[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
EVIDENCE OF CURRENT AND ONGOING
VOTING DISCRIMINATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 10, 2019
__________
Serial No. 116-45
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
38-123 WASHINGTON : 2020
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking
SHEILA JACKSON LEE, Texas Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
SUBCOMMITTEE ON THE CONSITITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland
ERIC SWALWELL, California MIKE JOHNSON, Louisiana,
MARY GAY SCANLON, Pennsylvania Ranking Member
MADELEINE DEAN, Pennsylvania LOUIE GOHMERT, Texas
SYLVIA R. GARCIA, Texas JIM JORDAN, Ohio
VERONICA ESCOBAR, Texas GUY RESCHENTHALER, Pennsylvania
SHEILA JACKSON LEE, Texas BEN CLINE, Virginia
KELLY ARMSTRONG, North Dakota
James Park, Chief Counsel
Paul Taylor, Minority Counsel
C O N T E N T S
----------
SEPTEMBER 10, 2019
OPENING STATEMENTS
Page
The Honorable Steve Cohen, Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Mike Johnson, Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 3
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 5
WITNESSES
Vanita Gupta, President and CEO, Leadership Conference on Civil
and Human Rights
Oral Testimony............................................... 12
Prepared Testimony........................................... 15
Derrick Johnson, President and CEO, NAACP
Oral Testimony............................................... 23
Prepared Testimony........................................... 25
Dale Ho, Director, American Civil Liberties Union Voting Rights
Project
Oral Testimony............................................... 39
Prepared Testimony........................................... 41
J. Christian Adams, President and General Counsel, Public
Interest Legal Foundation
Oral Testimony............................................... 64
Prepared Testimony........................................... 66
Myrna Perez, Director, Voting Rights and Elections Program,
Brennan Center for Justice
Oral Testimony............................................... 73
Prepared Testimony........................................... 75
Natalie A. Landreth, Senior Staff Attorney, Native American
Rights Fund
Oral Testimony............................................... 84
Prepared Testimony........................................... 86
APPENDIX
Statement for the record submitted by The Honorable Doug Collins,
Ranking Member, Committee on the Judiciary..................... 109
Items for the record submitted by Myrna Perez, Director, Voting
Rights and Elections Program, Brennan Center for Justice....... 112
Item for the record submitted by J. Christian Adams, President
and General Counsel, Public Interest Legal Foundation.......... 112
EVIDENCE OF CURRENT AND ONGOING VOTING DISCRIMINATION
----------
TUESDAY, SEPTEMBER 10, 2019
House of Representatives
Subcommittee on the Constitution, Civil Rights,
and Civil Liberties
Committee on the Judiciary
Washington, DC.
The subcommittee met, pursuant to call, at 10:04 a.m., in
Room 2141, Rayburn Office Building, Hon. Steve Cohen [chairman
of the subcommittee] presiding.
Present: Representatives Cohen, Nadler, Raskin, Scanlon,
Dean, Garcia, Johnson of Louisiana, Gohmert, Jordan, Cline, and
Armstrong.
Staff present: David Greengrass, Senior Counsel; John Doty,
Senior Advisor; Madeline Strasser, Chief Clerk; Moh Sharma,
Member Services and Outreach Advisor; Susan Jensen,
Parliamentarian/Senior Counsel; Julian Gerson, Staff Assistant;
James Park, Chief Counsel; Keenan Keller, Senior Counsel; and
Will Emmons, Professional Staff Member.
Mr. Cohen. We don't have a gavel. The Committee on the
Constitution, Civil Rights, and Civil Liberties is called to
order. Without objection, the chair is authorized to declare a
recess of this subcommittee at any time.
Welcome, everyone, to today's hearing, a field hearing on
``Evidence''--well, it is not a field hearing--on ``Evidence of
Current and Ongoing Voting Discrimination.'' I now recognize
myself for an opening statement.
Today's hearing on ``Evidence of Current and Ongoing Voting
Discrimination'' 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 this year to
assess the current need for a reinvigoration of the
preclearance requirement of Section 5 of the Voting Rights Act
of `65 to consider other ways to strengthen that landmark civil
rights statute.
I am not sure why we say ``reinvigoration.'' That seems to
be one of the words we toss around. It is not really a
reinvigoration. It is a degradation of--Section 4 was cut out,
so we need to have a Section 4 to activate Section 5. Section 5
has been made dormant by the Supreme Court saying Section 4
wasn't adequate. So we need to find a new test to awaken the
dormant power of Section 5.
The Voting Rights Act of '65 was widely considered the most
effective civil rights statute ever enacted by Congress. The
act was enormously successful in expanding Federal authority to
protect the fundamental right to vote, and one of its central
enforcement provisions was its Section 5 preclearance
provision. The provision required certain jurisdictions with a
history of voting discrimination against racial and language
minority groups, predominantly those that tended to be in the
Deep South, to obtain approval of any changes to their voting
laws or procedures from the Department of Justice or the U.S.
District Court for the District of Columbia before those
changes could take effect.
The purpose of the preclearance requirement was to ensure
that jurisdictions that were most likely discriminating against
minority voters, as shown by a finding of Congress, would bear
the burden of proving that any changes to the voting laws were
not discriminatory before such changes could take effect and,
therefore, not discriminate in fact against people that they
shouldn't be taking that action against.
It provided a mechanism to assure that the new voting rules
and practices of jurisdictions with a history of discrimination
were fair to all voters, so we had this when we passed the
Voting Rights Act in '65. There was a list of jurisdictions. It
was renewed. There was a list of jurisdictions. And then in
2013, in Shelby v. Holder, our Supreme Court said what we did
in the past with Mr. Sensenbrenner, who was chairman of the
committee, and what the House did by a vote of like 390-
something to 33, in the Senate by 98 to nothing, was not
adequate; that a finding by the Congress of legislative--for
legislative action was not sufficient, that the court, which
generally kind of says it bears deference to Congress, was
going to jump in and put its opinion above Congress.
So what the preclearance requirements did is it prevented
potentially discriminatory voting practices from taking before
they harm minority voters, which was the purpose of these laws,
so would have found the courts. And in this way preclearance
proved to be a significant means of protection of the rights of
minority voters.
This is why Congress had repeatedly reauthorized the
preclearance provision, overwhelmingly bipartisan, most
recently in 2006, and Mr. Sensenbrenner was the chairman of
this committee at the time and did a great job. It was 390 to
33 in the House, and the Senate was 98 to nothing.
Unfortunately, the Supreme Court effectively gutted Section
5 in 2013. Shelby County v. Holder struck down the coverage
formula of Section 4 that determined which jurisdictions would
be subject to the preclearance requirement. As a result, the
preclearance provision remains dormant unless and until
Congress adopts this new coverage formula. So we have to have
hearings to show the court that we have taken information and
our findings are based on fact.
We have heard in the four hearings we have held so far this
year on voting rights, most recently in Memphis, Tennessee, and
we will further learn in today's hearing, since the Shelby
decision we have seen formerly covered jurisdictions implement
numerous discriminatory voting measures. North Carolina, for
example, passed a sweeping voting suppression law that a
Federal appeals court ultimately held to be unconstitutional,
finding that it intentionally targeted African Americans with
almost surgical precision. And, of course, by doing it after
they put it into effect, they had their desired effect, which
was to limit African American voting. If they were under the
preclearance requirement, the courts could have stopped them
from doing it before they did, as Mel Brooks would say, that
``voodoo that they do so well.''
We will also hear about recent measures to make it
difficult or impossible for minority voters to exercise their
right to vote. These measures include polling place closures
and relocations, the purging of voter rolls that
disproportionately target racial and ethnic minority voters,
discriminatory photo ID laws, and restrictions on ex-felon
voting, all of which are designed to make it harder for African
Americans and other racial and ethnic minorities to vote.
Last week in Memphis, we learned about Tennessee's third-
party registration law that would impose draconian penalties on
groups like the League of Women Voters who work to register new
voters for minor errors and omissions in registration forms. It
made it a criminal effort for people to do so.
Back in May, we learned about a similar law in Texas and
about many other examples of voting discrimination in that
State. And we have seen States engage in racial gerrymandering
designed to dilute the strength of minority voters.
In the absence of an effective preclearance formula regime,
there is almost a certainty that these discriminatory measures
will undermine the voting rights of racial and language
minority voters and erode our democracy.
While Section 2 of the Voting Rights Act, which prohibits
discrimination in voting, remains in effect, it is by itself
less effective, significantly more cumbersome, and often
prohibitively expensive to enforce the Voting Rights Act. Most
importantly, plaintiffs cannot invoke Section 2 until after
alleged harm has taken place. Requiring discrimination victims
to rely solely on such a remedy effectively neuters the act.
The onus, therefore, is on Congress to create a new coverage
formula to reinvigorate the act's most important enforcement
mechanism: its preclearance requirement.
I thank our witnesses and our members for being here today.
I look forward to a fruitful discussion. And I would now like
to recognize the ranking member, Mr. Johnson, for his opening
statement.
Mr. Johnson of Louisiana. Thank you, Mr. Chairman, and I
appreciate you all for being here. As the minority party on
this committee, I think there is a couple of things that we
just want to say at the outset as we begin the hearing.
First of all, let's be clear about this. We all agree that
discriminatory treatment in voting based on race or sex is
abhorrent. It is prohibited by the Constitution, as it should
be, and it is prohibited by Federal statute, as it should be.
But, too often, complaints of discrimination in voting have
nothing to do with discriminatory treatment. Instead, rules
entirely neutral on their face are sometimes claimed to be
discriminatory simply because they have a disparate impact on
one group or another.
Disparate impact claims are a form of identity politics,
and they contradict, for example, Dr. Martin Luther King Jr.'s
admonition to focus on consciences rather than racial groups.
Dr. King said famously in his ``I Have a Dream'' speech: ``When
the architects of our Republic wrote the magnificent words of
the Constitution and the Declaration of Independence, they were
signing a promissory note to which every American was to fall
heir. This note was a promise that all men, yes, black men as
well as white men, would be guaranteed the inalienable rights
to life, liberty, and the pursuit of happiness.''
Dr. King said it well. That promissory note promised life,
liberty, and the pursuit of happiness, not equality of
outcomes. Insofar as proponents of changes in the law base them
on enforcement of equal outcomes instead of equal opportunity,
we just believe genuinely that they pervert the language of our
founding documents and they fail to understand the import of
Dr. King's words.
Disparate impacts are not proof of discrimination. Indeed,
they are statistically inevitable. As Thomas Sowell has
explained, if several criteria need to be met for any given
outcome--and this can apply to voting requirements as well--
then small variations in any group's odds of meeting any of
those criteria will produce different outcomes for the group
generally.
The problem with disparate impact theory in the voting
rights context is that disparate impact is often used to
falsely impute racism or discrimination. But there are
thousands of reasonable reasons a neutral voting rule might
have a disparate impact, reasons that have nothing whatsoever
to do with discrimination.
Take the example of the Department of Justice's letter
declining to preclear South Carolina's voter ID law under the
Voting Rights Act of 2011--in 2011. The Department claimed in
the letter that, ``Minority registered voters were nearly 20
percent more likely to be effectively disenfranchised'' by the
law because they lacked a driver's license. But the difference
between white and African American holders of a driver's
license was only 1.6 percent. The Justice Department used the
20-percent figure because, while the State's data showed that
8.4 percent of white registered voters lacked any form of DMV-
issued ID as compared to 10 percent of nonwhite registered
voters, the number 10 is 20 percent larger than the number 8.4.
It is true mathematically that 10 is 20 percent larger than
8.4--actually, it is 19 percent larger, but the Justice
Department rounded up--but it clearly distorts the reported
difference in driver's license rates, and it was used to
falsely declare the South Carolina law as objectionable.
