[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
CONGRESSIONAL AUTHORITY TO PROTECT
VOTING RIGHTS AFTER SHELBY COUNTY V. HOLDER
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 24, 2019
__________
Serial No. 116-51
__________
Printed for the use of the Committee on the Judiciary
Available http://judiciary.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
39-700 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
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SEPTEMBER 24, 2019
OPENING STATEMENTS
Page
The Honorable Jamie Raskin, 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
WITNESS
Justin Levitt, Associate Dean for Research, Professor of Law and
Gerald T. McLaughlin Fellow, Loyola Law School, Los Angeles
Oral Testimony............................................... 6
Prepared Testimony........................................... 9
Franita Tolson, Vice Dean for Faculty and Academic Affairs and
Professor of Law, University of Southern California Gould
School of Law
Oral Testimony............................................... 41
Prepared Testimony........................................... 44
Debo P. Adegbile
Oral Testimony............................................... 56
Prepared Testimony........................................... 58
Michael T. Morley, Assistant Professor, Florida State University
College of Law
Oral Testimony............................................... 86
Prepared Testimony........................................... 88
Joe Rich, Former Chief, Voting Section, Civil Rights Division,
U.S. Department of Justice
Oral Testimony............................................... 116
Prepared Testimony........................................... 118
Kira Romero-Craft, Managing Attorney, Latino Justice, PRLDEF
Oral Testimony............................................... 128
Prepared Testimony........................................... 130
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Item for the record submitted by The Honorable Sheila Jackson
Lee, Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 149
APPENDIX
Items submitted for the record by Michael T. Morley, Assistant
Professor, Florida State University College of Law............. 159
Responses to questions for the Record submitted by Justin Levitt,
Associate Dean for Research, Professor of Law and Gerald T.
McLaughlin Fellow, Loyola Law School, Los Angeles.............. 160
Responses to questions for the Record submitted by Franita
Tolson, Vice Dean for Faculty and Academic Affairs and
Professor of Law, University of Southern California Gould
School of Law.................................................. 170
CONGRESSIONAL AUTHORITY TO PROTECT VOTING RIGHTS AFTER SHELBY COUNTY V.
HOLDER
----------
TUESDAY, SEPTEMBER 24, 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 2:06 p.m., in
Room 2237, Rayburn House Office Building, Hon. Jamie Raskin
presiding.
Present: Representatives Raskin, Garcia, Escobar, Jackson
Lee, Johnson, Jordan, Reschenthaler, Cline, and Armstrong.
Staff Present: David Greengrass, Senior Counsel; John Doty,
Senior Advisor; Moh Sharma, Member Services and Outreach
Advisor; James Park, Chief Counsel, Constitution, Civil Rights,
and Civil Liberties; Keenan Keller, Senior Counsel,
Constitution, Civil Rights, and Civil Liberties; Sophie Brill,
Counsel, Constitution, Civil Rights, and Civil Liberties; Will
Emmons, Professional Staff Member Constitution, Civil Rights,
and Civil Liberties; Paul Taylor, Minority Counsel; and Andrea
Woodard, Minority Professional Staff Member.
Mr. Raskin. Mr. Johnson has arrived, so we can do it.
Welcome, everybody. Sorry for the heat in the room. I
understand we have called about getting the air conditioning
going. We say on Capitol Hill it is not heat, it is the
stupidity. So we will try to keep both of them down to liveable
levels during our hearing today.
The Judiciary Subcommittee on the Constitution, Civil
Rights and Civil Liberties will come to order. Without
objection, the chair is authorized to declare a recess of the
subcommittee at any time.
I want to welcome everybody, all of our distinguished
witnesses and everybody in the crowd, to today's hearing on
congressional authority to protect voting rights after Shelby
County v. Holder. I am, let's see, going to recognize myself
first for an opening statement and then turn it over to Mr.
Johnson, we will swear in the witnesses, and then we will get
going.
So today's hearing is part of a series that the House
Judiciary Subcommittee on the Constitution and Civil Rights is
holding to assess ways that we can reinvigorate the
preclearance requirement of Section 5 of the Voting Rights Act
which was so badly damaged by the Supreme Court in Shelby
County v. Holder.
While voting rights are a central part of our national
narrative and self-understanding, continuing efforts to deny
the vote and block suffrage rights for excluded groups has been
as much a part of our history as the proud exercise of the
franchise by those who enjoy it.
Congress passed the landmark Voting Rights Act in 1965, but
it was won by the blood, sweat, tears, and martyrdom of
countless brave Americans in the civil rights movement, like
Mickey Schwerner, James Chaney, Andrew Goodman, Viola Liuzzo,
and Medgar Evers, people who gave their lives struggling for
the universal right to vote and strong democracy everywhere in
our country.
The act mobilized Federal power to protect the fundamental
right to vote against political White supremacy, focusing on
jurisdictions that used a literacy test or a character examine
and where a majority of African Americans or other minorities
were disenfranchised.
The key innovation was the Section 5 preclearance
requirement. The basic problem with laws against
disenfranchisement is that even if you are able to prove the
disenfranchisement and punish the offenders, the election is
long since over, and so the damage to democracy and to
disenfranchised communities has already been done.
So the architects of the Voting Rights Act required covered
jurisdictions, those with the most sordid records of racial
disenfranchised and oppression, to obtain approval of any
changes of their voting laws or procedures from the Department
of Justice or the United States District Court for the District
of Columbia in advance.
