[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
SCRIMINATORY BARRIERS TO VOTING
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
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SEPTEMBER 5, 2019
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Serial No. 116-43
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Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
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U.S. GOVERNMENT PUBLISHING OFFICE
38-079 WASHINGTON : 2020
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking 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, Washingtqn 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
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SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana,
ERIC SWALWELL, California Ranking 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
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SEPTEMBER 5, 2019
OPENING STATEMENTS
Page
The Honorable Steve Cohen, Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 4
The Honorable Sheila Jackson Lee, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 7
WITNESS
Kareem Crayton, Executive Director, Southern Coalition for Social
Justice
Oral Testimony................................................. 9
Prepared Testimony............................................. 12
James Blumstein, University Professor of Constitutional Law and
Health Law & Policy, Vanderbilt University Law School
Oral Testimony................................................. 16
Prepared Testimony............................................. 18
Steven Mulroy, Professor of Law, The University of Memphis Cecil
C. Humphreys School of Law
Oral Testimony................................................. 21
Prepared Testimony............................................. 24
Tequila Johnson, Co-Founder and Vice President, The Equity
Alliance
Oral Testimony................................................. 35
Prepared Testimony............................................. 38
Jon Greenbaum, Chief Counsel and Senior Deputy Director, Lawyers'
Committee for Civil Rights under Law
Oral Testimony................................................. 54
Prepared Testimony............................................. 56
James Blumstein, University Professor of Constitutional Law and
Health Law & Policy, Vanderbilt University Law School
Oral Testimony................................................. 88
Helen Butler, Executive Director, Georgia Coalition for the
Peoples' Agenda
Oral Testimony................................................. 90
Prepared Testimony............................................. 93
James Tucker, Pro Bono Voting Rights Counsel, Native American
Rights Fund
Oral Testimony................................................. 103
Prepared Testimony............................................. 105
APPENDIX
Responses to questions for the record submitted by Professor
Steven Mulroy.................................................. 145
Item for the record submitted by James Blumstein, University
Professor of Constitutional Law and Health Law & Policy,
Vanderbilt University Law School............................... 151
Item for the record submitted by James Tucker, Pro Bono Voting
Rights Counsel, Native American Rights Fund.................... 154
DISCRIMINATORY BARRIERS TO VOTING
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THURSDAY, SEPTEMBER 5, 2019
House of Representatives
Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
Washington, DC.
The subcommittee met, pursuant to call, at 10:05 a.m., in
Historic Moot Court Room, University of Memphis Cecil C.
Humphreys School of Law, 1 N. Front Street, Memphis, Tennessee,
Hon. Steve Cohen [chairman of the subcommittee] presiding.
Present: Cohen, Nadler, and Jackson Lee.
Staff present: James Park, Chief Counsel; Keenan Keller,
Senior Counsel; Will Emmons, Professional Staff Member; and
Paul Taylor, Minority Counsel.
Mr. Cohen. As chairman of this committee on the
Constitution, Civil Rights, and Civil Liberties, I call it to
order.
Without objection, the chair is authorized to declare
recesses of the subcommittee at any time.
I welcome everyone to today's hearing on discriminatory
barriers to voting and I am extremely proud that we are here at
the University of Memphis Law School, which is my alma mater
where I went to law school, and not at this wonderful building
but this law school. So I am proud, proud, proud to bring this
to you.
Congressman Sheila Jackson Lee will be joining us. She is
here. And, of course, Congressman Nadler, the chairman, is with
us as well.
And also Representative Cooper has a representative here--
Jim Cooper from Nashville--and I appreciated his interest in
coming and I appreciate him sending a representative. So thank
you for attending on his behalf. Nashville is in the house.
I will now recognize myself for an opening statement.
Today's field hearing is part of a series of hearings that the
House Judiciary Subcommittee on the Constitution, Civil Rights,
and Civil Liberties will hold over the course of the 116th
Congress to assess the current need for a reinvigoration of the
preclearance requirement of Section 5 of the Voting Rights Act
of 1965 and to consider other ways to strengthen that landmark
civil rights statute.
Some of you may be studying civil rights law and know about
the historic passage of those bills in 1965. Unfortunately, in
Shelby v. Holder, which had nothing to do with Shelby as in
Shelby County, Tennessee, but Shelby County, Alabama, the
Supreme Court of the United States overruled and ruled that the
preclearance requirement didn't meet due process requirements
and had to be--it was unconstitutional.
So we have been without a Voting Rights Act for some time
and there are problems with that that our witnesses will
discuss.
Our particular focus today is the evolution of racially
discriminatory barriers to voting imposed by states and local
governments and the central role that the federal government
must play in tearing down those barriers to allow all people to
vote, which is the fundamental basis of democracy.
Especially appropriate we are holding these hearings today
in Memphis. Memphis and the Deep South, of which it is the
heart, in addition to Tennessee also includes the neighboring
states of Mississippi, Alabama, where there are hurricane
fears, Arkansas, Georgia, and North Carolina----
[Laughter.]
Mr. Cohen [continuing]. Among other states. Tennessee was a
central focus of activism for the civil rights movement in the
1960s--Diane Nash, John Lewis, Julian Bond was there locally.
Russell Sugarmon, Vasco and Maxine Smith, many great legendary
civil rights heroes.
Tennessee was not considered a state that had to have
preclearance because we didn't have the history that the other
states had. But the other states close to us--Mississippi,
Alabama, Arkansas, Georgia, North Carolina, and Texas--not so
close but in the same--did have to have preclearance. They have
several things in common, among the facts that they were all
part of the Confederacy.
Our esteemed colleague, Representative John Lewis, was
beaten and bloodied as he marched in Selma, Alabama, to ensure
that all Americans, regardless of race, had an equal right to
vote.
James Chaney, Andrew Goodman, Michael Schwerner were
murdered in Mississippi in Neshoba County, Philadelphia, as
they were working in the '60s to register African Americans to
vote.
And the Reverend Dr. Martin Luther King, Jr., the leader
and face of the civil rights movement and the push for voting
rights for African Americans came to Memphis in 1968 to march
in solidarity with sanitation workers and became a martyr for
the cause of civil rights.
It is in the spirit of those who fought and died for voting
rights that we turn our attention today to the still
unfulfilled promise of equal opportunity for all Americans to
participate in our electoral process.
The Voting Rights Act of 1965 is considered the most
effective civil rights statute ever enacted by the Congress.
The act was enormously successful in expanding federal
authority to protect the fundamental right to vote, and one of
the central enforcements provisions was the preclearance
provision.
That provision required certain jurisdictions with a
history of voting discrimination against racial groups and
language minority groups which, up until 2013, would have been
those predominantly, though not exclusively, in the Deep South
or states that chose to leave the United States of America and
form their own country, all because of race and slavery and
wanting to maintain that economic opportunity that they had to
have free labor and a superior race.
But they had to obtain approval--the states that had
preclearance--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 that preclearance requirement was to ensure
that the jurisdictions that were most likely to discriminate
against minority voters would bear the burden of proving that
any changes to the voting laws were not discriminatory before
such changes took effect.
It provided a target independent review to ensure that the
new rules, laws, and jurisdictions for the history of
discrimination were fair to all voters, and because they had a
record of discrimination, they had a burden to show positively
to the court that these were not going to discriminate.
It rightly prevented potentially discriminatory voting
practices from taking effect before they could harm minority
voters and in this way preclearance proved to be a significant
means of protection for the rights of minority voters.
This is why Congress repeatedly reauthorized the
preclearance provision on an overwhelmingly bipartisan basis,
most recently in 2006 when the House passed the Voting Rights
Act reauthorization by a vote of 390 to 33.
Mind you, that was in 2006. It was 390 to 33, and the
Senate 98 to nothing.
Then the Supreme Court gutted Section 5, the most important
portion of the Voting Rights Act in Shelby County v. Holder. It
struck down the coverage formula to determine which
jurisdictions would be subject in the preclearance requirement.
As a result, the preclearance provision remains dormant
unless and until Congress adopts a new coverage formula.
While Section 2 of the Voting Rights Act, which prohibited
discrimination in voting, remains in effect, it is by itself a
much less effective and significantly more cumbersome way to
enforce the Voting Rights Act.
Most important, plaintiffs cannot invoke Section 2 until
after alleged harm has taken place, thereby eroding the
effectiveness of the Act. So you pass a law that might be,
would have been, could have been declared void prior to its
effectiveness through preclearance.
But because you don't have preclearance it can only be
declared effective or illegal after it has gone into practice
and after it has discriminated against voters and stopped them
from voting. So the harm is done. The horse is out of the barn.
The onus is now on Congress to create a new coverage
formula to reinvigorate the Act's most important enforcement
mechanism--its preclearance requirement--and the need for
strong federal enforcement remains as pressing as ever.
While we are, thankfully, no longer in a universe where
state and local officials use literacy tests and poll taxes to
deny the vote to African Americans and other minority voters,
racially discriminatory barriers have taken on new forms since
the days of Jim Crow.
Examples include discriminatory photo ID laws, polling
place closures and relocations, restrictions on ex-felon
voting, purges of voting rolls, all of which are designed to
make it harder for African Americans and other racial and
ethnic minorities to vote.
Gun permit IDs, good. Vote. Student ID, bad. No vote. Here
in Tennessee we have seen a new state law enacted that would
impose draconian penalties on third party voter registration
groups from minor errors in registration forms, imposing a
chilling effect on such groups' efforts to register new voters.
In addition, we have seen states engage in racial
gerrymandering designed to dilute the strength of minority
voters. In the absence of an effective pre-clearance regime,
there is a high risk that these discriminatory measures will
undermine the voting rights of racial and language minority
voters.
I want to mention that yesterday Jim Sensenbrenner, a
member of Congress since 1978, announced he was not going to
run for reelection.
He is a Republican from Wisconsin. He sponsored the Voting
Rights Act. He was one of the few Republicans who supported the
Voting Rights Act reauthorization. He will be leaving Congress.
At one time--I think it was in the previous Congress--there
was a decision by one of the sponsors of the legislation that
to be a co-sponsor you had to find a Republican to come on with
you so it wouldn't like just a Democratic bill and they
wouldn't have, like, 160 Democrats and four Republicans. So
they wanted to have an equal number.
Some people think this makes sense, that it looks good to
have an equal number. I have never been a proponent of that. I
think you get as many sponsors as you can and if the
Republicans don't join, so be it.
But you want people who support your legislation to have
the opportunity to show their support by being a co-sponsor.
Well, I found out that I had to have a Republican co-
sponsor so I looked all over on the Republican side and I have
got lots of Republican friends that I made over the years.
And it would have been easier for me to find that
Indonesian airplane in the South Indian Ocean than it was to
find a Republican to join me. There were just not many.
So I thank our witnesses. I welcome Congressman Sheila
Jackson Lee, who has joined us here and a great advocate for
voting rights and all things good, and Chairman Nadler for
being here today. I look forward to a fruitful discussion. I
thank the University of Memphis Law School. The dean was here
and she is like Penny Hardaway. She has got a great future and
great things are going to happen. Thank you, Dean, for being
here.
Is this your first Penny Hardaway analogy?
Voice. Absolutely.
Mr. Cohen. You recruit good students.
Now I want to recognize the chairman of the full Judiciary
Committee, the honorable gentleman from New York, Mr. Jerry
Nadler, for his opening statement and welcome him to Memphis.
Mr. Nadler. Well, thank you very much.
I want to begin by thanking the chairman of the
subcommittee, Mr. Cohen, for welcoming us to Memphis and for
holding this important hearing.
It is fitting that this hearing is being held in a city
that has been central to the struggle for achieving civil
rights for all Americans. It is also home to the National Civil
Rights Museum, which has turned the tragic spot where Dr.
Martin Luther King, Jr., was assassinated into a beacon of hope
that helps chronicle the advancements this country has made in
fulfilling Dr. King's dream but also the many challenges that
remain.
One of the great unmet challenges is the current assault in
legislatures and courts across the country on the right to
vote. In recent years, we have seen a rise in the enactment of
voter suppression tactics such as burdensome proof of
citizenship laws, photo ID laws, significant scale backs to
early voting periods, restrictions on absentee ballots, and
laws that make it difficult to restore the voting rights of
formerly incarcerated individuals.
These kinds of voting restrictions have a disproportionate
negative impact on minority voters. In the most recent
elections in November 2018, voters across the country
experienced various barriers to voting because of state and
local laws and circumstances that made it hard or even
impossible to vote.
For example, as our witness, Helen Butler can attest, in
Georgia 53,000 voter registrants, 70 percent of whom were
African American, were placed in so-called pending status and
at risk of not being counted by the secretary of state, who was
also the Republican nominee for governor in that election
because of minor misspellings on their registration forms.
A federal court ultimately put a stop to this practice
because of the, quote, ``differential treatment inflicted on a
group of individuals who are predominantly minorities,'' closed
quote, but enacted just four days before the election, and only
after a prolonged period of confusion and who knows how many
eligible voters didn't vote because they didn't catch up on the
news the last few days and they believed that they wouldn't be
allowed to vote.
The recent rise in voter suppression measures can be
directly attributed to the Supreme Court's disastrous 2013
decision in Shelby County v. Holder, which effectively gutted a
critical enforcement provision known as the preclearance
requirement of the Voting Rights Act of 1965, which has been
one of the most effective civil rights statutes ever enacted
into law.
Section 5 of the Voting Rights Act, or VRA, contains the
preclearance requirement, which requires certain jurisdictions
with a history of discrimination to submit any proposed changes
to their voting laws or practices either to the Department of
Justice or to the D.C. federal court for prior approval to
ensure that those changes in laws or regulations or practices
are not discriminatory.
To understand--let me add that my own jurisdiction of
Manhattan and Brooklyn where my congressional district is were
subject--Manhattan, Brooklyn, and the Bronx were subject to
Section 5 preclearance and we did not find it burdensome. But
it was good.
To understand why the preclearance requirement was so
central to enforcing the VRA, it is worth remembering why it
was enacted in the first place.
Before the VRA, many 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 as unconstitutional,
another would be enacted, essentially setting up a
discriminatory game of whack-a-mole.
Section 5's preclearance provision broke this legal logjam
and helped to stop these discriminatory practices. Indeed, the
success of the VRA with its effective preclearance requirement
was apparent almost immediately after the law went into effect.
For instance, registration of African-American voters and
the number of African Americans holding elected office both
rose dramatically in the couple of years after enactment of the
VRA.
These successes could not have happened without vigorous
enforcement of the VRA and particularly of its preclearance
provision.