What other factors might then explain differences in
outcomes among demographic groups? Well, let's give another
example. Data shows that younger people across racial groups
tend to be the least likely to have driver's licenses.
Consequently, if African Americans have proportionately more
young people in their demographic group, there will be a
disproportionate number of individuals in that ethnic group
without driver's licenses, however slight, as is indeed the
case. As the facts follow, this is due to demographics and not
discrimination.
The disparate impact approach to civil rights and the
assumption that different outcomes are the result of prejudice
is fundamentally unsound for the same reason social scientists
are trained that correlation does not imply causation. In other
words, there can be all sorts of correlations between one event
and another, and that doesn't answer the question as to why
that correlation exists.
My point again is not that voting discrimination has
disappeared forever. We know it hasn't. My point is only that
disparate impacts can't be meaningfully used to prove voting
discrimination.
Regarding discriminatory treatment in voting that is based
on race, Section 3 of the Voting Rights Act, which is permanent
Federal statutory law, remains in place and in full effect.
Just a couple years ago, for example, U.S. District Court Judge
Lee Rosenthal issued an opinion in a redistricting case that
required the city of Pasadena, Texas, to be monitored by the
Justice Department because it had intentionally changed its
city council districts to decrease Hispanic influence. The
city, which the court ruled ``has a long history of
discrimination against minorities,'' was required to have their
future voting rules changes precleared by the Department of
Justice for the next 6 years during which time the Federal
judge retains jurisdiction to review before enforcement any
change to the election map or plan that was in effect in
Pasadena on December 1, 2013.
A change to the city's election plan can be enforced
without review by the judge only if it has been submitted to
the U.S. Attorney General and the Department of Justice has not
objected within 60 days.
Look, I support Section 3 and its application to proven
instances of discriminatory treatment in voting, and I look
forward to hearing from all of our witnesses here today.
I yield back.
Mr. Cohen. Thank you, Mr. Johnson.
I now recognize the chairman of the full Judiciary
Committee, the gentleman from much of New York--Manhattan, the
East Side----
Chairman Nadler. West Side.
Mr. Cohen. West Side. West Side, East Side, all about the
town--Mr. Nadler for his opening statement.
Chairman Nadler. Thank you, Mr. Chairman, and let me
express my appreciation to you for hosting us at the field
hearing on voting rights in Memphis last week.
Since the Supreme Court's disastrous 2013 decision in
Shelby County v. Holder, which effectively gutted the most
critical enforcement provision of the Voting Rights Act of
1965, the preclearance requirement, we have seen a troubling
trend. States and localities--and, in particular, those that
were formerly subject to the preclearance requirement--have
enacted or engaged in various voter suppression tactics, such
as burdensome proof of citizenship laws, polling place
closures, purges of voter rolls, 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 racial
and language minority voters, and contrary to what we just
heard, disparate impact is very, very much a very useful
evidentiary tool.
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
harder, even impossible to vote. For example, we heard last
week during our field hearing in Memphis that in Georgia, under
that State's exact match law, 53,000 voter registrants, 70
percent of whom are African American, by pure happenstance,
were placed in pending status and at risk of not being counted
by the Secretary of State, who was also the Republican nominee
for Governor in that same election, because of minor
misspellings on their registration forms.
A Federal court ultimately put a stop to this practice
because of the ``differential treatment inflicted on a group of
individuals who are predominantly minorities'' but had acted
just 4 days before the election and only after a prolonged
period of confusion.
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 and practices to the Department of Justice
for prior approval to ensure that they are not discriminatory.
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, another
would be enacted, essentially setting up a discriminatory game
of Whac-A-Mole. Section 5's preclearance provision broke this
legal logjam and helped to stop this discriminatory practice.
Indeed, the success of the Voting Rights Act 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 elective office both rose
dramatically in the few years after enactment of Section 5.
These successes could not have happened without vigorous
enforcement of the Voting Rights Act, 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 Whac-A-Mole has returned without a vengeance.
Not surprisingly, within 24 hours of the Shelby County
decision, Texas Attorney General and North Carolina's General
Assembly announced they would reinstitute draconian voter ID
laws. Federal courts ultimately held both laws to be
intentionally racially discriminatory--not disparate impact;
intentionally racially discriminatory. But during the years
between their enactment and the courts' final decisions, States
and localities held many elections while the discriminatory
laws remained in place and many people were denied their
rightful right to vote.
In short, before the racial discrimination could be
stopped, the damage had already been done. 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 that demonstrated unequivocally the need to
reauthorize the Voting Rights Act, provisions of which like the
preclearance requirement and the coverage formula that
undergirded it were expiring. At the time we found that many
covered jurisdictions were still facilitating ongoing
discrimination. For instance, these States and the subdivisions
continue to engage 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 Americans to run for elective office in their cities.
While it is true that those seeking to enforce the VRA can
still pursue after-the-fact legal remedies even without
preclearance, time and experience have proven that such an
approach takes far longer and 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. That is why I hope that members on both sides of the
aisle and in both chambers of Congress will come together and
pass legislation to restore the VRA to its full vitality.
Today's hearing will provide an additional opportunity to
renew our understanding of the importance of the Voting Rights
Act, and, in particular, of its preclearance provisions, and to
support our efforts to craft a legislative solution.
I look forward to hearing from our distinguished witnesses,
to hear about their findings of ongoing voting discrimination
by States and localities.
I yield back the balance of my time.
Mr. Cohen. Thank you, Mr. Chairman.
Mr. Collins, the ranking member, has a statement. It will
be introduced for the record. He is not present.
Mr. Johnson of Louisiana. If he shows up, he wants to
deliver it.
[The statement of Mr. Collins follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. We welcome our witnesses and thank them for
participating in today's hearing. Your written statements will
be entered into the record in their entirety. I ask each of you
to summarize your statement for 5 minutes, to stay within the
time. There is a timing light on your table. When the light
switches from green to yellow, it means you have got 1 minute
left, just like a traffic light. When it turns red, trouble.
Five minutes expired.
I remind every witness that your statements, written or
oral, made to the subcommittee are subject to penalties of
perjury under 18 U.S.C. 1001, which may result or could result
in the imposition of a fine or imprisonment up to 5 years, or
both--a fine as well. But that will not likely happen.
Our first witness is Ms. Vanita Gupta. Ms. Gupta is the
president and chief executive officer of the Leadership
Conference on Civil and Human Rights. Previously, she served as
Principal Deputy Assistant Attorney General and as Acting
Assistant Attorney General and the head of the Civil Rights
Division at the U.S. Department of Justice during the Obama
administration. Ms. Gupta received her law degree from New York
University School of Law, which is in Mr. Nadler's district,
and received her undergraduate degree magna cum laude from Yale
University, which, with a Sharpie, could be in Mr. Nadler's
district, too. [Laughter.]
Mr. Cohen. Ms. Gupta, you are recognized for 5 minutes.
STATEMENTS OF VANITA GUPTA, PRESIDENT AND CHIEF EXECUTIVE
OFFICER, THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS;
DERRICK JOHNSON, PRESIDENT AND CHIEF EXECUTIVE OFFICER,
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
(NAACP); DALE HO, DIRECTOR, VOTING RIGHTS PROJECT, AMERICAN
CIVIL LIBERTIES UNION; J. CHRISTIAN ADAMS, PRESIDENT AND
GENERAL COUNSEL, PUBLIC INTEREST LEGAL FOUNDATION; MYRNA PEREZ,
DIRECTOR, VOTING RIGHTS AND ELECTIONS PROGRAM, BRENNAN CENTER
FOR JUSTICE, NEW YORK UNIVERSITY SCHOOL OF LAW; AND NATALIE A.
LANDRETH, SENIOR STAFF ATTORNEY, NATIVE AMERICAN RIGHTS FUND
STATEMENT OF VANITA GUPTA
Ms. Gupta. Chairman Nadler, Chairman Cohen, Ranking Member
Johnson, and members of the subcommittee, thank you for the
opportunity to testify today. And thank you, Chairman Cohen,
for your leadership and calling this hearing to restore the
Voting Rights Act.
The VRA is considered one of the most successful pieces of
civil rights legislation in our history. Not long ago, just in
2006, this very body reauthorized the VRA with sweeping
bipartisan support. But in 2013, five Justices of the Supreme
Court gutted the VRA's most powerful provision: the Section 5
preclearance system.
Section 5 enabled the Federal Government to block proposed
discriminatory voting restrictions in places with the most
pervasive histories of discrimination. It also ensured that
changes to voting rules were public, transparent, and evaluated
to protect voters against discrimination based on race and
language.
When I served in the Justice Department, we relied on
Section 2 of the VRA to help mitigate the damage done by the
Shelby County decision. We challenged discriminatory laws
passed in North Carolina and Texas in the immediate aftermath
of the decision, and we were successful. Courts found
intentional discrimination and have found intentional
discrimination in at least nine Federal court cases since the
Shelby County decision.
But Section 2 litigation can take years. While litigation
is pending, elections are actually taking place, and millions
of voters can be effectively disenfranchised with no remedy
when they are voting pursuant to laws that are later found to
have been enacted through intentional discrimination. So the
reality is Section 2 just simply is no substitute for the need
to restore the Section 5 preclearance provision.
Restoring preclearance is all the more important under an
administration that refuses to challenge discriminatory voting
measures. Not a single case has been opened, including barriers
to voter registration, restrictive voter ID requirements, and
polling place closures, which I want to focus on today.
Polling place closures and consolidation can be a
pernicious tactic for disenfranchising voters, particularly
voters of color, older voters, rural voters, and voters with
disabilities, and since the Shelby decision jurisdictions are
closing polling places at an alarming speed. This morning, the
Leadership Conference Education Fund released ``Democracy
Diverted,'' a ground-breaking report that analyzes polling
places in 757 counties that had once been covered by Section 5.
We found that 1,688 polling places were closed between 2012 and
2018.
The report also analyzes polling place reductions in the
years between the 2014 and 2018 midterm elections. We found
1,173 fewer polling places in 2018 despite a significant
increase in voter turnout. Overall, Texas alone closed 750
polling places; Arizona closed 320; Georgia, 214; Louisiana,
Mississippi, North Carolina, and Alabama trail behind them.
This crisis also extends beyond States formerly covered by
Section 5. Our campaign, All Voting Is Local, identified
similar trends in Ohio. Between 2016 and 2018, Cuyahoga County,
which is home to Cleveland, eliminated 41 polling locations,
the bulk of which happened in majority black wards.
Now, of course, there may be valid reasons for polling
place closures, but it is important to recognize that these
closures are taking place amidst a larger constellation of
efforts to prevent people of color from voting. And without
preclearance, States are under no obligation to evaluate the
discriminatory impacts and potential harms of polling place
closures.
As our report found, closures often mean long lines at
polling places, transportation hurdles, and mass confusion
about where eligible voters may cast their ballots. For many
people, these burdens may make it harder and sometimes
impossible to vote. Some jurisdictions cite voter
modernization, including vote by mail participation, as a
justification for poll closures. And yet the move to mail-in
ballots is far from racially neutral. In Arizona, All Voting Is
Local found that 96 percent of non-Native Americans live on a
U.S. Postal Service carrier route while only 26 percent of
Native Americans live on a U.S. Postal Service carrier route.
Before the Shelby decision, scrutiny of voting changes
under Section 5 ensured that polling place reductions did not
discriminate against voters of color, and this critical
protection no longer exists, and the consequences on voter
access are devastating. This is why the Leadership Conference
recommended that the subcommittee and urges the subcommittee
pass H.R. 4 to restore the Voting Rights Act based on current
conditions today.
While there are justifiable reasons for closing polling
places, the sheer scale of closures we identified since Shelby
coupled with other stark efforts to deny voting rights to
people of color demand our response, and our coalition is
committed to protecting and expanding the franchise, and we
look forward to working with you until the day these reforms
are signed into law.
Thank you.
