[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
HISTORY AND ENFORCEMENT OF THE VOTING RIGHTS ACT OF 1965
=======================================================================
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
__________
MARCH 12, 2019
__________
Serial No. 116-9
__________
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
39-667 PDF WASHINGTON : 2020
--------------------------------------------------------------------------------------
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia
Vice-Chair KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana,
ERIC SWALWELL, California Ranking Member
MARY GAY SCANLON, Pennsylvania LOUIE GOHMERT, Texas
MADELEINE DEAN, Pennsylvania JIM JORDAN, Ohio
SYLVIA R. GARCIA, Texas GUY RESCHENTHALER, Pennsylvania
VERONICA ESCOBAR, Texas BEN CLINE, Virginia
SHEILA JACKSON LEE, Texas KELLY ARMSTRONG, North Dakota
James Park, Chief Counsel
Paul Taylor, Minority Counsel
C O N T E N T S
----------
MARCH 12, 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................ 4
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 6
The Honorable Doug Collins, Ranking Member, Committee on the
Judiciary...................................................... 8
WITNESSES
Catherine Lhamon, Chair, U.S. Commission on Civil Rights
Oral Testimony............................................... 11
Prepared Testimony........................................... 13
Thomas Saenz, President and General Counsel, Mexican American
Legal Defense and Educational Fund
Oral Testimony............................................... 18
Prepared Testimony........................................... 21
Peyton McCrary, Professorial Lecturer in Law, George Washington
University Law School
Oral Testimony............................................... 27
Prepared Testimony........................................... 30
L. Paige Whitaker, Legislative Attorney, American Law Division,
Congressional Research Service
Oral Testimony............................................... 65
Prepared Testimony........................................... 67
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Item for the record submitted by the Honorable Mike Johnson,
Ranking Member, Subcommittee on the Constitution, Civil Rights,
and Civil Liberties............................................ 79
APPENDIX
Items for the record submitted by Peyton McCrary, Professorial
Lecturer in Law, George Washington University Law School....... 122
Item for the record submitted by the Honorable Steve Cohen,
Chairman, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 138
Statement for the record submitted by the Honorable Sheila
Jackson Lee, Subcommittee on the Constitution, Civil Rights,
and Civil Liberties............................................ 139
HISTORY AND ENFORCEMENT OF THE VOTING RIGHTS ACT OF 1965
----------
TUESDAY, MARCH 12, 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 10:05 a.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Cohen
[chairman of the subcommittee] presiding.
Present: Representatives Cohen, Nadler, Raskin, Scanlon,
Dean, Garcia, Escobar, Jackson Lee, Johnson of Louisiana,
Collins, Gohmert, Jordan, Reschenthaler, Cline, and Armstrong.
Staff Present: James Park, Chief Counsel; Keenan Keller,
Senior Counsel; David Greengrass, Senior Counsel; Madeline
Strasser, Chief Clerk; Will Emmons, Professional Staff Member;
Paul Taylor, Minority Counsel, and Andrea Woodard, Minority
Professional Staff Member.
Mr. Cohen. Good morning, everyone. The Committee on the
Judiciary Subcommittee on the Constitution, Civil Rights, and
Civil Liberties will come to order.
Without objection, the chair is authorized to declare
recesses of the subcommittee at any time.
I welcome each and every one of you, panelists and
visitors, to today's hearing on the history and enforcement of
the Voting Rights Act of 1965. I will now recognize myself for
an opening statement.
The right to vote is the most fundamental right of
citizenship in our democracy. Everything rests upon the voter
and the constituent. Yet for most of our Nation's history, too
many of our citizens, and particularly African Americans, were
denied this most basic right, especially in my home district of
the Deep South.
In large measure, it took an historic march and before
that, an attempted march thwarted by the Alabama State
Troopers, led by our own John Lewis, later joined by Dr. Martin
Luther King, from Selma to Montgomery, to bring the Nation's
attention to the horrific conditions faced in Alabama and
throughout the South in denying people the right to vote and
even to protest, to march. This protest really led to our
Congress passing the Voting Rights Act.
On August 6, 1965, our Nation took that momentous step
toward correcting the injustice when President Johnson signed
into law the Voting Rights Act. John Lewis was there to witness
that historic occasion.
One hundred years after the Civil War, 100 years after the
Civil War, it took America to pass a Voting Rights Act to see
to it that African Americans were not discriminated against.
How many coins could be put in a bottle of water? Unless you
could tell exactly how many coins might have been in a bottle
of water, you couldn't vote in Alabama, Mississippi, other
States in the South for 100 years.
It is because of the recent developments that we have seen
in our country with our Supreme Court having ruled a Voting
Rights Act unconstitutional and the failure to be able to pass
an act in the most recent Congress to renew it, that this
subcommittee will dedicate itself this Congress to, among other
things, restoring those protections by reinvigorating
enforcement of the Voting Rights Act, including through the
revitalization of its most important enforcement mechanism,
Section 5 preclearance provisions.
It is astonishing to me, as someone who witnessed, as a
young person, the signing of the Voting Rights Act and the
historic significance that that had in our country, the Civil
Rights Act of '64 and the Voting Rights Act of '65, that here
we are nearly 50 years later, over 50 years later, and we are
dealing with it still.
This hearing is the first in a series of hearings on the
Voting Rights Act before this subcommittee. Our focus today is
on the history and enforcement of the act. We must understand
how we arrived at this point in history so we can discern our
best path forward.
Before the Voting Rights Act, the state of voting rights in
the Deep South was, I have described, abysmal. That is probably
the high point. In the mid '50s, more than 80 years after
adoption of the Fifteenth Amendment, which prohibits States
from denying citizens the right to vote on account of race,
color, or previous condition of servitude and gives Congress
the power to enforce this prohibition, only one in four
eligible African-American voters in the South was registered.
That was 80 years after the passage of that constitutional
amendment.
This low number was the result of decades of backlash
against political participation by African Americans, beginning
after the Civil War and given a booster shot by Jim Crow and
the awful 1876 presidential compromise. This backlash included
political violence by the Klan and others who kept black voters
away from the polls with guns, whips, lynching, and
intimidation at all points.
After Reconstruction, short lived, Southern States enacted
numerous measures to disenfranchise African-American voters as
part what came to be known as ``Jim Crow.'' These measures
included poll taxes, literacy tests, the disqualification of
convicts from voting, and many other measures designed to block
African Americans from voting.
And I should mention also the construction of many statues
venerating Confederate heroes as a symbol in many town squares
and public areas to say to blacks, ``Don't you even think about
asserting your rights because we are still in charge.'' That is
what those statues meant.
As a practical matter, these tactics, combined with
Congress' inaction, denied African Americans the right to vote,
notwithstanding the Fifteenth Amendment's guarantee of equal
voting rights. After almost a century, with the substantial
efforts of the civil rights movement, Congress finally asserted
its Fifteenth Amendment authority, passed the Voting Rights Act
with Lyndon Johnson as President.
One of the key features was the Section 5 preclearance
requirement. Under this requirement, certain jurisdictions,
predominantly in the Deep South, that had a history of
discriminatory voting measures were required to obtain the
approval of the Justice Department or a three-judge panel
before any proposed changes to voting practices or procedures
could take effect.
The preclearance requirement was crucial to vigorous and
effective enforcement of the act's guarantee of equal voting
rights. It prevented widespread harm to minority voters and
avoided expensive and cumbersome litigation by rightly settling
as the default outcome the prevention of potentially
discriminatory voting practices from going into effect. The
preclearance requirement instead appropriately placed the
burden of proof on the covered jurisdictions to show that
changes to those voting practices would not be racially
discriminatory.
Those States that had preclearance requirements were
predominately in the Old South and those States that had white
and colored drinking fountains, days for ``coloreds'' to go to
public libraries and zoos and all of the other activities that
were so opprobrious that were prevalent during that era.
With this robust preclearance requirement, the act had a
dramatically positive effect on black voter registration in the
South, which increased to 62 percent just 3 years after the act
became law.
Six years ago, however, in Shelby County v. Holder, the
Supreme Court effectively gutted the act's Section 5
preclearance requirement by striking down the coverage formula
in Section 4 to determine which jurisdictions would be subject
to preclearance. The Court's majority claimed that there was no
evidence to support Congress' finding of continuing
discrimination in voting in these States, notwithstanding the
thousands of pages of recorded evidence compiled by this
subcommittee in 2006 demonstrating the continuing need for this
coverage formula.
And despite Congress voting on an overwhelmingly bipartisan
basis to reauthorize these provisions. It was like 390 to 30 or
something like that because it was American as apple pie. And
it is still American as apple pie.
Tellingly, in response to the Court's decision, States that
had been subject to the act's preclearance requirement wasted
no time in pursuing voting restrictions that once again
undermined minority voting rights. The measures included strict
voter identification requirements, restriction or elimination
of early voting or same-day registration, and bans on ex-
offenders from voting, all of which make it disproportionately
harder for racial and ethnic minorities to vote. In short, this
was the ``Jim Crow era Part 2.''
In the absence of the preclearance requirement, it would be
extremely difficult at best to challenge all of these new
voting restrictions under what is left of the Voting Rights
Act. As many of our witnesses will explain today, the remaining
enforcement-related provisions of the act that are still in
effect, while valuable, are much more limited in their impact
and much more difficult and costly to pursue. And it means they
go into effect, and people are affected by that election until
some court declares them unconstitutional later on.
Moreover, in contrast to Section 5 preclearance, some of
the voting rights amendments for many provisions allowed only
for after-the-fact relief, meaning, as I said, that minority
voters would first have to be harmed before any relief could be
provided. And then you have got people in office that would
possibly pass acts harmful to that minority population.
The results of all these factors will be the many practices
and restrictions that undermine equal voting rights simply go
unchallenged. The Supreme Court was wrong, in my opinion, to
undermine the Voting Rights Act. Mr. Sensenbrenner and others
had voluminous evidence of reason why the States were in the
preclearance category.
Congress must now respond. It is imperative that Congress
restore the Voting Rights Act preclearance requirement so as to
stay true to the act's purpose of ensuring equal voting rights
for all. It would be a crime if this Congress did not pass
another Voting Rights Act not only because it is really as
American as apple pie, but because it is going back and
providing a remedy for what was 100 years of intolerance,
discrimination, and Jim Crow segregation in most of these
preclearance States.
We need to correct that, and we need to do it while John
Lewis is still with us as a United States congressman, and he
can be there when this is signed into law once again.
It is not enough to go to Selma with John Lewis. You need
to vote with John Lewis, and you need to respect his opinion,
his work, his life's work, and pass the Voting Rights Act.
I thank our witnesses for being here, and I look forward to
their testimony.
And I now take great pleasure in recognizing the ranking
member of our subcommittee, the gentleman from Louisiana, Mr.
Mike Johnson, for his opening statement.
Mr. Johnson of Louisiana. Thank you, Mr. Chairman.
And thank you to the witnesses for your time and your
expertise today. It is very helpful to us.
I and my colleagues look forward to these hearings on
protecting the fundamental right to vote in America because we
believe th`` an honor and a critical duty of the Congress.
In 2013, as you know, the Supreme Court struck down just
one part of the Voting Rights Act in Shelby County v. Holder by
outlining the constitutional weaknesses in Section 4 of the
VRA. And I wanted to read just a portion of that opinion into
the record as we start here because I think it is so relevant
to what we are doing today.
I start by quoting this. ``The Framers of the Constitution
intended the States to keep for themselves, as provided in the
Tenth Amendment, the power to regulate elections. Not only do
States retain sovereignty under the Constitution, there is also
a fundamental principle of equal sovereignty among the States.
Indeed, the constitutional equality of the States is essential
to the harmonious operation of the scheme upon which this
republic was organized.
``Section 4 of the Voting Rights Act sharply departs from
these basic principles. It suspends all changes to State
election law, however innocuous, until they have been
precleared by Federal authorities in Washington, D.C. In 1966,
we found these departures from the basic features of our system
of government justified. At the time, the coverage formula, the
means of linking the exercise of the unprecedented authority
with the problem that warranted it, made sense. Nearly 50 years
later, however, things have changed dramatically.
``In the covered jurisdictions, voter turnout and
registration rates now approach parity. Blatantly
discriminatory evasions of Federal decrees are rare, and
minority candidates hold office at unprecedented levels. The
test and devices that blocked access to the ballot have been
forbidden nationwide for more than 40 years.''
The Court continued, ``The Fifteenth Amendment commands
that the right to vote shall not be denied or abridged on
account of race, and it gives Congress the power to enforce
that command. The amendment is not designed to punish for the
past. Its purpose is to ensure a better future.
``To serve that purpose, Congress, if it is to divide the
States, must identify those jurisdictions to be singled out on
a basis that makes sense in light of current conditions. It
cannot simply rely on the past.''
The Court continued, ``Regardless of how to look at the
record, however, no one can fairly say that it shows anything
approaching the pervasive, flagrant, widespread, and rampant
discrimination that Congress faced in 1965 and that clearly
distinguished the covered jurisdictions from the rest of the
Nation at the time. Our country has changed, and while any
racial discrimination in voting is too much, Congress must
ensure that the legislation it passes to remedy that problem
speaks to current conditions.''