The preclearance requirement ensured that proven racist
jurisdictions would bear the burden of proving that any changes
to their voting laws were not discriminatory before they were
allowed to take effect. It thus provided a mechanism to ensure
that any new voting rules and practices in jurisdictions with a
history of discrimination would actually be fair changes.
In this way, preclearance proved to be a significant means
of protecting the rights of minority voters, and it empowered
millions of African Americans, Latinos, Native Americans, and
other Americans to register and actually vote.
This is why Congress had repeatedly reauthorized the
preclearance provision on an overwhelmingly bipartisan basis,
most recently in 2006 when the House passed reauthorization by
a vote of 390 to 33 and the Senate by a vote of 98 to 0.
But in 2013, the Roberts Supreme Court effectively gutted
Section 5 and destroyed the preclearance mechanism when it
struck down the coverage formula that determined which
jurisdictions would be subject to the preclearance requirement.
It held that the decades-old preclearance requirement was now
an unjustified intrusion into State sovereignty because the
coverage formula failed to reflect current conditions. It
essentially held that the coverage formula now violated equal
protection, not equal protection of the people but of the
States, a fairly remarkable turn of events.
In any case, the preclearance provision is dormant and
useless unless and until we adopt a new coverage formula to
replace the one that was invalidated by the Court. Although the
Court struck down the coverage formula in Shelby County, it
noted that it issued no holding on the preclearance provision
itself. The Court indicated that Congress could draft another
formula based on current conditions.
As we have seen in the five hearings we have held so far on
the problem, the Shelby decision opened a new era for formerly
covered jurisdictions implementing a broad array of
discriminatory new voting tactics and devices.
North Carolina, for example, passed a strict voter ID law
that a Federal appeals court ultimately struck down as
unconstitutional, finding that it intentionally targeted
African Americans for disenfranchisement with almost surgical
precision. Yet, as the litigation wound its way upwards,
elections took place for officeholders at the Federal, State,
and local level. In other words, judicial nullification of the
preclearance provision paved the way for precisely the kind of
voter disenfranchisement that Congress had intended to prevent
when it adopted the Voting Rights Act.
We have learned of other profoundly troubling recent State
efforts to turn the clock backwards, including by widespread
polling place closures and relocations, the practice of purging
voters from the rolls in a way that targets racial and ethnic
minorities, and the imposition of aggressive restrictions on
ex-felon voting.
With the current new generation of voter suppression
tactics in the wake of Shelby County v. Holder, America is
being served some of the same nasty old wine in some new
bottles. And in some cases, even the bottles themselves are
recycled.
Congress must act, and we have the power do so. The
considered opinion of many constitutional scholars, including
many here today, several here today, is that our authority to
stop race discrimination in voting remains expansive even
within the terms of the Shelby County ruling. The 14th and 15th
Amendments, of course, gave Congress explicit legislative power
to enforce voting rights and equal protection against
deliberate race discrimination. These amendments formed the
basis of our authority to pass the Voting Rights Act in the
first place, including the preclearance requirement.
When the Voting Rights Act was first challenged the year
after passage, the Supreme Court in South Carolina v.
Katzenbach upheld the preclearance provision and its coverage
formula, holding that congressional authority to enforce the
15th Amendment is broad and comprehensive and that implementing
legislation must pass only a test of minimum rationality, does
it reasonably advance a legitimate State interest.
I also note that the Elections Clause, which confers
authority on Congress to regulate Federal elections, could
further bolster and does further bolster the act's
constitutionality.
The Court in Shelby County hardly addressed these
foundational sources of congressional authority. But even on
its own terms, the Shelby County decision left precedent
standing that recognizes our authority to act to protect the
voting rights of the people. So this is why we have invited the
panel to gather today to come and advise us on this process.
I thank our witnesses and our members for being here today,
and I look forward to a lively and substantive discussion.
It is now my great pleasure to recognize the distinguished
ranking member of the subcommittee, the gentleman from
Louisiana, Mr. Johnson, for his opening statement.
Mr. Johnson. Thank you, Mr. Chairman.
Thank you all for being here.
It is an important issue. This is our fifth hearing, as was
mentioned. And as I said at our last one, we all agree, I mean,
I think every Member of Congress would agree openly that
discriminatory treatment in voting based on race or sex is
abhorrent. It is, of course, prohibited by the Constitution, as
it should be, and it is prohibited by Federal statute, as it
should be.
But too often complaints of discrimination in voting have
nothing to do with discriminatory treatment. Instead, rules
entirely neutral on their face are sometimes claimed to be
discriminatory simply because they have a disparate impact on
one group or another. But we make the point so often that
disparate impacts are not proof of discrimination. Indeed, they
are statistically inevitable.
Yet the bill we will be discussing today, H.R. 4, would
prevent States from enforcing their neutral voting rights laws
if they aren't approved by the Justice Department, and that is
an entity with a history of politicizing that power in the
past. And it would do so based on claims of disparate impact,
which are statistically inevitable and not evidence of any
racially discriminatory treatment per se.
Take the example of the Department of Justice's letter
declining to preclear South Carolina's voter ID law under the
Voting Rights Act as it existed in 2011. The Department claimed
in the letter that, quote, ``minority registered voters were
nearly 20 percent more likely to be effectively
disenfranchised,'' unquote, by the law because they lacked a
driver's license.