[The statement of Ms. Gupta follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you very much, Ms. Gupta.
Mr. Derrick Johnson is our next witness. He is the
president and chief executive officer of the NAACP, a position
he has held since October 2017. He had previously served as
vice chairman of the NAACP National Board of Directors and as
president of the NAACP Mississippi State Conference. Mr.
Johnson received his J.D. from the South Texas College of Law
and his undergraduate degree from Tougaloo College in Jackson,
Mississippi.
Mr. Johnson, you come from my part of the world. Welcome.
STATEMENT OF DERRICK JOHNSON
Mr. Johnson. Good morning, Chairman Cohen, Chairman Nadler,
Ranking Member Johnson, and members of the subcommittee. Thank
you for inviting me to testify. For background, I have spent
more than two decades in Mississippi, which has been front and
center in the fight for voting rights.
Allow me to get to the point: Our democracy is in crisis.
There is a frontal assault on the right of people of color to
fully participate. We are 6 years, 2 months, 16 days until the
Shelby County ruling. This was the worst attack on
participatory democracy in modern history. The ink was not even
dry before the floodgates of voter suppression opened.
Chief Justice John Roberts was dead wrong when he said in
Shelby County that our county--our country has changed. Just
take a look around. It most certainly has not. Voter
suppression has become rampant. Instead of asking where is it
occurring, we should ask, where is it not? And Congress has a
constitutional duty to act. My testimony lays out the problems
we face around the country.
I would like to make five points here.
First, the assault on democracy is conducted by States and
local jurisdictions. Much attention is focused on statewide
efforts to suppress the vote, but it can happen in every
community.
Secondly, today's disenfranchisement takes many forms. It
is adaptive and it is pervasive.
These are just a few stringent voter ID requirements like
North Carolina's which we successfully challenged and which a
court found targeted African Americans with surgical precision:
purges of voter rolls like we are seeing in Ohio right now;
massive closures of polling places in communities of color;
shortened voting periods and elimination of Sunday voting and
``Souls to the Polls'''; measures making it criminal for groups
to register voters, like the ones we recently had to challenge
in Tennessee.
Thirdly, there is no defense. Voter suppression is often
done in the name of combating voter fraud. But let's be clear.
This is not a real problem. Reports of voter fraud is about as
common as reports of alien abduction. Even Trump had to disband
his voting commission because fraud does not exist.
Fourthly, while voting discrimination was well documented
in States subject to preclearance under the Voting Rights Act,
it has spread like a cancer to other States never subject to
coverage. The tragic fact is that no community is immune.
Everyone everywhere must remain vigilant.
Finally, we cannot address this alone. My testimony entered
into the record discusses the vast efforts of our legal
department in conjunction with our State conferences and other
legal organizations on the ground to combat voter suppression.
But here is the situation: Shelby County eliminated the
preclearance requirement, and Trump's Justice Department is
missing in action on any voting rights enforcements. Our
branches and members are asked to what used to be the job of
the Federal Government: protect the right to vote.
To be clear, we are fighting back wherever and whenever we
can. But this is not sustainable. Congress must step up to
combat this Nation's epidemic. Congress must pass Voting Rights
Advancement Act. Make no mistake: Congress has simple evidence
to restore the Voting Rights Act to its full strength. Given
the daily experiences of our community with voter suppression
in the lead-up to and on election day, no one can deny the
strong record that supports immediate passage. Congress must
also pass For the People Act. Voting must be simplified. Access
to ballots must be expanded. This bill would make it easier to
cast a vote and make sure that that vote is counted.
Finally, Congress must pass Securing America's Federal
Election Act. The SAFE Act would help our elections secure and
free from foreign intervention, interference that
disproportionately targeted African Americans. Robert Mueller
warned this committee about Russian interference in our
election. He said, ``They are doing it as we sit here.'' We
must defend our democracy, period.
This year, the NAACP celebrated our 110th anniversary. We
have never wavered from demanding an inclusive, secure
democracy. It is now time for Congress to make protecting the
franchise the highest priority.
In Mississippi, what I experienced over the last 20 years
is what I am watching across this country. If we do not stand
up to protect democracy and make it work today, who will? And
how can we ever have a true representative Government?
Thank you for allowing me to testify. I welcome any
questions.
[The statement of Mr. Johnson follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Johnson, and just
parenthetically, I will mention that in Memphis, the location
that houses the Election Commission downtown was dedicated
yesterday as the James Meredith Building, in honor of his
integrating Ole Miss and fighting for voting rights.
Mr. Dale Ho is director of the Voting Rights Project at the
American Civil Liberties Union. In that role, he supervises the
ACLU's voting rights litigation and advocacy work nationwide.
He currently has active cases in dozens of States around the
country. He has testified on election law issues before this
Congress and State legislatures. He is also an adjunct clinical
professor of law at the New York University School of Law,
received his J.D. from Yale Law School and his undergraduate
degree from Princeton.
Mr. Ho, you are recognized for 5 minutes. Thank you.
STATEMENT OF DALE HO
Mr. Ho. Chairman Cohen, Chairman Nadler, Ranking Member
Johnson, and members of the subcommittee, thank you very much
for the opportunity to testify today. My name is Dale Ho, and I
am the director of the ACLU Voting Rights Project.
Justice Ruth Bader Ginsburg famously warned that the
Supreme Court's decision striking down a part of the Voting
Rights Act in Shelby County v. Holder was like ``throwing away
your umbrella in a rainstorm.'' And sure enough, after the
decision, a downpour came, with a wave of discriminatory voting
laws.
The ACLU has been on the front lines. We have opened more
than 60 new voting rights investigations and cases since the
decision. Some of our recent and ongoing cases include:
Department of Commerce v. State of New York, a case that I
argued before the Supreme Court earlier this year, successfully
challenging the administration's attempt to add a citizenship
question to the 2020 census; NAACP v. McCrory, where, along
with the NAACP and others, we successfully challenged the
sweeping North Carolina bill that sought to eliminate means of
participation used by more than 1 million voters in the 2012
Presidential election; and Gruver v. Barton, where, working
with the Brennan Center and others, we are challenging a
Florida law that denies the right to vote to returning citizens
with past felony convictions based solely on their inability to
pay outstanding costs, fines, fees, and restitution.
My testimony today will focus on current conditions with
respect to racial discrimination in voting and, in particular,
on recent litigation under Section 2 of the Voting Rights Act.
As detailed in my written statement, I think four points stand
out.
First, recent litigation under Section 2 of the VRA
demonstrates the need for the Voting Rights Advancement Act.
While the current administration has not filed a single case
under the VRA, private litigants have won more than two dozen
Section 2 cases since Shelby County was decided. That volume of
successful Section 2 litigation illustrates the continuing
problem of racial discrimination in voting today.
Second, despite those successes, we currently lack the
tools necessary to stop discriminatory changes to voting laws
before they taint an election. Discriminatory laws that we have
ultimately succeeded in blocking have remained in effect for
months or even years while litigation has proceeded, time in
which elections have been held and Government officials were
elected.
The North Carolina case that you have heard so much about
today is illustrative. The law that we challenged eliminated 1
week of early voting in which 900,000 people had voted in 2012;
same-day registration, which nearly 100,000 voters had used in
2012; and pre-registration, which 50,000 voters had used before
that election. The law also banned the use of many forms of
Government-issued photo ID for voting purposes, including
student ID cards, municipal employee ID cards, and public
assistance IDs. As Chairman Cohen and Mr. Johnson noted, the
Fourth Circuit found that this law targeted African American
voters ``with almost surgical precision'' and found it
unconstitutional.
But that case took $5.9 million, including expert fees and
attorney time, and 34 months to litigate. In the interim, the
2014 general election took place, and 190 Federal and State
government officials were elected under what was later
determined to be an unconstitutional regime. That law has been
struck down, but that election cannot be rerun. There is no way
now to compensate the voters of North Carolina or our democracy
itself for that gross injustice.
And that is just one example. My written testimony details
ten Section 2 cases that the ACLU has litigated since Shelby
County in which we ultimately obtained favorable outcomes for
our clients, but only after a dozen elections were held and 350
Federal, State, and local officials were elected under
discriminatory laws.
The VRAA would address this problem in two ways: with a new
preclearance provision based on a rolling formula, accounting
for recent voting rights violations; and a clarified standard
for preliminary injunctions in Section 2 cases. Both would help
prevent discriminatory laws from taking effect before an
election.
Third, overall the bulk of Section 2 litigation happens at
the local level where changes to voting laws are more difficult
to monitor and highlights the need for the VRA's transparency
and notice requirements.
Fourth, and finally, a handful of States--of formerly
covered States under the Section 5 preclearance regime account
for more than half of successful Section 2 cases since Shelby
County was decided, which indicates that voting discrimination
remains concentrated in certain areas and that particularly
strong protections are justified in those places.
Congress has a duty to take strong action to fulfill the
promise of the Reconstruction Amendments, that all Americans
should be free to participate in our democracy on equal terms,
free from racial discrimination.
Thank you. I look forward to answering any questions you
have today.
[The statement of Mr. Ho follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Ho.
Our next witness is Mr. J. Christian Adams, who has
appeared before us previously, president and general counsel of
Public Interest Legal Foundation. From 2005 to 2010, he worked
in the Voting Section at the United States Department of
Justice. Prior to his time at the Justice Department, he served
as general counsel to the South Carolina Secretary of State. He
received his law degree from the University of South Carolina
School of Law.
Mr. Adams, you are recognized for 5 minutes.
STATEMENT OF J. CHRISTIAN ADAMS
Mr. Adams. Thank you very much, Chairman Nadler, Chairman
Cohen, Ranking Member Johnson. I am president and general
counsel of the Public Interest Legal Foundation. We are
dedicated to preserving election integrity and the
constitutional decentralization of power so that States may
administer their own elections.
I am presenting evidence today of two instances of voting
discrimination and disenfranchisement that I have been working
on.
The first is a case recently decided by the Ninth Circuit
in July. I represented retired Air Force Major ``Dave'' Davis.
Major Davis served on Guam and decided to live there on
retirement. Guam is governed by the Federal Organic Act of
1950. The Organic Act bans racial discrimination in voting and
explicitly incorporates the protections of the Fifteenth
Amendment. Nevertheless, the legislature of Guam passed an
election law confining the right to vote in a status plebiscite
to a preferred racial group--so-called native inhabitants.
In other words, Guam imposed voter qualifications based on
blood ancestry, much like the Oklahoma grandfather clauses
struck down by the Supreme Court over a century ago.
Now, Congress has required Guam to adhere to civil rights
obligations in the Fifteenth Amendment and other Federal
statutes. But, ironically, Guam also received over $300,000 in
Federal funds from the Department of the Interior to conduct
education campaigns about this very same racially
discriminatory voting process. That is something Congress can
fix.
When Dave Davis sought to register to vote at the
Government office, his registration form was marked ``Void'' by
election officials. The form is in my written record, in my
written statement. Even in the Jim Crow South of the early
1960s, Southern registrars were not brazen enough to deny the
right to vote explicitly on having the wrong racial blood.
We filed suit in Federal court way back in 2011, and the
case is still continuing because Guam has been zealous in
defending their racially discriminatory laws. It is so blatant
that the United States District Court on Guam granted Mr. Davis
summary judgment in 2017. And in July of this year, the Ninth
Circuit Court affirmed.
Despite this brazen racial discrimination, not a single
civil rights organization took the case. Not a single civil
rights organization offered to help Mr. Davis. Now, despite the
long inventory of voting cases that we know about, not even a
single civil rights organization filed an amicus in this case.
In some voting cases, such as challenges to South Carolina
voter ID, these same groups manage to duplicate or triplicate
each other, despite the fact that not a single person was
disenfranchised by the South Carolina voter ID law.