That was the words of the Court, and of course, they were
right. Indeed, over the past several decades, in a reversal of
prior historical trends, African Americans have been moving to
and not from Southern States. We are proud of that. And that
now tends to offer greater opportunities in the South, and
people recognize it.
In a recent Brookings article, William Frey outlined
deteriorating working conditions that were the result of Jim
Crow laws between 1910 and 1970, but the article then explains
that the 2010 Census revealed that from the late 1980s to 2010,
new generations of African Americans, including professional
and college graduates, favored economically rising Southern
States.
This brings us to the question again of Section 4 of the
VRA and its problems. The data reveals that the South has been
gaining on net hundreds of thousands more African-American
residents over the last several decades, whereas other regions
of the country are losing African-American residents as they
move elsewhere.
The Southern cities in particular are the most popular
destinations for African Americans and Hispanic Americans who
are moving for greater opportunities. You look at Atlanta and
Augusta, Georgia; El Paso and San Antonio, Texas; Columbia,
South Carolina; Richmond, Virginia; Jackson, Mississippi;
Durham, North Carolina; Memphis, Tennessee; and yes--in
Memphis--and yes, New Orleans, Louisiana. We are all covered.
We should be forever vigilant----
Mr. Cohen. ``N'awlins.''
Mr. Johnson of Louisiana. ``N'awlins.'' I love how
everybody tries to be Cajun when it is useful.
We should be forever vigilant to oppose attempts to treat
people differently on the basis of race, of course. We all
agree on that when it comes to voting or anything else, and we
should take comfort when there is evidence such discriminatory
treatment is increasingly becoming a thing of the past.
We look forward to hearing from all our witnesses here
today, and again, we thank you for the time.
I yield back.
Mr. Cohen. Thank you, sir.
I now recognize the chairman of the full committee, the
distinguished gentleman from New York, Mr. Nadler.
Chairman Nadler. I thank you, Chairman.
Mr. Chairman, the Voting Rights Act is widely recognized as
the crown jewel of our Nation's civil rights laws. Many
Members, past and present, accord the act an almost sacred
stature. Some, like our colleague John Lewis, shed their blood
in support of its passage. Others owe their careers as
legislators to its vigorous enforcement.
Today's hearing will provide an important opportunity for
the subcommittee to explore the history, the impact, and the
need for restoration of the full vitality of the Voting Rights
Act. After the VRA was enacted in 1965, its effect was almost
immediate, with registration of African-American voters more
than doubling in the South within 4 years of enactment.
Similarly, African-American voters' turnout rose from only
6 percent to 59 percent in just 4 years in Mississippi, and it
soared to 92 percent in Tennessee, 78 percent in Arkansas, and
73 percent in Texas during the same period.
The net impact of VRA enforcement also resulted in the
election of minority candidates of choice throughout the
Nation. The number of African Americans holding elected office
jumped significantly from barely 100 prior to the VRA to more
than 7,200 today, with 4,800 holding elected office in the
South.
In national offices, the number of African Americans in
Congress doubled from 5 to 10 almost immediately after passage,
and today, 56 African-American members serve in the House and
Senate. And of course, in 2008, this country elected its first
African-American President.
Without question, the VRA has been an unqualified success.
It helped to reduce discriminatory barriers to voting and
expanded electoral opportunities for people of color to
Federal, State, and local offices, thereby opening the
political process to every American.
Despite decades of evidence of the VRA's success, however,
and the record spanning many thousands of pages, compiled
primarily in this subcommittee documenting the continued need
for the VRA, the Supreme Court in the disastrous and shameful
Shelby County v. Holder decision in 2013 substituted its own
judgment for that of Congress and effectively gutted the heart
of the act, its preclearance provision.
Before the Voting Rights Act, States and localities passed
a host of voter suppression laws, secure in the knowledge that
it could take many years before the Justice Department could
successfully challenge them in court, if at all. As soon as one
law was overturned as discriminatory in the courts, another
would be enacted, essentially setting up a discriminatory game
of whack-a-mole.
Section 5 of the Voting Rights Act mandating preclearance
broke this legal logjam by requiring States and localities with
a history of discrimination against racial and ethnic minority
voters to submit changes to their voting laws to the Justice
Department or to a Federal court for approval prior to taking
effect.
In Shelby County, the Supreme Court struck down the formula
for determining which States and localities are subject to
preclearance, which had the effect of striking down the
preclearance provision itself, as there is no longer a basis
for subjecting jurisdictions to its requirements, although the
Court did very specifically say that Congress could enact a new
formula for determining which States and localities are subject
to preclearance, which is precisely what we should do.
As John Lewis eloquently stated, this decision plunged a
dagger into the heart of the civil rights movement. Unless and
until Congress acts, this decision has removed the single most
effective tool in our voting rights arsenal and has permitted
previously covered jurisdictions to immediately enforce
racially biased election laws, some of which had already been
deemed to have a discriminatory impact on minority voters
without prior review.
In the absence of preclearance, predictably, the game of
whack-a-mole has returned. Within 24 hours of the Shelby County
decision, both Texas attorney general and North Carolina's
General Assembly announced that they would reinstitute
draconian and discriminatory voter ID laws.
Both of these States' laws were later held in Federal
courts to be intentionally racially discriminatory, but during
the years between their enactment and the court's final
decision, many elections were conducted within the restrictions
of those laws. In addition to Texas and North Carolina, at
least 21 other States have enacted newly restrictive statewide
voter laws since the Shelby County decision.
The loss of Section 5 preclearance cuts deep into the
Federal protection of the right to vote. In 2006, Congress
found that a majority of Southern States--2006, not 1965. In
2006, after extensive hearings in this subcommittee, Congress
found that a majority of Southern States were still engaged in
ongoing discrimination, as evidenced by some localities
engaging in racially selective schemes to relocate polling
places for African-American voters and some other 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 respective cities.
In the wake of the Shelby County decision, we have also
seen the rise of voter suppression measures. Burdensome proof
of citizenship laws, significant scalebacks to early voting
periods, restrictions on absentee ballots, and laws that make
it harder to restore the voting rights of formerly incarcerated
individuals are just a small sample of recent voting changes
that have a disproportionate impact on minority voters.
While such actions may violate other provisions of the
Voting Rights Act, time and experience have proven that it
takes far longer and is far more expensive to pursue after-the-
fact legal remedies. And once a vote has been denied, it cannot
be recast. The damage to our democracy is permanent, and the
game of whack-a-mole has resumed.
That is why I hope the Members on both sides of the aisle
and in both chambers of Congress will come together and pass
legislation to restore the full vitality of the Voting Rights
Act. Today's hearing will provide an important opportunity to
renew our understanding of the importance of the Voting Rights
Act and to set the stage for additional oversight hearings on
the issues presented by the current legal regime.
We must use this opportunity to promptly craft a
legislative solution that enables the Justice Department to
effectively enforce the rights of minority voters within the
contours of the Constitution. While this is not an easy
challenge, given the gravity of the issues involved and our
long history of bipartisan cooperation in this endeavor, it is
one that I believe our committee will and must meet with
success.
I yield back the balance of my time.
Mr. Cohen. Thank you, Mr. Nadler. Appreciate you working
this area over the past when you were chairman of this
subcommittee and as a Member of Congress.
It is now my pleasure to recognize the ranking member of
the full committee, the gentleman from Georgia, Mr. Collins,
for his opening statement.
Mr. Collins. Thank you, Mr. Chairman. I do appreciate it.
And I appreciate the words of not only both you and Mr.
Johnson, but also the full committee chair as well.
This is the first of many of these hearings, and we are
looking forward to going forward.
The right to vote is what makes democracy a democracy.
America's Federal law has protected this right from
discriminatory barrier since the Civil War and, more recently,
through the Voting Rights Act of 1965. Americans oppose racial
discrimination as incompatible with democracy, and our current
laws reflect that conviction.
In 2013, the Supreme Court struck down a single part of the
Voting Rights Act, Section 4. That provision automatically put
certain States and political subdivisions under the act's
Section 5 preclearance requirements. Those preclearance
requirements presented--prevented voting rules changes covering
jurisdictions from going into effect until the new rules have
been reviewed and approved, either following a Federal lawsuit
or, more often, by the Department of Justice.
When the Voting Rights Act was enacted, Section 4
identified the jurisdictions automatically subject to those
special preclearance requirements by formula. The first part of
the formula provided that a State or political subdivision
would be covered if maintained on November 1, 1964, a test or
device restricting the opportunity to register and vote.
The second part--piece provided that a State or political
subdivision would also be covered if the Director of the Census
determined that less than 50 percent of persons of a voting age
were registered to vote on November 1, 1964, or less than 50
percent of the persons of voting age participated or voted in
the presidential election of November 1964.
In its Shelby County decision, the Supreme Court struck
down the automatic preclearance provision because the original
coverage formula was ``based on decades-old data and eradicated
practices.'' In 1965, the States could be divided into two
groups, those with a recent history of voting test and low
voter registration and turnout and those without those
characteristics. Congress based its coverage formula on that
distinction.
Today, the Nation is no longer divided along those lines.
Yet the Voting Rights Act continued to treat it as if it were.
The courts further criticize Section 4's formula as relying on
decades-old data relevant to decades-old problems rather than
current data reflecting current needs.
In Shelby County, the Supreme Court only struck down that
single outdated provision of the Voting Rights Act.
Significantly, the other very important provisions of the
Voting Rights Act remain in place, including Sections 2 and
Sections 3.
Section 2 applies nationwide and prohibits voting practices
or procedures that discriminate on the basis of race, color, or
the ability to speak English. Like other Federal civil rights
laws, Section 2 is enforced through Federal lawsuits, and the
United States and civil rights organizations have brought cases
under Section 2 to the court, and they may do so in the future.
Section 3 of the Voting Rights Act also remains in place,
authorizing Federal courts to impose preclearance requirements
on States and political subdivisions that have enacted voting
procedures that treat people differently based on race in
violation of the Fourteenth and Fifteenth Amendments. If the
Federal court finds a State or political subdivision to have
treated people differently based on race, then the court has
the discretion to retain supervisory jurisdiction and impose
preclearance requirements until a future date at the court's
discretion.
This means that such State or political subdivision would
have to submit all future voting rule changes for approval to
either the court itself or to the Department of Justice before
enacting those changes. Per the Code of Federal Regulations,
under Section 3(c) of the Voting Rights Act, a court in voting
rights litigation can order as relief that a jurisdiction not
subject to preclearance requirements of Section 5 preclear its
voting changes by submitting them either to the court or to the
Attorney General.
Again, Section 3's procedures remain available today so
people can challenge voting rules as discriminatory. In 2017,
for example, U.S. District Judge Lee Rosenthal issued an
opinion in requiring the Justice Department to monitor the City
of Pasadena, Texas, because it had intentionally changed its
city council districts to decrease Hispanic influence.
The city, which the court ruled had a long history of
discrimination against minorities, was required to have their
future voting rules changes precleared for the next 6 years,
during which time the Federal judge retains jurisdiction to
review both 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 Justice Department has not
objected within 60 days. This is the basis of this hearing, and
I am glad that we are having it. And I look forward to the
witnesses and the questions that will come.
And with that, I yield back.
Mr. Cohen. Thank you, Mr. Collins.
We welcome our witnesses, our panel, and thank them for
participating in today's hearing. I will now introduce the
witnesses. But the way I do it, I don't introduce all the
witnesses at first. I introduce the witness before the witness
speaks. So it is a little different.
So I will soon introduce is it Ms. Lhamon? Lhamon. And then
you give your oral testimony. Your written statement will be
entered into the record in its entirety.
I ask you to summarize your testimony in 5 minutes. You
have got a little light in front of you. Green means go. Yellow
means you are in the 1-minute, about to enter the penalty zone,
and red is you are in the penalty zone. You have got to stop.
When the light turns red, get it done.
Before proceeding with your testimony, I remind each
witness that all of your written and oral statements made to
the subcommittee in connection with this hearing are subject to
penalty of perjury, pursuant to 18 U.S.C. 1001, which could
result in the imposition of fine or imprisonment up to 7
years--5 years or both.
Our first witness is Catherine Lhamon, who is chair of the
U.S. Commission on Civil Rights. President Obama appointed her
to a 6-year term on the Commission in December 15, 2016, and
the Commission unanimously confirmed the President's
designation on December 28.
She also has served--she serves in the cabinet of
California Governor Gavin Newsom, where she has been legal
affairs secretary since January 2019. Ms. Lhamon previously
served as Assistant Secretary for Civil Rights at U.S.
Department of Education from June 2013 until January 2017.
Prior to that, she practiced with the ACLU of Southern
California as public counsel.
She received her J.D. from Yale University. She was
Outstanding Woman Law Graduate and graduated summa cum laude
from Amherst. She clerked for the Honorable William A. Norris,
United States Court of Appeals for the Ninth Circuit, recipient
of numerous professional honors. We are privileged to have her
here, and we recognize you for 5 minutes.
STATEMENTS OF CATHERINE LHAMON, CHAIR, U.S. COMMISSION ON CIVIL
RIGHTS; THOMAS SAENZ, PRESIDENT AND GENERAL COUNSEL, MALDEF;
PEYTON MCCRARY, PROFESSORIAL LECTURER IN LAW, GEORGE WASHINGTON
UNIVERSITY LAW SCHOOL; AND PAIGE WHITAKER, LEGISLATIVE
ATTORNEY, CONGRESSIONAL RESEARCH SERVICE
STATEMENT OF CATHERINE LHAMON
Ms. Lhamon. Thank you. Chair Nadler, Chair Cohen, Ranking
Member Johnson, Ranking Member Collins, members of the
subcommittee, thank you very much for inviting me to testify.