The Shelby County decision, however, struck down as
unconstitutional the VRA's coverage formula which determined
which jurisdictions would be subject to the preclearance
requirement, effectively suspending the operation of the
preclearance requirement itself and in its absence the game of
whack-a-mole has returned with a vengeance.
Within 24 hours of the Shelby County decision, for example,
Texas's attorney general, North Carolina's General Assembly
announced that they would reinstitute draconian voter ID laws.
Both states' laws were later held in federal courts to be
intentionally racially discriminatory. But during the years
between their enactment of the court's final decision, many
elections were conducted while the discriminatory laws remained
in place.
At least 21 other states have also enacted newly
restrictive statewide voter laws since the Shelby County
decision.
Restoring the vitality of the Voting Rights Act is of
critical importance.
In 2006 when I was the ranking member of this subcommittee,
we undertook an exhaustive process to build a record--a 15,000-
page record--that demonstrate unequivocally the need to
reauthorize the Voting Rights Act, provisions of which, like
the preclearance requirement and the coverage formula that
undergirded it, were expired.
At the time we found that most Southern states as well as
others were still facilitating ongoing discrimination. For
instance, these states and their subdivisions engaged in
racially selective practices such as relocating polling places
for African-American voters, and in the case of localities
annexing certain wards simply to satisfy white suburban voters
who sought to circumvent the ability of African American to run
for local elective offices in their cities.
While it is true that those seeking to enforce--to enforce
the Voting Rights Act can still pursue after-the-fact legal
remedies under Section 2 even without preclearance, time and
experience have proven that such an approach takes far longer,
is far more expensive than having an effective preclearance
regime, and once a vote has been denied it cannot be recast.
The damage to our democracy is permanent and, as I said, the
game of whack-a-mole has returned with a vengeance.
That is why I hope that members on both sides of the aisle
and in both houses of Congress will come together and pass
legislation to restore the Voting Rights Act to its full
vitality.
Today's hearing will provide an important opportunity to
renew our understanding of the importance of the Voting Rights
Act and, in particular, of its preclearance provision and to
support our efforts to craft a legislative solution.
I appreciate the University of Memphis Law School for
hosting us today and I look forward to hearing from our
distinguished witnesses.
And I thank the chairman. I yield back the balance of my
time.
Mr. Cohen. Thank you, Chairman Nadler.
I have asked and she has consented--Congressman Sheila
Jackson Lee--to make a brief statement. She wasn't told this
beforehand but she is the successor in the interest and vigor
and values and ability to articulate an issue to the great
Barbara Jordan, who was a congressperson and one of her heroes
and mine, too.
So I recognize Congressman Sheila Jackson Lee and thank her
for being here.
Ms. Jackson Lee. What a privilege to be able to be here
with my friend in Chairman Steve Cohen and, of course, the
dynamic chairperson, chairman of the House Judiciary Committee
evidenced by the work that we have been able to do.
Chairman Cohen led a hearing in Houston, Texas, and we were
forever grateful to have the ability to ensure that voices are
heard around the nation on this vital question of voter
empowerment.
As both my chairmen have just said, voting has nothing to
do with party affiliation or partisanship. I would almost
consider it a birthright, and in this historic town where I am
reminded of the message of, I am a man--I am an American--I am
a woman--I am an Native American--I am an African American--I
am an individual deserving of that right, I could not be more
pleased to join Steve Cohen, who has been such a leader on
these issues.
Let me briefly say these points and as I do so let me thank
the witnesses for your presence here today. Thank you, Dean. I
am prone to law schools and so anytime you want to visit us in
Houston we welcome you and we are delighted that you are
training the current generation of constitutional specialists.
Thank you so very much for your leadership.
The centuries old institution of slavery established a
racial caste system in the United States so pervasive that it
has survived the oppressive economic and social institution
that slavery was and it has continued.
What we have seen over the years is an evolution of
discriminatory voting practices. We have seen voter denial,
voter dilution, and voter suppression and, tragically, all of
that continues today.
It is much to my dismay that Texas has become the prototype
for denying the rights of citizens to vote, and I want to
mention in the context of African Americans, Hispanics, the
elderly, young people, impoverished persons who may move around
and are held to the standard of what is your address, denying
them the right to vote homeless persons--homeless persons as
well, that our goal in America should be to empower people to
vote.
We have seen with the demise of preclearance, which is
Section 5, that we are on our way back to square one for
rehabilitating the Voting Rights Act.
So the lesson that we learn here is that maintaining our
rights requires vigilance. Both Steve and Jerry are correct
that we worked together in 2006 for the reauthorization of the
Voting Rights Act, and let me take note of Chairman
Sensenbrenner, who was an active and vigorous participant.
I remember the give and take and the 15,000 pages and the
amendments that were accepted during that time frame. But I
think the most evident of where we were as a country at that
time is that there was actually a big celebration at the White
House--a signing of the bill. And at the center point of the
signing, I might say, was George W. Bush.
And so we find ourselves now since 2013 on the back side of
liberty and justice, the uncaged--but uncaged by Supreme
Court's 2013 Shelby County case ruling which struck down
Section 4 of the Voting Rights Act.
Fourteen states, including my state of Texas, took extreme
measures to enforce new voting restrictions before the 2016
presidential election.
As indicated in Harris County, where I live, we had a
system where voters were getting purged from the rolls,
effectively requiring people to keep active their registration.
Right before a bond election thousands were taken off the
rolls and asked, are you truly a citizen and, if so, run down
to the county and prove it before you can vote.
The Texas secretary of state recently claimed that his
office had identified 95,000 possible noncitizens on the roles
and gave the list to the attorney general for possible
prosecution, leading to a claim by President Trump about
widespread voter fraud and outrage from those who believe in
justice.
Interestingly enough, all of that was disproved. There are
questions of criminal prosecution and the secretary of state
had to step aside.
At least 20,000 names turned out to be there by mistake,
leading to chaos, confusion, concern that people's eligibility
to vote was being questioned.
The list was made through state records going back to 1996
was shown which Texas residents weren't citizens when they got
a driver's license.
But this continues. Latinos made up a big portion of the
90,000-person list and we believe that it was certainly based
upon last names.
So all of us who have had a distinct history in this nation
have found ourselves in the eye of the storm when it comes to
the question of voter denial--denying you the right to vote--
voter dilution--diluting the vote--and certainly voter
suppression, all of it that continues.
And so these hearings are, clearly, crucial and I am
reminded, since Steve indicated, my mentor, the Honorable
Barbara Jordan, who, when someone asked, what do you people
want, she said, squarely and forthrightly, we want the promise
of America.
I believe all over America these hearings are forcing and
enforcing the promise of America. I am delighted to be with
you, Mr. Chairman, and thank you for the invitation.
I look forward to the witnesses and I am very excited by
those who are present in this room.
I yield back.
Mr. Cohen. Thank you so much. We appreciate your statement
and your great volume of work on these issues.
We welcome all of our witnesses here today and thank them
for participating. We will have witnesses on two panels, and
your written statements will be entered into the record in
their entirety. And I will ask you to summarize your testimony
in five minutes and I will give you a one-minute warning.
In Congress, we have lights. So if you see the red light
you know that you are finished and then you--green light you
go, et cetera. But we don't have lights here.
So we are going to get a signal from here. They get five
minutes, and when they get to one minute they will let me know
and I will go one. So that is the way we will do it here.
Before proceeding with the testimony, I remind every
witness appearing before us today that all of your written or
oral statements made to the subcommittee connected with this
hearing are subject to the penalty of perjury pursuant to 18
USC 1001, which may result in the imposition of a find or
imprisonment of up to five years, or both.
Turning to the first witness panel, our first witness is
Kareem Crayton. Mr. Crayton is the executive director of the
Southern Coalition for Social Justice.
His primary work explores the relationship between race and
politics in representative institutions. His academic work
addresses the varied effects of state-sanctioned racial
exclusion and discrimination on campaigns, elections, and
governance of the political system.
He previously served on the faculties of Harvard, the
University of Southern California, the University of Alabama,
the University of North Carolina, and the Vanderbilt University
School of Law.
He received his JD and his Ph.D. in political science from
Stanford, his BA in government magna cum laude from Harvard
University.
Mr. Crayton, you are welcome and recognized for five
minutes.
STATEMENTS OF KAREEM CRAYTON, EXECUTIVE DIRECTOR, SOUTHERN
COALITION FOR JUSTICE; JAMES BLUMSTEIN, UNIVERSITY PROFESSOR OF
CONSTITUTIONAL LAW AND HEALTH LAW & POLICY, VANDERBILT
UNIVERSITY LAW SCHOOL; STEVEN MULROY, PROFESSOR OF LAW, THE
UNIVERSITY OF MEMPHIS CECIL B. HUMPHREYS SCHOOL OF LAW; TEQUILA
JOHNSON, CO-FOUNDER AND VICE PRESIDENT, THE EQUITY ALLIANCE
STATEMENT OF KAREEM CRAYTON
Mr. Crayton. Thank you, Mr. Chairman, and thanks to the
committee for inviting me along with the panel to present on
this important topic.
As was stated earlier, I am the executive director of the
Southern Coalition for Social Justice. It is a nonprofit
located in Durham, North Carolina. Can you hear me okay?
Mr. Cohen. You might want to come closer to the microphone.
Mr. Crayton. Okay. How is this?
Mr. Cohen. Closer.
Mr. Crayton. Okay.
Mr. Cohen. I feel like an eye doctor.
Mr. Crayton. How is that?
Mr. Cohen. Good.
Mr. Crayton. Okay. We are--the Southern Coalition is
located in Durham, North Carolina, and our work focuses on
providing multidisciplinary talent in law, organizing
communications and research to communities across the South who
are facing significant systemic problems related to access to
opportunity here in the South, and that includes voting rights.
We partner with community organizations and we take as our
focus, distinct from others, race equity as a guiding force,
and we therefore spend a lot of time thinking about voting and
how to make it more accessible to more people.
It is, as has been said earlier, a keen source of concern
from our perspective that there is currently a need to have
Section 5 or a replacement available. My intention today,
briefly, is to offer comments on the perspective from where we
sit about what has been lost and what the world looks like in a
world without Section 5 and where organizations like ours try
to assure political opportunity to organizations.
Due to that, I want to talk briefly about three particular
examples, one of which you all have very nicely talked about so
I don't have to say too much. But I want to talk about three
particular issues: voter ID, about what we will discuss
described as the criminalization of the ballot box, and then,
finally, purges and removals.
First, with respect to voter ID rules, you all have already
very nicely described some of the perils associated with rules
that don't just look at ID as a means to assure against fraud
but instead a means of deciding who will and won't be part of
the electorate, where a legislature like the one in North
Carolina makes a decision that they will privilege gun licenses
but not privilege public school-issued photo IDs.
One makes some decisions about whether or not certain
groups of people who tend to have one and not the other should
be a part of the system. And our organization litigated in
North Carolina what was called the ``monster'' voting bill out
of the North Carolina General Assembly and the state was found
to have intentionally discriminated with almost, as the
bipartisan federal court sais, surgical precision.
The part I want to emphasize is that even though we won
that case, the state legislature responded by crafting a new
voter ID provision that was going to be entrenched in the state
constitution. That provision passed in 2018 with 55 percent of
the vote and we are now--pardon?
Mr. Cohen. Fifty-five percent of the vote of the
legislature or--
Mr. Crayton. Fifty-five percent of the vote in an election
for the congressional--excuse me, for the constitutional
provision as it was presented after a significantly, I think,
contentious campaign.
And in any case, we have since sought to sue to stop the
implementing legislation that follows from that in state court
and it is currently in the process.
But note that during this period of time, we have a voter
ID bill that is on the books and we will have elections that
have to be pursued unless a state court gives us a preliminary
injunction.
The second topic I want to talk about briefly is an
emergent issue but one that is not new to the United States and
we describe it as the criminalization of the ballot box; that
is, the use of public and private power to either penalize or
harass people from doing nothing more than engaging in the
exercise of the franchise.
What I will note simply is that several prosecutors,
including in Texas and in North Carolina, have attempted to use
state power for felony convictions for people who, at worse,
are making mistakes and engaging in the political process,
sometimes encouraged by the state, and it is our intention to
assure that these laws, particularly in North Carolina where
there is no intent requirement in the criminal statute, is not
applied in an unconstitutional way. We are closely monitoring
that and we will attend to it in the next few months.
Briefly, I will mention the third issue, which is purges
and removals. This happened in a number of states. In my native
state of Alabama, the state--secretary of state has encouraged
this as another means of assuring against fraud.
And as it plays out, this tends to work against people who
don't vote every election. If you vote in the national election
in 2016 but don't vote in 2018 that can be counted against you,
particularly if there are intervening elections to follow from
it.
The challenge here is, one, that raises real speech
concerns for people who choose not to participate in an
election for any given time. But, two--and this is the deeper
question that I will stop with--it discourages confidence that
the political system is open to all people.
The real challenge in all of these efforts where people
actually go through the registration process in one instance
and then are told by the state, you have to go back to square
one because you didn't participate in the way that we think you
need to participate is that it sends a negative message to
people that they are not entitled just because of citizenship,
as Representative Jackson Lee said, to participate in elections
because it is their right.
And the real challenge, I think--and I hope that this
committee will consider it as you are thinking through
provisions that will follow--how do we use state power to
assure that people who are citizens and who are intending to do
nothing more than have their voice heard, how do we encourage
rather than discourage their participation.
It is my hope and, certainly, from our perspective at the
Southern Coalition that we will be partners in that effort.
And we thank you for the opportunity to speak.
[The statement of Mr. Crayton follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir, and it is my error in not
keeping up with the time as well. I am going to be a better
time keeper.
James Blumstein is a university professor of con law and
health law and policy, professor of management--Owen Graduate
School of Management and director of the Vanderbilt Health
Policy Center.
I knew of Mr. Blumstein and of his work when I was a state
senator. He was respected with his testimony and opinions among
the members of the General Assembly and teaches at the school I
went to undergraduate. So I appreciate your being here.
Among his many accomplishments he was former Tennessee
Governor Phil Bredesen's counsel on TennCare reform. He
participated in a number of Supreme Court cases and arguing
Dunn v. Blumstein, a successful '72 challenge to Tennessee's
durational residency requirement for voter registration. He has
a BA in economics from Yale, an MA in economics from Yale, and
an LLB from Yale. He never could get out of Yale. [Laughter.]
Professor Blumstein, fortunately, you got to Vanderbilt,
the Harvard of the South.