But the difference between White and African American
holders of a driver's license was only 1.6 percent. The Justice
Department used the 20 percent figure because, while the
State's data showed that 8.4 percent of White registered voters
lacked any form of DMV-issued ID as compared to 10 percent of
non-White registered voters, the number 10 is 20 percent larger
than the number 8.4.
So it is true mathematically that 10 is 20 percent larger
than 8.4--actually, it is 19 percent larger, but the Justice
Department rounded up--but it clearly distorts the reported
difference in driver's license rates and it was used to falsely
declare the South Carolina law discriminatory.
What other factors might then explain differences in
outcome among demographic groups. Well, to give just one
example, data shows that younger people among both African
Americans and Whites tend to be the least likely to have
driver's licenses. Consequently, if African Americans have
proportionately more young people in their demographic group
there will be a disproportion number of African Americans
without driver's licenses, however slight, as is indeed the
case. That is not discrimination. That is just math. It is
demographics.
The disparate impact approach to civil rights and the
assumption that different outcomes are the result of
discrimination is fundamentally unsound for the same reason
social scientists are trained that correlation does not imply
causation. In other words, there can be all sorts of
correlations between one event and another, and that doesn't
answer the question as to why the correlation exists.
Regarding discriminatory treatment in voting that is based
on race, Section 3 of the Voting Rights Act, which is permanent
Federal statutory law, remains in place and in full effect. It
allows any Federal judge, upon proof of discriminatory
treatment in voting based on race, to subject the offending
jurisdiction to whatever preclearance regime the Court deems
appropriate.
But H.R. 4 would go far beyond what is constitutionally
permissible and it would allow a politicized Justice Department
to veto or amend State voting laws to the political advantage
of the party in power.
As one of the witnesses before us today will explain,
Congress cannot constitutionally enact legislation denying
States and localities control over their voting rules when
there is no evidence they have been engaging in discriminatory
treatment in voting based on race.
The Supreme Court's holding in City of Boerne v. Flores
held that a law enacted pursuant to the 14th Amendment must be
congruent and proportional to actual constitutional violations
that can be established in an evidentiary record.
In considering whether a law satisfies Boerne's congruence
and proportionality standard, the Court assesses whether a
record of actual constitution violations exist; that is,
intentional discrimination in voting based on race. The Supreme
Court has taken a dim view of statutes aimed primarily at
eliminating disparate impacts that don't themselves violate the
14th Amendment. But that is just what H.R. 4 does.
This committee and other organizations have claimed to have
compiled evidence to demonstrate the need to amend the Voting
Rights Act. But the list of examples overwhelmingly includes
DOJ objections to State and local voting rules changes under
Section 5 of the old Voting Rights Act, Section 2 cases, and
cases in which a jurisdiction may have stopped defending the
case after the district court level.
The Department of Justice Section 5 objections are just
that, and not official determinations by a court of ultimate
jurisdiction that a State or locality actually engaged in
disparate treatment in voting based on race.
Section 2 cases can continue to be brought today, just as
other civil rights case are brought, so such cases don't
demonstrate the need to amendment the Voting Rights Act. And
cases in which a jurisdiction may have stopped defending the
case or settled the case after the district court level may
simply indicate the jurisdiction couldn't afford to continue
appealing the case up to a higher court where the jurisdiction
may ultimately have won if it could have afforded to.
Lots said there, lots more to discuss. And with that, I
look forward to hearing from all of our witnesses today. We do
appreciate your time.
And I yield back.
Mr. Raskin. All right. Thank you very much, Mr. Johnson,
for your opening.
We welcome all our witnesses. And I want to thank you for
participating in today's hearing. Please note that your written
statement will be submitted to the record in its entirety, and
we ask that you summarize your thoughts in 5 cogent minutes, if
you would.
There is a timing light on the table. When the light goes
from green to yellow, that indicates you have got a minute to
go. When the light turns red, it signals that your 5 minutes
have expired. So all you law professors take note, and I am
speaking as a law professor here.
Before proceeding, I hereby remind each witness that all of
your written and oral statements made to the subcommittee in
connection with this hearing are subject to penalties of
perjury pursuant to 18 U.S.C. 1001, which may result in the
imposition of a fine or imprisonment of up to 5 years or both.
Our first witness is Justin Levitt, an associate dean for
research, a professor of law at the Loyola School of Law in
L.A. he was previously the deputy assistant AG in the Civil
Rights Division of Justice. He has published many excellent
pieces in the Yale Law and Policy Review, the Harvard Law
Review, and so on, and I have learned a lot from his work over
the years.
And Professor Levitt, you are recognized now for 5 minutes.
STATEMENTS OF JUSTIN LEVITT, ASSOCIATE DEAN FOR RESEARCH,
PROFESSOR OF LAW AND GERALD T. MCLAUGHLIN FELLOW, LOYOLA LAW
SCHOOL, LOS ANGELES; FRANITA TOLSON, VICE DEAN FOR FACULTY AND
ACADEMIC AFFAIRS AND PROFESSOR OF LAW, UNIVERSITY OF SOUTHERN
CALIFORNIA GOULD SCHOOL OF LAW; DEBO P. ADEGBILE, ESQ.; MICHAEL
T. MORLEY, ASSISTANT PROFESSOR, FLORIDA STATE UNIVERSITY
COLLEGE OF LAW; JOE RICH, FORMER CHIEF, VOTING SECTION, CIVIL
RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE; AND KIRA ROMERO-
CRAFT, MANAGING ATTORNEY, LATINO JUSTICE, PRLDEF
STATEMENT OF JUSTIN LEVITT
Mr. Levitt. Thank you very much, Mr. Chair, Mr. Ranking
Member, distinguished members of the subcommittee, thank you
very much for the opportunity to testify.