As mentioned, I chair the United States Commission on Civil
Rights, and I come before you today to speak about our report
released last September, titled ``An Assessment of Minority
Voting Rights Access in the United States,'' which I ask to be
submitted for the record alongside my testimony today.
With this report, the Commission returned to a topic that
was a core basis for Congress' creation of our Commission now
62 years ago, advising the U.S. Congress, the President, and
the American people about voting rights--and civil rights more
generally--and making recommendations for improved policy. Over
the years, the Commission's work has supported the basis for
the 1965 Voting Rights Act, provided evidence on which the
United States Supreme Court relied to uphold the
constitutionality of the Voting Rights Act, and issued 20
previous reports over 62 years specifically focused on voting
rights.
This most recent report offers an independent,
comprehensive, detailed analysis of the current status of
voting discrimination in the United States and voter access in
the United States and of the efficacy of United States
Department of Justice enforcement of the Voting Rights Act
since Congress' 2006 reauthorization and, in particular, since
the Supreme Court's June 2013 decision in Shelby County v.
Holder.
Drawing from Commission research and investigations and
memoranda from 13 of the Commission's State advisory committees
who analyzed voting discrimination in Alabama, Alaska, Arizona,
California, Illinois, Indiana, Kansas, Louisiana, Maine, New
Hampshire, Ohio, Rhode Island, and Texas, this report documents
current conditions evidencing ongoing discrimination in voting.
On every measure the Commission evaluated, which includes
litigation success, data regarding discrimination incidents,
investigations from State advisory committees, and Commission
testimony from 23 bipartisan voting rights experts and
advocates, as well as in-person and written public comment, the
information the Commission received underscores that
discrimination in voting persists now.
Our report found that at least 23 States have enacted newly
restrictive statewide voter laws since the Shelby County
decision in 2013. These statewide voter laws range from strict
voter identification laws; voter registration barriers such as
requiring documentary proof of citizenship, allowing challenges
of voters on the rolls, and unfairly purging voters from rolls;
cuts to early voting; to moving or eliminating polling places.
The conclusions the report draws are bleak, leading to
unanimously voted Commission findings, including that during
the time period we studied, race discrimination in voting has
been pernicious and endures today. Likewise, voter access
issues and discrimination continue today for voters with
disabilities and limited English-proficient voters. The right
to vote, which is a bedrock of American democracy, has proven
fragile and to need robust statutory protection in addition to
constitutional protection.
Following the Supreme Court's decision in Shelby County, in
the absence of preclearance protections of Section 5 of the
Voting Rights Act, voters in jurisdictions with long histories
of voting discrimination faced discriminatory voting measures
that could not be stopped prior to elections because of the
cost, complexity, and time limitations of the remaining
statutory tools. The Shelby County decision had the practical
effect of signaling a loss of Federal supervision in voting
rights enforcement to States and to local jurisdictions.
The number of successful lawsuits brought pursuant to the
Voting Rights Act to the nationwide prohibition in the Voting
Rights Act of any voting practices and procedures that
discriminate on the basis of race or membership in a language
minority group has quadrupled in the 5 years following Shelby
County, as compared to the 5 years that preceded. These Federal
court findings of discrimination followed extensive evidence
and rigorous litigation.
As a result, the Commission recommends that Congress should
amend the Voting Rights Act to restore and/or expand
protections against voting discrimination that are more
streamlined and efficient than the provisions of the act. The
new coverage provisions should take account of the reality that
voting discrimination tends to recur in certain parts of the
country, and the voting discrimination may arise in
jurisdictions that do not have extensive histories of
discrimination.
I see that my time has expired. I will reserve and look
forward to questions.
[The statement of Ms. Lhamon follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you. Thank you so much.
Mr. Thomas Saenz is the president and general counsel of
the Mexican American Legal Defense and Educational Fund, a
position he has held since 2009. Prior to that, he served as
counsel for the mayor of Los Angeles.
Prior to that, he was a litigator for 12 years with the
group acronym MALDEF, which is the Mexican American Legal
Defense and Educational Fund. He was lead counsel, a successful
challenge to California's anti-immigrant Proposition 187, and
he led numerous civil rights cases in the area of immigration,
immigrants' rights, education, employment, and voting rights.
He served as lead counsel in the 2001 challenge for the
congressional redistricting in California. He served as
MALDEF's lead counsel in two court challenges to Proposition
227, a California English-only education initiative, lead
drafter of amicus brief on behalf of Latino organizations
supporting affirmative action in the Supreme Court case of
Grutter v. Bollinger.
He received a J.D. also from Yale, his undergraduate degree
summa cum laude from Yale. But he was not named the top woman
graduate of Yale. [Laughter.]
Mr. Cohen. He later served as law clerk for the Honorable
Harry L. Hupp of the United States District Court for the
Central District of California, to the Honorable Stephen
Reinhardt of the United States Court of Appeals to the Ninth
Circuit.
For 8 years, he taught civil rights litigation as an
adjunct lecturer at the University of Southern California Law
School and has been widely published.
You are now recognized, sir, for 5 minutes.
STATEMENT OF THOMAS SAENZ
Mr. Saenz. Thank you. Good morning, Honorable Chair and
members of the subcommittee.
I am Thomas Saenz, president and general counsel of MALDEF.
MALDEF is currently commemorating 50 years of promoting the
civil rights of all Latinos living in the United States. And
through that half century of service, we have focused on
specific issues. Most prominent among these is voting rights.
We have focused from the beginning on securing the right to
vote for members of the Latino community, initially through the
courts under the Constitution and then after, working in
Congress to have the 1975 amendments of the Voting Rights Act
extend its protections to the Latino community. We have
litigated in court under Section 2, the central protection
against minority vote dilution, under Section 203 governing the
provision of bilingual ballot materials, and under Section 5
prior to its ignominious dismantling by the Shelby County
decision.
Specifically, we litigated under Section 5 because, most
importantly, the entire State of Arizona, the entire State of
Texas, and significant counties in California were covered
jurisdictions prior to the Supreme Court decision. We have
challenged at-large systems. We have challenged discriminatory
redistricting. We have challenged new barriers to voter
registration. We have challenged new barriers to ballot access,
and we have challenged the failure to provide bilingual ballot
materials where they are required.
The Voting Rights Act has been an important tool to secure
the civil rights of the Latino community for at least two
reasons in two circumstances. First, in the Southwest and
isolated communities around the country, there is a long, long
history of a significant Latino population and significant
representation in the voter pool, and those communities have
seen for decades significant histories of efforts to prevent
the full participation of Latino voters in elections.
There have been practices followed in those communities
that very much parallel the circumstances in the Deep South
described by the chair for the African-American community. But
separate, there are new communities across the country in
virtually every region of the country where there are now
prominent Latino populations. And as those populations reach a
position of power, political power, there are often efforts by
those in charge to prevent them from taking significant
political power.
In attempting to prevent newly growing Latino communities
from achieving voting power, these communities often adopt the
same strategies and practices that we have seen over the
decades in the Deep South and in the Southwest particularly
faced by the Latino community. It is safe to say that MALDEF,
since 1975 amendments applied the protections of the Voting
Rights Act to the Latino community, MALDEF has been the most
prolific enforcer of Latino voting rights in the country.
However, that term ``prolific'' largely overstates what we
have been able to do, and that is simply because of the burden
and expense of enforcing the Voting Rights Act. Section 2 and
its operative test of assessing the totality of the
circumstances means that it is difficult for MALDEF or any of
the many other organizations that enforce through private
actions the Voting Rights Act to fully pursue what needs to be
pursued to preserve the right to vote for minority communities.
I will provide one example.
After the last redistricting in California, MALDEF
identified nine counties throughout the State of California
where the Board of Supervisors should have drawn an additional
Latino majority supervisorial district warranted by the growth
of the Latino community, its concentration, therefore the
ability to draw a district, and evident manners of racially
polarized votings, all nine of those counties should have drawn
different redistricting maps than they drew. All of them were
subject to a potential Section 2 challenge.
Recognizing, however, that the totality of the
circumstances test meant that we would be unable to challenge
all nine jurisdictions, we sought to change State law in
California unsuccessfully to streamline the ability to
challenge those discriminatory redistrictings, and we were left
with challenging only one of the nine counties successfully.
Kern County was ordered last year to change its redistricting
maps and to create a second Latino majority district.
But that means essentially that eight counties in
California this decade gambled, understood they might be
violating Section 2, but gambled they would not be targeted
because of the expense of Section 2 litigation, and so far,
they have basically succeeded in that gamble. That's a result
of the loss of the preclearance mechanism through the Shelby
County decision.
Preclearance is not only a most effective civil rights
device. It is efficient and effective. It is, in essence, one
of the first alternative dispute resolution mechanisms in
Federal law that saves literally millions of dollars primarily
for the defendant jurisdictions that would otherwise have to
pay the cost of their own and those of their opponents.
MALDEF is proud to have been the litigator in the Pasadena,
Texas, case mentioned by Mr. Collins, the only contested
order--judicial order requiring a jurisdiction to be subject to
preclearance. However, that came after an arduous and expensive
trial, including the gathering of evidence of experts and
nonexperts alike over many, many months.
The circumstances of that case indicate what we are unable
to challenge as effectively. In Pasadena, Texas, the mayor,
after the Shelby County decision, citing that decision,
recognizing that the change would not be subject to
preclearance, changed or sought to change and successfully
obtained a change in the composition of the city council from
eight districted members to six districted members and two at-
large.
The purpose of that change was to stem the growth in the
power of the Latino vote. That is what the judge decided and
subjected that small jurisdiction to preclearance. It is the
only jurisdiction thus far subjected to a contested order of
preclearance. That is an indication of what we face without the
strong, strong measure, an effective and efficient measure of
preclearance.
Thank you.
[The statement of Mr. Saenz follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir.
Our next witness is Mr. Peyton McCrary. He is a
professional lecturer in law at George--professorial lecturer
in law at George Washington University here in Washington. From
1990 until 2016, he was an historian in the Voting Section of
the Civil Rights Division of the United States Department of
Justice.
From '68 to '89, he taught history at the University of
South Alabama, the University of Minnesota, and not Yale and
not Harvard, but at the Harvard of the South, Vanderbilt
University. Before joining the Government in 1990, he testified
as an expert witness in 14 voting rights cases, beginning in
1981 with Bolden v. City of Mobile on remand from the Supreme
Court.
In '98 and '99, he took leave from the Government to serve
as the Eugene Lang Visiting Professor at Swarthmore, where he
taught courses in voting rights law and civil rights policy in
the Department of Political Science.
In 2011, he was honored by receiving the Maceo Hubbard
Award for sustained commitment to the work of the Civil Rights
Commission. He received his Ph.D. from Princeton, his B.A. and
M.A. from the University of Virginia, and he is recognized for
5 minutes and welcomed.
STATEMENT OF PEYTON MCCRARY
Mr. McCrary. Thank you, Mr. Chairman.
Mr. Chairman, Mr. Vice Chairman, distinguished members of
the subcommittee, thank you for inviting me to testify before
you today. It is an honor to have this opportunity to speak
briefly about the history of the Voting Rights Act.
When the Shelby County decision came down from the Supreme
Court in 2013, the majority opinion was focused almost entirely
on the coverage formula set out in Section 4, which it found
unconstitutional. The only part of the voluminous record before
Congress in 2005-2006 on which the majority focused was the
participation rates, which were the focus of the formula as
adopted in 1965, and the majority took the view that because
participation rates in the covered jurisdictions were
substantially approaching white voter registration and turnout
levels and were not particularly different from jurisdictions
that were not covered in the rest of the country, that the
formula no longer met the needs of current protection of
minority voting rights.
The four dissenters have an entirely different view of the
record before Congress in 2006. To the dissenters, the question
before the Court was whether problems with racial
discrimination in voting continued to exist within the
previously covered jurisdictions. And that was also the focus
of the voluminous record before Congress in 2006, which some of
the members of this committee well recall.
Now the elimination of preclearance review leaves minority
plaintiffs with only one option, filing lawsuits under Section
2 of the act. There is no geographic coverage formula for
Section 2. Its coverage is nationwide. Yet Section 2 litigation
is time-consuming and expensive, and I can testify to that
through my long years of involvement in voting rights cases
under Section 2. And of course, minority voters have more
limited financial resources than white.
The reason why the abysmal racial disparities in voter
registration at the time the Voting Rights Act was adopted have
largely been eliminated is, of course, the operation of the
Voting Rights Act itself, initially suspending the literacy
test and other discriminatory devices, sending Federal
examiners down to plantation counties to register voters when
recalcitrant registrars would not meet their responsibilities
under the act, sending Federal observers to monitor elections
where problems were anticipated based on preliminary
investigations.
And of course, successful court orders and successful
objections to voting changes through the administrative review
of the Department of Justice or by the Federal courts in the
District of Columbia. Thus, the fact that there is essential
parity between minority and majority voters in some areas of
the covered jurisdictions is due to the successful
implementation of the Voting Rights Act.