You are recognized for five minutes.
STATEMENT OF JAMES BLUMSTEIN
Mr. Blumstein. Thank you, Mr. Chairman, and I remember well
your work when you were in the state legislature on getting
funding for higher education and your good work there.
My testimony today will focus on a case I brought. You
mentioned Dunn v. Blumstein and I will talk about that, and
then some----
Mr. Cohen. You need to be closer to the mic.
Mr. Blumstein [continuing]. Some lessons that I have
learned from that and lessons that I think are significant. But
there are a few war stories here and a few examples I want to
talk about.
First, what the case was about. When I am--when I moved to
Tennessee in 1970 you had to live in the state a year in order
to register to vote and you had to live in the county of your
vote for 90 days.
I brought suit to challenge that based upon both violation
or a penalty on the right to travel and a restriction on the
right to vote, and that case was brought.
The Census data that we had from that era showed that about
3.3 percent of residents move from one state to another every
year and about 3.3 percent of persons move from county to
county every year.
So it overstates it a little bit but about 6\1/2\ percent
of people were disenfranchised from these durational residency
requirements, and the law was ultimately struck down by the
District Court and then by the U.S. Supreme Court in an opinion
by Justice Marshall.
I think that that case probably has enfranchised more
people than any single case in our constitutional history
about, as I said, somewhere a little bit south of 6.5 percent.
And then there are some stories about that and some
lessons. As we were litigating this, the state said that it
wanted to promote voter knowledge and to protect the purity of
the ballot--guard against voter fraud.
There was really no question at that point that voter
knowledge was not really well served by a length of residency
and we addressed that in the case directly.
But just parenthetically and just to lighten this up a
little, I did offer to take a test of my voter knowledge of the
issues. At that time, Senator Gore was running for reelection
and I thought I knew a good bit about his--the issues in his
campaign and the opponent's. I think Senator Brock was running
against him.
And then we had the voter fraud. Well, this is important--
the voter fraud issue. It showed that the lengthy residency
requirements were put in to stop a real problem, the problem of
colonization, where people would be brought in from outside the
states like Kentucky or outside the district, and the voter
residency requirements or durational requirements were put in
so that people would know their neighbors--who was actually
brought in on the day of election to colonize and who was a
real resident.
But since those things had been enacted, Tennessee had
adopted a system of voter registration to deal with voter
fraud. And so the court was able to see that the voter
registration system eliminated the need for these lengthy
residency requirements and so that is the lesson that I want to
talk about is that having a--taking seriously a problem rather
than denying the existence of a problem allows a conversation
to develop about how one can overcome the adverse effects of
dealing with the problem such as the durational residency
requirements and how the voter registration system allowed the
courts to see that alternative methods of dealing with voter
fraud were available that were much less debilitating on the
right to vote.
So I take from that important lesson that if one recognizes
and seeks in good faith to try to solve a problem in the least
destructive way you can that that is likely to generate strong
support across the aisle.
So I will--I see that my time has almost expired. I will be
glad to take questions and respond to questions at that point.
But I think that is an important takeaway of that experience.
Thank you very much.
[The statement of Mr. Blumstein follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Professor.
For the students, I want to relate a little history to you.
Dunn v. Blumstein was a governor named Winfield Dunn, who was
from Memphis who was--from '71 to '75 he was governor of
Tennessee--a Republican governor.
And when he says Gore, there were two Gores. Al Gore, Jr.,
had a father, Al Gore, Sr., who served in the Senate for I
think 18 years and was defeated in '70. And I would also
mention----
Mr. Blumstein. Right. And the election was about Al Gore,
Sr. Al Gore, Jr., was one of my students later on.
Mr. Cohen. You taught him well.
Mr. Blumstein. Thank you.
Mr. Cohen. The process in Congress is when you are the
majority you have three witnesses and when you are in the
minority you have one witness.
Mr. Blumstein is here as the witness of the Republicans and
he will appear on the second panel as well because they only
supplied us with one witness. We will have three other
Democrats to come later.
Now I would like to recognize a homeboy, Steven Mulroy, a
professor of law at the University of Memphis Cecil C. Humphrey
School of Law, since 2000, teaching in the area of con law,
criminal law, criminal procedure, civil rights, and election
law. Former civil rights lawyer for the U.S. Department of
Justice and former federal prosecutor, he tried a number of
voting rights cases which went to the Supreme Court.
In addition to his academic and litigation experience,
Professor Mulroy has served as an elected Shelby County
commissioner 2006 to 2014, drafting, among other things, the
first legislation on any level to provide discrimination
protection for the LGBT community.
He served as a law clerk to the Honorable Roger Vincent,
the U.S. District judge of the Northern District of Florida. He
got his JD from the William and Mary Law School, top 5 percent
of his class, an editor of the Law Review.
Received his BA in linguistics from Cornell with
distinction and he was a major proponent of IRV, which was a
voting process that the city council passed and all, and that
was important but it was named IRV, which reminds me of Irvin
Salky, who needs to be remembered at all times.
Professor Mulroy, you are recognized for five minutes.
STATEMENT OF STEVEN MULROY
Mr. Mulroy. Thank you, Mr. Chairman, and members of the
committee. It is an honor to be able to speak to you today on
such an important issue.
I started my legal career in the voting section enforcing
Section 2 and Section 5 of the Voting Rights Act. I have
published a number of scholarly articles on the Act, just
recently published a book on election reform, and as has been
pointed out, while I was an elected county commissioner I
worked not only on reform of two methods of election but also
personally was involved in a redistricting process.
While the Voting Rights Act undeniably succeeded early on
in allowing minority voters access to the ballot casting and
registration and then later on succeeded in addressing minority
vote dilution, it by no means ended all minority vote dilution.
And the same is true of the recent wave of vote suppression
cases we have heard about today, the so-called third generation
of Voting Rights Act enforcement, which picked up considerably
after the Shelby County v. Holder decision.
After that decision, we now lack the most effective tool in
fighting voting discrimination, Section 5 preclearance. The
court left open the option of drafting a new coverage formula
and Congress should do so.
Skeptics might protest that the Holder decision still left
open Section 2 litigation and that is enough. But as we have
already heard, Section 2 litigation by itself is not enough to
address the problem. In a nutshell, it is too expensive, too
drawn out, and too ineffective.
Expense. Section 2 plaintiffs have to pay credentialed
expert witnesses and prepare extensive historical and
socioeconomic analysis to meet their burden of proof. This
costs money, hundreds of thousands of dollars in some cases,
and that is not counting attorneys fees, which you only get if
you win and even then you only get some of it.
Time. Section 2 cases typically take two to five years, and
during those years, because courts are reluctant to grant
preliminary injunctions prior to a full trial on the merits, as
we have already heard, the discriminatory voting practices are
in effect often for multiple election cycles.
Effectiveness. Section 5 had a clear legal standard.
Discriminatory purpose or retrogression. Easy for litigants to
argue and courts to enforce. Section 2 standard is more fuzzy.
Also, Section 5 placed the burden of proof on the jurisdiction,
which has the access to resources and data.
It nipped the discrimination in the bud rather than chasing
after it after it began. Under the Supreme Court City of Bern
decision, any preclearance resumption would require evidence
and findings that it was congruent and proportional to the
societal problem, and under Shelby County we would have to have
an updated coverage formula.
Sadly, the plentiful examples of recent voting
discrimination that we have in the record, including examples
here in Tennessee, I think will suffice to meet those burdens.
H.R. 4, one of the bills being discussed, is a reasonable
response to this record. It limits coverage to jurisdictions
with a demonstrated pattern of multiple voting rights
violations within a set time period demonstrated by formal
findings of discrimination by either a federal court or DOJ.
While reasonable minds might differ as to the best look-
back period or the minimum number of violations needed to
trigger coverage, the solution H.R. 4 arrives at does not
exceed the bounds of appropriate remedial legislation.
I would recommend one change to the bill, since we are--if
we are talking about H.R. 4. Section 4(b) identifies as a
covered practice requiring preclearance any conversion of
single-member district to a multi-member district or at-large
election scheme.
I recommend that a narrow exception be added for when such
conversion involves the use of proportional or semi-
proportional systems like limited voting, cumulative voting, or
especially single transferrable vote, such that the relevant
minority group would be expected under the well-recognized
threshold of exclusion formula to elect candidates of choice
at, roughly, the same or greater rate.
These alternative systems have been used for decades in
many jurisdictions across the country. Federal courts have
imposed them as Voting Rights Act remedies.
They are just as effective as the traditional single-member
district remedy, in many cases more effective. The law should
encourage experimentation, not discourage it.
I will conclude by noting that the right to vote has
famously and improperly been called the right preservative of
other rights. Where it is denied victims necessarily lack the
means to use the local and state political processes to correct
the problem.
So, by definition, it is appropriate for external actors,
Congress, or federal courts to intervene. Doing so does not
give federalism short shrift but merely gives voting rights
their fair due.
I thank the committee.
[The statement of Mr. Mulroy follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Professor Mulroy.
Ms. Tequila Johnson is a co-founder and vice president of
the Equity Alliance, a Tennessee-based nonprofit that equips
black and brown citizens with tools and strategies to
strengthen their communities and make government work better.
Johnson currently also serves as assistant director of
outreach and student engagement at Tennessee State University
Center for Service Learning and Civic Engagement.
In that role, she is responsible for connecting students,
staff, and faculty with various outreach opportunities and
managing service learning initiatives.
In 2018, Ms. Johnson served as statewide manager for the
Tennessee Black Voter Project, a statewide coalition of nearly
two dozen local nonprofits working toward the goal of
registering 50,000 black Tennesseans to vote.
Under her leadership, the group submitted 91,000 voter
registration forms. I suspect that possibly influenced the
General Assembly's new law and I am sure you will discuss that.
Ms. Johnson is a graduate of Tennessee State University
where she received her Master's degree in counseling and
psychology, currently pursuing a Ph.D. in industrial and
organizational psychology.
We welcome you to Memphis, another so proud to be at TSU.
And same song--we kind of copied it.
You are recognized for five minutes.
STATEMENT OF TEQUILA JOHNSON
Ms. Johnson. Chairman Nadler, Subcommittee Chairman Cohen,
and Representative Jackson Lee, thank you for giving me the
privilege to testifying about discriminatory barriers in
voting.
My name is Tequila Johnson and I am the co-founder of the
Equity Alliance. We are a nonprofit organization here who are
focused on getting more black and brown communities out to
vote.
I am a 33-year-old. I was born and raised in Chattanooga,
Tennessee, and I have lived in Nashville for the past 16 years.
I am a movement builder. I am a strategist. I am a community
organizer.
My passion is to mobilize communities to bring about
progressive change and to creatively use data, personal
stories, and organizing strategies to dismantle discriminatory
barriers to voting and other basic rights.
For generations, my ancestors--my family, my parents--have
worked hard to have access and to achieve the American dream of
life, liberty, and the pursuit of happiness.
For my family, this included fighting for the right to vote
and ensuring that our community and other marginalized
communities have access to the ballot.
From growing up in the housing projects of Chattanooga,
Tennessee, to moving to the suburb of Harrison, Tennessee, I
have traveled across this great state. I have talked to several
residents and I know firsthand the issues as it relates to
discriminatory barriers.
I have always had an interest in creating new movements,
whether I was in high school, in college, or currently in
Tennessee and Nashville.
My strategy has always been to mobilize those who are
statistically underrepresented and unlikely to exercise their
voice in a democracy either by voting or registering to vote.
Through my work, I have began to realize how important it
is for my community to become self-determining and to exercise
autonomy through voting. I also realize that there were
countless systemic and discriminatory barriers to voting that
have to be dismantled.
In 2016, I traveled all across the state to almost every
county and I learned from community members and friends who had
tried to vote early in person that they had been purged from
the rolls because they had not voted in the last two federal
elections. These people didn't recall receiving any kind of
notice and they had said if they had known they needed to
reregister they would have.
Many of the people I talked to said that they just didn't
know. Prior to 2018, I learned from family and community
members that a polling location in a predominantly black
neighborhood of Shelby County, Tennessee, had closed and the
nearest location was more than 20 minutes away and in a
predominantly white neighborhood.
This impacted many people I know because they did not have
the means to drive and many of them felt uncomfortable being in
a predominantly white polling location.
As a result, many just did not go out to vote and voter
apathy reigned. Tennessee is ground zero for voter suppression.
Tennessee has some of the most restrictive voting rights
laws including voting restoration laws. This only allows some
individuals who were convicted of certain crimes within certain
years to have their voting rights restored.
And if you were convicted of any infamous crimes you may
still not be eligible to vote because the law requires you to
complete your sentence, fulfill legal obligations such as child
support and restitution, complete a certification of
restoration, and many other things.
I also recently learned that Tennessee is one of the few
states that views incarceration as willful unemployment,
meaning that while people are incarcerated their child support
continues to accrue even though they may not be receiving any
income.
I have worked to help people restore their rights to vote--
several people--and I can tell you that it is a daunting
process, especially for someone who is trying to reintegrate
into society.
In 2018, I served as the statewide director for the
Tennessee Black Voter Project. This project was a collaboration
between nearly two dozen black nonprofits, organizations, and
businesses across the state.
We set a collective goal to submit voter registration forms
from underrepresented neighborhoods in the state and by the
voter registration deadline we submitted tens of thousands of
forms without the support of the secretary of state.
Then, in 2019, the state legislator came behind and passed
a new law restricting the ability of civic engagement groups--
poorly funded civic engagement groups--and individuals from
registering voters in large-scale voter registration efforts.
The restrictions range from groups receiving consent to
having to record personal information, not turning incomplete
forms, acts for public communication regarding voter
registration, status--that, and much more.
These violations and provisions would also open civic
engagement groups and individuals that register large numbers
of voters up to criminal penalties and civil fines up to but
not necessarily limited to $10,000.
Due to these discriminatory barriers to voting and voter
registration, I believe that Congress--I believe that Congress
has a constitutional obligation to act to ensure every American
citizen has equitable access to exercise their voting rights.
I believe that modern, fair, and free elections are
critical to removing institutional barriers that have
suppressed the votes and voices of black voters since
Reconstruction.
I believe that passing H.R. 1 was a necessary step, but you
must not stop there. We need to renew the full Voting Rights
Act of 1965 that gave African Americans full citizenship in
this country.
I also urge you to hold states accountable. A new national
voter restoration registration act, for example, could limit
states in what they can do to penalize voter registration
groups such as mine.
And they could pass national nationwide mandatory motor-
voter law to automatically register those seeking driver's
licenses and state ID cards.
