She felt like a second-class
citizen, because of how she had been treated.
And ultimately, she did not participate, because it was
just too scary for her, despite how politically active she has
been in her community.
Ms. Jackson Lee. Thank you.
Mr. Garza. I think that is an excellent question.
Ms. Jackson Lee. On the need for preclearance, if you
would.
Mr. Garza. Absolutely. I think that is an excellent
question, because so many times when we view the right to vote,
it is sort of an amorphous kind of thing, and we don't realize
how important it is to our citizens, this vote. Margarito Lara
is a prime example, but every one of our seven plaintiffs that
testified and talked about how they couldn't get the voter ID.
And they would call us after Judge Ramos issued her order
in 2014, and they would say, ``Well, now I can vote, right?''
And then we had to tell them, ``No. The state secured a stay.
You have to wait until we get this thing finally resolved.''
And they were just dumfounded. They couldn't understand--they
had done everything in their life right. This is the one thing
that they really cherished, being able to go and cast a vote.
One of the most important things about my career as a
voting rights lawyer is the people that I represented, the
courage that it takes for them to fight for their right to
vote. I had a client out of Taft, Texas. I tell the story about
Miguel all the time. It was a Korean vet, who couldn't
understand why things in his community were so different than
just across the highway where the white community lived, and
wanted a seat at the table of governance there. And would come
to MALDEF on a pilgrimage almost every three months. ``Can you
file a lawsuit for us? Can you represent us in this?'' And over
and over we had told them we were too busy.
Eventually, we did represent Miguel. We tried a case
against the city of Taft. And unfortunately, Miguel had to have
bone marrow transplant between the time of our preliminary
injunction hearing and the trial on the merits, and he passed
away on the operating table.
And this is what he told his wife as he was going into the
operating table. ``You call Jose, and you tell him this has got
to go all the way until we win, whether I make it or not.''
That is the kind of importance that our community feels about
the right to vote. And that is why Section 5 and anything that
can be done to improve Section 2 and all of those provisions
are so important.
Ms. Vattamala. If I could just add, for Asian-Americans,
you know, we conduct this survey poll monitoring every major
election. There are hundreds, hundreds of Asian-American voters
that are required to prove their citizenship, their citizenship
at the poll site, because the exact words from the poll workers
are, ``You do not look like an American. Prove your citizenship
to me.'' And obviously, most people that go to the polls don't
have their passport or birth certificate with them. So those
voters are turned away.
And, you know, with our OCA case that we brought regarding
Section 208 of the Voting Rights Act, that grew out of an
incident that happened in 2014 in Williamson County, in the
Austin area. Malika Dass, a naturalized citizen. She was
Indian-American, limited English proficient. She went to vote
during early voting with her son, Sarab, and she was prevented
from being assisted by him because he was registered to vote in
the neighboring county where he went to school.
We had to convince Ms. Dass, along with her son, to
convince her to come forward to be a named plaintiff. How
daunting it was to be So-and-So versus the State of Texas. So
many times we have really great cases, but we can't bring the
action because we don't have somebody willing to come forward.
Because many times, our clients, they have to be limited
English proficient, and oftentimes, they are a naturalized
citizen.
The state of Texas persisted in trying to depose her. She
was identified with stage 4 esophageal cancer during the course
of the case, and passed away during the course of the
litigation. And her son was really concerned that this was for
nothing, but we won, and, you know, it is a testament to her
and her courage, and it was really----
Voice [continuing]. The case?
Mr. Vattamala. No, because we had another organization
plaintiff, OCA Greater Houston, thank God.
Mr. Cohen. Thank you, Mr. Vattamala. I would like to
recognize the chairman of the committee, Mr. Nadler.
Mr. Nadler. Thank you very much. First, let me state that I
appreciate all the witnesses here, and these harrowing stories.
Mr. Garza, and anyone else, I hope you will, if you have
suggestions as to specific amendments to Section 2, send them
to the committee, please, because we should be looking at that.
Professor Morley, you said that under the city of Boerne
case, which threw out state applicability of the Religious
Freedom Restoration Act, that the court had greatly narrowed
the 14th--the Section 5 enforcement provision of the 14th
Amendment, which is true. But you also said that, in effect, it
had set a standard that you couldn't use legislation based on
Section 5 or the 14th Amendment for disparate impact cases. You
had to prove intentional discrimination. Is that the case, as
you read the law?
Mr. Morley. No, Mr. Chairman. The----
Mr. Nadler. I misunderstood you. Good.