In 1969, the Supreme Court evaluated the coverage formula
of Section 5 and how it should be applied. Adding to
protections against vote denial, which was the focus of the
formula itself, all other voting changes, the express language
of Section 5 says that any voting changes are subject to
preclearance responsibilities.
In the 1970s, the primary focus of many objections, both by
the Department of Justice and by the Section 5 courts in the
District of Columbia, was vote dilution problems. That is the
kinds of laws adopted by Southern jurisdictions after 1965, as
they had before 1965, that diluted minority voting strength
once African Americans began to register and vote in larger
numbers in the late 1960s.
Vote dilution is a major part of the record before Congress
in 2005 and 2006, and the problem with the elimination of
Section 5 review by the Shelby County decision is that it
leaves the problem of vote dilution to be solved only through
the rigorous court proceedings under Section 2 of the Voting
Rights Act.
Since the--since the decision by the Supreme Court, of
course, another major kind of voter discrimination has been
tried under Section 2, problems of voter abridgement through
the adoption of photo ID requirements, changes in early voting
procedures, and other ways of abridging the right of minority
voters to cast their ballots. Those take even more complicated
paths in the litigation process, requiring expert testimony,
using complex database methodology matching techniques to
investigate statewide voter registration and driver's license
databases and Federal databases and other data that are
extremely complicated to carry out.
But in some of those cases, the plaintiffs have been
successful. They have been successful most dramatically in the
North Carolina case, to which there was reference earlier,
where the Fourth Circuit Court of Appeals found that the
requirements set out by the North Carolina law adopted just
after the Voting Rights Act was changed by Shelby County had
been adopted with racially discriminatory purposes.
I have no advice to the Congress about how to change the
coverage formula. The coverage formula is one that I am sure
the committee will be addressing in serious terms. I can only
tell you how the Voting Rights Act operated over the years
since its adoption in 1965.
Thank you.
[The statement of Mr. McCrary follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Professor.
We now recognize Ms. L. Paige Whitaker, legislative
attorney in the American Law Division of the Congressional
Research Service, author of a number of publicly available CRS
products covering topics from campaign finance laws to
congressional redistricting and the Voting Rights Act.
She received her J.D. from Catholic University of America
Columbus School of Law and her B.A. from the University of
Maryland.
Ms. Whitaker, thank you, and thank you for all your work
with the Congressional Research Service, and you are
recognized.
STATEMENT OF PAIGE WHITAKER
Ms. Whitaker. Thank you, Chairman Cohen, Chairman Nadler,
Ranking Member Johnson.
My name is Paige Whitaker, and I am a legislative attorney
with the American Law Division of the Congressional Research
Service. Thank you for inviting me to testify today regarding
the Voting Rights Act of 1965.
CRS is available to serve all Members of Congress on an
objective, nonpartisan basis. With these brief remarks, as
requested, I will summarize a few key points from my written
testimony regarding Sections 2, 4 and 5, and 3(c) of the Voting
Rights Act.
The Voting Rights Act was first enacted in 1965 under
Congress' authority to enforce the Fifteenth Amendment. Since
then, Congress has amended the act in 1970, '75, '82, '92, and
most recently in 2006. Section 2, a key provision of the law,
applies nationwide. It authorizes the Federal Government and
private citizens to challenge discriminatory voting practices
or procedures, including minority vote dilution, which is the
diminishing or weakening of minority voting power.
Section 2 prohibits any State or political subdivision from
enacting a voting law that results in the denial or abridgement
of the right to vote based on race, color, or membership in a
language minority. A violation is established if, based on the
totality of the circumstances, a minority group has less
opportunity than other members of the electorate to elect
representatives of choice.
Courts have most frequently applied Section 2 in the
context of challenges to redistricting plans. However, in the
past few years, litigants have also invoked Section 2 to
challenge certain State voting and election administration
laws.
Next, Sections 4 and 5 worked in tandem. Section 4, known
as the coverage formula, prescribed which States and political
subdivisions with a history of discrimination were required to
obtain preclearance before implementing a voting law. It
covered any jurisdiction that used literacy tests and had low
voter registration and turnout in the late 1960s and early
'70s. For the 1972 date, the law covered any jurisdiction that
provided election information in English only where members of
a single-language minority constituted more than 5 percent of
the voting age citizens.
As originally enacted, Section 4(b) was scheduled to
expire, but in a series of amendments, the law was reauthorized
and, most recently, in 2006 was extended for 25 years.
Then Section 5, known as the preclearance requirement,
required prior approval, or preclearance, of a proposed change
to any voting law and applied to those States and political
subdivisions covered under Section 4(b). In order to be granted
preclearance, the covered jurisdiction had the burden of
proving that the proposed voting change neither had the purpose
nor would have the effect of denying or abridging the right to
vote or diminishing the ability to elect preferred candidates
of choice on account of race, color, or membership in the
language minority.
In 2013, in the case of Shelby County v. Holder, the
Supreme Court invalidated the coverage formula in Section 4(b),
thereby rendering the preclearance requirement in Section 5
inoperable. In Shelby County, the Court held that applying the
coverage formula to certain States and jurisdictions departed
from the fundamental principle of equal sovereignty among the
States that was not justified in light of current conditions.
The Court ruled that in order for Congress to divide the
country so as only to subject only certain States to
preclearance, it must do so by showing that the statute's
disparate geographic coverage is sufficiently related to the
problem that it targets based on current conditions.
As a result of the Court's decision, nine States and
jurisdictions within six additional States were previously
covered under the formula are no longer subject to the Voting
Rights Act's preclearance requirement.
And then, finally, Section 3(c), which is known as the
bail-in provision of the VRA, provides that if a court
determines that violations of the Fourteenth or Fifteenth
Amendment to the U.S. Constitution, which justify equitable
relief, have occurred in a State or political subdivision, the
court shall retain jurisdiction for a period of time that it
deems appropriate. During that period, the State or political
subdivision cannot make an electoral change until the court
determines, or the Department of Justice, that the change
neither has the purpose nor will it have the effect of denying
or abridging the right to vote on race, color, or membership in
a language minority.
This concludes my brief remarks. Thank you for the
opportunity to testify today, and I would be pleased to answer
any questions.
[The statement of Ms. Whitaker follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you for your testimony.
Before we proceed to our questions, I want to recognize the
Shelby County of Tennessee, not Alabama as in Holder, Tennessee
Chapter of Delta Sigma Theta Sorority. And Ms. Johnnie Turner
and your crowd, welcome. Honored that you are here today. And
if you would stand and be recognized.
Thank you for your attendance.
[Applause.]
Mr. Cohen. And for all your good work that you do in
Memphis and Shelby County.
Firstly, Ms. Lhamon, you mentioned there were 23
jurisdictions that had passed statewide laws that diluted the
vote since the Shelby decision. What did those 23 States have
in common, if anything? Were they particularly a political
party controlled the General Assembly? Were they of any
particular section of the country? Can you give us a little
definition or----
Ms. Lhamon. Well, the main commonality among those 23
States is their willingness to make voting more restrictive and
to make it more challenging for their citizens. And that, that,
in itself, is a concern.
The reality is that these 23 jurisdictions are across the
country, and are not defined by particular party control. The--
--
Mr. Cohen. So there were some States that had Democratic
Party control in the House and Senate both that passed these
restrictions?
Ms. Lhamon. I believe so. We can go back and give you that
information with specificity. But the main concern is the
electorate's decision in those States to make voting more
restrictive for those States, and that is a serious concern,
given the status of voting rights in this country, as we
documented it in this report, and given that the history of
this country and the degree to which those much more
restrictive laws passed in a very, very short time period.
So that is a new turn for us as a country, and it is fairly
sweeping.
Mr. Cohen. And the fact that we have gone from the more
opprobrious pre-1965 how many seeds are there in a bottle or
whatever to more invidious types of discrimination, does that
in any way diminish the need for Section 5 preclearance in the
jurisdictions that have those type of voting limitations?
Ms. Lhamon. Absolutely not, Chair. I am astonished by what
we saw around the country in the choices to denigrate voters'
access and ability to vote on the basis of race, on the basis
of disability status, on the basis of language access. There
are an astonishing variety of ways that our electorates have
chosen to make it more difficult for some among us to vote.
Mr. Cohen. Mr. Saenz, let me ask you this. In California,
you now have redistricting of the State legislatures, not of
the county governing bodies, and those are the ones you
specifically, I think, referenced in your testimony. Are they
also mandated to take into consideration racial minority
districts to try to create those in their redistricting when
they are done by court order?
Mr. Saenz. They are all covered by Section 2, which, of
course, means if they have a pattern of racially polarized
voting and the rest of the Senate factors the totality of the
circumstances indicate that there is vote dilution occurring,
then they are mandated to create a Latino majority district in
the context of racially polarized voting and the geographic
concentration of Latino voters such that you can create a
district that is compact, contiguous, meets all the usual
criteria.
And I can assure you that every one of those counties has
legal advice about specifically the issues under Section 2 of
the Voting Rights Act. I think in many cases, they are, in
essence, gambling, assuming that because of the expense and the
time involved in a Section 2 challenge, they won't be the
jurisdiction that is challenged.
And as I indicated, in the course of this decade, eight of
those nine counties that we identified as potentially violating
Section 2, essentially their gamble has paid off so far because
they have not been targeted for litigation. Now Kern County,
which was challenged by MALDEF, after very lengthy litigation
and trial, it did result in liability finding against them, at
great cost.
And that, I think, is something that is not often remarked
about. The cost to the defendant jurisdictions under Section 2
litigation is substantial. If they were subject to Section 5
preclearance, their costs would be minimal in comparison. The
Kern County Board of Supervisors ended up paying--it is a
public number because it is a part of our settlement--$3
million to the plaintiffs for their attorneys' fees and expert
costs.
You can assume that they have equivalent and probably even
higher costs of their own. They had to hire outside counsel,
employ their own experts----
Mr. Cohen. Let me ask you this. Do you think Section 5 is
the most important section for enforcement?
Mr. Saenz. Absolutely. And it permits efficient and
effective----
Mr. Cohen. Ms. Lhamon, do you agree with that?
Ms. Lhamon. I do. Its loss is very significant.
Mr. Cohen. Mr. McCrary, can you tell us why Section 5 is so
important and necessary, and while Section 2 exists for the
country, Section 5 is the most essential part of the Civil
Rights Act--Voting Rights Act, excuse me.
Mr. McCrary. With the way Section 5 operated before Shelby
County, it gave quick decisions for jurisdictions about voting
changes they were intending to make, and most of them were
precleared and most of them within the 60-day clock that
governs the operation of the preclearance review. It cost them
practically nothing.
Moreover, it served an educational function that the
Congress recognized in 2005 and 2006 when it was building that
voluminous record. There were some States covered by Section 5
that actually supported the extension of the preclearance
process in 2005 and 2006, and that is part of the record before
Congress.
The reason was that it gave those States an opportunity to
consider seriously the needs of minority voters, the views
expressed by minority voters in the preclearance review, as
well as the local jurisdictions' views and to make better
decisions about how to change the electoral process in those
jurisdictions. But where jurisdictions were not so well
intentioned, it was possible to object to those changes, and
oftentimes, when Federal courts were asked to address this
question, they reached the same conclusions as the Department
of Justice.
It was efficient. It was educational. It stopped things in
their tracks that were going to be problematic, but for the
most part, it did not interfere with the electoral process in
those jurisdictions that were covered by Section 5.
Mr. Cohen. Thank you, sir.
And I now recognize the ranking member for 5 minutes, Mr.
Johnson.
Mr. Johnson of Louisiana. Thank you, Mr. Chairman.
Mr. McCrary, Chris Coates is a former Chief of the Voting
Section of the Department of Justice, and he testified before
the U.S. Commission on Civil Rights about opposition within the
Department of Justice to bringing a case under the Voting
Rights Act because the victims of the discrimination happened
to be white.
According to the Washington Post, ``Coates has a pedigree
different from that of many conservatives. He was hired at
Justice during the Clinton administration in '96 and had worked
for the American Civil Liberties Union.'' Sheldon Bradshaw, a
high-level Civil Rights Division official in the Bush
administration, said Coates is ``nonpartisan in how he enforces
voting rights laws.''
Mr. Coates, in his testimony before the Commission said,
and I quote, ``Opposition within the Voting Section was
widespread to taking actions under the Voting Rights Act on
behalf of white voters in Noxubee County, Mississippi, the
jurisdiction in which Ike Brown is and was the chairman of the
local Democratic Executive Committee. What I observed on
election coverage in Noxubee County was some of the most
outrageous and blatantly racially discriminatory behavior at
the polls committed by Ike Brown and his allies that I have
seen or had reported to me in my 33 years-plus as a voting
rights litigator.''
A description of this wrongdoing is well summarized in
Judge Tom Lee's opinion in that case and in the Fifth Circuit
Court of Appeals opinion affirming the lower court judgment and
the injunctive relief against Mr. Brown and the local
Democratic Executive Committee.
I am continuing to quote him, ``Of course, there is nothing
in the statutory language of the Voting Rights Act that
indicates that DOJ lawyers can decide not to enforce the race
neutral prohibitions in Section 2 of the act against racial
discrimination.'' Here is the relevant quote. ``One of the
social scientists who worked in the Voting Section and whose
responsibility it was to do past and present research into a
local jurisdiction's history flatly refused to participate in
the investigation.''