Thank you.
[The statement of Ms. Johnson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you very much.
Appreciate your work and I think--I fear that that was the
cause of the General Assembly's passage of the law, to inhibit
people from doing mass voter efforts.
And you were right about the re-enfranchisement law except
I sponsored it in the Senate and passed it to where you could
get reinstated if you completed your sentence, and then in the
House a man named Stacey Campfield, who was a state rep, put
the amendment on this that you had to be current in your child
support.
The ACLU said--told Representative Larry Turner to accept
the amendment because they thought they would beat it in court.
They were wrong. The court didn't strike it down. It should
have. Unfortunate.
We now have questions and I am going to first ask Mr.
Crayton, you maybe can explain to some of the students and give
your perspective on the opinion in Shelby v. Holder. What was
the reason they struck down the law and do you feel that the
record that was compiled that Mr. Nadler said was as many as
15,000 pages, as much as that, was not complete and sufficient
to support the passage of the reauthorization of the Voting
Rights Act?
Mr. Crayton. Sure. Mr. Chairman, I certainly disagree with
the decision taken by the majority of the court. The position
that the chief justice on behalf of the majority offered was
that while he found no fundamental problems with the concept of
preclearance, he thought that the evidence presented was not
sufficient to support the continuance of the provision.
As you may recall, during the oral argument he made much of
the difference between Mississippi, as he had observed, that
had a lower rate--excuse me, a higher rate of registration
among African Americans than Massachusetts, and if Mississippi
was covered and Massachusetts wasn't covered, if registration
was the sort of measure for whether one needed to have that
coverage he didn't understand. He didn't understand why that
matched up.
Now, there has since been some attention to whether or not
those assessments were accurate. But the main point to think
about is what the framework, it seems to me, of what
preclearance was designed to do.
The chief justice wanted to take a snapshot in 2013 as to
whether or not the current work of the Voting Rights Act was
actually still necessary and he seemed to discount, as I think
Justice Ginsberg offered in dissent, the fact that what he was
seeing was the result of the protection that Section 5 offered,
such that without it you might well see a very different
analysis of places where voting rights were reasonably
protected, whether--where participation was fairly robust.
You know, he said the--I think the analogy was something
like having an umbrella in the midst of, you know, no rain at
all and say, well, this is clearly stopping the rain, and you
are thinking, well, that is not quite how that works and you
can't really know in a natural experiment what the effect of a
protection is unless you do without it.
The challenge is, A, we have had that burden borne by a
specific group of people in the South traditionally and that
has been people of African descent for a very long period of
time and it is unfair to take a chance on their backs, I think.
The other concern was always that the Congress, as we had
always understood as I taught the Reconstruction amendments,
has a great deal of discretion to make these judgments and the
Supreme Court was supplanting its own preferences for
Congress's.
And I will just say this and stop. We, in my capacity as a
professor, a group of political scientists and law professors,
submitted to the court current data showing that there was
significant difference in the way in which white voters in
covered states understood things like race equity, religious
tolerance--any factor you want to consider.
There were significant differences that made it more likely
that the expectation that Congress adopted in 2006 with the
provision that there was still work to do with preclearance.
And the court roundly ignored it. And it seems to me that
if we think that the Reconstruction amendments work the way
that we do, where Congress is given some discretion to make
these judgments where it originally was the group that stepped
in, that the court's role is simply to ask the question as to
whether or not it was reasonable to do so.
The court didn't take that approach and I do believe in
this iteration we have to be mindful of a court that is,
unfortunately, not usually going to abide by the same approach
and framework as was evidenced in, say, Boerne because Boerne
certainly purported to think with respect to the adoption of
the Voting Rights Act up until 2006 and the court has now
seemed to depart from that framework and tried to craft its
own.
My hope would be that the committee takes that into
account.
Mr. Cohen. Let me ask you a question. I think I remember--
the states that were under preclearance were, basically, Texas
around to Carolina. Was that right? And then maybe Arizona. Was
it one state outside of the Old South?
Mr. Crayton. There are a few of them. So parts of Virginia,
parts of North Carolina were covered. But parts of California,
Michigan, New Hampshire, New York.
Mr. Cohen. But there were parts in those jurisdictions.
Mr. Crayton. Parts of.
Mr. Cohen. But was it not the entire state of Mississippi,
Alabama, Georgia, Texas, Louisiana--the entire state?
Mr. Crayton. Correct.
Mr. Cohen. And is Arizona the entire state or was it just
portions?
Mr. Crayton. I believe it is the entire state.
Mr. Cohen. Yeah.
Mr. Crayton. Or was.
Mr. Cohen. And then the smaller areas which were
jurisdictions within New York, Michigan, et cetera, population
wise would you think it was accurate to say that 85, 90--a
large great percentage were in the states of the old
Confederacy?
Mr. Crayton. Correct. That is fair.
Mr. Cohen. And the court said that we needed to have a new
formula to see if there were other jurisdictions that belonged
and/or other--some of the jurisdictions that might have been
out.
Is that in some ways like the Supreme Court asking Congress
to tell the court how many beans there are in a jar?
Mr. Crayton. Mr. Chairman, I hadn't thought about it that
way. But----
[Laughter.]
Mr. Crayton [continuing]. The analogy seems pretty apt to
me. And I think the other thing, just briefly, to point out is
it ignores the transformative goal of the Voting Rights Act in
this part of the country.
It is not to ignore other parts where elements of this were
relevant but to have stopped the progress of a long-term
project was to turn its back, I think--the court turning its
back on the long-term effort to change culture and structure,
and that is just not something that you can put a stopwatch on.
I think that is, unfortunately, what is relevant in the Shelby
County decision.
Mr. Cohen. Thank you, sir.
I know recognize the chairman, Mr. Nadler, for five minutes
of questioning.
Mr. Nadler. Thank you.
I think it was Professor Mulroy who mentioned City of
Boerne. The City of Boerne case threw out the applicability to
the states of the Religious Freedom Restoration Act. That was
the prime purpose of that decision.
Mr. Mulroy. Yes.
Mr. Nadler. Could you elaborate how it affected the--what
we are talking about, the Voting Rights Act?
Mr. Mulroy. Yes. Well, as you correctly stated, in the City
of Boerne case the Supreme Court----
Mr. Nadler. Could you talk a little closer to the mic?
Mr. Mulroy. Oh. Yeah. The city--in the City of Boerne case
the Supreme Court struck down the Religious Freedom Restoration
Act as it applied to state and local governments on federalism
grounds, and interesting--what they did was they contrasted the
record that had been set up for the Voting Rights Act with the
sparse record, at least as they saw it, for RFRA--the Religious
Freedom Restoration Act.
So they said, look, we saw with the Voting Rights Act
extensive record testimony before Congress, extensive
legislative findings that voting discrimination was widespread,
pervasive, extremely problematic societal wide.
We see no such similar record with respect to state and
local governments failing to give accommodations to religious
minorities. There is no such epidemic of that in the record
that we can see.
So, therefore, this federalism cost of the federal
government top down mandating what state and local governments
will do is not a valid exercise of Congress's admitted
authority under Section 5 of the Fourteenth Amendment----
Mr. Nadler. So this is, in effect--it is, in effect--said
there is a good record--a sufficient record in----
Mr. Mulroy. Yes.
Mr. Nadler [continuing]. In the Voting Rights Act----
Mr. Mulroy. Yes.
Mr. Nadler [continuing]. Which they completely overturned.
Mr. Mulroy. Yes. Then a few years later they overturned
that very record. The one way you might be able to reconcile
those two, Mr. Chairman, is to say if you take the majority
opinion at its word, they were concerned about whether the
coverage formula was up to date.
And since the coverage formula focused so much on
registration rates they said, well, look, registration rates
have balanced so, apparently, there is no more problem. If you
do a coverage formula that is not based on registration rates
but is based on actual proven demonstrated instances of Voting
Rights Act violations, then, theoretically, at least, they
should not be able to lodge that objection.
Mr. Nadler. I have always read the Shelby County decision
as saying that Section 4 was unconstitutional. Basically, you
know, it is not that necessary anymore but basically it is
unconstitutional because the invasion of the states' rights to
conduct their own elections, which might be justified by a
bad--a history--cannot be justified by a test--a Section 4 test
based on ancient history, looking back to pre-'64.
Mr. Mulroy. Yes.
Mr. Nadler. And as almost inviting Congress to enact a
modern Section 4 based on more current data--that that would
clearly by constitutional.
So I want to ask----
Mr. Mulroy. I think that is fairly stated, yes.
Mr. Nadler. Hmm?
Mr. Mulroy. I think that is fairly stated, what you just
said.
Mr. Nadler. Okay. And that is why we have drafted the
legislation we are talking about and we have made many attempts
over the years to--I never understood, by the way, why you had
to establish--Steve Chabot, as chairman, and I, as ranking
member of this subcommittee, back in 2006 sat through 15,000
pages of hearings to establish a robust record.
I am not sure why it is the province of the Supreme Court
to tell Congress how big a record to make before making
legislative decisions. But we are doing that again right now.
But it seems to me that if you had a modern test you could
justify this even under Shelby County. It seemed that they
almost invited us to.
Dr. Crayton, if we had a test in the legislation that
looked to practices that had been thrown out by courts in the
last few years or that had been shown to be discriminatory in
their effects in various trials, that might not be just in the
South.
It certainly wouldn't be just in the South--voter ID laws,
for instance. That is essentially what we are looking at. Would
you comment on that?
Mr. Crayton. To take the earlier point, I think that is one
of the features that might make this court more comfortable and
I would take the view generally that if we are of the position
that going after suppression-oriented policies is the goal then
we should do that no matter where it happens to live.
I just would offer, again, from our perspective that we not
lose sight of the region-specific concerns that gave rise to
that in the first place.
Mr. Nadler. But how would you write into law the region
perspective?
Mr. Crayton. The suppression pieces of it, I think, are
quite well stated. I think I would consider whether or not, as
we were discussing earlier with respect to the length of period
that we would look back on bad activities, or perhaps even
things that were said on the floor of a legislature.
We had, in Shelby County, a lot of information about things
that we were seeing.
Mr. Nadler. Certainly things that were said on the floor of
the legislature. You couldn't look back too far because the
Supreme Court would say you can't do that.
Mr. Crayton. Yes, sir. Although it is quite clear, as I
think has been said earlier in the statements, since 2013 and a
lot of people raced without very much hearing or effort at all
and that might be some evidence of something other than good
decision making.
Mr. Nadler. Thank you.
Finally, Ms. Johnson, the Tennessee legislature put on
rather draconian penalties and--restrictions and penalties on
voter registration drives. How do you think a federal law could
adjust that kind of a problem?
Ms. Johnson. Thank you, Chairman.
I definitely think that something needs to prevent them
from having the autonomy to be able to do things like that. I
definitely think that reenacting the civil rights law the way
it was, preventing them from having that autonomy, would help,
because right now there is no oversight. They are, literally,
able to do whatever they want to do.
Mr. Nadler. Thank you.
Mr. Cohen. Thank you, Mr. Nadler. Now I recognize Ms.
Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
And to the witnesses, your work is provocative and I thank
you very much. I am going to try and sort of do meteoric
questioning and try to get a large global picture of this
issue.
Let me just suggest that I find the Shelby decision
partisan in its most appalling way. I cannot find a legitimate
basis of at the period of 2013 of taking the stance that they
did.
And I think that Justice Ginsberg's most prominent comment,
that you don't get rid of the polio vaccine because you think
you have overcome polio, is so potent for even where we are
today.
Let me quickly go to you, Professor Crayton, just quickly
on this question of the criminalization of the ballot box. So
we have a new opportunity in the restoration of the Voting
Rights Act now and we certainly have a bill that has already
been on the table.
But how important do you think it is that, as we write this
legislation, that we have language that really speaks directly
to that?
Make this document so clear and this question of
criminalization--what I understand or what I feel is poor folk
who are registering and states are putting in laws that are
layered and so you can be a grandmother trying to register and
you can be prosecuted.
How important it is for that precise aspect to be covered?
Mr. Crayton. I think you have identified one significant
piece of it where I think it is crucial so that people who are
in good faith who are engaged in registering other people are
not unfairly prosecuted or intimidated from doing that.
And so part of that is, I think, charged to states to be
very clear about what is and isn't permissible and perhaps not
to be able to change the rules without very much notice.
And I would also point out that for people who have served
time, who, the time that they were in prison, according to some
rules, they weren't allowed to vote.
But once they are out there are instances where people have
not completed their fines and fees, that creates confusion
about when a person is----
Ms. Jackson Lee. But should our bill give relief by using
that terminology in the--even though we are focused around 5
and 4 but gives--you have some terminology about
criminalization?
Mr. Crayton. I would like to see some attention put so that
prosecutors who are not thinking about the real-world
consequences or perhaps are about how voters can be intimidated
by the use of state power.
It should be a part--I hope for it to be a part of the
federal language so that at least people think twice before
utilizing that power because I think, unfortunately, what
people don't take appreciation of is not just the people that
they are targeting are people who then become intimidated but
everybody around them--their family members, their friends,
their communities--and that is where I think the undermining of
confidence becomes a real consideration.
Ms. Jackson Lee. H.R. 1 is the global--I think we have an
opportunity to hone in on some of these aspects of what we are
hearing as we go around the country and the real testimony of
people.
Professor Blumstein--I am sorry. Yeah. Blumstein. Let me
thank you for your work, and it is interesting that you are
able to get a common sense opinion out of the Dunn case, which
is you were able to get the court to be able to ascertain the
unfairness of a time frame, which also goes to denying citizens
the common sense right to vote.
Is there something that we need to focus in on this
reauthorization of the Voting Rights Act that would be
attractive or would be plain sense to the Supreme Court that
what we are doing is saying that the Constitution in its
framework gives people the right to vote, and so duration and
other aspects short of outright conspicuous fraud, which has
not been determined, should be--should not be reasons why
people should be able to vote?
Mr. Blumstein. I am not sure I have a good answer to that
question. There is a more general issue, I think,
Representative, and that is how does one engage someone who may
have a different point of view in a way that is likely to bring
about some change in attitude or change in perspective.
And I think the concerns, for example, that I would have--I
think Professor Mulroy was very articulate in expressing his
view that Section 2 of the Voting Rights Act is not as
effective as Section 5.
But there were problems about the administration of Section
5 as well. My colleague, Carol Swain, has written about whether
maximizing black representatives is a better avenue for
achieving certain goals.