Mr. Morley. What the Supreme Court said is in order for a
federal law to be a constitutional exercise of Congress's
Section 5 power, it has to be congruent and proportional to
actual constitutional violations. So, it is the congruence and
proportionality standard that is Boerne's key holding.
Mr. Nadler. But disparate impact can be a congruence in
proportionality requirement.
Mr. Morley. Yes, Mr. Chairman. The Supreme Court has held
you can have some prophylactic effect in a law passed under
Section 5. If you look at some of the cases issued after City
of Boerne v. Flores, however----
Mr. Nadler. Okay.
Mr. Morley [continuing]. In particular, the Kimel vs.
Florida Board of Regents and Coleman vs. Maryland Court of
Special Appeals, one of the main reasons the Supreme Court said
the law at issue was not a valid exercise for Section 5 was
because it targeted state conduct with a disparate impact that
didn't amount to intentional discrimination.
So, it is not a per se rule. It is not that the Supreme
Court said that you can never have a law that addresses
disparate impact under Section 5. Because the Supreme Court has
held disparate impact doesn't violate the Constitution,
targeting disparate impact under Section 5 would be a
substantial factor that, at least under the Court's approach,
weighs against the----
Mr. Nadler. But under the Court's approach with those
progeny of city of Boerne, we could tailor a Section 5, that
that, with disparate impact, if we figured out--if we did
proportional and congruent.
Mr. Morley. That would be a factor weighing against
proportionality and congruence.
Mr. Nadler. That is disparate impact.
Mr. Morley. Right.
Mr. Nadler. So, we will have to be much more careful.
Mr. Morley. Yes, Mr. Chairman.
Mr. Nadler. Ms. Marziani, you shook your head before and
said you didn't agree with Professor Morley on this point.
Could you elaborate, please?
Ms. Marziani. Yes. I mean I think, briefly, in the Shelby
County case, the court was clear that it was not seeking to
undermine congressional power in passing the Voting Rights Act
as a whole. And, of course, the Voting Rights Act is derived
from both the 14th Amendment, but also the 15th Amendment, of
course. So, there is another source of power there as well.
In my reading of Shelby County, the court was very clear
that it was concerned about the record not being based, as you
had noted before, on recent history, but was not casting any
significant doubt on congressional power in this realm.
Mr. Nadler. And the subsequent cases that Professor Morley
cites? Are you familiar with it?
Ms. Marziani. I mean Shelby County is more recent than the
City of Boerne.
Mr. Nadler. That was Shelby.
Ms. Marziani. Yes.
Mr. Nadler. Okay. So, you think we can deal with the--we
can have a new Section 5 that deals with disparate impact. Do
we have to write it more narrowly or more carefully than we
would have had to in the past?
Ms. Marziani. I think that it is imperative that the
committee do what it is doing right now, and make sure that any
coverage formula is tailored to address the current situation.
Mr. Nadler. Well, yes, that we know. That is why we are
holding these hearings.
Ms. Marziani. That is right.
Mr. Nadler. But having shown current problems, current
discriminations, current disparate impacts, do you think we can
write a Section 5 more as broad as we could have in the past,
or do you think the--or it has to be more careful, given these
recent Supreme Court decisions? Or more narrow, I should say.
Ms. Marziani. I think it can be as broad as it was in the
past.
Mr. Nadler. You think it can be?
Ms. Marziani. Yes.
Mr. Nadler. Okay. We may have to--I am going to ask Mr.
Garza, too. Yes.
Mr. Garza. So, one thing I would say in response is that I
would caution the committee and the Congress from enacting a
coverage formula that is limited by a court finding of
intentional discrimination. And I will give as an example----
Mr. Nadler. Well, obviously, we don't want to do that.
Mr. Garza. Yeah. I give as an example the voter purge that
was--that has been talked about. There is no judicial finding
that that was an intentional act of discrimination. But the
record in that case shows that the state of Texas before it
sent the letters telling people they were going to get purged
knew that as many as 25,000 people should not be getting that
letter, and they sent it anyway.
Mr. Nadler. No. It is clear that lots of disparate impact
like that, like the law eliminating straight-ticket voting,
like a million other things, are done for discriminatory
reasons, or have a discriminatory effect, which you cannot
prove the reason, necessarily.
Mr. Garza. That is right.
Mr. Nadler. So, we clearly want to cover disparity impact.
My question is are we more limited, or do we have to write a
renewal in order to cover disparate impact differently than we
would have had to a few years ago, given these recent Supreme
Court decisions?