The question is, are you the social scientist to whom Mr.
Coates was referring?
Mr. McCrary. The answer to that question, Representative
Johnson, is yes. His testimony was, in fact, erroneous, as the
Inspector General's report noted in the footnote. I, in fact,
worked on that case. I was at trial in the case, and I will
note that Chris Coates and I became friends beginning in 1980.
I worked with him on voting rights cases as an expert witness.
I encouraged the Voting Section to hire Mr. Coates in the
mid 1990s. I worked closely with him on all manner of cases,
including the case in Noxubee County, which, in fact, reveals
egregious behavior by the political leaders of the black
community in that county. So, you know, the answer to the
question is I was the person to whom you referred, but his
information was false.
Mr. Johnson of Louisiana. Fair enough. Mr. Chairman, in a
recent paper, the U.S. Commission on Civil Rights Commissioner
Gail Heriot in Footnote 40 puts in context some of the examples
used by the chair of that Commission, Catherine Lhamon,
claiming to show instances in which a right to vote was denied.
I would ask unanimous consent that the paper be submitted
for the record since Ms. Lhamon's report has been submitted
also.
Mr. Cohen. Without objection.
[The information follows:]
MR. JOHNSON (LA) FOR THE
OFFICIAL RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Louisiana. Thank you.
Ms. Whitaker, can you walk us through how a generic case
would be brought under Section 2 of the Voting Rights Act, and
then what steps that would proceed?
Ms. Whitaker. Yes, thank you, Ranking Member Johnson, for
that question.
Section 2, as I said in my remarks, applies nationwide. It
authorizes both the Federal Government and private citizens to
challenge discriminatory voting practices. It specifically
prohibits any State, as well as political subdivisions, from
applying or imposing a voting qualification practice, standard,
or procedure that results in the denial or the abridgment of
the right to vote based on race, color, or membership in a
language minority.
Furthermore, the statute provides that a violation will be
established if based on the totality of the circumstances,
electoral processes are not equally open to members of a racial
or language minority group in that those members of that group
do not have equal opportunity to elect--as compared to other
members of the electorate to elect representatives of choice.
And as I mentioned, the vast majority of the case law with
regard to Section 2 has been determined in the context of
redistricting. But in recent years, we have some developing
jurisprudence challenging other types of election laws.
Mr. Johnson of Louisiana. I have time for one more question
for you. Why does the Supreme Court require Congress to create
a substantial record of the need for any sort of Federal
preclearance process before it upholds a Federal statute that
requires States and localities to get permission from the
Federal Government before their voting rule changes can go into
effect? Why is that so important?
Ms. Whitaker. Thank you, Ranking Member Johnson.
The key case here for Congress going forward is what the
Court said in Shelby County v. Holder in 2013. In that case,
the Court identified the principle of equal sovereignty among
the States, and the Court said that to comply with that
standard requires a showing that a statute's disparate
geographic coverage has to be sufficiently related to the
problem it targets.
According to the Court, as I mentioned earlier, it
criticized the data, the outdated nature of the data that
Congress had relied on in reauthorizing the coverage formula,
criticizing it for stemming from the late 1960s and early
1970s.
Mr. Johnson of Louisiana. Thank you. I yield back.
Mr. Cohen. I now recognize the ranking member for the--the
chairman of the committee for 5 minutes, Mr. Nadler.
Chairman Nadler. Thank you.
Ms. Whitaker, my recollection is that when we held hearings
back in 2006, we established a record that of the need for
Section 5 of the disparate impact as of that--as of then, not
going back to 1994. How did the Court disregard those findings?
Ms. Whitaker. Thank you, Chairman Nadler.
The Court acknowledged the extensive record that Congress
created. However, the Court focused on the fact that the
coverage formula had not been substantively updated since
Congress had last updated in 1975 and, again, that it focused
on those statistics regarding literacy tests and low voter
turnout and low voter registration rates from the late 1960s
and early 1970s.
Chairman Nadler. Thank you.
Ms. Lhamon, first of all, let me ask you a quick question,
and then what I wanted to get to. Would you tell us what
Footnote 40 referred to and why it was wrong?
Ms. Lhamon. The footnote is part of Commissioner Heriot's
statement, and it suggests that there may not be ongoing
concerns about race discrimination, among other discrimination,
in the States. The facts are what they are.
For example, one of the examples that I highlight in my
statement is an example in New York State where 30 Chinese-
American students were almost prevented from being able to vote
on the basis of national origin because someone challenged
their Americanness and challenged their ability to vote.
They ultimately were able to vote, but it was humiliating
for them. There was testimony received from one of the students
who said it was his first time attempting to vote, and he felt
like he wasn't an American because someone suggested that he
had no right to vote.
Chairman Nadler. Okay. Now you, Mr. McCrary, you have
written that the majority opinion in Shelby inappropriately
focused on the evidence of voter participation that approached
parity between whites and African Americans. Why is focusing
exclusively on that statistic misleading? In other words, what
does this statistic fail to capture that is relevant?
Mr. McCrary. Are you asking about the data in the record
before Congress or about the general focus on participation?
Chairman Nadler. The general focus. You said that
inappropriately--you said that the majority opinion
inappropriately focused on that data, as opposed to more
general data.
Mr. McCrary. Well, as I said, a primary focus of the voting
changes to which the Federal courts and the Department of
Justice objected over the decades was to vote dilution. And to
ignore that fact seems to me an important lapse in the Court's
consideration of the record.
Chairman Nadler. Okay, thank you.
Ms. Lhamon, I have two questions which I will ask as one
question. We know the basic problem before the Voting Rights
Act and the basic problem with the Voting Rights Act after
Shelby County is that Section 2 is difficult to use. You can
lose your voting rights and play a game of whack-a-mole.
Ms. Lhamon. That is right.
Chairman Nadler. We have finally proven after three
elections have gone by that this is discriminatory, and they
enact something else that becomes the same thing. Two
questions.
Number one, why not amend Section 2 to enable a court to
give--to enjoin, to temporarily enjoin a practice if there is
any evidence that it might be discriminatory while the
proceeding goes on so you can't have two elections go by under
discriminatory practice and then find it unconstitutional? So
you stop the game of whack-a-mole.
And second of all, why not get around all of this and apply
Section 5 nationwide?
Ms. Lhamon. Well, taking the questions in order, it is the
Commission's very strong recommendation that Congress amend the
Voting Rights Act to be more proactive and to find ways to make
sure that voters rights are protected ex ante. So your
suggestion is consistent with the Commission's recommendation
and would be helpful.
It is my own view that that fix would be an important fix,
and it is also important to give life to the Section 5
protections, which already were designed to be those kinds of
ex ante----
Chairman Nadler. Why not make Section 5 nationwide under
congressional power to regulate the Federal elections or any
elections as the courts have found that affect Federal
elections?
Ms. Lhamon. Chairman, it is--it is very clear from the
evidence that we gathered that there is support for a need for
that kind of protection nationwide. The United States Supreme
Court gave clear guidance to Congress that it needs to have
current basis for the kinds of harm, and we found that basis in
our investigation of----
Chairman Nadler. The Supreme Court said that we have to
have current basis for discriminatory among different--for
discriminating among different sovereignties. If we didn't
discriminate among any sovereignties, we said everybody is
subjected to Section 5, what is the argument against--is that a
good idea?
Ms. Lhamon. Well, Congress certainly has the authority to
enact the law that it chooses to enact. And it would be--it
would be evenhanded in its protection in that sense, consistent
also with a different sentence in the 2013 decision from the
United States Supreme Court.
It is--it is my view that a belt-and-suspenders approach is
appropriate, and there is an absolutely----
Chairman Nadler. What do you mean by a ``belt-and-
suspenders approach?'' I am sorry.
Ms. Lhamon. That it is important to shore up the basis for
congressional action and----
Chairman Nadler. So you think that would be a good idea?
Ms. Lhamon. I think it would be a good idea to shore up the
basis for congressional action. And there is no question that
there is strong evidence across the country of contemporary
discrimination with respect to access to voting.
Chairman Nadler. Okay, my time has expired. I yield back.
Thank you.
Mr. Cohen. Thank you, sir.
I now recognize Mr. Jordan from Ohio.
Mr. Jordan. Thank you, Mr. Chairman.
Ms. Lhamon, do you believe that noncitizens should be able
to vote in Federal elections?
Ms. Lhamon. I think that is up to the electorate to decide.
Mr. Jordan. But I am asking you, as the head of the--the
chair of the U.S. Commission on Civil Rights here testifying on
the Voting Rights Act, what do you believe?
Ms. Lhamon. Well, Member Jordan, I couldn't answer that as
the chair. My personal belief is that I enjoy voting today in a
community where noncitizens are able to vote. But that is
unrelated to what the Commission would vote on----
Mr. Jordan. My question is real specific. What do you--do
you believe noncitizens should be able to vote in Federal
elections?
Ms. Lhamon. It is not a question that I have given a lot of
thought to. They are not able to vote now. Congress hasn't
given them that authority.
Mr. Jordan. I understand that. But you said you are in a
community where they can vote in local elections. Is that
right?
Ms. Lhamon. Yes, I am.
Mr. Jordan. And you support that?
Ms. Lhamon. I enjoy my right to vote, and I don't question
what my fellow voters have decided.
Mr. Jordan. Mr. Saenz, same question. Do you believe
noncitizens should be able to vote in Federal elections?
Mr. Saenz. No. I don't believe noncitizens should be able
to vote in Federal elections. I do believe that in local
elections, particularly in school board elections where
noncitizens' children may be the most heavily affected by
decisions by those who are elected, that it is appropriate to
consider providing the vote to noncitizens.
Mr. Jordan. And why don't you think it is appropriate? I
just wonder what you are thinking because it sounds like Ms.
Lhamon may think it is appropriate for noncitizens to vote in
Federal elections. You were clear and said you don't think that
should happen. Why don't you think that should happen?
Mr. Saenz. Because I think that we should encourage folks
to naturalize and become citizens so they have the full scope
of rights that are involved in citizenship. Voting is one of
them, but not the only one. So I am in favor of streamlining
our naturalization process and ensuring that everyone who is
eligible has the ability to apply for and receive citizenship,
regardless of their financial circumstances, for example.
Mr. Jordan. Do you think allowing noncitizens to vote in a
Federal election would devalue the vote of citizens?
Mr. Saenz. No, I don't think it would. But I think it would
devalue the process of becoming a citizen for those who were
not born here.
Mr. Jordan. Do you think it would dilute and devalue the
vote of citizens?
Mr. Saenz. I don't.
Mr. Jordan. Well, it seems dislogical that if----
Mr. Saenz. You and I disagree----
Mr. Jordan [continuing]. Only citizens--if only citizens
are allowed to vote----
Mr. Saenz. For me to accept----
Mr. Jordan [continuing]. And noncitizens voted, that would
devalue the vote of the citizen.
Mr. Saenz. I don't see it that way, Mr. Jordan. I think
that would depend upon how those noncitizens vote in comparison
to citizens. I simply have no information about that. So I
can't accept your premise that it devalues someone else's vote
that another person voted.
That is a very dangerous proposition. It would suggest, as
we allow more and more people to vote that somehow they are
devaluing the votes of those who voted previously.
Mr. Jordan. I am all for more people voting, as long as
they are citizens.
Mr. McCrary, do you think--do you believe that noncitizens
should be able to participate and vote in Federal elections?
Mr. McCrary. No. But I would note from the historical
record that restrictions--the restriction of the right to vote
to citizens dates from roughly the turn of the 20th century,
throughout the 18th and 19th centuries----
Mr. Jordan. I understand when it happened. I am asking
today.
Mr. McCrary [continuing]. Noncitizens were freely
encouraged to vote. But in the----
Mr. Jordan. It was a little different country in the 1800s.
Mr. McCrary. I am sorry?
Mr. Jordan. It was a little different country in the 1800s,
Mr. McCrary. I know the law. I am just asking you what you
believe should be the law today.
Mr. McCrary. Representative Jordan, I answered the question
to begin with. The answer is no.
Mr. Jordan. Do you believe it devalues--if noncitizens
would vote, do you think that would devalue the vote of the
citizens?
Mr. McCrary. As an abstract theoretical matter, you are
correct that there would be a devaluation.
Mr. Jordan. Of course.
Mr. McCrary. But it is not likely to be a significant and
empirical problem.
Mr. Jordan. Yeah. Okay. So if it would devalue, you think
only citizens should be able to vote, and if noncitizens did
vote, it would devalue the vote of the citizen. Are you in
favor of some kind of identification and proof that the voter
has to present when they vote to demonstrate that they are
actually a citizen?
Mr. McCrary. Only at the registration level, Representative
Jordan. When you require extra identification processes for in-
person voting, it can serve as a restrictive procedure. It
slows down the process. It makes people nervous about all the
documents that they have to bring----
Mr. Jordan. So you are against a photo ID? You are opposed
to a photo ID?
Mr. McCrary. I am sorry?
Mr. Jordan. You are opposed to any type of photo ID
presented at the polling station when an individual goes to
vote?