So I think that--I think that the--if you are asking how
can people disagree on some things, how can they reach
agreement on some other things, I will just reiterate what I
said in my testimony, which is starting with respect for the
views of the other point of view.
And so in this case, I have to say that Section 5 of the
Voting Rights Act, going back to South Carolina v. Katzenbach
in 1965 was seen as a conquered province approach, heavy
handed, but justified at the time because of the abuses--I have
written about this--the abuses of the time.
And so I think the case has to be made not just that there
were problems but that there are problems of a magnitude that
justify the stripping of the state autonomy and impinging upon
federalism.
So it is not just here is a case, here is a case--gosh, we
have to bring an expensive piece of litigation. That is our
American way. We are presumed innocent.
In Section 5 you are presumed guilty, and I think that that
was okay in 1965. I think the case has to be made in 2019 or
2020 that we are in the same place and I think that--it can't
just be, you know, we don't like it as well.
I mean, if you are asking how to be an effective advocate,
I am skeptical, really, because I think that the argument has
to be made that the values are so overwhelmingly positive as
they were in 1965 as to abrogate the tradition of states'
authority, states' autonomy, and the presumption of innocence.
Ms. Jackson Lee. Thank you. That is the record that we are
trying to create.
Let me go to Professor Mulroy and Johnson, very quickly.
Professor Mulroy, if you can, again, just sort of hit on
the insufficiency of Section 2 and then the amendment that you
wanted to see included in this reiteration of the Voting Rights
restoration.
I just want to say to the professor who just spoke, I am
looking at preciseness but I am also looking at legislation
that takes a view that answers pointedly the court's
criticisms. The professor just indicated there is a mountain of
reasons that we need to restore and we need to have that in our
legislation.
So Section 2's inefficiency or lack--the horse is out of
the barn door--and then I just want Ms. Johnson to be prepared.
What an amazing story of your life that many people just
forget.
And so I would be interested in your view that this tool of
the Voting Rights restoration--this bill is the armor that is
needed for vulnerable people in communities that you have seen.
Professor.
Mr. Mulroy. Yes. Thank you. So I will answer those
questions in turn.
Section 2, which I litigated a lot when I was at the voting
section, is an effective piece of legislation but not nearly as
effective as Section 5.
In order to--when we were at the DOJ and we had resources
to--unlimited budgets to pay for expert witnesses and to, you
know, throw manpower at a problem, we could mount a Section 2
case. But private litigants, it is a very daunting task to put
out that kind of money.
And at the same time, it takes years and during those years
the voting discrimination practice continues in election cycle
after election cycle.
And, of course, the burden is on the plaintiff to prove the
violation whereas under Section 5 preclearance the burden is
shifted, the idea being that the burdens of time and inertia
should be shifted away from the victims of discrimination to
the perpetrators of discrimination, which is what the whole
point of Section 5 preclearance was.
As to that amendment, just very briefly, it is a minor
point but, but under H.R. 4 it says among the voting changes
that will automatically trigger preclearance review will be
anytime you move from a single-member district plan to a multi-
member or at-large plan.
Now, that makes total sense given the history that we have
used in the past where we have used a traditional winner-take-
all at-large or multi-member plan to dilute minority voting
strength.
But there are some multi-member and at-large systems that
don't dilute minority voting strength. Cumulative voting is one
example. The single transferrable vote is another.
And different local jurisdictions have experimented with
these things including as remedies in Voting Rights Act cases
to solve minority vote dilution.
So all I am suggesting is that when it is that type of
shift from a single-member district to multi-member or at-large
where you put in special voting rules to account for minority
vote dilution and it looks like it will, in fact, then you
wouldn't necessarily trigger Section 5 preclearance.
So what I am trying to say is let us not discourage
experimentation with those methods because in many ways they
can be better than the traditional single-member district
remedy for minority vote dilution.
And then, briefly, if I could, Congresswoman Jackson Lee,
just to respond to something we just heard a second ago about
whether the magnitude of the problem is demonstrated in the
record, I would just like to point out that the U.S. Civil
Rights Commission did a really comprehensive study in 2018--an
assessment of voting rights problems--and among the things they
pointed out was that there were only five successful Section 2
lawsuits for minority vote dilution in the five years prior to
Shelby County v. Holder and 23 in the five years after.
And I think that provides dramatic evidence that some of
what you have already been talking about, which is that once
you took Shelby County v. Holder--took that umbrella away from
the rainstorm you started to see a proliferation of Voting
Rights Act violations, particularly this new generation of vote
suppression.
And I think that record might very well demonstrate to the
Supreme Court that a resumption of Section 5 preclearance is
warranted.
Ms. Jackson Lee. And, Ms. Johnson--I called you Professor
Johnson--Dr. Johnson, to be with your grandmother and what a
powerful story.
But let me ask this as we write this legislation. I think
it would be important--you think it would be important--to
refer again to the importance of, one, not criminalizing
voting, but two, to ensure ex-felons can vote and that it
should be clearly stated.
Your view, if you would?
Ms. Johnson. Yes, I agree with you. I would like to say
also I think some simple measures that could be made is, one,
really looking at the paper forms and if we are not going to
move to automated voter registration then what information--
what necessary information is required, particularly in the
state of Tennessee.
One of the things--one of the issues that we ran into was
the nuance of the form. It should be in alignment with the
national voter registration form.
Another thing is making sure that as we are talking about
restoring felons' rights to vote that we are considering some
of those barriers such as child support, parole, probation--how
do we go through that process and making sure that it is a
streamlined process that has some sort of federal mandate that
restricts states from gutting that and making it something more
nuanced than it needs to be.
But I completely agree with you. I think that we really
need to think about how this affects those marginalized
communities and make sure that as we are proposing this
legislation that we are considering those barriers.
Ms. Jackson Lee. Thank you.
Mr. Cohen. Thank you, Ms. Johnson, and thank you,
Congresswoman Jackson Lee. And I think one last follow-up from
the chairman.
Mr. Nadler. Let me first thank the chairman of the
subcommittee for his indulgence in permitting me this extra
question.
Professor Blumstein, you mentioned a few minutes ago that
one question is that back in 1965 you had very severe
restrictions and, more recently, at the time on Shelby County--
at the time of Shelby County you didn't have the record of the
heavy-handed overwhelming suppression.
And I think what you said or implied was that the burden of
proof--there is a burden to show that in order to justify the
intrusion on federalism that the burden is to show that the--
that the cause is so overwhelming that--as it was justified in
1965 but, arguably, not in 2013.
But even granted that, isn't that a quintessentially
congressional determination not for a court--for Congress to
determine the necessity of legislation in the severity of a
problem? Isn't that why we exist?
Mr. Blumstein. Well, certainly, Congress has a very
important role in Section 2 of the Fifteenth Amendment and
Section 5 of the Fourteenth Amendment to enforce the terms.
Part of the issue is that the Supreme Court's
interpretation of the Fifteenth Amendment and the Fourteenth
requires purpose, showing of intent to discriminate.
And so as the law has gone beyond purpose to effect that is
where the question of Congress's enforcement power is called
into question. If this were really a showing only of
discriminatory purpose, I think the congressional role would be
easier.
As one moves from purpose to effect, which is what the 1982
amendments to Section 2 of the Voting Rights Act did and the
interpretation, then there is a judicial role for determining
whether Congress is enforcing the provisions of the Fifteenth
and Fourteenth Amendments or whether it is going beyond, and I
think that is where the judicial role comes in.
And I think that it was Justice Black's dissent in South
Carolina v. Katzenbach, if I recall, where he talked about a
conquered province. And so there is a history. I mean, this is
my adopted region. As we spoke earlier, I am from Brooklyn. I
originally was in New York when I was----
Mr. Nadler. Which was a covered jurisdiction.
Mr. Blumstein. Which was a covered--yes. And I grew up in a
New Deal family. My middle name is Franklin and I was named for
President Roosevelt. I was born 12 days after he died. So I am
not unsympathetic to these considerations.
On the other hand, when I grew up in Brooklyn I never heard
about federalism. That was just not something that was on my
radar. No one thought about it in my high school or in my
circle of friends.
And as you go out into the rest of the country, I think one
sees that those values are not trivial. They don't trump
always.
But they are important considerations, and in the
discussion about how far Congress can go in overturning
important principles of state autonomy and state independence
and state power, one has a judicial role to determine what the
degree of protection of those interests is.
And I think we have seen the Supreme Court waffling back
and forth on these federalism cases and they are looking for a
standard.
I think, you know, Shelby County was one, I recall,
interstitial case inviting Congress to do a better job of
identifying these areas, and in response to the representative
from Texas's question, I thought she asked a very important
question--how do you persuade somebody who might not agree with
you on every--on all the issues--how do you talk to them as
people.
And I think--I have spent my whole life doing things like
that and trying to bring people together from different points
of view and get people to talk to each other rather than across
each other and be less rhetorical.
And I think part of the answer is to respect the value of
federalism, not to denigrate it, but to say that there are
countervailing values that are more important, and to the
extent that one can make the case that voter suppression where
the voter activity like it was back in 1965 is still prevalent,
that is a stronger argument.
Now, in a piece--I testified on the 1982 amendments to the
Voting Rights Act and was published in a article in the
Virginia Law Review. What you had was really pretty horrible.
As I said, the jurisdictions refused to take no for an
answer. They would do X and then the court would strike it
down. They would do Y.
It was like a whack-a-mole, and I think there was a very
strong piece of evidence as to why the timing that Professor
Mulroy talks about should be preserving what was really used as
the freezing principle to freeze in place things the way they
are.
But as that doctrine developed, things like zoning got
included in that. It was much more intrusive upon state
autonomy than one would have thought and the rationale I think
has--I am not saying it doesn't exist but it is less than it
was.
And so I think that is the argument that has to be made. To
me, as someone who is not unsympathetic to these values but who
also cares about things like federalism, I would want to see
not just how there are examples of things that are bad but how
the persistence, the pervasiveness, is comparable to what it
was when the Voting Rights Act was passed and approved in South
Carolina v. Katzenbach. That is the best I can do,
Representative Nadler and Chairman--Mr. Chairman, to that.
Thank you for your question.
Mr. Cohen. Thank you, sir. You did an excellent job.
That concludes our questioning in the first panel. We will
have a break for about five or 10 minutes before we bring our
second panel.
I think the first panel for their time and their very
important testimony.
We are recessed for about five or 10 minutes.
[Recess.]
Mr. Cohen. Thank you, everybody.
As you heard, those are the wonderful sounds that say we
are in the majority, because you got the gavel. That is a good
thing.
Turning to our second panel, our first witness will be Mr.
Jon Greenbaum. Mr. Greenbaum is chief counsel and senior deputy
director for the Lawyers' Committee for Civil Rights Under Law.
He has worked in various roles since 2003.
From '97 to 2003, he was the senior trial attorney in the
voting section of the Civil Rights Division at the U.S.
Department of Justice. He investigated, filed, and litigated
Voting Rights Act cases around the country and evaluated
redistricting plans and other voting changes under Section 5 of
the Act.
He received his JD from UCLA, a school that came to Memphis
and lost recently, and a BA in history----
[Laughter.]
Mr. Nadler. In what sport?
Mr. Cohen. Football.
Mr. Nadler. Okay.
[Laughter.]
Mr. Nadler. We will take that----
[Laughter.]
Mr. Cohen. And his BA in history and legal studies from the
University of California Berkeley. Mr. Greenbaum, you are now
recognized for five minutes and you can defend the Bruins as
much as you want to. [Laughter.]
STATEMENTS OF JON GREENBAUM, CHIEF COUNSEL AND SENIOR DEPUTY
DIRECTOR, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW; JAMES
BLUMSTEIN, UNIVERSITY PROFESSOR OF CONSTITUTIONAL LAW AND
HEALTH LAW & POLICY, VANDERBILT UNIVERSITY LAW SCHOOL; HELEN
BUTLER, EXECUTIVE DIRECTOR, GEORGIA COALITION FOR THE PEOPLES'
AGENDA; JAMES TUCKER, PRO BONO VOTING RIGHTS COUNSEL, NATIVE
AMERICAN RIGHTS FUND
STATEMENT OF JON GREENBAUM
Mr. Greenbaum. Chairman Nadler, Subcommittee Chairman
Cohen, and Representative Jackson Lee, thank you for giving me
the privilege of testifying about discriminatory barriers in
voting.
I have been a voting rights lawyer since 1997 for seven
years in the Voting Section of DOJ and for more than 15 years
at the Lawyers' Committee, a national nonprofit civil rights
organization that focuses on issues of racial discrimination.
My conclusions are drawn from that long and deep
experience. The 2013 decision of the United States Supreme
Court in Shelby County v. Holder is the single greatest setback
to voting rights in the modern era.
The decision found unconstitutional the coverage formula
used to determine what areas of the country were subject to
Section 5 of the Voting Rights Act.
Section 5 had required jurisdictions with a history of
discrimination to demonstrate to DOJ or a federal court that a
voting change did not have a discriminatory purpose or effect
before the change could be implemented.
For nearly 50 years, the preclearance process was
effective, efficient, and transparent. I witnessed this
firsthand at DOJ, which received almost all submissions in the
first instance.
Regarding effectiveness, from 1965 to 2013, DOJ issued
approximately 1,000 determination letters denying preclearance
for over 3,000 voting changes.
In addition, because the Section 5 process existed,
jurisdictions were deterred countless times from making
discriminatory changes in the first place.
Additionally, the Section 5 process served as a notice
system because jurisdictions had to submit their changes for
review before implementing them.
The process was also efficient and transparent. The
submitted change would go into effect unless DOJ acted in 60
days. DOJ published Section 5 procedures that provided
transparency as to DOJ's process; gave covered jurisdictions
guidance on how to proceed through the Section 5 process; and
gave the public an opportunity to offer input.
Because DOJ consulted with minority constituencies as part
of its review process, jurisdictions were incentivized to
involve minority communities before making voting changes.
In Shelby County, the five-member majority said that
because the coverage was comprised of data from the 1960s and
1970s, it could not be rationally related to determining what
jurisdictions, if any, should be covered under Section 5
decades later, regardless of whether those jurisdictions
continue to engage in voting discrimination.
Significantly, the majority made clear that ``[w]e issue no
holding on Section 5 itself, only on the coverage formula.
Congress may draft another formula based on current
conditions.''
The rest of my testimony focuses on why Congress should
take the Court up on its invitation and draft another formula.