Mr. Garza. So, I think there is an important part of Shelby
County that we need to sort of remember. Shelby County did not
undo the provisions of Section 5.
Ms. Marziani. Right.
Mr. Nadler. It just did six and four.
Mr. Garza. The scope of Section 5 has not ever been ruled
to be unconstitutional. So, the scope of the coverage of the
Act was never----
Mr. Nadler. So, we shouldn't change that at all. We should
leave Section 5 as is, and re-do Section 4.
Ms. Marziani. Yes.
Mr. Garza. That is right. Have the coverage formula be more
relevant to today, essentially.
Mr. Nadler. Yeah. Does anybody disagree with that?
Mr. Herrera. No, Chairman Nadler. May I add to----
Mr. Nadler. Please.
Mr. Herrera [continuing]. Garza said. And the advocates at
this table, the attorneys at this table know better than I do
about how difficult some of this litigation can be. But I think
it is important to reiterate the difficulty, the higher burden
of proving intentional discrimination in these cases, compared
to disparate impact, in Texas--Right. In a Texas redistricting
case, how even when there are smoking-gun e-mails about wanting
to design a mathematical device by which you can make districts
look like they are strong, Latino districts, but then have
those same districts not perform because they are low turnout
districts, even that not convincing some members of the
judiciary. And then in the----
Mr. Nadler. Especially a new judiciary.
Mr. Herrera. Right. And in Pasadena, there is a specific
piece of evidence. We did successfully--MALDEF did successfully
get an intentional discrimination finding in that case. And one
of the pieces of evidence there was the mayor's right-hand man
sending--I just want to give like a practical very, if you will
forgive me, in the weeds example.
One piece of evidence was that among other dog whistles in
that case, there was one piece of evidence where the right-hand
man of the mayor, the communications director, said, ``How
about to get this measure passed, by which we changed the
districting system, in order to get it passed, we only send--we
take the Hispanic names out of the mailing list for the
advertisements.'' He said, ``I want to take out the Hispanic
names.'' He said, ``We are only sending these mailers to white
people in Pasadena, so that they are the ones who go vote.''
And when we went to court, Judge Rosenthal here was shocked
by that. And that was an important piece of evidence among many
others. But when we went up to the Fifth Circuit, one of the
judge's questions, she--this judge asked us on the panel, ``How
does this show racism? That could mean anything.'' It is just
amazing sometimes how judges can, even when you have the
smoking gun, still call in and question this kind of evidence.
Mr. Nadler. Well, thank you very much. My time has expired.
Mr. Bledsoe. Can I add one thing to that, Mr. Chairman?
Mr. Cohen. Surely.
Mr. Bledsoe. Two things. I would ask you to take a look at
the Supreme Court case on fair housing in Texas, where they
allowed the disparate impact to be a basis for a violation. But
secondly, I think that just depending on--depending upon the
severity of the difference shown or illustrated by the
disparate impact, you could infer intent even from such a great
level.
I have used that in grand jury litigation, for example,
that where the experts say if you are two standard deviations
away from where you ought to be, there is something
extraordinary going on, and yeah--and some have said that that
implies discriminatory intent.
Mr. Nadler. But the bottom line seems to be that we should
leave Section 5 alone. If the courts, unfortunately, want to--
its application, we can't stop them. But there is nothing about
it. And just get a good Section 4 to delineate proper coverage.
Mr. Bledsoe. Coverage. Absolutely
Mr. Nadler. Everybody agree with that?
Voice. Yes.
Mr. Nadler. Thank you.
Mr. Cohen. Thank you, Mr. Nadler. Mr. Green. Gentleman from
Texas, and a great friend, and a great supporter of the
Constitution, and an opponent of bad people. [Laughter.]
Mr. Green. Thank you for your very kind and warm
introduction, Mr. Chairman. You are a true patriot, and I thank
all of the members of this Augusta panel for allowing me to
interlope today. Mr. Nadler, thank you so much. Long-time
friend, Ms. Jackson Lee, Ms. Garcia.
Dear friends, we have one among us that I would like to pay
tribute to, if I may. He holds the distinct honor of holding
two positions. Mr. Overstreet, would you just stand for a
second so that they can see you, please. Morris Overstreet. He
holds two positions. He is the first African-American ever
elected to the court of criminal appeals.
[Applause.]
Now you will have to retract what you just did, because he
is also the last and only ever elected. Thank you, Mr.
Overstreet. The last and only. Morris Overstreet.