Mr. McCrary. Yes. The record before the courts that have
addressed this question is universally that there is no problem
with in-person voter fraud in this country. And the use of a
photo ID requirement actually has been demonstrated to have a
discriminatory effect upon minority voters in every case where
it has been addressed.
Mr. Jordan. Okay. I got 15 seconds. I want to give Ms.
Whitaker a chance to answer the same question.
Ms. Whitaker, do you believe noncitizens should be able to
participate in Federal elections?
Ms. Whitaker. Thank you for that question, Congressman
Jordan.
CRS does not make policy recommendations, and noncitizen
voting is outside of the scope of the testimony that we were
asked to prepare. But we would be happy to research that for
you and get back to you.
Mr. Jordan. Okay. Thank you.
Ms. Whitaker. Thank you.
Mr. Cohen. Thank you, Mr. Jordan.
Professor Raskin is recognized for 5 minutes.
Mr. Raskin. Mr. Chairman, thank you very much.
Thanks to all of the witnesses for your great testimony.
Ms. Lhamon, let me ask you. A United States District Court
in Texas struck down a draconian voter ID law that Texas had
imposed on the people of Texas. But in the meantime, elections
took place where there was a U.S. Senator elected, 36 Members
of this body were elected, the governor, the lieutenant
governor, the attorney general, and what is the remedy for
that?
This election took place under conditions where lots of
people were deterred from participating. Their right to vote
was chilled. What was the remedy under Section 2?
Ms. Lhamon. There is no remedy. There is no way to restore
voting rights to people who now live with elected officials.
Mr. Raskin. Well, isn't that the decisive argument against
neutralizing Section 5 of the Voting Rights Act? Section 5 is
all about preclearance, making the jurisdictions send the plans
in advance to the Department of Justice or to the U.S. District
Court in D.C., right?
And if a State is permitted to get away with violating the
Voting Rights Act, and elections take place under it, there is
no remedy, right?
Ms. Lhamon. That is right.
Mr. Raskin. Okay. Let me ask this question. Should Section
5 be amended to allow private parties to challenge the findings
of the Department of Justice? The Supreme Court held that DOJ
couldn't do that--or rather, that States couldn't object.
Should States have the power to do that?
Mr. Saenz, what do you think about that?
Mr. Saenz. I think it is something worth considering simply
because it then takes the benefits of Section 5 preclearance in
a more efficient and effective way of reaching a timely
conclusion and adds the additional element. Right now, under
previous preclearance regime, you would have to follow up with
a Section 2 case. It would be much more efficient to have a
Section 5-related cause of action.
Mr. Raskin. Okay. And what is your response to Chairman
Nadler's question about whether it makes sense at this point
just to amend Section 5 to say we are not going to try to
figure out which State bears the most guilt at this point under
the Supreme Court's unbelievable outburst of judicial activism,
where they declared basically an equal protection act between
the States which didn't exist.
But in any event, now that is the straitjacket we are
laboring under, why not just say all of the States have to
preclear voting changes with the DOJ first? What do you think
of that?
Mr. Saenz. I am in favor of a hybrid of both. I think there
are certain practices, for example, reverting from district
elections to at-large elections that are, on their face,
questionable and have been used in the past to restrict voting
rights. And those kinds of changes should be subject to the
very effective and efficient preclearance mechanism nationwide.
On the other hand, there are clearly jurisdictions that
have an ongoing history of discrimination in voting and
attempts to restrict the right to vote with respect to
particular minority groups, and those jurisdictions, despite
the second-guessing by the Supreme Court Justices of this
body's conclusions, those jurisdictions should be subject to
preclearance more broadly.
Mr. Raskin. Well, the Civil Rights Act or the Pregnancy
Discrimination Act or other civil rights statutes apply
nationally, even though we don't necessarily have a factual
predicate to prove that there was a problem in a particular
State. Why not just make it nationwide and then avoid another
outburst of judicial activism on the part of the Roberts court?
Mr. Saenz. So my only concern there is subjecting
everything to preclearance nationwide would present a
bureaucratic snaggle that could prevent getting an efficient
and quick response where necessary. So that is why I am in
favor of a hybrid particular practice against a nationwide
preclearance, specific jurisdictions subject to broader
preclearance on all electoral changes.
Mr. Raskin. Okay, very good. Now my friend Mr. Jordan has
left the room, but is there anything in any of the legislative
proposals you have seen to overcome the Supreme Court's
decision in Shelby County v. Holder which would give
noncitizens the right to vote in Federal elections?
Mr. Saenz. Not aware of anything ever been suggested----
Mr. Raskin. Is anyone on the panel aware of anything in any
of the suggested proposals that would give noncitizens the
right to vote in Federal elections?
Ms. Lhamon. I am not.
Mr. Raskin. Okay. Well, let me ask this question. Are you
in favor, let us start with you, Mr. Saenz, of the Federal
Congress striking down local laws across the country that may
allow noncitizens to participate in local elections like school
board elections?
Mr. Saenz. No. I think that is a decision that should be
made at the local level.
Mr. Raskin. In other words, if you respect federalism, you
would say that has got to be up to the States and localities to
figure it out, right?
Mr. Saenz. Absolutely. This body has control over the
Federal elections quite clearly----
Mr. Raskin. Yes.
Mr. Saenz [continuing]. And limited control over other
elections, but that is a decision should be left at the local
level.
Mr. Raskin. Okay. And one must charitably assume Mr.
Jordan's ignorance of the fact that noncitizens could vote in
local and State elections for the vast majority of American
history, and it was his party, the Republican Party, which was
the great champion of that. And Abraham Lincoln actually was
accused of winning election in 1860 based on the strength of
the noncitizen vote.
So all of that seems to be a great red herring, and I would
urge Mr. Jordan to study the history of his own party because
this became an issue in the Civil War, and it was the
Republican Party which stood up for the right of noncitizens to
vote.
I happily yield back, Mr. Chairman.
Mr. Cohen. Thank you, Mr. Raskin.
Mr. Cline is here. I don't think he has a question at the
present time, but I want to commend him for being here to
listen. That is an admirable and unusual quality for a
congressman. [Laughter.]
Mr. Cohen. Ms. Scanlon, you are recognized.
Ms. Scanlon. Thank you very much.
Mr. McCrary, I think you just fielded a question from the
gentleman from Ohio about whether it would devalue the vote of
citizens to allow noncitizens to vote. I would like to flip
that a little bit. Does it devalue citizenship if citizens
aren't allowed to vote for representation in Congress?
Mr. McCrary. I am sorry. Could you repeat the question? I
am not sure I understood it.
Ms. Scanlon. Sure. We had some questions about whether it
devalues citizenship if noncitizens are allowed to vote. But I
would like to focus for a minute on the fact that citizens of
D.C. and Puerto Rico and the territories are actually U.S.
citizens, but that citizenship does not allow them to vote in
congressional--or have representation, I am sorry, voting
representation in Congress. Does that impact the value of their
citizenship?
Mr. McCrary. The only part of that question on which I have
done any serious research is the fact that Puerto Ricans, when
they come to the United States, are automatically able to vote
because they are citizens, and they immediately assume a role
as participants in the electoral process.
Ms. Scanlon. Okay. Thank you.
Just with respect to voting rights, I represent
Pennsylvania. So not a Section 5 State, but we do have our own
challenges. And I would like to focus for a minute on one that
has been particularly prevalent in the districts I represented.
Back in 2010, we had an issue involving Lincoln University,
which is an historic black college and university located in a
predominantly white township, and our local election officials
moved the polling place from the HBCU to a less convenient
place, and that impacted the ability of the African-American
population close to the university to vote. Is that the kind of
thing that the Voting Rights Act was designed to address, Ms.
Lhamon?
Ms. Lhamon. It absolutely is, and it is the kind of thing
that we see very serious concern about all over the country
still today.
Ms. Scanlon. Okay. In fact, just this year, we had an issue
involving Haverford University, also in my district, where the
university had a substantially younger, more diverse population
than the surrounding area, and we had a lot of difficulty
getting a polling place there. Can you make any recommendations
as to what we could do with the Voting Rights Act to address
those issues?
Ms. Lhamon. Yes. It is very important for Congress to
ensure that the Voting Rights Act is amended to allow for ex
ante resolution of those kinds of issues just to make sure that
voters are able to vote in upcoming elections, don't lose their
right to vote because of decisions to move a polling place, to
close down polling places. It has very, very significant
impacts.
We saw, for example, testimony from the Alaska State
Advisory Committee about an Alaska Native elder who had to walk
2 miles to be able to get to a voting place that was open.
Ms. Scanlon. Okay. Thank you.
And just with respect to the bill in general, in my prior
life, I participated with the Lawyers Committee for Civil
Rights, and the National Commission on Voting Rights on
building the extensive record about the continuing issues that
the Voting Rights Act was designed to address. So I am very,
very interested in seeing us amend the Voting Rights Act,
reauthorize the Voting Rights Act to continue.
So thank you.
Ms. Lhamon. Thank you.
Mr. Cohen. Mr. Armstrong is here as well. Would you like to
question?
Mr. Armstrong. Thank you, Mr. Chairman.
Mr. Cohen. You are recognized for 5 minutes. Mr. Armstrong
from North Dakota.
Mr. Armstrong. Talking about preclearance and how we are
doing that in theory, there is a theoretical application, and
then there is an on-the-ground application, particularly in
rural States. North Dakota is unique. It is the only State in
the country without voter registration. It is also incredibly
rural. We have entirely vote by mail counties and different
issues.
So my question, and probably for Ms. Whitaker, is what kind
of evidence has the Supreme Court used in the past to require
preclearance on voting rules?
Ms. Whitaker. Thank you, Congressman.
Under Section 5, the preclearance requirement in the Voting
Rights Act that was in effect prior to Shelby County, the
covered jurisdiction had the burden of proving that the
proposed change to the voting law or standard would neither--
was neither enacted with a discriminatory intent and that it
would not have a discriminatory effect if it were to be imposed
or enacted.
Mr. Armstrong. And has Section 3--and particularly, I think
I can ask it for both Hispanics and Native Americans.
Obviously, in North Dakota, Native Americans are more prevalent
than Hispanics, but has it been used to protect voting rights
of Native Americans in the past?
Ms. Whitaker. Section 3(c) has been used--CRS has not
independently verified this research, but roughly, according to
the legal scholarship in this area, 20 jurisdictions have been
bailed in under Section 3(c). I am not in a position to verify
specifically whether Native American--a case involving Native
Americans was involved, but I would be happy to do so and get
back to you.
Mr. Armstrong. Well, and since I have three other people,
if any of them are aware of it, I would take that answer as
well.
Ms. Lhamon. It has. And also I just want to take the
opportunity to mention that the North Dakota State Advisory
Committee to the U.S. Commission on Civil Rights issued a
statement in October raising very serious concerns on this
front about North Dakota Native American voting rights access.
It in pertinent part says the North Dakota Advisory Committee
is troubled that this restrictive voter ID law targets Native
Americans, the largest minority group in the State,
constituting 5.5 percent of the population.
The committee's primary concern is that the law may deny
eligible voters access to the ballot, and it goes on from
there, raising very significant concern about Native Americans'
rights in North Dakota.
Mr. Armstrong. And actually, that was due to a court
decision that was--without voter registration, there has been
significant voter ID laws and different issues that go on. You
will be happy to know that the turnout on the Native American
reservations in North Dakota in the 2018 election was the
highest it has ever been, presidential or nonpresidential. And
so, hopefully----
Ms. Lhamon. I am happy to know that.
Mr. Armstrong [continuing]. Hopefully, we can continue to
work that forward as well.
Ms. Lhamon. I am happy to know that, and I also know from
the North Dakota State Advisory Committee's work on this issue
that it followed very serious organizing among the Native
American communities, which puts a set of pressure on those
communities that we would hope the Federal law wouldn't
require.
Mr. Armstrong. I yield back the rest of my time.
Mr. Cohen. Thank you, Mr. Armstrong.
Ms. Dean, you are recognized for 5 minutes.
Ms. Dean. Thank you, Mr. Chairman.
I am Madeleine Dean. I come from Pennsylvania, and I think
about Pennsylvania, and we are the poster State for some good
things surrounding voters rights and some very bad things.
Two weeks ago, I had the pleasure, the extraordinary
historic pleasure of traveling with Representative John Lewis
to the Edmund Pettus Bridge, to Selma, and as we came back down
the bridge, my husband stood at a plaque, you know, a bronze
plaque memorializing the Voting Rights Act. And right across
from it, right next to it was a canvas that said ``Lift our
vote, 2020, voting rights under fire.'' It was a jarring
comparison, and it is a reminder of our history, that our
history is not so long ago. And as you point out, the history
is actually continuing in terms of voter discrimination.
When I was first elected to the Pennsylvania House in
2012--so this is pre-Shelby, but we are also not a Section 5
State--you might remember that the Pennsylvania House in March
of 2012 with Governor Corbett signing it, passed a voter ID
law. I was a brand-new representative in May, came in in a
special election. We spent the next year and a half going to
old age homes trying to help people get qualifying
identification.
Sitting with women, men, who were 85, 90 years old who
said, ``I have voted for the last 60 years. I can't believe--I
don't have a birth certificate. I don't have this.''
So the chaos and confusion which ensued from that piece of
legislation until it was overturned as unconstitutional in, I
think, January 2 years later was costly to people. So I wanted
to ask you in kind of plain language, for those who haven't
read Shelby, don't understand what Section 2 does versus
Section 5, what is at stake? You have pointed out that voting
rights are at stake.