We have six years of experience which demonstrates the hole
left by the gutting of Section 5. In place of the transparent,
efficient, and effective system of protecting minority voting
rights with Section 5, we have to protect minority voting
rights with less information, greater expenditure of resources,
and less effective legal remedies.
Most voting changes take place under the radar. Advocates
and voters may not know a voting change has been made until a
voter learns on Election Day that she or he is not on a
registration list or that a polling place has been moved.
Legal and grassroots organizations have made tremendous
efforts and expended substantial resources to substitute for
Section 5. The most effective of these efforts has been in
Georgia and you are hearing today from our close partner, Helen
Butler, on that.
We have been able to stop numerous proposals before
enactment and the Lawyers' Committee has filed suit 12 times in
Georgia since Shelby County.
Still, all of our efforts cannot be as effective as a
revitalized Section 5 because there is no way to cover
everything. Further, even when we win in litigation, often the
damage has already occurred and is sometimes irrevocable.
A searing example is the purge of black voters in Hancock
County, Georgia, that we stopped but only after a white mayor
was elected in a majority black city for the first time in
decades.
The Texas voter ID law had been blocked by Section 5 pre-
Shelby County. After Shelby County, the civil rights community
spent years successfully challenging the law during which time
Texas used the discriminatory law. The civil rights community
in the state of Texas spent more than $10 million in the
litigation.
The prevalence of voting discrimination remains high,
particularly in the places formerly covered by Section 5. The
Lawyers' Committee has been involved in 41 cases since the
Shelby County decision, including four against the federal
government.
Of the other 37 cases, 29 of them involve covered
jurisdictions. Moreover, we have sued seven of the nine states
that were fully covered by Section 5 formerly.
In my view, the geographic coverage formula contained in
the VRAA's amendment to Section 4(b) satisfies the
constitutional concerns articulated by the Court because it is
based on current data, is designed to address current problems,
and targets only jurisdictions that have engaged in persistent
voting discrimination over a sustained period of time.
I look forward to your questions.
[The statement of Mr. Greenbaum follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you very much.
Mr. Blumstein, I think, knows that he gave an opening
statement in the first panel. He is going to participate in the
second panel for questions but not for an opening statement.
Mr. Blumstein. What I said was I would not have an opening
statement but I didn't really--five minutes went a lot faster
than I thought they would. So I actually have a few comments
that I----
Mr. Cohen. We will get to you in questioning, I assure you.
I will ask you some questions----
Mr. Blumstein. But I do have some comments that were kind
of left over from my presentation that I had to edit out, Mr.
Chairman. So if you will indulge me, I do have a few minutes
that I would like to say a few words.
Mr. Cohen. I will indulge you because I am that kind of
guy. [Laughter.]
Mr. Blumstein. I appreciate that. Thank you. I feel very
indulged.
STATEMENT OF JAMES BLUMSTEIN
Mr. Blumstein. I want to say a few----
Mr. Cohen. Pull closer to the microphone.
Mr. Blumstein. Sorry. A few--a few things from Dunn v.
Blumstein and then some things about the current.
First, about Dunn v. Blumstein--when I brought that case, I
got death threats, and the Tennessean used to publish--the
Tennessean used to publish the addresses of their sources in
the newspaper. I had to make a special appeal to the editor to
take that out of the newspaper so people would not know where
to come.
I think that is evidence that times have changed to a large
degree. Not completely. I don't want to overstate that. But
death threats are not part of the--of the system now and the
challenge to existing law or existing circumstances.
The state is very different. The county is very different.
There is a story about mootness. One of the issues that that
case dealt with was the fact that I had already lived here 90
days by the time the election was coming around and the three-
judge court wanted to throw out the 90-day issue, and I
explained to them that that was a doctrine of capable
repetition yet evading review, which I still teach in my con
law classes.
And I wrote a 16-page legal-sized memo on that issue. I
realized I had a problem--that Judge Gray was one of the judges
on the panel. Threw his glasses down and said, I don't care
what you say--it is moot.
So I wrote this memorandum and I learned later that he had
ordered it to be drafted, that it was moot, but that he read
the memorandum, was persuaded and changed his mind. And he
wouldn't ever let me have the satisfaction of knowing that I
had changed his mind.
So he said the plaintiff is excessively nervous about the
mootness of that point of the case but he should know there is
a doctrine called capable of repetition yet evading review. But
that was actually the basis of a 16-page memorandum. But if you
were to look at the federal supplement you would see that
somehow I was a nervous Nellie.
The decision to appeal--the attorney general was actually
quite affected by the evidence about voter registration and
that voter registration took away the need for these lengthy
durational residency and you didn't have to disenfranchise
people and still not compromise the integrity of the ballot.
And so I asked him whether he was going to appeal, and he
said, well, you know, you have kind of persuaded me I have a
duty to appeal, and he was kind of wishy-washy about it.
So I said, okay, you have 90 days. Let me know.
We opened the door, he goes out, and here was all the news
stations from Nashville, radio stations, print media. There
were about 15 microphones and klieg lights, and someone put a
mic in front of this face and said, General Pack, are you going
to appeal this case to the Supreme Court. He looked at all the
lights, we are going to fight it all the way. It took him less
than 90 seconds to make that decision, far from 90 days.
So politics has an effect. It makes a difference upon
public officials in how they--how they act in that--in that
regard.
The last point about that case is I want to mention that
the provisional ballot had its origins in that case--the
provisional ballot. This is something that I dreamed up right
on the spot and it is now part of federal law. So that case, I
think, is important for that as well.
Now, the congresswoman from Texas raised an important
question and I want to just develop that a little bit because I
take that very seriously and I tried to give a serious and
thoughtful response to the question, which it deserved.
If we are in a world where there is mixed opinions--
different opinions--what am I looking at from the Republican
side that is a real risk, going forward, and how could the
Democrats gain some common ground?
I think the Supreme Court's recent decision holding that
partisan gerrymandering is a nonjusticiable question raises a
real risk and I think the Pennsylvania Supreme Court decision
that redid congressional apportionment in Pennsylvania is a
real threat.
There is federal law on this. I think if the interest was
shown to, in a sense, stop court intervention and essentially
reapportioning based upon state constitutional provisions where
we are putting some constraints upon court's ability to do
that, of course, the Constitution gives that power to the
states, not to the courts.
And so I think in terms of responding, Representative
Nadler, to your point, that if one is looking for common ground
that is where I would go fishing would be on putting restraints
upon state supreme courts seemingly adopting partisan outcomes
in those cases, given the nonjusticiability holding----
Mr. Nadler. I am sorry. I didn't understand what you are
saying. Are you suggesting that Congress should put
restrictions on state supreme courts from making such
decisions?
Mr. Blumstein. For congressional elections. Correct.
And it already exists. It is already in federal law. But it
needs to be qualified. The Pennsylvania Supreme Court
apparently was not aware of the statutory restrictions that
exist on this and updating and clarifying them, I think, would
be important. State supreme courts have a role to play but not
to apportion.
So my position--do I have time to respond, Representative?
I don't want to over--I don't want to----
Mr. Cohen. We have hit the time and we are going over. But
we are going to have a question period and we will come back to
you.
Mr. Blumstein. Okay. I will shut. Thank you.
Mr. Cohen. And I appreciate it.
Mr. Blumstein. I don't want to abuse your indulgence so I
appreciate that very much.
Mr. Cohen. I thank you for your testimony, and this is a
little out of order, too, but I will say two things.
If you saw the Twitter terrorists that I see, death threats
still exist. We haven't changed that much. We get death threats
in Congress a lot now on Twitter.
And number two, you say times have changed, and times have
changed some. And I wish we could just introduce a song into
our appeal of Shelby County v. Holder. In Dixie there is a
reason they say old times there are not forgotten, and they
didn't forget them. That is so states haven't changed.
Ms. Butler, thank you. You are executive director of the
Georgia Coalition of the Peoples' Agenda. In that role, she
leads an advocacy organization convened by the revered
legendary Dr. Joseph Lowery and comprised of representatives
from the human rights, civil rights, environmental, labor,
women, young professionals, youth, elected officials, peace and
justice groups--round up the usual suspects--throughout Georgia
and other southeastern states.
She leads initiatives to increase citizen participation of
the governors of their communities in areas including
education, criminal and juvenile justice reform, protecting the
right to vote, and economic development.
Ms. Butler, welcome, and I think Ms. April Hubbard's not
here but she was here, I think. There she is. I thought you
would have red on. The Deltas are recognized. Ms. Butler is a
Delta and we thank you for being here. [Laughter.]
Mr. Cohen. Thank you, Ms. Butler, and thank you, Ms.
Hubbard.
STATEMENT OF HELEN BUTLER
Ms. Butler. Thank you, Chairman Nadler, Subcommittee
Chairman Cohen, and Representative Jackson Lee. Thank you so
much for the opportunity to testify before you today about my
experiences with discriminatory barriers to voting.
I was born and raised in Georgia and was one of the first
50 African-American students to attend the University of
Georgia after the integration of the school by Charlayne
Hunter-Gault and Hamilton Holmes.
Prior to joining the nonprofit world, I spent more than 20
years working in the business world with General Motors and in
the wholesale and retail grocery industry.
In 2003, I was recruited to join the Peoples' Agenda and
began my career in the nonprofit sphere. I also serve as the
convener of the Black Women's Roundtable of Georgia and as a
board member of the Morgan County Board of Elections.
I am a past member of the state of Georgia Help America
Vote Act advisory committee and was appointed to serve on the
U.S. Commission on Civil Rights as a member of the Georgia
Advisory Committee in 2013.
As a result of my civic engagement work with the Peoples'
Agenda and lifelong experience as a Georgia native and voter, I
have witnessed firsthand discriminatory barriers to the ballot
box that Georgians of color face and how the lack of
preclearance in the aftermath of the Supreme Court's decision
in Shelby v. Holder has made it much more difficult for
nonprofit organizations like the Peoples' Agenda to protect the
vote and ensure equal access to the ballot for voters of color.
It is impossible for me to recount in the allotted five
minutes all of the numerous ways the loss of preclearance after
the Shelby decision has negatively impacted voters of color and
civic engagement organizations in Georgia.
But I will provide a few examples. Since the Shelby
decision, polling place closures, consolidations, and
relocations, particularly in minority and underserved
communities, have dramatically increased in Georgia.
In fact, in 2015, former Secretary of State Brian Kemp
issued a training document to all 159 county boards of
elections ahead of the 2016 election cycle describing how they
could close or consolidate polling places and voting precincts
without having to preclear these changes through DOJ.
In fact, the reference to the lack of preclearance in the
document was in bold type for emphasis. With the loss of
preclearance, my organization and partners have spent countless
hours attempting to monitor 159 boards of elections to see
whether they are proposing polling place changes or other
voting changes that would negatively impact minority voters.
We have spent considerable time and resources advocating
against these changes in minority communities across the state.
All of this increased work and diversion of resources is a
direct result of the absence of preclearance post-Shelby.
But as a result of our increased monitoring efforts, we
have also discovered illegal purges of minority voters by
county election boards including the notorious discriminatory
purging of black voters from the Hancock County registration
lists by a majority board of election--white majority board of
elections in 2015.
We spent considerable time and resources attending Hancock
County Board of Election meetings, organizing voters, and
community members to oppose these purges and successfully
litigating a challenge to the purge in federal court.
We were also forced to file litigation challenging the
codification of Georgia's exact match voter registration
process in 2017. That was referred to earlier by Chairman
Nadler regarding the 53,000 who were put on a pending list.
That litigation is ongoing and continues to drain our time
and resources. Since the Shelby decision, members of the
Georgia legislature have also repeatedly sought to enact
legislation cutting back early voting periods, eliminating
Sunday early voting and cutting back poll hours in Atlanta.
Sunday voting has proven critical for turning out voters of
color in Georgia because of our Souls to the Polls initiative
and other activities at churches and other events on Sundays.
Although we have successfully advocated many of these--
against many of these changes, this is just another example of
how the lack of preclearance has emboldened our legislators to
suppress the minority vote through legislation.
If these examples of post-Shelby voter suppressions are not
bad enough, the Peoples' Agenda and our partners are extremely
concerned about how the rights of minority voters will be
protected in the upcoming post-2020 redistricting process in
the absence of the full protection of the Voting Rights Act.
Therefore, we strongly urge Congress to take action to
ensure the rights of minority voters are protected in the
redistricting process and put a halt to the continued efforts
to suppress the vote in states and local jurisdictions in the
aftermath of the Shelby decision.
Thank you.
[The statement of Ms. Butler follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Ms. Butler. Thank you very much.
Our next witness is Mr. James Tucker. He is an attorney
with the law firm of Wilson Elser in Las Vegas, Nevada. He is
one of the founding members of the Native American Voting
Rights Coalition and serves as a pro bono voting rights counsel
to the Native American Rights Fund, or NARF.
He was co-counsel with NARF--I guess it is NARF--in Toyukak
v. Tribal--close enough?
Mr. Tucker. Good work.
Mr. Cohen. First language assistance case under the VRA,
fully tried decision since 1980. Co-counsel with NARF and ACLU
on several other language and voter assistance cases and in
cases challenging the Constitution of Section 5.
Mr. Tucker holds a doctor of science of laws and Master of
laws from the University of Pennsylvania, JD from the
University of Florida, and a Master of public administration
degree from the University of Oklahoma, and a Bachelor of Arts
degree in history from the Barrett Honors College at Arizona
State University.
Mr. Tucker, thank you, and you are recognized for five
minutes.
STATEMENT OF JAMES TUCKER
Mr. Tucker. Thank you, Mr. Chairman.
Chairman Nadler, Chairman Cohen, and Representative Jackson
Lee, on behalf of the Native American Rights Fund, thank you
for examining discriminatory barriers to voting.
First generation barriers are those that limit access to
registration, casting a ballot, or having that ballot counted.
In 2013, Shelby County suggested that those barriers are
largely a thing of the past.
That conclusion simply does not reflect reality in Indian
Country. Last year we completed a series of nine field hearings
in seven states to evaluate Native American registration and
voting.
One hundred twenty-five witnesses testified at those
hearings. Their testimony showed that first generation barriers
to voting are not only alive and well, but they are in fact the
dominant theme of Indian Country.
The starting point for examining discriminatory barriers in
voting in Indian Country is to look at the general barriers
that Native voters face to political participation.
Many are geographically isolated. They lack traditional
mailing addresses, relying on geographic descriptions of their
homes' locations, shared mailboxes, or relatives to receive
their mail. They lack broadband access. Hundreds of thousands
have limited English proficiency with some of the country's
highest illiteracy rates.