Why is this important? It is important that reauthorization
of the Voting Rights Act, if it occurs, is not done in a way
that affects partisan interests, because all too often civil
rights enforcement is also about partisan interests.
To add insult to injury, Mr. Davis could not even get the
United States Department of Justice to help him in 2011. His
pleas were ignored by the Civil Rights Division. No case was
filed on his behalf. No amicus was filed to help him. No
nothing. Even after the Ninth Circuit Court of Appeals in 2005
ruled that he had a ripe case, the Justice Department failed to
act. Oddly, ripeness was cited by the Chief of the Voting
Section in an internal Inspector General report as to why the
DOJ did not help Mr. Davis. Finally, in November 2017, the
Justice Department did what it should have done 6 years earlier
and appeared in court seeking to strike down the racially
discriminatory voting law.
Congress can do something. For one, stop public funding of
racially discriminatory election public information campaigns.
Congress has exclusive power in the territories and can stop
this.
The second example which I will briefly mention involves
the Commonwealth of Virginia canceling citizen registration; in
other words, citizens are having their voter registrations
canceled in Virginia. We found this out when we began to
inquire about records regarding noncitizens, and we found that
the Commonwealth is routinely canceling citizens.
In sum, there are things Congress can do: first of all,
reexamine the interplay between motor-voter DMV laws and
election officials. The DMV part of motor-voter is hidden from
the public because Congress hid it.
Secondly, Congress has shielded State motor vehicle
departments, and that shield should go away.
Third, Congress should strengthen obligations for election
officials to be transparent. We are currently suing the State
of Pennsylvania, North Carolina, and Harris County, Texas,
because they are not allowing public inspection of election
records in those three places.
Fourth, Congress should allow States to verify citizenship.
Thank you very much for this opportunity.
[The statement of Mr. Adams follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Adams.
Ms. Myrna Perez is director of the Voting Rights and
Elections Program at the Brennan Center for Justice at NYU
School of Law; author of several nationally recognized reports
and articles, including ``Purges: A Growing Threat to the Right
to Vote,'' ``Noncitizen Voting: The Missing Millions,'' and
``Election Day Long Lines: Resource Allocation.'' She is a
lecturer-in-law at Columbia and has served as an adjunct
professor of clinical law at the NYU School of Law. She
received her law degree from Columbia. She is also a Lowenstein
Public Interest Fellow, received a master of public policy from
Harvard's Kennedy School of Government, and an undergraduate
degree from Yale.
Ms. Perez, you are recognized for 5 minutes.
STATEMENT OF MYRNA PEREZ
Ms. Perez. Thank you, committee members, for having me. I
am Myrna Perez, and I am the director of the Voting Rights and
Elections Program at the Brennan Center for Justice at NYU
School of Law.
The Supreme Court in Shelby County left Congress with a
critical challenge: pass a revised coverage formula.
Accordingly, we ask this committee to take note. A number of
State and local jurisdictions have continued to implement
discriminatory voting laws. They have continued to
disenfranchise voters of color in our elections. In fact, over
the past decade, the Brennan Center has documented a wave of
new laws and practices burdening the right to vote, especially
targeting communities of color.
These ongoing problems demand a thoughtful and strong
response. Section 5 of the Voting Rights Act reflects an
important insight: State and local officials looking to
suppress the vote have a wide variety of tools and tactics at
their disposal. I go through some of these tools and tactics
during my written testimony, but the one I will focus on here
is that of aggressive voter purges, which can aggressively and
unfairly target voters of color and disenfranchise large
numbers of eligible citizens.
Purges refer to the process election officials use to try
and remove the names of ineligible voters from voter
registration lists. Obviously, this process is an important
part of any election officials' jobs. When purges are done
right, they ensure that the voter rolls are accurate and up-to-
date--something we all agree is useful.
However, when purges are done improperly, they
disenfranchise legitimate voters and undermine confidence in
our democratic processes. Moreover, improper purges can lead to
discriminatory results, sometimes by mistake and sometimes on
purpose. For example, reports indicate that New York's purge
leading into the 2016 election disproportionately affected
Latino voters. So did Florida's 2012 purge attempt.
Prior to Shelby, covered jurisdictions were required to
preclear changes to their purge practices before implementing
them. Not anymore. And what have we seen? Between 2014 and
2016, States removed almost 16 million voters from the rolls.
That is almost 4 million more than States removed between 2006
and 2008. That is an increase of 33 percent, far outstripping
growth in both total registered voters and total population.
Our research suggests that Shelby County had a notable
impact on that growth. Prior to Shelby County, jurisdictions
subject to preclearance had purge rates in line with the rest
of the country. But for the three election cycles ending in
2014, 2016, and 2018--in other words, after Shelby County--
preclearance jurisdictions had significantly higher purge rates
than other jurisdictions.
To put it another way, before Shelby County, jurisdictions
subject to preclearance looked like the rest of the country
when it came to purges. But after, formerly covered
jurisdictions increased their purge rates while everyone else
remained about the same.
We calculated that 2 million fewer voters would have been
purged between 2012 and 2016 if jurisdictions previously
subject to preclearance had purged at the same rate as other
jurisdictions.
We have seen several improper purges since Shelby. Just
this year, for example, a Federal court stepped in to stop
Texas officials from purging about 95,000 voters from the
rolls. Texas initially claimed these people were noncitizens,
but the State relied on bad data and methodology. In 2016, New
York wrongly deleted more than 100,000 names from the rolls.
That same year, the Arkansas Secretary of State prepared a
highly inaccurate purge list of nearly 8,000 names.
Purges typically happen behind closed doors with the stroke
of a keyboard. As a result, voters often don't know they have
been purged until they show up to vote. Because they are below
the public radar, it is difficult to address the effects of bad
purges until it is too late. And that is why Section 5's
preclearance process is particularly well tailored to address
not only voter discrimination and other reforms, but the purge
problem specifically, because a revitalized preclearance regime
would require covered jurisdictions to obtain approval for new
purge practices before they get into place.
The need for preclearance is particularly urgent in light
of developments over the last decade. We have new databases
popping up which supposedly identify ineligible voters, but
they are producing flawed results that can lead to improper
purges. States are passing new laws looking for different
grounds upon which to purge people, and relying on discredited
methodology, certain groups are pushing localities to increase
the aggressiveness of their purges.
Many advocates sitting here will do our very best to
protect voters against discriminatory laws and policies under
the laws that we have, including against improper purges. But
Congress can and should also act to protect voters. The Supreme
Court has repeatedly affirmed congressional power to enact a
coverage formula for Section 5 preclearance, including the
Shelby County decision itself. We urge Congress to revitalize
the VRA, and I am very much looking forward to the questions.
[The statement of Ms. Perez follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Ms. Perez.
Our final witness is Ms. Natalie Landreth, senior staff
attorney for the Native American Rights Fund based in NARF's
Anchorage, Alaska, office; a member of the litigation
management committee of that group. Her practice covers a wide
variety of Federal Indian law and election law issues,
including the VRA and constitutional voter protections. She has
been instrumental in establishing key voter protections in
Alaska through two significant cases and testified in Congress
in support of the renewal of the VRA in 2006. She is a magna
cum laude graduate of Harvard University and received her law
degree from Harvard as well. She is a member of the Chickasaw
Nation.
Ms. Landreth, you are recognized for 5 minutes.
Ms. Perez, can you help her?
Ms. Perez. Yes.
Mr. Cohen. We have a faulty machine.
STATEMENT OF NATALIE A. LANDRETH
Ms. Landreth. Thank you very much. My name is Natalie
Landreth, I am a citizen of the Chickasaw Nation, Imatobby
family. I am here today in my capacity as a staff attorney at
the Native American Rights Fund, otherwise known as NARF. I
have held this position since 2003 and worked on voting cases
since 2006. I thank you for the invitation to speak here today,
to speak on ongoing voter discrimination in Indian Country,
because there is a lot and it is egregious.
There is a view that what are called ``first-generation
barriers''--direct impediments to polling places and access to
voting--is a thing of the past, and that view is wrong. First-
generation barriers are not gone, and this month--in support of
this testimony--the Native American Rights Fund will be
submitting a report on nine field hearings we conducted
throughout Indian Country that show the extent of these
barriers, including testimony from voters who said they were
forced to vote in an abandoned chicken coop, complete with egg
boxes remaining behind, and voters who claimed that they had
been forced to vote in a sheriff station with an armed sheriff
who ran their plates before they walked inside.
I want to address three things in my testimony today
briefly. First, I want to talk about how the loss of
preclearance has affected our work and how it is impacting your
constituents. Second, I want to talk about what previously
discovered--previously covered jurisdictions are now doing.
And, third, I want to talk a little bit about ``known practices
coverage,'' which is included in this draft of the VRAA.
First, the loss of preclearance means just that the burden
has shifted from the jurisdictions onto the voters themselves.
What I mean is that they previously had to submit them to the
DOJ, and now we have to sue to get them undone. It is
enormously burdensome, and in an average voting case, NARF
alone, a fairly small organization, will spend thousands of
hours over several years and over $1 million to stop a single
discriminatory voting change. And what ends up happening is
that because Native Americans have brought 95 voting cases,
approximately, and won 92.5 percent of the time is that these
jurisdictions end up paying our attorneys' fees and shifting
that cost onto the taxpayer so that taxpayers end up
subsidizing the discrimination that is occurring by local
officials. This tells us, the success rate, that discrimination
is real and it is ongoing.
Second, the loss of preclearance means that the previously
covered jurisdictions implemented discriminatory changes that
had previously been denied. One example is, of course, the
Arizona ballot harvesting law. The reason that was so critical
in Indian Country is that only 18 percent of Native Americans
outside of Pima and Maricopa counties actually have home mail
delivery. So what they would have to do is pool their ballots.
Neighbors would collect all of your mail and take it to the
post office at the same time, and this law turned them into
potential felons for handling a voted or unvoted ballot that
did not have their name on it.
The other thing that happened in this jurisdiction after
the loss of preclearance was that testimony indicated--and this
is currently in litigation--there was an astounding step
removing polling locations from hundreds down to about 60 in
2016. The result, according to testimony, was lines 4 to 6
hours long, and this can be found specifically in the Arizona
field transcripts that we will be providing, complete with
locations and names of witnesses.
I want to speak briefly to the fact that there are some bad
actors everywhere. We talk about how people feeling like
certain States are targeted, that is not true. The known
practices formula in--the known practices list, I should say,
in this bill will help. Let me give you an example from
California.
Somebody testified that they were unable to register to
vote in Northern California because their local jurisdiction
considered a mobile home not to be a permanent residence and,
therefore, people on this Indian reservation were not being
allowed to vote. Fortunately, Secretary of State Alex Padilla
was in the audience at the time, and we understand this has
since received some attention.
Another jurisdiction not covered whose practices would be
addressed by the known practices component of this bill: North
Dakota. A very well publicized situation, what some people
consider to be a facially neutral law that is completely false
because 24 percent of Native Americans have no ID. The court
said it best: You need an ID to get an ID in North Dakota. Most
of the elderly Native Americans were born at home, so they
don't have birth certificates from the '20s, '30s, and '40s.
And they can't get the documents they need, not to mention a
significant number of them have no access to transportation to
do that.
So I would like to close by saying that the known practices
section lists these pieces, but so does a component bill that
we have drafted based on our field hearings and the findings
therein called the ``Native American Voting Rights Act.'' We
encourage this committee and Congress to pass the VRAA and also
the Native American Voting Rights Act.
Thank you.
[The statement of Ms. Landreth follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you. Firstly, I would like to compliment
our panel, the first panel I think I have ever witnessed that
all got to 5 minutes and stopped. Great.
We will now proceed under our questioning, which is a 5-
minute rule of questions, and I will recognize myself for
questions.
Mr. Ho, you mentioned some jurisdictions where Section 2
cases have taken place since Holder, Shelby v. Holder. Where
are those jurisdictions? Are they predominantly in any
particular class of jurisdiction?