Mr. Chairman, I do want to just say to you, I thank you for
coming, not only to Texas, but also to Harris County, because
Harris County is really the belly of the beast. We heard
someone mention Smith v. Allwright, 1944. Well, Lonnie Smith
was a dentist right here in Harris County. It was Lonnie Smith,
the dentist, leading citizen, who could not vote in a Texas
democratic primary.
Went to the Supreme Court, and the Supreme Court overturned
lower court decision. Smith was allowed to vote. Well, they
metamorphosed down in Fort Bend County, and had something
called a Jaybird Association, and they had a pre-election
primary, literally. They Jaybird Association would hold a pre-
election, and the winner would then be the nominee for the
democratic party.
It sent all the way to the Supreme Court. The Supreme Court
said, ``No. Not only can you not have discrimination in the
primary, you can't have it in a pre-primary.'' So, Texas has
been a bad actor for a very long time. And we have to do what
we are doing today, and I am so honored that you are doing it.
This difference is a congressional ID. With this ID I can
vote on the budget for this country. I can vote on issues of
war and peace. And this is the only time I am going to say this
word, I can also vote to impeach a president, with this ID.
[Laughter.]
But I cannot vote in an election in the state of Texas with
this ID. Someone mentioned other forms of ID.
Mr. Cohen. And I will vote with you. [Laughter.]
Mr. Green. You did already. Other forms of ID. Well, it is
important to note this about these other forms of ID. Texas, in
theory, Mr. Bledsoe, you are well aware, you are my lawyer, in
theory, they give you an ID at no cost, in theory. But you do
have to get the birth certificate.
I tested it. I went to the polls and tried to vote
without--with this ID and no other. When I was turned away, I
was told you have to have the proper ID. So, I sent to the
state of Louisiana, Mr. Chairman, where I was born to get my
ID. You have to pay to get that ID from Louisiana. The state of
Texas doesn't cover that cost.
And this was some few elections ago. To this day, I have
not received the ID that I paid for, the birth certificate,
which is really what we are talking about. I haven't received
that birth certificate. To this day.
So, it is onerous not only in that it requires you to get
your birth certificate, but also in that there is a cost. And
if you are a person who was not born in Texas, you don't
benefit from what they consider a free ID.
My questions will be these. You mentioned the long ballot.
You have mentioned the birth certificates being free. We have
talked about other forms of ID. In Texas, for many years, you
could vote with something that showed proof of your residence,
light bill, gas bill, water bill, phone bill. What is the
significance of having an affidavit for you to sign such that
you would be penalized criminally if you do not truthfully
state that you are a citizen in that affidavit? Has anyone had
any experience with affidavits as a possible means of--on a
polling day, allowing that to suffice, and then prosecute you
if you--if you state that you're--if you make a misstatement or
an untruthful statement? Mr. Garza.
Mr. Garza. So the----
Mr. Green. Could you pull the microphone a little bit
closer?
Mr. Garza. Yeah. So, the remedy that was adopted in the
voter ID law is that you can use those alternative forms of ID
if you sign what they call a reasonable impediment affidavit.
And much of the debate that we had with the state of Texas, in
terms of how that affidavit was going to be drawn up was how
much emphasis the state was going to put on the proposition
that if you sign that affidavit, and somehow you have made a
mistake, that you would prosecuted for perjury, and that that
would be on the document itself.
So, what we have now is better than what the state adopted,
but we still have this problematic affidavit. That is what Mr.
Lara would have to sign when he would go to the polling place
without a driver's license, or the other four--a gun license,
which you can use to cast a vote in Texas. And the other three
items that you can. If he didn't have access to any of those,
he would have to sign this reasonable, what they call a
reasonable impediment affidavit, swearing that he couldn't get
those five forms of documentation.
And it is problematic for that reason, that the state of
Texas made a lot of noise about how we would prosecute anybody
that would lie on that affidavit. So you would think twice
before you sign and swear to anything that you, you know, first
of all, don't understand why you have to go through this,
because you have voted all of your life, but now you have to
sign this affidavit, in which you are threatened with felony
prosecution for if you make a mistake on it.
Mr. Green. Okay. Mr. Bledsoe, I want to ask you quickly,
SB-9, you mentioned 9t. Is there a provision in there that
relates to persons being in the polling place with you when you
actually cast your ballot in the voting booth?
Mr. Bledsoe. Well, I think that it is really an
intimidating bill, because I think it even limits----
Mr. Green. Is your microphone on?