They are impoverished. They have low levels of educational
attainment. These general barriers often are the products of
discrimination themselves. For example, isolation is the result
of forced removal and relocation.
In a similar vein, limited English proficiency and
illiteracy are prevalent because Native Americans were denied
public schooling that persisted in many places until as
recently as the 1980s, over 30 years after Brown v. Board of
Education.
Discrimination begets discrimination. State and local
election officials frequently adopt voting procedures which,
when combined with these general barriers, prevent Native
voting.
In some cases, they do so ignorant of the outcome. But far
too often they do so intentionally to exploit these well-known
barriers and deprive Native Americans of their fundamental
right to vote.
That is confirmed by the unparalleled success Native
American plaintiffs achieve in voting litigation, prevailing
over 90 percent of the time.
Several successful cases have challenged Native lack of
access to in-person polling places in states including Nevada
and South Dakota. This is what political scientists refer to as
the tyranny of distance.
Polling places are located off of tribal lands several
hours away by vehicle, to which many Native voters lack access
or for which they cannot afford to purchase gas. We received
testimony that Native voters would have to drive as much as
eight hours, weather conditions permitting, to get to their
polling place.
Often, these polling places are in sparsely populated non-
Native communities. For example, the polling place for the 2000
tribal members of the Crow Creek Reservation in Buffalo County,
South Dakota, was established in a non-Native town with just
eight non-Native voters.
Alaska also was covered by Section 5. We brought two
successful cases in Alaska where election officials suppressed
Native voting by making what they euphemistically called a,
quote, ``policy decision'' to deny language assistance to
Alaska Native voters.
In attempting to defend their indefensible actions,
officials claimed that they could provide less voting
information to Alaska Natives than voters received in English.
The state even argued that the Fifteenth Amendment to the
United States Constitution did not apply to Native voters. This
was in 2014, more than 144 years after the amendment was
ratified.
Jurisdictions have shifted to all vote by mail systems or
permanent absentee voting, knowing that Native voters lack
access to mail.
They likewise mandate physical addresses for voter
identification, rejecting the use of tribal IDs and aware that
addresses aren't available on tribal lands.
The vast majority of the barriers Native voters face today
are first generation. Clearly, much work remains to be done.
The progress has fallen far short of the parity suggested by
Shelby County.
All of us suffer and our elected government has less
legitimacy each time an American Indian or Alaska Native is
prevented from registering to vote or being turned away at the
polls.
We look forward to working with the subcommittee to
overcome the barriers to voting rights in Indian Country.
Thank you very much for your attention. I will welcome the
opportunity to answer any questions you may have.
[The statement of Mr. Tucker follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Dr. Tucker.
First, let me ask you a question about--the last election
there was a situation in one of the Dakotas where they said you
had to have an address and the Native American folks generally
didn't have an address.
Mr. Nadler. A street address.
Mr. Cohen. Street--yes, home street address. Did you all
litigate that or what happened with that case?
Mr. Tucker. It was litigated. In fact, just recently there
was a circuit court of appeals decision that reversed the
district court order that granted relief for it.
What they did during the election was actually amazing. So
North Dakota is one of I think only six states in the United
States that have same-day voter registration, and so they--
tribes were actually able to issue addresses referring to like,
you know, the location of the tribal council building.
But they issued them letters that they presented then so
that they could vote. But it required an extraordinary amount
of effort, extraordinary efforts by community organizers, by
the litigators.
You know, the litigators included those from the Native
American Rights Fund and it is something that just to replicate
that in every single election places a tremendous--you know,
tremendous burden on some of the people who are least able to
afford to do that.
And it is amazing that they were able to achieve the
successes they were in terms of getting people registered at
least for the purpose of that one election.
But like so much of these sorts of gains, they are fleeting
and they can go away at the whim of an election official who
just simply chooses not to follow the law.
Mr. Cohen. Thank you, Doctor.
Mr. Greenbaum, you heard what Professor Blumstein said
about gerrymandering and the thought that state courts, as they
did in North Carolina, just yesterday or the day before ruled
the congressional redistricting unconstitutional.
Do you concur in his opinion that state supreme courts
shouldn't have jurisdiction over legislative decisions or
gerrymandering that might violate constitutional provisions?
Mr. Greenbaum. I think that is totally wrong, especially--
so I disagree with my colleague over here--particularly when,
using Pennsylvania as an example when they are looking at state
fundamental rights to vote provisions and other--and true,
North Carolina as well--state constitutional provisions.
State constitutional provisions can protect voters just
like federal constitutional provisions can, and this is a
particular case in which the Supreme Court had ducked the issue
for decades and ultimately decided to not address the issue.
I mean, we, the Lawyers' Committee, as an organization
think it is problematic because oftentimes the issues of race
and partisanship are intertwined with one another and one of
the things that we are fearful of in the next redistricting is
that states will say, oh, we are discriminating based on
partisan reasons when race a lot of times is the means of
achieving a partisan end.
We had a case in Georgia where that was the case, where the
demographics of the districts were changing so they did a mid-
decade redistricting specifically focused on districts that
were becoming more African American, which put the Republican
incumbents at risk.
And the defense of the state in that case was, oh, we
weren't doing it for racial reasons; we were doing it for
partisan reasons. But it was the racial demographics that were
driving the change in the district.
Mr. Cohen. Let me ask you this. Probably the most famous
case to come out of this area was Baker v. Carr.
Mr. Greenbaum. Sure.
Mr. Cohen. That was basically a redistricting case because
it said you couldn't--you had to do one man-one vote. Under the
holdings of this Supreme Court that they recently held on
gerrymandering, would Baker v. Carr have been allowed?
[Laughter.]
Mr. Greenbaum. Well, let us be--let us maybe be glad that
the Supreme Court weren't the ones that decided Baker v. Carr
and Reynolds v. Simms and a whole bunch of other cases
including my colleague's case over here which, I have to say,
is one that--when I was teaching voting rights classes to law
students was one that we often used and one that the Lawyers'
Committee uses in terms of the fundamental right to vote
precedent.
Yes, I think it was a mistake for the Supreme Court to find
that partisan gerrymandering is not justiciable because it
clearly affects the rights of voters.
Mr. Cohen. And I don't have much time left but I would like
to ask you to reiterate what you think we should do in our
statute to come up with a basis for determining preclearance
states that would meet the Supreme Court muster under the
Holder decision.
Mr. Greenbaum. Sure. And one of the things I want to say is
that the Court in Shelby County, the standard that they put
down was a rational basis standard, which should be the most
lenient standard given to legislation, so that Congress should
have a lot of latitude here.
I think the formula that Congress, that is in H.R. 4
actually responds effectively to the issues raised by the
Supreme Court.
What the Supreme Court was essentially saying, and I
disagree with the opinion; I litigated on the team that was in
the defense of Section 5. The Lawyers' Committee was involved
in the defense. So I disagree with the opinion.
But what I read the opinion to say is whatever you use as a
formula has to match the current conditions and that by using
this old formula, regardless of whether the facts showed that
these jurisdictions should be covered, the formula itself has
to be reflective of what the conditions are, and I think that
H.R. 4 does an effective job of doing that because it is a
formula that will cover, that has the potential of covering
different jurisdictions during different periods of time based
on relatively contemporaneous records of discrimination.
And the formula actually sets a pretty high burden for who
gets covered under it. You won't get there if there is one bad
case. It is only going to be those jurisdictions that engage in
persistent discrimination that are going to get there.
Mr. Cohen. Thank you, sir.
I now recognize the chairman of the full committee, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
Let me just come back to the redistricting for a moment.
Baker v. Carr itself overturned, as I recall, a 1946 decision,
which I forget what it was but that '46 decision essentially
said it was a political question, essentially said what the
Supreme Court just said about federal redistricting.
Now, it said that population was a political--was not
justiciable. It was a political decision, et cetera. The
criticism, of course, is that there was no way of the
electorate changing that. Baker v. Carr and Wesberry v. Sanders
and others overturned that and the Supreme Court now has gone
back to the 1946 rationale with respect to districting and
saying it is up to the--it is up to the voters, et cetera.
But the voters are totally barred from having any impact,
as they were under the--under the one person-one vote problem.
Now, as I understand the Constitution, the states have the
primary responsibility for voting and for elections. With the
federal government, with Congress having the final ability of
its own elections and federal elections or elections that
affect federal elections, and the Supreme Court in Shelby says
you have to have a good reason for the federal government to
come in and dictate to the states, which seems exactly the
opposite of what was being said a few minutes ago, against the
state supreme courts enforcing proper districting through their
own constitutions.
I think the states have an absolute right to do that, not
just for their own--for legislatures but for Congress, too.
They are the judges of Congress until Congress comes in and
overturns them. So I don't--I think they have very good grounds
there.
Let me ask a different question, though. A witness on the
previous panel mentioned the burden of Section 2 litigation--
that, you know, when the Justice Department was doing it, they
had unlimited resources but when a private litigant did it, it
could be millions of dollars, et cetera, et cetera, and it is
very difficult. Section 2 enforcement is very difficult for
that--for that reason, among others.
So my question is what would you think of a federal statute
that said that if someone sued a state for engaging in voter
suppression and won the lawsuit--and won, and there was an
affirmative finding by a court that the state had engaged in
discrimination, et cetera, that all expenses be paid to the
litigant by the state or by the--or by the private--or by the
county or whatever?
In other words, the counties or state should know that if
they enacted a discriminatory thing, if they closed polling
places on an Indian reservation or in a black area or wherever,
they might end up spending $10 million or $20 million if
someone had actually sued and won.
Mr. Greenbaum. Well, we do have--the good news with that
is--so I would be in favor of that and the good news for that
is you have already enacted some protections with respect to
that.
You know, the Texas case--the Texas ID case that we
mentioned--the Civil Rights Division Act DOJ litigated that
case as well as a number of civil rights organizations,
including mine. We submitted our fee application. It was,
roughly, $7 million--a little over $7 million that we
submitted.
Now, it doesn't actually reflect the total amount of time
we put on the case because we are talking about a four-week
trial. We are talking, like, 16 expert witnesses. We are
talking about multiple appeals in that case.
It makes a big different to voting rights advocates to have
those fee provisions available.
Mr. Nadler. So you are saying there are some fee provisions
but they are not adequate?
Mr. Greenbaum. Well, yes. I mean, oftentimes we have a
difficult time recovering the actual amount of time that we
spent on the case at, you know, what is a fair rate.
Mr. Nadler. And are the difficulties in collecting that
susceptible of change by statute?
Mr. Greenbaum. Yes. Yes.
Mr. Nadler. So it would be a good idea to enact a statute
that effectuated that?
Mr. Greenbaum. Yes, Chairman Nadler.
Mr. Nadler. Okay. Thank you.
I am not sure who to ask this question of but we were
talking about voter purges. Now, we know that voter purges have
been used very discriminatorily and very deliberately.
My question is, isn't there a legitimate reason or
methodology for a state--what is a legitimate methodology for a
state to keep its voting rolls up to date? People do die. They
do move.
What would be the right thing to do which wouldn't be
discriminatory or lead to people who should be able to vote
being taken off the rolls?
Ms. Butler, maybe, or Dr. Tucker.
Ms. Butler.
Ms. Butler. Okay. Well, for me, not taking people off the
rolls--I know it is legitimate to say if someone died that is a
legitimate reason to be taken off the rolls.
But for other reasons--I mean, if people are still alive
and they are able to vote they should be allowed to vote and
should not be purged from the rolls. They do list maintenance
about moving and if people decide not to vote in several
elections that is a choice.
Mr. Nadler. Well, we understand that that is--but what
would be legitimate for the state to do to take care of people
who, A, die and, B, say, move to a different state?
Ms. Butler. That would be a reason as well as if they moved
to another state. Those would be two legitimate reasons. Any
other reasons----
Mr. Nadler. So there--so there should be some requirement
that before anybody is purged there has to be a death notice or
something from the Post Office for a change of address notice
sent to the--sent to the--whoever is doing the elections?
Mr. Greenbaum. And a lot of that is actually protected
under the National Voter Registration Act that Congress passed
in 1993, because it used to be that states could just purge
pretty much people at will.
Mr. Nadler. Are they--are the provisions of the motor-voter
law--the National Voter Registration Act--sufficient in this
respect? Any problems in enforcement or should we strengthen
the National Voter Registration Act?
Mr. Greenbaum. There probably needs to be some changes
made, particularly because, you know, we had the bad Supreme
Court decision recently, which is allowing Ohio to purge people
based on what we think is--what we thought was an inaccurate
interpretation of the NVRA. But the Supreme Court went the
other way.
Mr. Nadler. So we--so we should clarify that legislatively?
Mr. Greenbaum. Yes.
Mr. Nadler. And, finally, let me ask Mr. Greenbaum. Why is
it not--why do we not see, not in this Justice Department but
when we have a more sympathetic to voting rights Justice
Department--why do we not see lawsuits against local
governments for the violation of civil rights under color of
law?
In other words, we have statutes that empower the federal
government to under certain circumstances seek criminal
enforcement and under other circumstances civil enforcement
against local officials--state officials, local officials--who
deprive people of civil rights under color of law, and if
someone--if there is a pattern of closing polling places in
black areas or on Indian Reservations or doing a lot of other
things we have seen, why is it not an effective thing to do or
what are the pros and cons of that?
I mean, how could we change--how could we or should we
change the law with respect to enforcing civil rights violated
by local governments or by local officials under color of law?
Mr. Greenbaum. I want to give some thought to that. I mean,
there actually are a fair amount of protections out there. But
they are not aggressively being enforced enough by the federal
government.
Mr. Nadler. So they are not aggressively enforced. Now I
understand. But when you have a sympathetic administration why
aren't they?
Mr. Greenbaum. I wish--you know, I wish I had a definitive
answer to that. If I still worked--if I still worked in the
Civil Rights Division I probably could give----
Mr. Nadler. All right. Let----
Mr. Greenbaum [continuing]. I probably would have an
answer. But I couldn't tell you what it was. That is something
that, frankly, frustrates me.
Mr. Nadler. Let me ask a last question then following up on
this. What, if anything, should we do statutorily to make that
more--and maybe you will answer that after the hearing
privately or whatever if you can't now. But what, if anything,
should we do in terms of changing the law to make that kind of
enforcement more used and more effective?
Mr. Greenbaum. Chairman Nadler, I would appreciate the
opportunity to--that is not a question I have thought of before
and I would really appreciate the opportunity to think about
that, and perhaps if you asked me a written question or give me
the opportunity to supplement my testimony, I will do that.