Federal legislation is essential to protecting voting
rights. The courts have done serious damage to the current
enforcement regime. Bipartisan action should restore it.
The members of this committee who were able to vote in 2006
on the last reauthorization, Republican and Democrat, voted for
the last reauthorization. And I very much hope to help the
committee reach a similar consensus here today.
Congress has the broad power to guard against racial
discrimination in the franchise. I am, in fact, one of those
scholars you mentioned, Mr. Chair.
The 15th Amendment, as just one example, is devoted
entirely to the topic. The Constitution has only been amended
27 times in our history, and one explicitly prohibits
discrimination in voting. That speaks both to the importance of
the issue and the urgency of addressing it.
The 15th Amendment also expressly gives Congress the power
and responsibility to enforce that prohibition through
appropriate legislation. This is an enumerated power. It is not
less than the enumerated power to regulate interstate commerce.
It is not less than the power to regulate the Armed Forces. It
is not less than the power to appropriate spending for the
common defense and the general welfare.
This is a responsibility that Congress was given and one
that I am increasingly encouraged that you are taking up,
including with this hearing here today.
The Supreme Court has also been quite clear that this
enumerated power is not confined to the four corners of the
amendment itself. It includes the power to block State
practices that, and I quote, ``perpetuate the effects of past
discrimination,'' and it includes the power to, and I quote
again, ``prevent and deter discrimination on the horizon.'' And
the structure of H.R. 4 is squarely within that power.
Even while confining Federal authority in other areas, the
court has repeatedly held up the Voting Rights Act as the
exemplar of congressional authority. This is the thing that is
most well-founded on Congress' constitutional bulwark. And
there is only one meaningful exception to that. It is the
Shelby County v. Holder case in 2013.
I am not a fan of the Shelby County decision, but its legal
rule is simple enough: Congressional action has to be
reasonably related to current conditions. The Court thought
that the formula for preclearing new laws reauthorized in 2006
took its core from 1964 turnout statistics, and the Court found
that 40-year disconnect irrational.
Shelby County gave us more than that legal rule. It gave us
a problem. Preclearance was an extraordinary remedy for an
extraordinary concern: racial discrimination in voting. It is
still sadly necessary. Indeed, after several Texas cases
highlighted in my written testimony, preclearance is more
necessary than ever. Shelby County neutered it.
Most civil rights legislation--most civil rights litigation
is responsive. If there is a legal problem, you sue, you prove
harm. Remedies make the plaintiff whole. But enforcing voting
rights is different.
Discriminatory election laws skew the terrain by which
officials hold office. When they fight tooth and nail to keep
the skew to keep their jobs, they don't bear the costs, the
taxpayers do. If taxpayers disapprove, they can't toss the
offenders out because the election rules themselves are the
problem.
In no other arena is the incentive for officials to
discriminate so personal and the costs so dispersed. Enforcing
voting rights is different.
Voting lawsuits are also complicated, the sixth most
complicated in Federal Court. They are expensive and they are
slow, with years to develop evidence and years, as you
mentioned, Mr. Chair, to resolve. Voting rights are different.
Meanwhile, also as you mentioned, Mr. Chair, elections
infected with discrimination don't wait. We know that elections
have consequences. Discriminatory elections have consequences,
too.
Discriminatory elections produce incumbents who end up
making policy. And even if you eventually get the election
structure right, that doesn't fix the policy of the meantime.
There is no way to make voters whole after a discriminatory
election. Enforcing votes rights is different.
After Shelby County, the existing tools to defend against
this discrimination are insufficient. But Congress can and
should fix the damage Shelby County created well within the
rules Shelby County handed down. The Court explicitly invited
Congress to pass a new basis for preclearance reasonably
related to current conditions. H.R. 4 does that. It looks for
current patterns of recidivism and stops them in their tracks.
The other remaining provisions of H.R. 4 are similarly all
based on constitutional authority, which I have pointed to my
written testimony. I look forward to discussing in Q&A. I thank
the members for their time.
[The statement of Mr. Levitt follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Raskin. And thank you very much, Mr. Levitt.
Franita Tolson is the vice dean for faculty and academic
affairs and professor of law at the University of Southern
California Gould School of Law where she teaches in
constitutional law and election law. She has written a wide
range of topics in the field of election law, including
partisan gerrymandering, campaign finance reform, the Voting
Rights Acts of 1965, and the Reconstruction amendments.
Her voluminous research has appeared in leading law
reviews, including the BU Law Review, the Vanderbilt Law
Review, the Alabama Law Review, and many others.
And we are delighted that you came all the way out,
Professor Tolson. And you are recognized for 5 minutes.
STATEMENT OF FRANITA TOLSON
Ms. Tolson. Thank you, Mr. Chair, ranking members, and
distinguished members of this committee. Thank you for the
opportunity to appear and speak about the scope of
congressional power to protect voting rights. This issue has
been at the core of my research since I entered the legal
academy over a decade ago.
My brief comments will focus on how Congress has broad
constitutional authority to enact H.R. 4, authority that
includes the elections clause of Article I, Section 4 of the
Constitution.