Mr. Bledsoe. The law seems to limit who can even be
transported to be able to vote. And so you imagine the
significance of that, if you can't transport people to vote,
and a lot of people will not be able to go to the polling
places. And you will have to file an affidavit for that as
well.
And let me say in reference to the----
Mr. Green. Mr. Chairman was asking you----
Mr. Nadler. You can't transport? You can't give a ride?
Ms. Marziani. That's correct.
Mr. Bledsoe. Right. That's correct. That's correct. It
passed in Senate. It's in the House. It has not passed the
House as yet. But it is pending now. I mean you are the expert
on that one. I know you guys have probably been supporting you
on that.
But in reference to the other reasonable impediment
affidavit, we have many of our NAACP branches that do not train
individuals to--they discourage people from executing the
affidavits, because it is very easy that you can get a hostile
DA who will prosecute you.
Let me give you for an example, because the question is do
you have an impediment that prevented you from going to
register, right, to get the ID? And so it is not whether or not
you are who you say you are, it goes further. And let's say you
go to a nursing home, and someone from the nursing home has
gotten an escort, and gone up and gotten their ID. But you were
somehow not on the bus, and didn't go get your ID. So, are you
going to prosecute that individual? Very possible, because it
is very--we had a big argument when they were passing the bill
about what the coupled mental state would be, because we wanted
it to be intentionally, rather than knowingly, because
knowingly allows you to go after more individuals in different
types of conduct.
But the law that was passed was very broad, and allows you
to go after people for what we think are innocent reasons. So,
we are very concerned about actually sending people forward,
especially in some communities, because Texas has been rife
with discrimination against minority voters. And so it is a
real possibility that people will get prosecuted.
And when you have the attorney general of the state and the
chief election official here in Harris County both talking
about that, you understand that that has a clear impact.
Mr. Green. Did you want to make a comment, Mimi?
Ms. Marziani. I would be happy to follow-up with the
committee, with more information about the SB-9 bill, which we
have been monitoring closely, and hoping that it will not
actually be passed into law.
Mr. Green. Thank you, Mr. Chairman. I greatly appreciate
it. I yield back.
Mr. Cohen. With that, we will conclude our hearing, except
for the fact that I want to recognize the county attorney, if
he would like to say anything.
County Attorney. I will only say that I second virtually
everything that has been said. Here in Harris County we have
had to face these issues, and any help we can get from Congress
to subdue some of these efforts by certain elected and
appointed officials is welcome. Thank you for having this
hearing.
Mr. Cohen. Thank you, sir. And your attendance speaks
volumes. Yes, ma'am.
Ms. Sanchez. Hi. I represent Texas Southern University, and
I am the government seat for disability. And I am thinking----
Mr. Cohen. Would you like to come up and use a microphone?
And tell us your name, please.
Ms. Jackson Lee. Thank you, ma'am.
Ms. Sanchez. Yes, ma'am. My name is Valara Sanchez. And I
represent Texas Southern University, and I was sworn as the
government seat as a senator. And I am representing the
disability. And I am asking you if there is any way that you
could help the disability. That, they need.
There is nothing. And I will say this, because I am, today,
representing the disability, because I am a hard-of-hearing
person. We don't have that here. You don't even have anything
for the blind. Need that. That is why I came and asked.
Mr. Cohen. Would anybody like to--thank you. We are
concerned about people with disabilities. I understand it
personally, and I think it is a priority of all of us on the
panel. And it does not necessarily relate to the Voting Rights
Act, but it certainly does have to do with voting. And there
might be some areas. Ms. Garcia?
Ms. Sanchez. Because whenever you go and vote, sometimes
people don't understand.
Mr. Nadler. Let me say that there are provisions in the law
not strong enough in the Voting Rights Act and in the Help
America Vote Act. The committee is actively engaged in
discussions with various disability groups right now, looking
to possible amendments to the Voting Rights Act to strengthen
protections for people with disabilities.
Ms. Jackson Lee. And I think we should do that.
Mr. Nadler. Yes.
Ms. Garcia. Mr. Chairman, Texas law does provide--you can
ask for assistance, and you can also ask for assistance in the
ballot materials, and the ballot be brought to the car.
Sometimes it is hard to convince judges at the polls that are
actually working that that is true, but people have an absolute
right, if they have any kind of physical disability, or feeling
ill, or just can't walk to get to the ballot box, they could
make a request, and the ballot can be brought to them at the
car.
It doesn't solve the blindness issue, but they do have a
right to have assistance much like in the case of an
interpreter.