What is at stake, and what should we, this committee, in
terms of crafting new legislation to fully, robustly support
our voting rights, what should the American people know about
what is at stake in terms of voting rights?
Ms. Lhamon. Congresswoman Dean, what is at stake is our
very American self-concept. We believe in a country that is
based on full participation and responsive government to its
citizens. If we can't all vote, if we can't all fully
participate, then we are not a true democracy. That is what is
at stake.
Ms. Dean. Thank you.
Mr. Saenz. It is the right to vote, as you have described
it, from the new voter, very eager, just getting out of school,
wants to participate in democracy, who may face barriers,
untoward barriers to that right to vote. To the longstanding
voter who has voted for decades without any problem, but who,
because of new attempts to create barriers to voting, may not
have the ID that is now required to vote, may not know where
the polling place that they voted for decades has moved. May
not understand the new requirements to participate in the
ballot.
It is the right to vote that every citizen enjoys and
should enjoy in a democracy.
Ms. Dean. Professor.
Mr. McCrary. The problem you refer to is one that we
encountered routinely in the cases challenging the use of a
photo ID requirement for voting, in-person voting. And you
illustrate through your anecdote based on your personal
experience why the photo ID is so difficult for some American
citizens.
Specifically, birth certificates are not universally
available. Many people of an older generation were born not in
the hospital, but at home or under the care of a midwife. They
never got a birth certificate. Moreover, people who have birth
certificates but have moved to a different State sometimes have
difficulty in getting a copy of their birth certificate if it
has been misplaced or lost.
There are all sorts of reasons why a photo ID requirement
is a restriction on the voting process for some 10 percent,
depending on which State you are in, of the voting age
population that is registered.
Ms. Dean. I appreciate that. And if you remember, this was
2012. So the corrosive underbelly of what spirited that
legislation was revealed very openly by then-leader Turzai, now
Speaker of the House Turzai, who famously said, ``Voter ID,
which is going to allow Mitt Romney to win the State of
Pennsylvania, done.'' You saw that over and over again, that
that was obviously the spirit of that legislation.
In the litigation, you remember it was stipulated that they
could not come up with a single case of voter fraud through
false ID or acting as though they were someone else. So the
political underpinnings of it.
I guess as we go and move forward to craft legislation,
what can we do to not only protect the Section 5 States, but
States like mine?
Mr. Saenz. I think there are two things. First, we should
all recognize that Section 5, when it was in effect, did help
noncovered jurisdictions, et al., because there was an
indication of what the Department of Justice concluded was
problematic, and the noncovered jurisdictions learned from
that.
But I also believe that Congress should seriously consider
a hybrid coverage formula that would include coverage of
certain changes that have a history that is suspect being
precleared all across the country.
Ms. Dean. That is really helpful. Thank you.
Thank you, Mr. Chairman.
Mr. Cohen. Thank you, Ms. Dean.
And Ms. Garcia, I think you are next, from Texas.
Ms. Garcia. Thank you, Mr. Chairman, and thank you to all
the witnesses.
And it has been sort of an interesting period for me
listening to you because it brings back a lot of bad memories
because, quite frankly, while some say they are the poster
child for what happens good in elections, unfortunately, I am
from Texas. And as you know, some of the leading cases on the
barriers, the bad stuff that happens in this arena do come from
Texas. And while we like to brag about a lot of things,
obviously, this is not one that I like to brag about.
And I want to start with you, Mr. Saenz, because I know you
and I have worked together on a number of cases, and I still
remember calling MALDEF about the Pasadena case because we
needed your help. Because, frankly, my district and my area is
sort of ground zero for some of the litigation that has spurred
in Texas, not only the Pasadena case, but you remember the Lake
City case, the San Jacinto College case, Pasadena School Board
case, the Galveston case. It is all happening there.
And I guess my question is this. It seems to me that all
this has done is do what a lot of conservatives always argue we
don't want to do is litigate, that we are just giving work to
the lawyers, that we are all about litigation. And, but that is
all that has resulted, hasn't it?
Because if you look at what is going on now without the
Section 5 preclearance requirement, there is no other way to do
it. But why should we have to do it? It would be better to do
the preclearance in the hybrid form, as you suggest, or going
back the way it was because then we would avoid all that. I
mean, the costs incurred, how much do you think it has cost us,
just ballpark figure, in terms of resources and lawyers and
litigation, and not to mention what the litigants have to go
through, the petitioners?
Mr. Saenz. I would--it is hard to estimate, but I would say
we are talking in the tens or hundreds of millions of dollars
that have been expended on litigation that could have been
avoided if we had preclearance in place. Pasadena, Texas, is
Exhibit A because that is a case that was precisely created
through a change that the mayor knew he could obtain without
preclearance but understood had preclearance applied, it would
never be approved.
So we could have avoided that litigation had preclearance
still been in place, and that litigation was very costly to the
City of Pasadena, Texas, and its taxpayers. Because they not
only in the end had to pay their own attorneys' fees and expert
costs and other costs of defending, they had to pay the
plaintiff's fees and costs of litigating the case. So you are
doubling the cost of expensive litigation that could be
avoided, which is why I characterize preclearance as one of the
most effective alternative dispute resolution mechanisms that
this Congress has ever put in place.
Ms. Garcia. Right. So tell me, the other thing that I have
noticed about all of this litigation, that it just seems like
the burden is just so much harder to prove the intentional
discrimination factor. It really puts such a high burden on the
petitioner.
Whereas under Section 5, you could file a complaint, and
again, Texas was probably number one in the number of
complaints. And you know, what--is there anything that we can
do in terms of a change in law to help with the burden of
proof, to help with the litigation, to make sure that at least
it doesn't take as long?
Mr. Saenz. The totality of the circumstances test, and that
is how the Supreme Court has described it under Section 2, is a
wonderfully contextualized test. It enables you to look at all
of the different factors occurring in the community. But the
flip side of that is that it is very expensive. And if you then
have to prove intentional discrimination in order to obtain a
bail-in order or requirement that the jurisdiction be subject
to preclearance, as we did in Pasadena, Texas, as you have
indicated, the cost goes up even more. The burden for the
plaintiff goes up even more.
So anything that can be done to identify the prevailing
patterns and somehow streamline the ability to get in and
change those prevailing patterns, and preclearance is the best
mechanism for that. It is available to us if the Congress will
respond to the second-guessing by the Supreme Court majority
and enact a new coverage formula.
Ms. Garcia. Thank you.
And now, Ms. Lhamon, something you said caught my ear. You
said in the response to one of the questions that there was no
question there is discrimination in access to voting. Now is
that an official finding of the Commission or is that just your
opinion, or if it is true, then why are we having all these
debates, if there is no question?
Ms. Lhamon. It is official as a finding of the Commission,
and we voted unanimously to support those findings.
Ms. Garcia. And when was that, ma'am? I am sorry. I don't--
--
Ms. Lhamon. We issued the report in September 2018.
Ms. Garcia. Okay.
Ms. Lhamon. And the very comprehensive investigation of the
Commission includes documenting places all over the country
where people with disabilities are impeded in their ability to
vote, where people of color are impeded in their ability to
vote, where people with language access challenge are impeded
with their ability to vote.
The access to the vote is very much under siege in this
country now, and that is the conclusion of the U.S. Commission
on Civil Rights.
Ms. Garcia. You looked at voting, not the registration, not
any of the other--just the actual voting, access to the ballot
the day of the election?
Ms. Lhamon. Yes, we did. So we took in testimony about
people who physically couldn't access their polling place
because the polling place wasn't accessible to people with
disabilities. We took in information about people who tried to
vote on the day of and were turned away.
For example, the Kansas State Advisory Committee took in
testimony from Native American voters who brought a Native
American ID and were turned away at the polling place because
although State law allows voting with a Native American ID,
poll workers at the polling place didn't understand that and so
turned a voter away.
Ms. Garcia. Right.
Ms. Lhamon. There were serious access issues that we
documented around the country.
Ms. Garcia. Well, I suggest you send a copy of the report
to the White House.
Thank you.
Mr. Cohen. Thank you, Ms. Garcia.
And Ms. Escobar from El Paso, Texas.
Ms. Escobar. Thank you so much, Chairman. And Chairman,
thank you for your references in your opening remarks about
Congressman John Lewis. I had the incredible privilege of being
with Congressman Lewis and other Members of Congress recently
as we marched across the Edmund Pettus Bridge in Selma,
Alabama. And at the very top of the bridge, Congressman Lewis
recalled to us in painful and excruciating detail the journey
that he has been on and the journey that led to Bloody Sunday,
all to fight for the vote. All to fight for the vote.
And so that opening was really poignant, and I am very
grateful for it. And I am grateful to all of you for being here
today and sharing your expertise and the work that you have
done in your careers, especially Mr. Saenz, thank you. As a
Latina, I am so grateful to you for the work that you have
done, the work that MALDEF has done. But thanks to all of you
for sharing your time here today.
This past September, the U.S. Commission on Civil Rights
released a report analyzing minority voting rights in the
United States, following the Shelby County decision. The report
found that our home State of Texas has the unfortunate
distinction of having ``the highest number of recent VRA
violations in the Nation.''
Further, the report details that Texas implemented one of
the strictest voter ID laws in the Nation after Shelby County
was decided, the very same law that a Federal court deemed
retrogressive just a year earlier. In fact, Governor Greg
Abbott, who was Texas attorney general at the time, tweeted 2
hours after the Shelby County decision that the voter ID law
would be reenacted.
Mr. Saenz, can you please give us some examples of new
voter suppression mechanisms that would have been prevented by
preclearance?
Mr. Saenz. Absolutely. You know in your State, we are
currently going through Voting Rights Act litigation. Indeed,
yesterday MALDEF lawyers were in court related to the voter
purges that have been threatened for almost 100,000 registered
voters in the State of Texas. Why? Simply because they are
naturalized voters. They are naturalized citizens who then
registered to vote, but prior to naturalizing, they submitted
to the Motor Vehicles an indication that they were not yet
citizens.
But those are nearly 100,000 voters who were threatened
with the prospect of being removed from the rolls. And even if
no action is ultimately taken, as we believe will be the case,
the litigation so far has been successful, that is a
discouragement, a deterrence to so many in the State of Texas,
naturalized or not from participating in voting. And I think
that was the intent behind a huge announcement knowing that the
data was faulty by the secretary of state joined by and
repeatedly re-enforced by the attorney general.
We also have the example of Pasadena, Texas. You would
think after a victory against Pasadena, where the city reverted
from districted city council seats to a combination of
districted and at-large seats that we would see the end of
that. But we currently face an issue in Odessa, Texas, where
there is a similar proposal moving forward, this time by
residents of the town, not the city council itself, that we
have to grapple with.
So there are really weekly, daily challenges to voting. One
of your colleagues mentioned polling place relocations and
consolidations. And you know in the State of Texas,
particularly with the number of counties that you have, that is
a major problem with every election. And under Section 5, when
those changes had to be precleared, we at least became aware of
what consolidations and relocations were being proposed.
Now we don't even have that opportunity to know until the
election is approaching where a relocation may prevent Latino
and other minority voters from participating at the same level
as they have before, and that is just a single measure of what
we have lost as a result of the Shelby County decision.
Ms. Escobar. Thank you.
Ms. Lhamon, what can Congress learn from Texas? Are there
any characteristics that are risk indicators for voting
discrimination?
Ms. Lhamon. Loyola law professor Justin Levitt testified to
the U.S. Commission on Civil Rights about Texas that Texas is
``unrepentant recidivist with respect to voting rights.'' And I
think that is what this body can learn from Texas, that there
is repetition. And over and over again, around the country, in
Texas, among other States, in the goal and the attempt to deny
some of us our right to vote, that is a history that extends
all the way to the present. That includes intentional
discrimination as found by Federal courts in Texas.
That lets us know that we cannot turn away and assume that
our voting rights will be protected just because we promised.
We have to believe and know and act accordingly, expecting that
some among us, as Texas has shown it will do, will try to deny
the vote to some people.
Ms. Escobar. And it is what Chairman Nadler described as
this endless game of whack-a-mole.
Ms. Lhamon. That is right.
Ms. Escobar. That as soon as you feel as though you have
advanced just a little bit and done what Congressman Lewis has
said or described as open it up, open it up to everyone. Let
everyone have the vote. Let them have their right to vote.
That as soon as it is denied, sure enough, before you turn
around, we are fighting it again.
Ms. Lhamon. That is exactly right. And my only amendment to
that would be that it is not a game to have access to
participation in democracy, to be fully recognized as a citizen
and a full participant in this country. That is something that
is core to who we are, and we ought to protect it with that
vigilance.
Ms. Escobar. And in Latino communities especially and
communities that are largely immigrant communities, it is
intended also to send a message, a very strong message.
Mr. Saenz, you are nodding your head. What do you think
that message is?
Mr. Saenz. It is intended to prevent people from
participating. It is intended to prevent people from taking the
right that they have and the duty that they have and exercising
it. It is intended to send a message of deterrence.
So even if you successfully stop something in the courts,
it has already had that effect of sending a message from the
highest levels in the State of Texas that your participation is
not wanted.