In addition to its power to enforce the guarantees of the
14th and 15th Amendments, which prohibit racial discrimination
in voting and elections, the Elections Clause of Article I,
Section 4 provides that the States shall chose, quote, ``the
times, places, and manner of holding elections'' for
Representatives and Senators, but subject to Congress'
authority to, quote, ``make or alter such regulations.''
As I have argued in my scholarship, this provision forms
the basis of our system of Federal elections by giving States
plenary authority to set the ground rules while Congress
retains a veto power over State regulations.
Congress' authority under the Elections Clause is, in the
words of the Supreme Court, paramount. The Elections Clause has
been overlooked as a source of authority for the Voting Rights
Act of 1965 even though the clause provides additional
authorization for its provisions.
In Shelby County v. Holder, the Supreme Court held that the
coverage formula of Section 4(b) of the Voting Rights Act was
unconstitutional. In striking down Section 4(b), Shelby County
accorded no significance to the fact that authority for the VRA
rested on both the 14th and the 15th Amendments. There was also
no consideration of the Elections Clause.
In the post-Shelby world, this has created substantial
confusion about the level of deference that the Court should
accord to Congress when reviewing the legislative record of any
Federal voting rights legislation.
Congress can reduce the risk that the Supreme Court will
invalidate the coverage formula of the Voting Rights Act
Amendment Act by explicitly relying on provisions like the
Elections Clause that bolster Federal power when coupled with
Congress' enforcement authority under the 14th and 15th
Amendments.
The Elections Clause has its own set of unique values that
place a premium on congressional sovereignty, and Congress has,
on occasion, imposed substantive requirements that States must
follow in structuring Federal elections.
The overarching purpose of the clause is to ensure the
continued existence and legitimacy of Federal elections. So the
text empowers Congress to displace State law and commandeer
State officials towards achieving this end.
The Elections Clause avoids many of the traps that have
constrained congressional power under the Reconstruction
amendment. By depriving States of the final policymaking
authority that is the hallmark of sovereignty, the clause is
impervious to the federalism concerns that have constrained
congressional action under the 14th and 15th Amendments.
The clause is also distinct from these provisions because
the clause does not require any evidence of discriminatory
intent in order for Congress to intervene, providing further
justification for a legislative record that shows that States
acted with discriminatory effect or in ways that otherwise
abridge or deny the right to vote.
The Elections Clause can also indirectly affect regulations
long considered to be in the domain of the States, voter
qualification standards and procedural regulations that govern
State elections.
It is difficult to insulate these regulations from the
reach of Federal power. Not only do voters in State and Federal
elections have the same qualifications, but State and local
governments use many of the same practices in Federal elections
as they do for State and local elections. Voters register to
vote, go to the same polling place at the same time and vote on
the same ballot for Federal, State, and local elections in most
places.
As a result, a voting change affecting State and local
elections will also affect Federal elections. If a voting
change will have the effect of undermining the health of
Federal elections, then the Elections Clause provides
sufficient authority for Congress to regulate those changes.
H.R. 4, if enacted pursuant to the Elections Clause and the
Reconstruction amendments, would address all of the objections
lodged against the preclearance regime by the Court in Shelby
County v. Holder.
The Court was concerned that preclearance for covered
jurisdictions was determined based on outdated information
rather than based on current voting rights violations. H.R. 4
links preclearance to voting rights violations committed in the
State in recent decades, the existence of which illustrates
that the State has failed in its obligation to protect the
right to vote such that Federal intervention is required under
the 14th and 15th Amendments.
H.R. 4 also addresses constitutional objections that seek
to challenge congressional power to premise liability on
violations of Federal voting rights laws that, unlike
constitutional claims, do not require the plaintiff to
establish discriminatory intent.
The Elections Clause, when coupled with the 14th and 15th
Amendments, provides sufficient constitutional justification
for a regime that premises liability on both discriminatory
intent and effect. Because there is no requirement of
discriminatory intent under the Elections Clause, this
decreases the amount of intentionally discriminatory behavior
that Congress has to amass in compiling the legislative record
for H.R. 4.
With the authority granted by these provisions, Congress'
constitutional authority to enact H.R. 4 is substantial.
Thank you for the opportunity to discuss my research. I
welcome any questions that you have.
[The statement of Ms. Tolson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Raskin. Perfect. Thank you, Professor Tolson.
Debo Adegbile is a partner at WilmerHale, a member of the
U.S. Commission on Civil Rights. He is testifying here today in
his personal capacity. At WilmerHale, he co-chairs the anti-
discrimination practice. He has served up on the Hill as senior
counsel for the Senate Judiciary Committee, advising then
committee chair Senator Leahy on a number of issues, including
voting rights.
He has worked also for more than a decade for the NAACP
Legal Defense and Educational Fund and was its chief litigator.
He argued Shelby County v. Holder before the Supreme Court in
February of 2013.
We are delighted to have you, and you are recognized for 5
minutes.
STATEMENT OF DEBO P. ADEGBILE
Mr. Adegbile. Thank you, Mr. Chair, Ranking Member, and
members of the committee. It is good to be with you here today.
As you have heard, I am here today as a voting rights
litigator, a citizen, and somebody who is concerned about the
future of voting rights in America, and in my personal capacity
and not in any other.