Mr. Ho. So there have been 26 successful Section 2 cases
since Shelby County v. Holder, and I define ``successful case''
as a case where either a court ruled in favor of the plaintiffs
or the parties settled and the plaintiffs got some of the
relief--some or all of the relief that they sought. I think two
things stand out when you look at what kind of jurisdictions
those cases arose from.
The first is that, of those 26 cases, I think 16 of them--
and there is a table in my written testimony that sets this
out--happened at the local level. So a majority of the
successful Section 2 litigation that we have seen happens at
the city, county, school board level. And I think what that
speaks to is the importance of the notice and transparency
requirements of the VRAA because changes to voting laws at the
local level are harder to detect. And that is something that we
lost with the demise of the preclearance regime.
The second thing is that a majority of these cases arose
from a small handful of States--and, again, they are set forth
in my testimony--that used to be covered by Section 5; and that
provides, I think, some evidence that the problem of voting
discrimination remains concentrated in particular places and
justifies particular congressional attention to those places.
Mr. Cohen. And those States, if I remember correctly, that
were in the preclearance area were all in the Old Confederacy
but for Arizona as far as States go. Is that not accurate?
Mr. Ho. As far as fully covered States go, I believe that
is right, but there were some partially covered States--
California, New York--that were not.
Mr. Cohen. And when you say partially covered, that is
because they were local jurisdictions. They happened to be in
the State.
Mr. Ho. That is correct.
Mr. Cohen. And then those were the States where most of
this Section 2 action took place.
Mr. Ho. That is correct.
Mr. Cohen. So the old expression in the song ``Dixie,''
``Old times there are not forgotten'' maybe has more of a
current ring than one would understand.
Mr. Ho. Well, I think the numbers speak for themselves.
Mr. Cohen. Yes, sir. Ms. Perez, on purges, what are some of
the reasons for purges?
Ms. Perez. There are a lot of reasons for purges. Some of
them are necessary. We want our voter rolls to be clean, so
people are removing them because people have died, people have
moved, people are no longer eligible because of a criminal
conviction.
The problem that we are seeing in this country is that
purges are on the rise. The protections that were once
available to let the public and the Department of Justice know
about purge practices that had changed or are no longer
available, and when people are purged, they often find out on
election day when it is too late.
Mr. Cohen. Are some of the purges because people have not
voted in X amount of elections or a certain period of time?
Ms. Perez. A number of States have different practices that
they use, and every State in the country that is subject to the
NVRA has a process by which, if someone is flagged for a
certain reason for removal, they can be given a notice, and if
they do not respond to----
Mr. Cohen. Let me go back to my question.
Ms. Perez. Sure.
Mr. Cohen. Do not some jurisdictions purge you because you
have not voted within the last 2 years, 4 years, 6 years, or
whatever?
Ms. Perez. There are some States that have policies like
that, yes.
Mr. Cohen. And are those States--have any particular
similarities? Are they particularly in preclearance States? Or
are they just willy-nilly?
Ms. Perez. No, sir. But one of the things that is important
about the preclearance provision is that it accounts for
changing practices, so a State could change its practice to
encapsulate more people in the purge process.
Mr. Cohen. But you said--did you not say that since Shelby
v. Holder purges have increased in preclearance States while
they have not increased in other States?
Ms. Perez. That is correct. That is correct. The States,
however, that use a policy like, for example--I am assuming you
are pointing to Ohio's and the like--that use a failure to vote
as a trigger for sending a notice and other ones are in more
places just than the Southern States.
Mr. Cohen. You are familiar with Australia where it is
required by law that you have to vote?
Ms. Perez. That is correct.
Mr. Cohen. So how do they get along? They do not have to
purge anybody, do they?
Ms. Perez. I am actually not familiar with how they--that
they enact the law, but what I think is important in this
country is that we have a continuing evidence of
discrimination, and Congress has vast authority to be able to
rectify that pursuant to its authority under the Fifteenth
Amendment.
Mr. Cohen. Ms. Gupta, since the effective suspension of
Section 5 preclearance, Holder, Shelby, what has been the pace
of litigation on Section 2, which we discussed with Mr. Ho, in
formerly covered jurisdictions compared to noncovered ones?
Have you seen preclearance States that were in the previous
Voting Rights Act be more active and have been found in
litigation to have been more active?
Ms. Gupta. Well, private litigants like my colleagues
sitting here at the table have certainly had to engage in much
greater activity in Section 2 litigation, and my colleague Dale
Ho, the chart really shows the degree to which there has been a
need for Section 2 litigation in jurisdictions that were
previously precleared or had a preclearance regime with the
Justice Department. And I also--I mean, there has been a stark
marked contrast now with the Justice Department under the Trump
administration which has not opened a single voting rights
investigation. But for the private litigants, the effort now to
become aware of hyper-local changes, which are often very hard
to detect at the national level, has become imperative to be
able to protect people's right to vote, and it is why we are
here today to urge restoration of the Voting Rights Act.
Mr. Cohen. Thank you.
Mr. Johnson, you are recognized for 5 minutes.
Mr. Johnson of Louisiana. Thank you, Mr. Chairman.
Mr. Adams, I have watched you with a very pensive
expression on your face here the last few moments. Is there
anything you want to respond to before I ask questions that--
something you have heard?
Mr. Adams. First of all, I apologize for not having a poker
face. A couple States were left off the list of States under
the old preclearance regime were covered. It is not all Dixie.
It is South Dakota. It is Alaska. It is New Hampshire. It is
Michigan. Parts of New York were covered, New York City, but
that translates into New York State when it comes to rules that
are passed in Albany related to the elections in New York. So
it is not just Mississippi and South Carolina.
Mr. Johnson of Louisiana. Thanks for that clarification. It
is not often in this era that a Federal appeals court finds
purposeful discrimination based on race in voting. But the
Ninth Circuit Court of Appeals did just that in the case you
have described.
Can you just elaborate a little bit more on the
significance of that Ninth Circuit decision and how it compares
to any other recent Federal courts--Federal appeals court
rulings of intentional race discrimination in voting?
Mr. Adams. Well, right, the case in Guam that I testified
about, you literally have on the voter registration a blood
ancestry test. It is on the form that you have to say who your
parents are. And it says you have to have the right blood
before you can vote. And the court in the Ninth Circuit ruled
that this is intentional discrimination.
Now, we often hear--and I understand that circuit courts
trump district courts, but we often hear about the surgical
precision quote. We hear that over and over on a loop. But the
reality that really bears some reading is the lower-court
ruling, which I understand was reversed, but it was a rare,
many-hundred-page factual finding that there was not
intentional discrimination. It is not often that an appeals
court reverses factual findings, but they did in that case.
Mr. Johnson of Louisiana. Has it ever been easier to vote
in this country? In other words, it seems we have made a lot of
progress on access to voting. I wonder if you would elaborate
on that.
Mr. Adams. I think there is an awareness among election
officials at the State level about the importance of making it
easier to register to vote. I have testified, I think, to this
committee or maybe it was to the Oversight Committee, that it
has never been easier to register to vote in America than it is
in 2019. It has never been easier to vote in America than it is
in 2019.
Mr. Johnson of Louisiana. When an illegally cast vote
negates the effect of a legally cast vote, that constitutes a
suppression of voting as much as any other vote suppression
efforts. Can you describe how measures to protect the integrity
of the vote are themselves measures designed to protect the
vote?
Mr. Adams. Right, and look, I don't buy the idea that you
can't get it right. Right? You can have clean voter rolls, you
can have integrity, and everybody gets a chance to vote. I
think, for example, that voter ID should be free and easy to
get, and that is why the South Carolina voter ID law should
have never been objected to by the Holder Justice Department.
In fact, there was a fail-safe mechanism, and in the end we
know what the outcome of that was, of the district court, even
though that the burdens were reversed. And that is what Section
5 does, is reverse the burdens. The district court still ruled
in favor of South Carolina and said, despite the millions of
dollars spent by the groups fighting it and saying that it was
discriminatory, the court ruled that it was not. And it is an
example of how Section 5 can be abused if it is reauthorized.
Mr. Johnson of Louisiana. I think I have time for one more
question about the Guam case. I noticed it was only the Trump
Justice Department that was willing to ultimately help Major
Davis in his case against Guam. What was going on during the
previous administration that they would not help a retired
servicemember protect his right to vote?
Mr. Adams. That is a great question, and there is not a lot
of answers except in the Inspector General report where the
Chief of the Voting Section said that they did not think the
case was ripe. Well, the Ninth Circuit put that to rest in 2015
and said that the case was ripe. We still saw 2 years of
inactivity, unwillingness, not even an amicus brief to help
this brazen voter discrimination.
If you look at the record of the Bush Justice Department,
the Obama Justice Department, and the number of cases filed,
you will see very clearly the Bush Justice Department was far
more active in Section 2 enforcement--and I have testified in
previous testimony to this committee. Section 2 enforcement
from 2009 to 2017 virtually went to sleep.
Mr. Johnson of Louisiana. I have got 30 seconds left. Why
didn't any of the other groups assembled at the table today do
anything about the cases you mentioned today? Do you have any
theory about that?
Mr. Adams. Well, I caution the committee that it is
important, if you are reauthorizing the Voting Rights Act, to
not make it partisan. And in some corners, I think that the
Voting Rights Act is viewed as a partisan weapon. In fact, a
professor, Ellen Katz in Michigan--I believe she wrote this--
even said that the Justice Department should use the Voting
Rights Act as a partisan weapon obviously against this side of
the room. And so I think that is the danger; when you see South
Carolina voter ID being attacked, that is how it is viewed.
Mr. Johnson of Louisiana. I am out of time. I yield back.
Mr. Cohen. Thank you.
Before I recognize Mr. Nadler, just so we have the facts
straight, I had made the statement about the States that were
covered, and with the exception of Arizona, which I mentioned,
the only State covered in whole outside of the Old Confederacy
is Alaska. The other States are local jurisdictions, which I
also mentioned there are local jurisdictions other places. So I
forget--I apologize for forgetting Alaska and for not knowing
about Guam.
Mr. Nadler, you are recognized.
Chairman Nadler. Thank you. I won't comment on the obvious
distraction of the Guam case, which has nothing to do with what
we are talking about and was pretty egregious.
Let me ask Mr. Ho, at our hearing last week in Memphis, the
minority witness suggested that Congress was constrained in its
ability to adopt legislation to reinvigorate Section 5
preclearance, notwithstanding its power under the Fourteenth
and Fifteenth Amendments, essentially because the current level
of discrimination is not severe enough, in his opinion, to
justify Federal interference in State and local elections and
because Congress looks at evidence of discriminatory effect and
not just discriminatory purpose.
What is your response? Is it not well within Congress'
broad constitutional authority under the Reconstruction
Amendments to determine not only the existence of
discrimination but also to assess whether such discrimination
is sufficiently severe so as to justify a Federal legislative
response?
Mr. Ho. Thank you for that question, Chairman Nadler. I
believe that Congress does, in fact, have the authority in
light of current conditions to reinvigorate the Voting Rights
Act. The Supreme Court in City of Boerne issued a decision that
creates a rule that if Congress wants to exercise its
Fourteenth Amendment enforcement powers, there must be a record
of constitutional violations. I think we have that here. And I
think that the Section 2 evidence that I referenced earlier,
although a violation of Section 2 does not require a judicial
finding of intentional unconstitutional discrimination, the
test for liability under Section 2's results test is, in fact,
quite similar to the test that the Supreme Court announced in
Rogers v. Lodge for unconstitutional voting discrimination.