Ms. Escobar. Thank you all very much. I yield.
Mr. Cohen. Thank you very much.
I would just like to ask one question of the panel, and
maybe Mr. McCrary, as an historian, or Ms. Lhamon. In the
preclearance States that we had I think in '65, Alaska was
included, and maybe was there another--Alaska and Arizona were
two States outside the South, but the other States went kind of
like the Old Confederacy. It was Texas, Alabama, Mississippi,
Louisiana, Georgia, South Carolina, and then Virginia.
Has there been more of a history over the years and up to
today of laws that discriminated against minorities in Southern
States than in other States. Mr. McCrary.
Mr. McCrary. Yes, but I thought you were asking me about
the bailout provisions that got Alaska and other States out of
coverage almost immediately after the 1965 act was adopted.
Certainly there is a record that is much greater for covered
jurisdictions back in the day before 2013. I actually did a
declaration in the Shelby County case in which I looked all of
the consent decrees that were settled in Section 2 lawsuits
that were reflected in the court records under the Pacer
system, and there was a marked disparity in the number of
lawsuits brought under Section 2 that were settled by consent
decree in the covered jurisdictions.
My recollection is it was two, three times as many as in
the rest of the United States, the three-quarters of the
population that lived in noncovered jurisdictions. But of
course, the record of Section 2 lawsuits in reported cases also
reflects a disparity between the covered and noncovered
jurisdictions so that the answer was even if you are restricted
to reporting decisions, reported decisions, you would find that
discrimination in voting is--was greater in the covered States,
covered jurisdictions than in noncovered jurisdictions.
Mr. Cohen. And Ms. Lhamon, is that what you found, too?
Ms. Lhamon. Without question, the history that you describe
does track to Southern States, but your reference to Alaska is
apt in that Alaska is one of the States that we document in the
report has repeat violations of voting rights and is well
outside the South.
We also took in testimony and information about very
serious concerns about States that are not Southern States with
very current issues with respect to voting. Just to highlight
or lowlight a particularly salient example, very recently in
Maine, the then-chair--he is no longer the chair. But the then-
chair of the Republican Party complained about dozens and
dozens of black people coming into Maine to vote as a way of
saying that there must have been fraud in Maine.
This is well outside the South, but obvious racialized
charge about voting access issues in the State. So I have been
enormously distressed in the Commission's work to investigate
the status of voting rights about the repeat concerns in
Southern States, but equally distressed about current present
concerns well outside the South across the country, denigrating
the right to vote.
Mr. Cohen. And I understand and I concur in that concern.
But what I was concerned about in Shelby v. Holder is what the
Court was basically saying is that because there are problems
in other parts of the country, which there are, most of which
are localized, not statewide and more limited, that they threw
out the preclearance for the Southern States that have shown a
great history going back as far as history goes in our country
of discrimination, and they gave them a free pass because of
concentrating on a small part.
And as I learned as a child at a donut shop, keep your eye
on the donut and not on the hole. [Laughter.]
Mr. Cohen. And that is where they messed up.
Ms. Lhamon. Very sage advice.
Mr. Cohen. I think there are probably some significance
that the anthem ``Dixie,'' which was so prevalent and popular
in the South says ``Old times there are not forgotten,'' and
they are not forgotten with voting rights.
Ms. Lhamon. There are some other lines I like less in that
song, but that is a good one.
Mr. Cohen. They are not forgotten with voting rights.
Mr. McCrary, will you tell me about the bailout provision?
Because that is news to me.
Mr. McCrary. The bailout provision or the bail-in
provision?
Mr. Cohen. Whatever you said you thought I was going to ask
you. [Laughter.]
Mr. McCrary. Oh, bailout. It was a small point that in the
initial phases of enforcing the Voting Rights Act, several
States were able to bail out of coverage because the formula
had picked them up, but there was no evidence on the record
that they had a history of racial discrimination affecting
voting.
Of course, subsequent to that, there have been lawsuits in
several of those States, and in fact, I think at least one
State was added back into coverage not too long after the 1970
act was revised. So, but that is a small point I thought you
were leading up to that confused me.
But as to the bail-in provision set out in Section 3(c) of
the Voting Rights Act, one thing that is important for the
committee to remember is that it requires proof of intentional
discrimination and a judicial finding about that intentional
discrimination. And even where courts have found intentional
discrimination, such as in the North Carolina case to which I
referred, the court did not, in fact, impose a Section 3(c)
remedy. One way of dealing with the problems the committee has
expressed concerns about might be to think about revising the
Section 3(c) provision of the Voting Rights Act.
Mr. Cohen. Thank you, sir.
Mr. Saenz, you want to say something?
Mr. Saenz. Yes, I just wanted to say bailout is critically
important, and the Supreme Court majority in Shelby County
failed to accord the bailout provision sufficient attention. It
means that while history is predictive--so the history in the
South is predictive of what is going to happen. We have seen it
post Shelby County.
That is where the activity is, is in previously covered
jurisdictions. So history is predictive. Recidivism is real in
the context of the voting rights violations.
But where a jurisdiction, whether a State or a smaller
jurisdiction, can demonstrate that they are not following their
history, they are turning their backs on a history of violating
voting rights and ensuring that everyone can participate, the
bailout mechanism permitted them to seek relief from
preclearance in the future.
And I think that is critically important. It means that
while history is a very strong predictor, if you can
demonstrate you are not following that history, you get the
opportunity to no longer be subject.
Mr. Cohen. And which States and at which time did that
ever--has that occurred?
Mr. Saenz. So as Mr. McCrary indicated early on, there were
States that bailed out. Later on--Mr. McCrary would know the
States.
Mr. Cohen. Which States bailed out?
Mr. McCrary. Alaska, I think Arizona. I can't recall any of
the other States----
Mr. Cohen. So it left it with the Dixie whatever, the
South.
Mr. Saenz. Now remember, there were also smaller
jurisdictions around the country, and some of those smaller
jurisdictions bailed out.
Mr. Cohen. Yes, but no States. No States. But no States. So
the only States that were left in were those in the South. Is
that correct, Mr. McCrary?
Mr. McCrary. Yes, until later revisions of the act in which
some areas of New York were covered and a few other----
Mr. Cohen. Areas, but not a State.
Mr. McCrary. Pardon?
Mr. Cohen. Not a State, only areas?
Mr. McCrary. Not a State.
Mr. Cohen. Right. Let me have one last question. And you
talked about, Mr. Saenz, about the idea of having a two-pronged
test, and one is the old preclearance and the other would be
mechanisms. Congressmen have to determine what procedures or
processes would fit into that class. Does it not concern you,
as it concerns me, that we might not be looking at the hole and
not the donut again, and we give the Supreme Court another
reason to possibly throw out our law because we haven't done to
their satisfaction a sufficient test to define those areas or
to limit them to the ones that are most germane and maybe even
throw out Section 5 entirely?
Mr. Saenz. I think there are strong indications with
respect to certain practices that there have been voting rights
violations so inherent in some of those practices that a record
could be created. Indeed, I think we have got the record for
particular practices. It is a limited number. The one example--
--
Mr. Cohen. What are those practices?
Mr. Saenz. The one example that I gave was a jurisdiction
that chooses to revert from districted to at-large. Ordinarily,
that is done to prevent a minority group from controlling the
majority of the body, for example. That is what we saw in
Pasadena. We are seeing it in Odessa. We are seeing it in many
jurisdictions across the country.
Usually it doesn't go that direction back to at-large. Now
there could be a reason why that would be precleared. Maybe the
jurisdiction is reverting to at-large because it shrunk so
much, it is a much, much smaller city than it used to be. But
that, I presume, would be precleared.
But I think that there are a small number of practices
where a record exists to support subjecting them to
preclearance, an efficient and effective way of evaluating
their potential for violating voting rights across the country.
I don't think it is a huge list of practices. I do think that
it is a way of ensuring that we are using this powerful
alternative dispute resolution mechanism as effectively as
possible.
As I have said in public speeches, when you talk about vote
suppressors, you want to target the serial vote suppressors.
That is the Deep South. But you also want to target the copy
cat vote suppressors who adopt the tactics of those for their
own needs.
Mr. Cohen. Thank you, sir. And with that, we will conclude
our hearing. I want to thank all the----
Mr. Gohmert. Mr. Chairman, I would like to ask----
Mr. Cohen. Sure, Mr. Gohmert. I didn't see you there. Mr.
Gohmert from Texas is recognized for 5 minutes.
Mr. Gohmert. Thank you. Thank you.
It is interesting to hear all the talk about
discrimination. As I recall when we had the Voting Rights Act
reauthorized, it was clear to me it was going to be
unconstitutional. I talked to deans from some very liberal law
school, constitutional law professors now said this is not
going to stand up because you can't keep punishing States for
activity 50, 60 years--50 years or so before.
And the amendment I was trying to get passed that a
majority voted down said let us apply Section 5 anywhere
discrimination is found. But the majority said, no, we want to
keep punishing areas that have been found to have violated
civil rights 40, 50 years ago. We want to keep punishing them,
and we had data that showed that there were areas around the
country, not whole States, but there were areas--I think there
was an area in Wisconsin, California, in New England--where
there was great disparity in the voting records indicating
strong indication of racial discrimination.
And yet people that were Members of the House from those
States absolutely were adamant you cannot open up Section 5 to
States that are not part of the traditional South because we
don't want to be included. There was no way that was going to
stand up.
I brought it to the attention of a Republican ranking
person at the time, Jim Sensenbrenner. He didn't want to hear
it. He didn't want it included. Of course, he was from
Wisconsin.
John Conyers, as chairman of the committee, was much more
open to talking about it. Said let me talk to our experts. And
anyway, he came back and said, yes, they tell me there is a
chance it could very well be struck down. But we will go ahead
and run that risk. Well, it got struck down.
Mr. McCrary--I am sorry, Ms. Whitaker, in your research,
and I know we heard mention of Section 3(c), Section 3, in your
research, has Section 3 ever been used by Federal court to
require jurisdiction to preclear their voting rule changes?
Ms. Whitaker. Thank you, Congressman Gohmert.
Yes, our research has indicated there have been instances
where the bail-in provision in Section 3(c) of the Voting
Rights Act has been used to subject a jurisdiction to a type of
preclearance.
Mr. Gohmert. And I notice at the Democratic National
Conventions where voting is so important, you know, last was it
going to be Bernie Sanders, was it going to be Hillary Clinton?
There were complaints, you know, of cheating to keep Bernie
Sanders from being the candidate, all these kind of issues.
But I noticed around, and we have photographs around the
convention site. There were huge barriers, fences, and I know
going back to at least 2008 when candidate Senator Obama won,
that no one was allowed in the convention without proper
identification. And because that was so strict at these prior
Democratic National Conventions requiring photo ID, proper
identification, Ms. Whitaker, in your research, have you found
any lawsuits against the Democratic National Convention for
requiring such stringent voting ID requirements and photo ID
requirements to get in to be able to vote at the convention?
Ms. Whitaker. Thank you, Congressman.
We have not conducted that research, but if you would like
us to, we would be pleased to do so.
Mr. Gohmert. Yes, I would love that because I have not been
able to find any lawsuits, and it is just interesting why that
would not be discriminatory to get into the national--
Democratic National Convention. I know when I tried to get into
the Department of Justice when Eric Holder was the AG,
incredibly rigorous, and I would have thought, as a Member of
Congress, that was a right.
But in any event, we talk about discrimination in voting,
and it shouldn't be allowed. Whatever needs to be done should
be done to prevent any type of discrimination. On the other
hand, we also should be just as adamant about preventing
dilution of the vote.
I heard mention, gee, we ought to give everybody a chance
to vote, just let everybody vote. Well, that is a huge dilution
of the people that are United States citizens who are the
people that are supposed to be able to vote. And at some point,
unless we totally lose the group mind of this country, at some
point, some court--hopefully, the highest court--will recognize
the damage that is done when votes are diluted by people that
are not allowed to vote, that vote more than once, that get on
buses and go to different areas, and that where in college
towns, college students are told use your college ID to get to
vote here, and then don't use your driver's license. That way,
you can use your driver's license back where you live when you
are not in college.
Those are forms of dilution of the vote, and I am hoping
that what solution we come to will deal with all types of vote
dilution and discrimination so that the vote will come back to
mean what it should mean, being one person, one vote. And being
one person should be allowed to vote, but let us make sure
there is not more than one person voting on the same.
Mr. Cohen. Thank you, Mr. Gohmert.
Mr. Gohmert. Thank you. I yield back.
Mr. Cohen. I think we have come to the conclusion of our
hearing. I do want to recognize once more Ms. Johnnie Turner,
and I think it is particular--there are many Deltas here. But
Ms. Turner was the head of the NAACP in Memphis for years. She
was a State representative. Her husband was a State
representative. And she has a long history of fighting for
voting rights and civil rights, and it is appropriate that you
are here today. And you should be recognized for your work and
your husband's work.
Thank you.
[Applause.]
Mr. Cohen. And that concludes our hearing. All Members will
have 5 days to submit questions.
[The information follows:]
Mr. Cohen. I thank all of our witnesses for appearing
today.
Five legislative days to submit additional questions for
witnesses.
The hearing is adjourned.
[Whereupon, at 12:12 p.m., the subcommittee was adjourned.]
APPENDIX
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]