Today I would like to talk to you about and focus my
testimony on two broad points. The first is the impact the
Court's decision in Shelby County has had on our democracy,
what we lost as a result of that decision.
The preclearance protections of the Voting Rights Act of
1965 brought profound benefits to American democracy. In many
ways, it was the VRA that helped the Nation realize the promise
of our democracy for the first time in our history.
Of course, much work remains to be done to improve and
guard our democracy. No single law or policy has been more
effective than preclearance in guarding equal voting rights and
blocking and deterring the scourge of racial discrimination in
elections.
We know this because this Congress has passed a number of
other statutes previously that did not get the job done. In a
sense, the preclearance process served as a sort of democracy
checkpoint, keeping the road to the ballot box ahead safe by
preventing discrimination from risking serious harm.
Both cars stopped at checkpoints are, of course, not
violating any law, and there is an incidental burden imposed on
those on the road. But checkpoints stop some cars that are very
dangerous. We are glad they do. And knowledge of checkpoints
may deter reckless driving.
But our democracy checkpoint is gone, and Shelby County is,
unfortunately, regarded by some as a green light to impose
discriminatory voting measures. The adverse effects are felt
inside and, I would argue, outside of the covered
jurisdictions.
Inside the formally covered jurisdictions, measures that
would have otherwise been blocked, in some cases that had been
blocked, went into effect in the absence of preimplementation
protection. More broadly, outside the covered jurisdictions,
Shelby County has had a signaling effect that the Federal
Government was in retreat regarding minority voting
protections.
We have lost a law that prevented scores of discriminatory
laws from going into effect. We have lost a law that gave us
transparency and accountability that comes from having a system
where election changes are scrutinized before they take effect.
We lost the deterrent effects of preclearance, and we lost the
signal that preclearance sent that our national government
remains what Charles Sumner called the ``custodian of freedom''
and stands willing and able to stop local governments from
subordinating minority groups in the political process.
There is another important aspect of voting discrimination
to keep foremost in mind. Voting discrimination usually occurs
through laws and practices that affect large numbers of voters,
as we have heard today. A single discriminatory polling place
change or redistricting map can adversely affect thousands or
tens of thousands of voters. And once the benefits of
incumbency vest, in many cases it is difficult for litigation
to undo or rectify the harm.
Second, I want to address some potential constitutional
questions. When Congress reauthorized the VRA in 2006, it
legislated against a backdrop of an unbroken line of Supreme
Court authority holding in case after case that the VRA's
preclearance protections were constitutional. Indeed, when the
Civil War ended, the Reconstruction amendments provided
Congress with substantial affirmative power to finally enforce
the founding principle of equality.
Those amendments provided new and specific authority for
this body to act to ensure that voting rights are protected,
stating that Congress ``shall have the power to enforce this
article by appropriate legislation.'' The Elections Clause, as
we have heard, is another source of congressional authority.
Those powers remain undiminished by the Shelby County
decision, and this body holds the power constitutionally vested
in it expressly to continue the fight to protect voters through
prophylactic measures.
The Supreme Court decision in Shelby changes none of that,
and I argue that the coverage contemplated in the VRAA is
responsive to the current conditions guidance that the Court
gave us in Shelby. The Supreme Court invited a new measure, a
new coverage formula, and that is what this body intends to do
with the VRAA.
Importantly, Section 3 lays out a new coverage standard
that replaces the old one. The basic rule is that if there are
contemporary and persistent voting rights violations, that a
State or county meets a threshold, then you will be subject to
preclearance, but if you improve, you can change your status
and get out of preclearance.
I close with a larger thought about how we should look at
all of this. As Congress approaches this legislation, it does
so with the knowledge that we are decades away from 1965 and in
the tumultuous wake of Shelby. As is the case with the Shelby
County opinion, we are too often told that things in America
have changed. Thankfully, that is true in many significant
ways. But the success of the Voting Rights Act is best
understood not as an end point but as a beginning on the road
to minority inclusion.
Thank you.
[The statement of Mr. Adegbile follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Raskin. Thank you, Mr. Adegbile.
Professor Michael Morley teaches at Florida State
University College of Law. He also works in the areas of
election law, constitutional law remedies in Federal courts.
Received his J.D. from Yale Law School in 2003.
And we are delighted to have you with us, Professor Morley.
You are recognized for 5 minutes.
STATEMENT OF MICHAEL T. MORLEY
Mr. Morley. Mr. Chairman, Ranking Member Johnson, and
members of the committee, thank you very much for inviting me
here today to testify. It is an honor to have the opportunity
to offer thoughts about Congress' authority to protect voting
rights in the wake of Shelby County.
The Voting Rights Act is one of the most important strata
in the firmament of election law. For decades it has been
called a super statute, part of the institutional backdrop
against which others law are enacted. Ensuring its continued
vitality is a continued priority.
Over recent years, and particularly following the
appointments of Justices Gorsuch and Kavanaugh, a majority on
the U.S. Supreme Court has placed greater emphasis on enforcing
a textualist, originalist, and structuralist approach to
constitutional interpretation.
Among other things, this has led the conservative majority
on the Court to enforce greater restraints on the scope of the
Federal Government's authority, enforcing federalism-based
protections for State sovereignty, and limiting the judiciary's
ability to enforce its own conception of fairness in the
electoral process.