We heard a little bit of commentary about the disparate
impact standard. I just want to say something about that. This
Congress adopted Section 2's results standard in 1982. It was
signed into law by President Ronald Reagan. It is not a pure
disparate impact standard. Liability depends on factors that
are similar to the factors for a finding of unconstitutional
discrimination. And it was adopted specifically because
Congress didn't want to put judges--this is in the '82
Congressional Record--didn't want to put judges in the
difficult position of having to call legislators in their
counties or in their States racist, to have to call out their
intent. But it functions a lot like an intent test, and I think
it would be a bit perverse today to look at Section 2
violations, which are intended to make it easier for courts to
strike down discriminatory laws, and say that is not relevant
in assessing whether or not constitutional violations have
occurred and whether or not stronger congressional action is
necessary.
Chairman Nadler. Thank you.
Let me ask Ms. Gupta, we heard testimony at the hearing in
Memphis last week that--and we have heard testimony all over
the place--to the effect that enforcing the law through Section
2 litigation is time-consuming, very expensive--even if you win
the case, you spend $2 million on it--and so forth. What would
you think of legislation to impose all costs, all costs, on the
defendant government if it loses a Section 2 case? All
plaintiffs' costs, not just attorneys' fees.
Ms. Gupta. Well, so just to start out, it is indeed
incredibly costly and time-consuming. I think the most
pernicious effect of the loss of the preclearance regime and
the amount of Section 2 litigation that has been required since
the Shelby County decision has actually been the number of
elections that have taken place pursuant to laws that have
later been found by Federal courts to have been enacted through
intentional discrimination as well as through violations of
constitutional and Federal law. And there is no accountability
or mechanism to actually seek that redress because those
election have taken place and voters were penalized unlawfully
for that.
But on this question of cost, it is an interesting idea. I
think one of the major issues around the loss of Section 5 has
been the inability to hold officials accountable when they do
engage even in intentional discrimination in the enactment of
laws. And so this notion of cost, some kind of shifting the
burden of cost, I think is an interesting remedy to pursue. I
don't think it is enough, though, as a substitute for
preclearance, but certainly to be able to have some deterrent
mechanisms in place such that officials kind of think twice,
hopefully the Constitution is something else that they think
about when they are enacting these laws, that it is certainly
something to be--to be researched.
Chairman Nadler. Thank you. In the 27 seconds that I have
left, would you support amending Section 1983 or use of Section
1983 to allow the Justice Department to sue local officials for
damages for voting rights violations, for deprivation of civil
rights under color of law in effect?
Ms. Gupta. Congressman, that is a really interesting idea.
I would love to come back to you with my thoughts on it.
Section 1983 is definitely a really important civil rights
statute that has been used in the police misconduct context.
And I think that there--on this issue of accountability, it may
be another tool that is at our disposal. As you know, the
Supreme Court has withered down Section 1983's protections, and
I would welcome the opportunity to talk about the importance of
strengthening Section 1983 by Congress.
Chairman Nadler. Thank you very much. I yield back.
Mr. Cohen. Thank you, Mr. Chair.
I now recognize for 5 minutes Mr. Gohmert of Texas.
Mr. Gohmert. Thank you, Mr. Chairman. And I appreciate the
witnesses' being here.
Just so that we can inform our full committee chairman who
said that the Guam information is not relevant to anything
here, the subject of this hearing is, according to the
Democrats, ``Evidence of Current and Ongoing Voting
Discrimination.'' And, you know, here is the form that was used
in Guam. It is relevant in this decade that we would have a
form like this and not one of the groups represented here would
go stand up and say this is absolutely intolerable to make
somebody go through, and even down to the mother and father,
both parents, certifying you were a native in 1950. It is
prejudicial to the groups of Chinese, Palauan, Japanese,
Ponpeiian, the Korean--all of those that were not there in
1950. And I appreciate the looks I am getting from some of our
witnesses, but it really is embarrassing that nobody stepped
up.
Mr. Christian, I recall a Black Panther intimidation case
that occurred when you were there at the Justice Department.
Were you allowed to go ahead and get judgment against those
people that were intimidating at an election site?
Mr. Adams. Well, I confess I have tried to forget about
that case, but I will do my best.
Mr. Gohmert. I am just asking----
Mr. Adams. Right.
Mr. Gohmert. Were you allowed?
Mr. Adams. The case was dismissed as to, I believe, two
defendants, a corporate defendant. I think the man--no, Mr.
Jackson--it was dismissed against two of the defendants, right.
Mr. Gohmert. And you were not allowed to pursue that; it
was dismissed?
Mr. Adams. Well, yeah, there is a long record there.
Mr. Gohmert. Well, and you mentioned this incident in Guam
where the Justice Department under the Obama administration
would not go in and say this is wrong, we can't have these kind
of forms. It does not matter what your race is. You ought to be
able to come in and vote.
Who was head of the Civil Rights Section at that time in
2012?
Mr. Adams. That is a good question. I am not sure exactly
who was the head of--the Assistant Attorney General. I know
that after--the Inspector General questions were directed
toward the Voting Section Chief, who said that ripeness was the
barrier.
Mr. Gohmert. Well, I know. You testified to that. But I
know Tom Perez was there at some point.
Mr. Adams. He may have been the AAG. I can't remember.
Mr. Gohmert. Yeah, and where is he now?
Mr. Adams. DNC.
Mr. Gohmert. Yeah, he is chair of DNC. That is right.
Now, our chairman of the full committee called them
``draconian voter ID laws,'' and I know--he is apparently not
aware, but I know I read in 2012 the Democratic National
Convention would not allow anyone to come in and vote unless
they had, in their words, a State-issued ID. Wow. The
Democratic National Convention is using and has used in this
decade a draconian voter ID requirement. That is incredible.
Having gone through John Fund's book, ``Stealing
Elections,'' John Fund makes the point that the greatest
election fraud is the statement that there is no election
fraud. It has gone on for years, for those that don't know. You
can go back and look at Duval County in Texas or Cook County in
Illinois. It has gone on, and there are places it still goes
on. And anytime we allow people to vote without showing some
evidence that they are allowable to vote, it disenfranchises
all of the legally voting people, and people that vote more
than once.
Anyway, there are a lot of problems that need to be dealt
with, and it is just amazing to me. Let me tell you, back when
this was reauthorized, I wanted to vote for the voter--for the
VRA. It needed to be reauthorized. But none of you have brought
up it had a formula that required punishing States for what had
happened 50 years before. Generations were being punished. And
I went to the Republican leader at that point of this
committee, Mr. Sensenbrenner, and as I recall, there was a
district in Wisconsin that had racial disparity. And he said,
``We are not changing that 50-year-old formula. We are going to
keep punishing the original States.''
And I went to John Conyers, and he was very gracious. And
he said, ``Louie, let me talk to some people.'' And he did. He
said, ``You got a good point, but we are going to be able to
get it passed. Let's let it go to the courts.'' I said, ``It is
going to be struck down,'' and I named some very liberal
people, including the dean from the New York Law School had
just left there, and he said, ``Yeah, it has got to be struck
down. It is unconstitutional.''
For those that were not aware, we should not be punishing
generations for the sins of 50-year-before generations. That is
where we ought to be able to come together. Let's deal with
racial disparity where it is and then allow Section 5 in those.
But I was not allowed to have that as an amendment. That is why
we are here with you blaming Shelby County.
I yield back.
Mr. Cohen. Thank you.
Mr. Raskin, you are recognized.
Mr. Raskin. Mr. Chairman, thank you very much.
Mr. Ho, we just heard from my thoughtful colleague about
how Southern States were punished under the Voting Rights Act.
He repeatedly used the word ``punishment.'' Was there any
punishment in the Voting Rights Act before the Shelby County
case? Did anybody go to jail? Was anybody imprisoned because of
voting rights violations?
Mr. Ho. There was certainly no punishment in the way that
you have described it, Congressman Raskin. And I just want to
say in response to Congressman Gohmert's comments, I appreciate
the comments about the need to have a preclearance provision
that reflects current conditions, and I think the Voting Rights
Advancement Act, which is based on findings of recent voting
rights violations, does precisely that, and I hope we can come
together and pass something. And I appreciated your support for
the Voting Rights Act in 2006, and I hope to see your support
for stronger voting rights protections today.
Mr. Raskin. Ms. Gupta, let me come to you. If somebody robs
a bank or a gas station, they are going to be prosecuted and go
to jail for that if they are convicted. Today in the wake of
Shelby County v. Holder, if a State engages in a deliberate
effort to suppress voting rights or to keep people from voting
or to dilute the votes of a minority group, what happens?
Ms. Gupta. Well, as we said, often getting to those
decisions or determinations where Federal courts will actually
declare that takes years of litigation.
Mr. Raskin. Right, so many years later, after the offense
has taken place, what would happen to them?
Ms. Gupta. There is no accountability for the State
officials that enacted laws that were found to be racially
discriminatory after the fact.
Mr. Raskin. Nobody goes to jail, right?
Ms. Gupta. Nobody goes.
Mr. Raskin. There is actually no punishment. But what about
the actual voting rights violations that took place--
Mr. Gohmert. Will the gentleman yield?
Mr. Raskin [continuing]. In the meantime? Well, I only have
4 minutes. I mean, I would be happy to do it at the end if I
have got time left over. But what happens in the meantime? In
other words, you go to--now in the absence of the preclearance
requirement, you go to court. Many years later, maybe you get a
ruling on your behalf. In the meantime, there have been all of
these elections that have taken place with the voting rights
violation in force. So what can be done retroactively to make
the democracy whole?
Ms. Gupta. There is nothing. Voters have essentially been
disenfranchised while elections have taken place.
Mr. Raskin. Okay. So let's be very clear about this. When
the Supreme Court wiped out the preclearance requirement
because of the coverage provision in Section 4, essentially
what it did was knock the teeth out of the Voting Rights Act
because there is nothing to keep a jurisdiction now from
engaging in a voting rights violation because nobody is going
to go to jail for it. And even if the people who bring the
case, the plaintiffs, win several years later, all that you
would get is an order to stop doing it in the future. In the
meantime, you have had all these elections that have
essentially been fixed by the fraud of voting rights
suppression, dilution, discrimination, and so on.
Mr. Johnson, let me come to you. Before leading the
national NAACP, you were president of the Mississippi
Conference, am I right? Which Mississippi has the highest
percentage of African Americans than any State in the Union,
yet the State has not elected an African American statewide in
more than 130 years, since Reconstruction. In fact, the
Mississippi Constitution requires candidates for statewide
office to win not only more than 50 percent of the popular
vote--or, actually, a plurality of the popular vote, but also
more than half of the State's 120 legislative districts, two-
thirds of which are majority white. Do I have that right?
Mr. Johnson. That is correct.
Mr. Raskin. Okay. Now, if a candidate doesn't meet both of
those conditions, winning a majority in the election and then
winning more than half of the State's legislative districts,
then the State House chooses the winner, regardless of who got
the most votes. Do I have that right?
Mr. Johnson. That is correct.
Mr. Raskin. Okay. And this is being challenged in court
right now.
Mr. Johnson. That is correct.
Mr. Raskin. I assume that is right.
Now, why was this constitutional requirement put into place
in the first place? What was its historical origin?
Mr. Johnson. Much of Mississippi's electoral policy was--is
derived out of the Constitution of 1890. That Constitution was
after a period we call ``redemption,'' when former Confederate
soldiers and politicians took back control of government. As a
result of that, they put in place systems to suffocate the
ability of African Americans to fully participate, not only the
grandfather clauses and other literacy tests but additional
barriers, because then, as it is now, Mississippi had the
highest percentage of African Americans, and they wanted to
keep in place----
Mr. Raskin. Let me just ask you, because my time is running
out, how has the corresponding lack of African American
representation statewide affected the social, economic, and
political rights in development of the African American
community?
Mr. Johnson. Not only is Mississippi the poorest State in
the Union, but it underfunds much of the basic needs of African
Americans and Mississippians as a whole. We have the poorest
education systems, the poorest structures, and that is a result
of the lack of representation of all citizens of the State
because of these electoral barriers.