Ms. Sanchez. Well, I just know that whenever people speak,
for instance, whenever they go anywhere, and some people don't
have the interpreters. Sometimes they are not ready for them.
So, what do we do? We are lost. So, then you lose a voice.
Ms. Jackson Lee. Right.
Ms. Garcia. Right. No. You are absolutely right. And I
still remember well the case that the attorney was talking
about, because when I was in the Senate, I filed a bill to
pretty much codify what the case had said. In other words, what
the case said, make it into law, and then to be able to make
sure that people got trained.
And unfortunately, across the state, we are not finding
that the counties are in compliance. So, we will continue to
work on it on the federal level, and then down here in the
state level to make sure it gets implemented the right way.
Ms. Jackson Lee. So, thank you for being here.
Ms. Sanchez. I appreciate that very, very much. So, thank
you.
Ms. Jackson Lee. Thank you.
Mr. Cohen. Thank you, senator. That does conclude our
hearing. It has been an outstanding hearing, thanks to you and
the panel. I want to thank you for your participation and
helping to re-codify this law.
[Applause.]
Mr. Cohen. So, thank you for the witnesses, and I want to--
before I recognize Congresswoman Lee, without objection, all
members have five legislative days to submit additional written
questions for the witnesses, and material, additional material
for the record.
Congresswoman Lee, you are recognized.
Ms. Jackson Lee. Thank you for your indulgence and your
courtesy extending me the moment to close. Let me give the
thank you's to, first, three members, Congresswoman Garcia,
Congressman Al Green, and myself may be the living example of
civil rights laws, desegregation, because we started our life
in a segregated America. We are, besides our own parents and
God, we are here because laws of the federal government acted
as hammers to make people do the right thing.
So I am not embarrassed by the leadership of Judge Nadler
and--I called him Judge Nadler--Chairman--maybe in another
life----
[Laughter.]
Chairman Nadler and Chairman Cohen, who joined us here in
this epicenter, in 2019, the year of return, for those of you
who may not know, to provide the extra hammer.
And Professor Morley, I hope in listening to your fellow
panelists we can work together for you to understand not only
the pain, but the legitimacy of a constitutional and federal
hammer to ensure people do the right thing, because I have
lived in Harris County over the years.
I won an election at 12:00 midnight, and in the morning, I
had lost. And I could win nothing. I could get no votes counted
to be able to say, ``Didn't you win that election,'' but I lost
it in the morning. And it was when African-Americans and
Hispanics, few ran, and ran, and ran, and lost, and lost, and
lost.
The Honorable Barbara Jordan lost every race that she had
until we passed a 1965 Voting Rights Act, and created
redistricting that--districts that allowed her to represent one
person, one vote.
This is the historical Texas Southern University, a place
that did not exist because there was no place for us to go,
Hispanics or African-Americans.
And so I would simply say, to put on the record, I want to
put on the record H.R. 1, which prohibits voter caging,
restores the voting franchise in federal elections in the
formerly incarcerated persons, prohibits deceptive practices
and voter intimidation, reaffirms Congress's commitment to
restore the voting rights, which is what we are doing, and
contains, among other things, several measures to combat
congressional gerrymandering. Today, the courts rule that the
Ohio redistricting was partisan and unconstitutional. It is
happening every day.
My final word is that every single one in this place--
Danny, thank you for being here. He is the only minority, I
think, on the Harris County School Board, maybe, but in any
event, problematic in their redistricting. But in any event,
everyone has to be committed to exposing voter infractions,
there is no fraud, but voter infractions, to help us build a
case, not a false case, but a case of reality, so that we can
truly empower people's right to vote.
It hurts my heart that we are dealing with this, and 2020
is going to be the year of the hack, the year of oppression,
and suppression, unless this great body is able to do its work.
So, I am grateful that we are here, but we will not be able to
do it alone.
Finally, in concluding, elections matter. The Trump
Administration is in the Fifth Circuit right now arguing to
take away your healthcare. They are there right now to take
away your healthcare, because elections do matter. And
elections matter because maybe in this judiciary committee we
will be able to have a hearing on H.R. 40 reparations, because
elections matter.
Thank you all so very much for giving us the opportunity to
have this historic hearing at Texas Southern University,
Thurgood Marshall School of Law, which we are going to at this
point. We are honored to be in your presence. Thank you all
very much.
Mr. Chairman, I yield back. Thank you so very much.
Mr. Cohen. And with that, this hearing is adjourned.
[Applause.]
[Whereupon, at 12:54 p.m., the subcommittee was adjourned.]
APPENDIX
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]