The Court's ruling in City of Boerne v. Flores curtailing
the scope of Congress' authority under Section 5 of the 14th
Amendment was a first warning sign that the majority on the
Court would require that laws enacted under that provision be
tailored to the protection and enforcement of constitutional
rights and that Congress' power to enact prophylactic measures
is limited.
The Court sounded an even louder and more urgent warning in
Northwestern Austin Municipal Utility District No. 1 v. Holder
in which the Court voiced concerns about the VRA's formula for
identifying covered jurisdictions.
Finally, in Shelby County, the Court invalidated Section
4(b) of the Voting Rights Act, holding that the list of covered
jurisdictions, which was up to a half-century old, was too
outdated to support the imposition of the strong medicine of
preclearance.
As many other witnesses have pointed out, the Shelby County
opinion invited a dialogue with Congress on these critical
issues, and the Voting Rights Advancement Act of 2019, H.R. 4,
reflects an important step toward accepting the Court's
invitation. I urge this committee to reflect on the Court's
recent precedents, particularly the limitations that the
current conservative majority on the court is likely to
enforce.
This committee has held hearings across the Nation, heard
from scores of witnesses, compiled a voluminous record of tens
of thousands of pages, and devoted countless hours to crafting
a response to Shelby County. Millions of people's rights hang
in the balance. Enacting a law that the current conservative
majority is likely to invalidate would be a pyrrhic victory and
a setback in the cause for voting rights.
Boerne and its progeny identify a range of factors that the
Court takes into account in deciding whether or not a law falls
within the scope of Congress' power under Section 5, or put
another way, whether a law is congruent and proportional to
preventing violations of constitutional rights.
Among the factors that the Court has placed the greatest
weight on is whether the law prohibits a wide range of State
action that doesn't itself actually violate the Constitution,
whether the law targets and prohibits State action that has a
disparate impact on members of certain groups, the breadth of
the law, whether the law itself prohibits State action that
doesn't intentionally violate constitutional rights, and
finally, whether the law is of national applicability.
The more of these factors that apply in a particular case
and to a particular statute, the greater the likelihood that it
would be invalidated by the current Court under Boerne.
I would point out four main aspects of H.R. 4 that I would
urge the committee to consider.
First, H.R. 4's definition of voting rights violations may
be too overbroad to satisfy Boerne's congruence and
proportionality test, and I am happy to talk about that in the
Q&A.
Second, I believe the committee should reconsider the
bill's treatment of political subdivisions. As currently
drafted, an entire State, including every county and
municipality within that State, could become subject to
preclearance based on the acts of a handful of other
jurisdictions over the quarter of a century, acts in which most
of that State's towns and counties, of course, had no
involvement and had no power to stop.
Third, the concept of practice-based preclearance, while a
creative attempt to address Shelby County, is at risk of being
invalidated under Boerne.
And finally, Section 6(e) of the bill, prohibiting changes
to State election laws from occurring unless certain
disclosures are made, raises questions that the provision
should be amended to address.
Thank you very much for your time.
[The statement of Mr. Morley follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Raskin. Thank you very much for your testimony.
Joe Rich retired in 2018 from the Lawyers Community for
Civil Rights Under Law, where he served as co-director of its
Fair Housing and Community Development Project.
From 1968 until 2005 he was an attorney in the Civil Rights
Division of DOJ, acting in various roles, ultimately rising to
the position of chief of the Voting Section between 1999 and
2005.
Mr. Rich, welcome, and you are recognized for 5 minutes.
STATEMENT OF JOE RICH
Mr. Rich. Thank you, Mr. Chairman. Thank you for the
opportunity to testify today.
As you noted, I worked at the Department of Justice for 37
years; 1999 to 2005 I was chief of the Voting Section. I am
testifying today in my individual capacity, not on behalf of
the Lawyers Committee or the Department of Justice, and it is
based on my long career enforcing civil rights laws that has
informed my perspective of the Voting Rights Act and the
continuing need for restoring the full protections of the act
which were lost as a result of the Shelby case.
The voting Rights Act of 1965 is the most important and
successful civil rights law ever passed, but the Shelby County
decision gutted the preclearance provisions which are the heart
of the act, provisions which have been crucial in stopping
discriminatory voting changes and laws before they ever took
effect in States with a long history of discrimination.
The most devastating impact of this decision, in my
judgment, has been the loss of the deterrent effect of Section
5 that it had on the adoption of discriminatory voting laws in
those jurisdictions that were covered by Section 5.
This has been particularly true in the context of
redistricting legislation in which racially gerrymandered and
discriminatory districting has been created by legislators and
their consultants without public participation. For example,
the day after the Shelby decision, Texas reinstated a
redistricting plan previously objected to by the Department
under Section 5.
Another example is set forth in a recent study by the
Leadership Conference on Human and Civil Rights which found
that some 1,688 polling sites had been closed in the wake of
the Shelby County decision, many without notice or input from
the communities impacted by these changes. The majority of
these changes took place in jurisdictions formerly covered by
Section 5, including Texas, Georgia, and Arizona, and many were
in majority-minority areas, resulting in a discriminatory
impact on voters of color.
Had preclearance provisions been in place, it would very
likely have prevented a significant number of these
discriminatory closures.
The gutting of Section 5 has also resulted in a loss of
transparency. When Section 5 was in effect, the Department of
Justice provided on its website valuable information about
voting change submissions and the status of Section 5 reviews
for the public. Now voters and advocates in the formerly
covered States and local jurisdictions are often in the dark
about discriminatory voting changes.