Mr. Raskin. Thank you. I yield back, Mr. Chairman.
Mr. Cohen. Thank you. Thank you, sir.
Mr. Cline, the successor in interest to Mr. Goodlatte, and
before that, what was the gentleman's name that was--Caldwell
Butler.
Mr. Cline. Well, Jim Olin came between them. He was on your
side. But----
Mr. Cohen. Well, Caldwell Butler is the one I so well
regard.
Mr. Cline. Thank you, Mr. Chairman.
I am very interested in Mr. Adams' testimony about the
events that were occurring in Virginia, and I want to ask him
about that. But, first, I really am shocked to hear that this
type of activity that occurred in Guam is occurring in the 21st
century. And just to make it clear, let me go down the row
really quickly and just a yes or no. Ms. Gupta, would you agree
that that type of discriminatory election is unacceptable in
the 21st century in the United States?
Ms. Gupta. Congressman, I unfortunately cannot speak to a
matter that was under investigation during my full tenure in
the Justice Department.
Mr. Cline. Okay. Mr. Johnson, yes or no. Unacceptable?
Mr. Johnson. Well, I don't know much about the case, but if
there is grandfather clauses or blood tests, that is something
that we oppose.
Mr. Cline. Okay. Mr. Ho?
Mr. Ho. The Ninth Circuit appropriately found a violation
of the Fifteenth Amendment.
Mr. Cline. Appropriate. Thank you. Keep going. Yes?
Ms. Perez. Myrna Perez. I am hesitant to answer too
definitively given the reimagination of some of the cases that
we have heard here today. But I will say that if the facts as
presented suggest a grandfather clause, we would be opposed to
it.
Mr. Cline. Ms. Landreth?
Ms. Landreth. I am not going to opine on a case that I know
nothing about, but, frankly, I wanted to add that I find it
embarrassing that almost half this House doesn't seem equally
as disturbed by Native Americans voting in chicken coops and
driving 98 miles one way to register. I would like you to focus
on that for a while.
Mr. Cline. I am focused on a form that was displayed that
is blatantly discriminatory in its application for an election
in a territory of the United States in the 21st century. And it
is disturbing that I cannot get more unanimity that it is
unacceptable.
Now, Mr. Adams, you talked about Virginia. You talked about
the motor-voter law and how it contributes to noncitizens not
only getting on our voter rolls but also the improper
elimination of citizens from Virginia's voter rolls. Can you
elaborate on that and what we can do about it?
Mr. Adams. Thank you, Mr. Cline. My organization has been
data mining all around the country the process of noncitizen
cancellation, and we have found and published multiple reports
in Pennsylvania, for example, frankly of immigrants and green
card holders who were inadvertently getting on the voter rolls.
Right? This is not a conspiracy. This is a glitch. And in
Pennsylvania's case, it was a glitch that affected the entire
Commonwealth for 20 years. And what is happening is when they
vote, they jeopardize their immigration status.
In Virginia, the problem was even worse than noncitizens
getting on the rolls. It was citizens actually being canceled
through the citizenship process in Virginia. Individuals who
were American citizens were being declared noncitizens by the
State election officials and being removed from the rolls. This
is a problem that Congress needs to address because the motor-
voter system is broken. It is not working because of technology
changes in the last 30 years since motor-voter--25 years since
it was passed.
So it is important, I believe, that only citizens be on the
rolls, and there are easy ways to fix that. Cooperate with
State officials, Federal Government and State officials
cooperate to, post-registration, verify citizenship. Allow
States to do some form of citizenship verification that is
nonintrusive. It is easily solved.
Mr. Cline. Mr. Chairman, I yield back the balance of my
time.
Mr. Cohen. Thank you, Mr. Cline.
Ms. Scanlon, you are recognized.
Ms. Scanlon. Thank you.
The ranking member suggested in his opening remarks that
evidence of disparate impact is not proof of discrimination,
and I have to differ based upon our experience in the
Commonwealth of Pennsylvania. Almost a decade ago,
Pennsylvania's Republican-controlled legislature and executive
passed a number of voter suppression measures which have since
been struck down, including a strict voter ID law and some
wildly gerrymandered electoral maps.
Now, this legislation was facially neutral, but it had a
disparate impact upon voters who were poor, elderly, women,
residents of cities, people of color--in other words, voters
who were overwhelmingly Democrats. I would submit that that
disparate impact was evidence of identity politics of the most
pernicious kind, which is trying to suppress the votes of
citizens on the basis of their political identity as Democrats.
In challenging the voter ID law in particular, advocates
were fortunate in being able to uncover a recording of the
House majority leader bragging to the statewide Republican
Committee that his legislative accomplishments included--and
this was 2012--``voter ID, which is going to allow Governor
Romney to win the State of Pennsylvania.''
So I am not so naive as to believe that those who would
suppress the vote will always be so indiscreet. So I would like
to ask, Ms. Perez, can you address what kind of evidence we use
to show disparate impact to show that there is actual
discrimination occurring in these cases?
Ms. Perez. Certainly. Under Section 2 we have what many of
us call a ``disparate impact plus standard'' whereby Congress
in its wisdom set forth a series of factors that are designed
to smoke out intentional discrimination because folks are
exactly, as Member Scanlon noted, a little bit more discreet.
And that evidence is, in fact, probative of what people are
intending to do if they felt like they could get away with it.
In addition, we have the continuing evidence of current
conditions which would justify Section 5 of the Voting Rights
Act and a reauthorzied Voting Rights Act that includes a
coverage formula that is rolling, dynamic, and looks at a
number of factors, both geographically and in terms of
conditions that cause problems. So taken together, a Voting
Rights Act which has a robust Section 5, a modern Section 4,
and a strong Section 2 will go a very, very long way in rooting
out racial discrimination.
Ms. Scanlon. Okay. Thank you.
Ms. Gupta, when Acting Attorney General Whitaker was here
in February, I think, I asked him whether the Trump Department
of Justice had brought any voting rights enforcement actions,
and he was unable to recall that. Is it your testimony that the
Trump administration has not acted to protect voting rights in
any case since January 2017?
Ms. Gupta. That is correct.
Ms. Scanlon. That is what I thought.
Ms. Gupta. Congresswoman, if you wouldn't mind, if I can
just very quickly respond to something that is just somewhat
galling at the table at the moment, something that Mr. Adams
said. Those of us at this table know that Mr. Adams recently
had to enter a settlement agreement in which he was actually
forced to apologize for reports that contained inaccurate
information about specific individuals removed from voter rolls
in Virginia, the matter he was just talking about, allegedly
because they were noncitizens. And I feel like it is important
to also put that into the record.
Ms. Scanlon. Thank you.
One more follow-up question. Location and accessibility of
polling places has been an issue in my district, and toward
that end we introduced the Disability Voting Rights Act, which
passed with H.R. 1 and would make it easier for individuals
with disabilities, including seniors and veterans, to register,
obtain absentee ballots, and access polling places.
Can you describe how the locations of polling stations and
their degree of accessibility present voting rights challenges
for disabled and minority communities? And I think you have got
some material about this in your new report that just came out.
Ms. Gupta. We do. There has been a lot of enforcement on
the part of both private organizations and the Justice
Department in prior administrations around the lack of
accessible polling places, and so there is a lot of work to be
done. That has been a rigorous area of our work.
I will say, though, that it is important to note that
closing polling places because of ADA noncompliance really
should be something of last resort because there are many ways
to actually make polling places more accessible, including
things like creating ample parking for temporary signage, you
get same-day modifications that can be made, building temporary
ramps and the like. And in a number of instances, that is
exactly how accessibility has been improved without resulting
in the need to close polling places to begin with.
Ms. Scanlon. Okay. Thank you. I yield back.
Mr. Cohen. Thank you.
Mr. Armstrong, you are recognized for 5 minutes, sir.
Mr. Armstrong. Thank you, Mr. Chairman. And, Mr. Adams, I
guess if we are going to enter stuff on the record, I would
give you an opportunity to--I know you talk about it a little
bit in your written testimony, so I will give you an
opportunity to respond.
Mr. Adams. Thank you, Mr. Armstrong. Indeed, I discuss this
at some length in my written testimony. Ms. Gupta's assertion
that Mr. Adams was forced to apologize is flatly wrong. Mr.
Adams chose to apologize for our organization relying on
government election records which stated that noncitizens in
Virginia were being removed from the rolls when, in fact, we
discovered that those were actually citizens.
I would note that Ms. Gupta's organization has done
absolutely nothing about citizens being removed from the voter
rolls; whereas, our organization is attempting to fix the
problem. That was part of a settlement in a case. Nobody was
forced to do anything, and there was no finding of any
liability.
Mr. Armstrong. Thank you. And then I just want to go into
this motor-voter issue a little bit, primarily because, I mean,
we are dealing with oftentimes people who English is not their
first language and continue to move through this, and by
automatically getting added to the rolls--I mean, we run into
these election cycles. They get unbelievably competitive. It
doesn't matter if it is Democrats or Republicans. People are
running hot. Volunteers are out there.
But there is another part to this, and then I will back up
and tell a North Dakota story here in a second. But, I mean, if
they register to vote or get into those situations, I mean,
doesn't that impact their ability to become a citizen later?
Mr. Adams. Absolutely. It is Question 12 on the INS form,
and Question 12 says, ``Have you ever registered to vote? Have
you ever voted?'' And what is happening that we are finding
through public records requests is that those individuals who
were not citizens who got caught up in this broken motor-voter
system are jeopardizing their immigration status.
Now, you would think everybody would care about that. But
as we have seen today, that is not the case. What is happening
is they are jeopardizing their immigration status, so both
noncitizens are getting on the rolls, they are voting. We have
been harvesting sort of their ``please take me off the rolls,''
their self-deportation from the voter rolls, if you will, where
they thought they were registering for something else. They
didn't understand the form. It wasn't in the language in
Allegheny County, Pennsylvania, that they spoke because it is
not covered by 203. And so the system has flaws in it that we
are attempting to catalogue and to fix. Occasionally, there is
glitches on the way like relying on Virginia for, we would
assume, not be removing citizens, but they are.
Mr. Armstrong. And so my wife is not a citizen. She is a
permanent resident alien, and she comes from Norway, and it is
a little different situation. But in a State that doesn't have
voter registration--and they have attempted to deal with this
at the State legislature. Her ID looks identical to mine. I
mean, it is absolutely--and there is no situation that would--I
mean, it is absolutely an honor system, and we continue to work
through it. And so obviously she is married to a politician,
which we can judge her for that in her own right. But, I mean,
we know the laws, and we know where it is at. But she could
walk in and vote in North Dakota at any point in time she
would, and the election people wouldn't know the difference. I
mean, that is just--now, we are different. We are the only
State in there without voter registration, so--but it really
truly is an issue.
And then I would just--I am going to end this, and I agree,
we need to make it easier to--I am getting a bunch of calls on
REAL ID in North Dakota right now because, as is all things,
people wait until the absolute last minute. We need to make it
easier for people in situations, whether they are Native
Americans or elderly in general, to be able to prove their ID
and work for it.
And I would also just like to say regarding--I mean, there
was a preliminary injunction issued in the North Dakota case.
It was overturned by the Supreme--or the Eighth Circuit. The
Supreme Court chose not to take it up, and there was a
mechanism and timing as to when that decision came out that
made it incredibly problematic in the 2018 election. And
regardless of policy or anything like that, I believe this,
that the organizations who went to work and activated on the
Native American reservations in North Dakota to ensure that
people did get IDs and vote because they turned out--regardless
of how difficult it was, they turned out in absolute record
numbers in 2018, and it shouldn't be that hard to get an ID,
and we should continue that, particularly with older people.