Mr. Nadler. Please do supplement your testimony. I would
like to see an answer to that. Anybody else who wants to also
who has thoughts on that--on that question, because it seems to
me it is a possible tool.
Mr. Tucker. Mr. Chairman, can I just----
Mr. Nadler. Sure.
Mr. Tucker [continuing]. give you an example? One of the
things that we have been pushing for is mandatory tribal
consultations between the Justice Department and tribes----
Mr. Nadler. Mandatory what?
Mr. Tucker. Mandatory tribal consultations between DOJ and
the tribes, and I will give you an example of how that can come
into play.
DOJ filed a lawsuit or there was actually pre-litigation
but they first opened an investigation in Coconino County,
Arizona, because they found a report had been published by an
outside organization finding that there were some accessibility
issues under the Americans with Disabilities Act.
Rather than consulting with the tribe or consulting with
the organization that issued the report, DOJ went in--and this
was just about a year ago under the current administration--and
they found that 31 out of 32 polling places on Navajo lands in
Coconino County were not ADA accessible. Not surprising to
anyone who is familiar with chapter houses.
They don't have paved parking lots. They don't have
handicapped parking. They don't have ramps. They don't have
money. And rather than consulting, which would have alleviated
the problem, they simply----
Mr. Nadler. Rather than what?
Mr. Tucker. Rather than consulting they just--they went in
and they--you know, they opened the investigation. They, you
know, came up with an agreement, and it is something that would
have been simply resolved by curbside voting.
They could have reached an agreement where there could have
been mandatory curbside voting. They could have brought the
ballot out to the voters. It would have been fully accessible.
Instead, what they have done is they placed those polling
places in jeopardy being closed in the future and they have
also opened up a can of worms outside of that in other parts of
Indian Country where we are having election officials actually
using that as a pretext to deny in-person voting opportunities
on tribal lands because they say, the ADA requires us to deny
this application.
Mr. Nadler. Thank you.
Mr. Cohen. Thank you, sir. Thank you, Mr. Chair.
We now yield five minutes to Ms. Sheila Jackson Lee.
Ms. Jackson Lee. Chairman, thank you so very much.
Mr. Tucker, you have just literally given me more fodder
for where we are today. I will come to you in a moment. But
please think to have this answer.
I want you to give basically the general numbers of the
Indian Nation today. Give me some ballpark figures including
covering any number of the nations--the tribes. If you will
just give me a ballpark number.
I want to go to Mr. Greenbaum, and let me thank you for
your years of service and let me try to indicate my view of
H.R. 4 a global statement that lawyers can use. They can use
the findings. They can use the statutory provisions, precisely
indicating both problem but fact and as well the formula.
And so let me pose this question. I noticed that you were
in the Justice Department from 1997 to 2003, and if you can be
pithy in your answers, would you say that the civil rights
division--voting rights division--was vigorous during that
time?
Mr. Greenbaum. Yes, particularly during the first half of
that time. I would say more vigorous during the Clinton
administration than during the first Bush administration,
although I would say that the first Bush administration--second
Bush administration did not interfere with ongoing cases that I
brought but made it more difficult to bring cases.
Ms. Jackson Lee. But at least the door was open?
Mr. Greenbaum. Yes.
Ms. Jackson Lee. I am sad to hear that but at least the
door was open.
Mr. Greenbaum. Yes.
Ms. Jackson Lee. Take the example that we are presently in,
which is why I think the voting rights--H.R. 4, H.R. 1--are so
crucial, because if it can stand it means that it can operate
in spite of changing administrations.
So the record for Texas is poor.
Mr. Greenbaum. Yes.
Ms. Jackson Lee. We started out with the Texas ID law and
the Obama administration DOJ stood tall with us. We were
victorious in the district court, and went on.
In the present atmosphere and administration, the DOJ
completely flipped and went to the opposition of getting rid of
the Texas ID law or supporting the Texas ID law.
Mr. Greenbaum. The replacement Texas ID law--because Texas
brought in a--as a result of the first set of court decisions,
Texas changed its ID law and that happened close to the time
that there was a change in administration and DOJ flipped
positions with the change in administration. In fact, there was
a brief that DOJ was supposed to file.
Ms. Jackson Lee. But it was not a perfect change?
Mr. Greenbaum. It was not a perfect change.
Ms. Jackson Lee. It was not where we wanted to be.
Mr. Greenbaum. Right. It was not----
Ms. Jackson Lee. So there was no----
Mr. Greenbaum. We challenged it--we challenged that
subsequent change. We won in the district court.
Ms. Jackson Lee. So the----
Mr. Greenbaum. We lost in the 5th Circuit. You are correct
that DOJ flipped positions.
Ms. Jackson Lee. So let me get to my point.
Mr. Greenbaum. Sure.
Ms. Jackson Lee. And I appreciate it. The point is is that
with the potential for these kinds of flips----
Mr. Greenbaum. Yes.
Ms. Jackson Lee [continuing]. It is crucial that we have a
solid findings in law even though it can go up to the Supreme
Court that we can operate under.
Likewise, the Affordable Care Act. I am just trying to show
the flipping--Affordable Care Act, supporting it was, by one
administration DOJ vigorously. This administration--the Trump
administration came and completely flipped--get rid of it,
which jeopardizes innocent citizens.
So my pointed question to you is the importance of findings
that reflect some of what is in your presentation, particularly
the point about Section 5, incentivized communities----
Mr. Greenbaum. Yes.
Ms. Jackson Lee [continuing]. Which Mr. Tucker reflects, to
consult with minorities.
Mr. Greenbaum. Yes.
Ms. Jackson Lee. And we have examples where not consulting,
if you will, leads to calamity.
Mr. Greenbaum. I completely agree with that.
Ms. Jackson Lee. The other point I wanted to make is you
highlighted the horror that has been created by the Shelby
decision.
Mr. Greenbaum. Yes.
Ms. Jackson Lee. Can you just say that in one or two
sentences that we have seen a downward spiral of voter
empowerment since Shelby?
Mr. Greenbaum. I think you have said that better than I
could. I do want to agree with what you said. I don't think I
need to add to what you said.
I would be remiss if I didn't mention the first voting case
I brought at the Lawyers' Committee was Waller County, which
you are very familiar with.
Ms. Jackson Lee. Yes.
Mr. Greenbaum. And that was a situation where a white
district attorney----
Ms. Jackson Lee. Yes.
Mr. Greenbaum [continuing]. Told black students at the----
Ms. Jackson Lee. At Prairie View.
Mr. Greenbaum [continuing]. At Prairie View that they would
be subject to felony prosecution if they voted. We sued him. We
got that to stop.
But then what they did was they were going to decrease the
number of hours of early voting at Prairie View--the polling
place closest to campus--and we were able to block that under
Section 5. And it is a great example of how Section 5 blocks
repeated efforts at discrimination.
Ms. Jackson Lee. And I thank you very much.
The chairman has been very kind to indulge and if you, Ms.
Butler, and Mr. Tucker, I don't want to leave out the Indian
Nation. So I will go with you, Ms. Butler. You can just answer.
I want Ms. Butler to answer how devastating it is going to
be by having redistricting without Section 5 operable, the
first in decades in 2021.
But I want to really highlight the Indian Nation in terms
of the language concerns and the threatening atmosphere that
pulls opportunity in voting under the Fourteenth and Fifteenth
Amendment by where we are today.
And most people don't think of the Pueblos and the
reservations and the denial of rights. I just got through doing
the Violence Against Women Act. We had to put more rights for
Indian women.
But can you indicate how oppressive and that this H.R. 4
needs to have a heavy handprint on empowering the Indian Nation
to vote?
Mr. Tucker. So it is very, very important that Indian
tribes, just like the other language minority groups and racial
groups, be considered. You asked how many. There are 6.8
million American Indians and Alaska Natives nationally. They
comprise about 20 percent of Alaska's population.
I am going to use an example to highlight the point. So the
Navajo Nation has approximately 400,000 people who live
primarily in three states--Arizona, New Mexico, and Utah.
In San Juan County, Utah--getting back to this whole issue
of one person-one vote, in 1984 San Juan County--their at-large
method of electing their three-member county commission was
struck down because it specifically was designed and was having
the effect of disenfranchising Native voters.
The county did not redistrict at all after that decision.
So what they did was they basically used a one person-one vote
violation to ensure the primacy of non-Natives who comprised a
minority of the population--only about 45 percent of the
county's population but they had a majority of the share
because they used a redistricting plan that was based on the
1980s.
That was a fairly recent decision. It actually was just
upheld in the Court of Appeals. But in addition, there were two
other companion cases that were brought.
They also denied access to the school boards, and this is a
Lawyers' Committee case--they used vote by mail. They shifted
to vote by mail and eliminated three polling places on Navajo
lands specifically to deny Navajos the right to vote because
they were afraid that, again, because Navajos were in the
majority they would actually elect a majority.
This just proves the point that I understand--you know,
Professor Blumstein has talked about the need for respect of
state sovereignty. These are not innocent actors. You know,
things like H.R. 4 are specifically designed to get to the
serial offenders and they do it in two ways.
They do it at the state level and, more particularly, what
we are more likely to see in Indian Country is going to be a
jurisdiction by jurisdiction level at the county level.
San Juan County is exactly the sort of place that needs to
be covered by Section 5. My understanding is it would be under
H.R. 4 because they certainly have more than three violations
in the last 10 years.
And, again, I appreciate the fact that you have highlighted
the importance of the American Indian and Alaska Native
community and the barriers they face and the legislation that
would fix that.
Ms. Jackson Lee. Thank you.
Ms. Butler, on your redistricting point? Thank you for your
service.
Ms. Butler. Thank you.
Redistricting definitely would be very critical to
communities of color. Georgia, as you know, based on Census
data, is going to be a majority minority state and so it is
going to be critical that we have oversight in how the lines
are drawn. We have seen the gerrymandering, the packing of
minority voters so that we dilute their voting strength.
So it is critical that we have that oversight protection to
be able to get people that were represented--that we want to
represent us, especially for communities of color.
Ms. Jackson Lee. Thank you.
Thank you, Mr. Chair.
Mr. Cohen. Thank you very much. Thank you.
I want to--I recognized Ms. Hubbard here, who is with the
Deltas. Is anybody here from AKA?
Ms. Jackson Lee. Please. [Laughter.]
Mr. Cohen. So there is an AKA here. Great. Thank you.
You also do a lot to help people get registered to vote.
You have got a long history with that and I thank you. And
women the right to vote and all that.
Bradley Watkins--did he make it? I didn't see him. The
Peace and Justice Center has been working on some issues. I
think he might have filed a lawsuit today, which is important.
I want to recognize former Senator Marrero who is here and
thank her for her attendance and her service over the years and
I want to thank all the witnesses that have come and testified.
And we are going to have a press conference right
afterwards. It is Room 335? Who knows which room we are in?
335, is that right?
Oh, this is it? Good. That makes it easier. That makes it
easy.
And let me just say this. It is interesting to think--in
Australia you have to vote and if you don't vote they give you
a penalty on your income tax. So they don't worry about the
voter registration rolls. They keep everybody on it and you are
supposed to vote.
So it doesn't seem like in a country like ours where we
have a bedrock of democracy and the idea of people having a
chance to participate that we should take almost anybody off
the rolls because everybody should be able to vote and if you
show up.
We are going to have a mayor's election and a city council
election here in a month, and it is expected that less than 20
percent will vote.
So it is--we are here trying to see to it the people have a
right to vote. People don't vote when they got a right to vote.
Peg Watkins is here from League of Women Voters. We appreciate
your being here and encouraging people to vote and registering
people.
But they don't come to vote. So if somebody shows up we
ought to give them something. Thank them, and not try to stop
them.
Ms. Jackson Lee, for a last comment.
Ms. Jackson Lee. Mr. Chairman, I just wanted to thank you.
We are in your hometown, your district, and I think everyone
should know how more than faithful you are to these values in
Washington.
You always wonder what your member is doing away from you.
He is consistently a champion for constitutional and civil
rights and the empowerment of all people.
I want to likewise thank the purity of voting. The League
of Women Voters--likely, you would have them here because that
is what they represent and I want to thank your staff. We saw
her again--your district staff that is doing such an excellent
job.
And if I might, say that if I had not already graduated
from law school--this is such a stunning building--I might try
to reenroll.
And might I say that I am grateful that the GSA has a
better mind to give this post office to a law school of
empowerment versus hotels. And so I am delighted that this is a
place of justice.
It is just simply beautiful and I thank you for having us
here. And I hope my thank yous are pertinent to the closing of
this hearing, and thank you to all the witnesses.
Mr. Chairman, I yield back to you with a great deal of
thanks.
Mr. Cohen. You are welcome. You are welcome.
Ms. Jackson Lee. Thank you, Chairman Nadler.
Mr. Cohen. Thank you.
Mr. Nadler, do you want to make some remarks?
Mr. Nadler. Yes, I will be brief.
I simply wanted to, first, thank the witnesses both from
the first and second panels, thank everyone from the local
organizations and from the civil rights community and from the
general community who came out to this hearing, which is
hopefully part of the foundation for enactment of a new
replacement for Section 4, among other things, of the Voting
Rights Act to reestablish some of the protections that we had
and maybe to go further in some other respects.
And I want to thank the chairman for holding this hearing
and for all the other work he is doing on the--on civil rights
and civil liberties.
And I think it also--I think it is very nice that a former
not only post office but courthouse became a law school and
stayed with the law.
So I want to thank everybody and I want to particularly
thank the chairman, and I yield back.
Mr. Cohen. I thank each of you and I appreciate it, and I
will say here in my hometown this is a great opportunity to
have this hearing here. I am so honored to be the chair of the
Constitution, Civil Rights, and Civil Liberties Committee. It
is the highest honor I could ever--and position I could ever
hope to have.
For locals, they will know--my colleagues may not--but I
stand on the shoulders of Russell Sugarmon, Vasco and Maxine
Smith, and Irvin Salky and Julian Bond from Atlanta, and that
is where they would want me to be and that is who I think about
and serve.
So with that, we are going to conclude this hearing and
thank you all, the witnesses, for appearing.
Without objection, all members will have five legislative
days to submit additional written questions for the witness or
additional materials for the records.
With that, the hearing is adjourned. Thank you.
[Whereupon, at 12:51 p.m., the subcommittee was adjourned.]
APPENDIX
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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
James Tucker for the record:
https://docs.house.gov/meetings/JU/JU10/20190905/109887/
HHRG-116-JU10-20190905-SD002.pdf