And the birth certificate thing is a real issue, and it is a
real issue in rural America, and it is exponentially--I mean,
it is magnified on the Native American reservations, and I
recognize that. But they should be commended--and I know this
full well. Most of them didn't vote for me, and they should be
absolutely commended for what they got done in a short period
of time.
So, with that, I yield back.
Mr. Cohen. Thank you. Mr. Armstrong, if you don't mind, how
do you do it in North Dakota? If you don't have voter
registration, is everybody just on the rolls? How do you do it?
Mr. Armstrong. Yes, sir, and we have a 30-day residency
requirement, and all you have to do is show an ID, which is--I
mean, a point of consternation, but there is no voter
registration. You have to have a valid ID and proof of address.
Mr. Cohen. And just for the record--and I think we should
mention--I have had a lot of constituents be concerned that the
new Government ID requirement is something to do with stopping
people from having the right to vote. That is not at all true,
is it?
Mr. Armstrong. It is not true. We are running into a lot of
problems. One, I think, in fairness, people wait until the last
minute to go get their ID, and so there is long delays. I mean,
they have had the opportunity to do it. And providing the
documentation to get the REAL ID versus your regular driver's
license--I think this is the same fairly across the country--is
proving to be cumbersome.
Mr. Cohen. Thank you. Is it the Lamoureux sisters that were
the hockey stars?
Mr. Armstrong. Yes.
Mr. Cohen. They were in Memphis last week and represented
North Dakota well.
Mr. Armstrong. We are proud of them.
Mr. Cohen. I am sure you are. Thank you.
To the panel, does anybody on the panel think that the new
Federal ID law about having--has anything to do with stopping
people from voting?
[No response.]
Mr. Cohen. Good. Ms. Dean, you are recognized.
Ms. Dean. Thank you, Mr. Chairman.
You know, we are in awfully anxious times in our democracy,
and so when I have that fear overcome me, I try to remind
myself of a quote that I like from Thomas Jefferson. He said,
``Should things go wrong at any time, the people will set them
to rights by the peaceable exercise of their elective rights.''
So that gives me some consolation, except when we have
conversations like we are having today and when we have a
history of what we have seen today. How can the people truly
right a wrong when their elective rights referred to by Thomas
Jefferson are attacked, are weakened, are thwarted in many,
many ways?
Ms. Gupta, I would like to start with you. You mentioned
several common tactics we have seen since the Shelby decision:
barriers to voter registration, cuts to early voting, purges of
voter rolls, strict photo identification, last-minute polling
place closures or consolidations. Can you tell us of the
frequency of some of these implementations? I am thinking if we
reflect back on 2018 and also your concerns for 2020.
Ms. Gupta. Yes, thank you for the question. We just today
actually released a report, the Leadership Conference Education
Fund, about the number of poll closures around the country
since the Shelby County decision and found that 1,688 polling
place closures happened since the Shelby County decision in
jurisdictions that were previously covered by Section 5 of the
Voting Rights Act. These are the kinds of hyper-local changes
that would have required preclearance by the Justice
Department, not because they were automatically going to be
deemed as racially discriminatory but actually to allow for
analysis and evaluation of whether it would create a disparate
impact on voters of color or language minorities, but also to
provide notice, advanced notice to voters about where these
places have been moved.
There is an abundance of evidence through litigation that
my colleagues have mentioned that has taken years to really
kind of uncover around discriminatory practices in voting and
election administration that add to the current record of
contemporary, ongoing, systemic racial discrimination in
voting.
Ms. Dean. Thank you for that.
Ms. Landreth, in addition to polling--poll closures, what
are some of the other voting problems that we have seen across
the country that H.R. 4 would address?
Ms. Landreth. Well, I think there is a couple of things.
One is that H.R. 4, if I am not wrong--and it depends on how
you count jurisdictions--it would end up protecting over 20
percent of tribes in the United States from retrogressive
polling practices because it would cover, I believe--and,
again, we would have to check this, and it depends on how you
count--California, which has over 100 tribes; New York, which
has eight tribes; and then the Mississippi Choctaw would also
be protected. They have ten also sub-jurisdictions covered for
Section 203. So it would prevent retrogression for fully 20
percent of Native American tribes.
But the known practices piece would prevent the vote
dilution that we commonly see in Indian Country where they
switch these jurisdictions to at-large in order to make sure
that you never get a seat that represents you and your
community, even if it is sizable, and particularly the polling
place closures, because that is one of the things that we find
in Indian Country that is very unique.
I am not sure that anyone here is familiar with this, but a
lot of tribes are told if they want a polling place, they have
to pay for it. I would like you to try that. I would like you
to go to constituents in Atlanta or New York or anywhere in
California and tell them, ``If you want a polling place, you
need to give us $25,000 for it.''
Ms. Dean. And who is saying that? Who is suggesting that
they would have to pay for it?
Ms. Landreth. There are several well-known cases that I
believe--and subject to your perjury limitation, let me say I
am not 100 percent sure, so I am going to have to correct this
on the record, but these were cases, I believe, in Blaine
County, Montana, as one example; and the other would be South
Dakota cases where it had become commonplace to say, ``We do
not have enough money for elections.'' These cases may have
been resolved now, but this is an issue where, if you go to a
jurisdiction and say, ``Our tribe wants a polling place on
tribal lands,'' mostly you will be refused----
Ms. Dean. Okay.
Ms. Landreth [continuing]. On the grounds of cost. And then
they will say, ``You pay for it. You provide the poll workers,
you give the space, and maybe we will let you have one.''
Ms. Dean. That is stunning.
Ms. Landreth. So protecting that would be hugely valuable.
Ms. Dean. That is incredibly un-American.
Mr. Johnson, I just have a few seconds left. I am a former
member of the Pennsylvania Legislature. I came in in a special
election in 2012, right after voter ID. I saw personally the
consequences going around my district and trying to help
elderly people, young people, the barrier of birth certificates
and all of the rest. So could you please explain how photo
identification requirements bar Americans from exercising their
rights to vote?
Mr. Johnson. Sure, in negative 10 seconds.
Ms. Dean. Sorry.
Mr. Johnson. We have never found an individual seeking to
vote under an assumed name. It creates an additional barrier
that is not necessary, particularly for Southern rural
precincts. Everyone knows each other. There are very few cases
of someone walking to the polling place and the poll workers
don't know the individuals, on top of the fact that there has
not been any true evidence of someone trying to voter under an
assumed name. So you create an additional barrier or you create
a chilling effect to voting.
Ms. Dean. That is right. Thank you very much. I see my time
has expired. Thank you very much.
Mr. Cohen. Thank you, Ms. Dean.
And now, patiently having waited, Ms. Garcia.
Ms. Garcia. Saving the best for last, Mr. Chairman. Thank
you.
First, let me begin by responding to something that my
colleague from Texas said, disparaging my home county where I
was born, Dual County, because he seemed to suggest that there
was voter fraud there for many, many years and it is still
going on, and that is simply not true. South Texas, including
my birth county and my home county of Jim Wells, have made
great efforts to clean all that up. And I have not heard, seen,
or been witness to any voter fraud in either one of those two
counties--my birth county or my home county.
Of course, I am elected from Harris County, and I am not
going to belabor the point other than to say that I believe
that the witness has sort of mischaracterized a bit of his
lawsuit against Harris County and access to some of the
materials that he was after. But I do not want to get into that
because, as Lyndon Johnson said, there is no more important
right under the Constitution than voting, because who you vote
for then determines the freedoms and the liberties that you get
from all the other constitutional rights.
So, Mr. Chairman, thank you for bringing us together to
talk about this topic, and as one who has been the recipient of
a purging letter, all this is very personal to me. I have been
turned away from the polls. I have been--gone to a poll that
wasn't there. I have been to a poll where machines weren't
ready. And you can look at me. You know, I don't look Mexican,
so you know it is based on the surname, Garcia, the data that
you are after, sir. So please know that I take this not only as
an advocate for my district, but for myself and my family and
my friends.
So I wanted to start with you, Ms. Perez, on this purging
letter issue. What really can we do to stop these letters from
going--almost threatening that if you don't do something, your
name is going to get purged? Or how do we stop this flawed data
that is sometimes given, as it was in the Texas case that you
cited, where the information was just wrong and all those
people who were supposedly thousands of people who were
registered or maybe registering was just not true? So how do
we--what can we do from here in Washington in our Federal laws
to make sure those things just stop?
Ms. Perez. Thank you, Member Garcia. I am also from the
great State of Texas, and I think Texas is a ripe example of
the need for a robust preclearance regime because Texas is one
of these jurisdictions that keep popping up in terms of
election problems. In addition to making it harder for groups
to go out and register people to vote, they have a strict photo
ID law that many of us had to spend 5 years challenging. There
is aggressive prosecutions of folks who run afoul of some of
the election laws. There is attempts at voter purges. It seems
like at every step----
Ms. Dean. But what do we do? The question is----
Ms. Perez. What we can do with purges is ensure that there
is a strong preclearance regime that would require that changes
to the preclearance process get precleared so that it didn't
have a discriminatory impact or discriminatory effect. We can
have stricter compliance with the National Voter Registration
Act. We can have greater public education to ensure people to
check their voter registration status. And we can inform
election administrators that when they receive threatening
emails from groups who are trying to pressure them into
aggressively purging the voter rolls, that they know that the
Federal Government is there to protect them.
Ms. Dean. Thank you.
Mr. Ho, on some of the testimony that you presented, I know
that you talked a lot about some of the cases and the cost of
litigation. You quoted 5 million. Is that an average for ACLU?
And, also, is there anything else that you wanted to respond
to, any of the testimony from the gentleman to your left?
Mr. Ho. Sure. Five million was in reference to the court-
ordered award of attorneys' fees and costs in the North
Carolina litigation that you have heard a lot about today. It
was certainly, I think, a more expensive and time-consuming
case than is average. So I don't want the committee to think
that that is the average Section 2 case. It is certainly on the
more expensive side.
I just want to say one thing and make the record ----
Ms. Dean. Do you have an average?
Mr. Ho. I don't.
Ms. Dean. You don't? Okay.
Mr. Ho. I think the record should be clear that it is very
remarkable, I think, that Mr. Adams is in here today claiming
credit for protecting voters in Virginia. His organization
published a report titled ``Alien Invasion'' with a UFO on the
cover, hyping a supposed ``cover-up of noncitizen
registration'' in Virginia. The report published the names and
contact information of voters who were United States citizens,
including a Los Angeles-born employee of the USCIS named Luis,
claiming that they were noncitizens and accusing them of
committing felonies, despite warnings----
Mr. Adams. Not true.
Mr. Ho [continuing]. From Government officials that the
list he used contained false positives.
Mr. Adams. It is not true.
Mr. Ho. He was sued for defamation by those voters, and it
takes, I think, extraordinary chutzpah for him to come in here
and claim that he protected United States citizens.
Ms. Dean. Thank you clearing the record. I yield back.
Mr. Cohen. Thank you, Ms. Garcia.
I appreciate all the witnesses today and all of the
testimony. I think it is a valuable hearing on the importance
of the voting rights bill we have before us to set up a new
standard in Section 4 and reactivate--restore Section 5 of the
Voting Rights Act. So I thank each of you.
This concludes today's hearing. I want to thank all of our
witnesses for appearing today. And I want to thank the minority
for educating me about Guam. That is something I didn't know
about. Very important.
Without objection, all members have 5 legislative days to
submit additional written questions for the witnesses or
additional materials for the record, and the hearing is
adjourned.
[Whereupon, at 11:56 a.m., the subcommittee was adjourned.]
APPENDIX
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Items for the record submitted by Myrna Perez: https://
docs.house.gov/meetings/JU/JU10/20190910/109895/HHRG-116-JU10-
20190910-SD003.pdf.
Arnold Davis v. Guam Opinion: https://docs.house.gov/
meetings/JU/JU10/20190910/109895/HHRG-116-JU10-20190910-
SD001.pdf.
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