The loss of the preclearance provisions has also severely
curtailed the ability of the Department of Justice to deploy
Federal observers to monitor elections. This was an important
provision of the Voting Rights Act that permitted observations
of elections by specially trained personnel from OPM inside
polling places and where the votes were being counted.
Before Shelby County, jurisdictions that were covered by
Section 5 could be certified by the Attorney General for
Federal observers in situations where there was evidence of
possible racial discrimination. Without Section 5, this
authority has been lost.
The proposed legislation will reinstate the Attorney
General's authority. Importantly, it will also provide new
authority to send Federal observers to Section 203
jurisdictions to ensure that language assistance required by
203 is provided to limited English proficient citizens in a
fair manner.
In conclusion, it is now time to enact legislation to
restore the important protections that minority voters have
lost as a result of the Shelby decision. Reinstatement of a
preclearance requirement for jurisdictions found to have had
numerous recent voting rights violations will deter and stop
discriminatory voting changes before they go into effect.
Reinstating the Attorney General's authority to certify Federal
observers will help ensure elections free from racial
discrimination and provide language minority voters an equal
opportunity to vote.
Thank you.
[The statement of Mr. Rich follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Raskin. Perfect, with 2 seconds to go. You have done
this before clearly.
Ms. Kira Romero-Craft is managing attorney for the
Southeast Office for the Latino Justice Puerto Rican Legal
Defense and Education Fund. In that role she provides direct
representation for clients in civil rights cases, including
those with voting rights claims.
Beyond her litigation work, she organizes outside
coalitions regarding immigrant rights, voting rights, and
criminal justice reform policy and works to educate the public
and policymakers about these issues.
Ms. Romero-Craft, welcome. You are recognized for 5
minutes.
STATEMENT OF KIRA ROMERO-CRAFT
Ms. Romero-Craft. Thank you, Chairman Raskin,
Ranking Member Johnson, members of the committee. I am here
in my capacity to represent LatinoJustice PRLDEF. We have led
the way in ushering bilingual voting systems to the benefit of
millions of language minority voters. Today we use litigation
and advocacy to protect those rights, to stop discriminatory
purges of eligible voters, and to stem the dilution of Latino
voting strength.
I thank you for the opportunity to testify before you about
the ongoing discrimination and challenges faced by language
minority voters in Florida when they attempt to exercise their
fundamental right to vote and why reinstatement and expansion
of the Federal observer certification by the Attorney General
to Section 203-covered jurisdictions as proposed in H.R. 4 is
of critical importance to ensure that language minority voters
enjoy the full protection of the Voting Rights Act.
I began working with the nonpartisan Election Protection
Coalition when I joined LatinoJustice's managing attorney in
2017. As a result, I have fielded many complaints about
discrimination suffered by voters of color and language
minority voters during elections in Florida and have witnessed
firsthand the resistance of election officials to fully comply
with the language assistance requirements of the Voting Rights
Act.
There is a saying in Spanish [Speaking foreign language].
That translated to English means it is better to ask for
forgiveness than to seek permission. That is essentially what
the abolishment of the preclearance requirement has done to the
voting rights of citizens no longer protected by Section 5 of
the VRA.
I am here today to testify specifically about how after the
Shelby County decision the U.S. Department of Justice took the
position that the Attorney General could no longer certify
jurisdictions for the assignment of Federal observers, thereby
preventing DOJ from using this important tool to combat
discrimination against language minority voters inside of
polling places.
An example of a recent case where Federal observers at the
polls may have made a difference in Florida involved the
failure of the State and numerous Florida counties to provide
language assistance to Puerto Rican voters after Hurricane
Maria where our State had welcomed an influx of refugees with
limited English proficiency in 2018 as required by Section 4(e)
of the VRA. And to be clear, Section 4(e) applies across the
country.
Our calls to election officials to address their
obligations to provide Spanish language assistance under
Section 4(e) went substantively unanswered. Our organization,
LatinoJustice, and Demos filed a lawsuit against the Florida
secretary of state and 32 Florida counties that would have
forced Spanish speaking voters to vote in English, a language
that many of them do not understand.
Because of our election protection activities, we also
learned that polling places and counties named in the lawsuit
were failing to provide materials and assistance as per the
court orders.
Had Federal observers been stationed in these polling
locations, they may have ensured compliance and deterred the
continuing violations of law. Federal observers would have had
the authority to investigate and report out on these
violations.
The court granted our motion to stay the case pending a
rulemaking process for statewide Spanish language ballots as
initiated by the Governor as a result of our litigation. Yet
despite the court order and the Governor's mandate, we are
still met with resistance in order for the supervisor of
elections to obey the law.
Comments made during the May 21, 2009, rulemaking workshop
held at the Supervisor of Elections' conference included these:
``It is not in the Spanish culture for Latinos to do this type
of work. Now my grandmother was 100 percent Cuban. It is my
culture. We don't volunteer for these things. I tried to hire
people that didn't even have to go to poll worker training.
They just had to sit and translate. I paid them. They wouldn't
do it.'' This was met to clapping. ``And yet your proposed rule
is likely to inflict a lot of financial damage and a lot of
inconvenience and a lot of wasted time.''
These and many other comments were made by the Supervisor
of Elections, and we, as a nonprofit organization, are unable
to be inside of the polling station, so we are unable to
monitor how these discriminatory acts are taking place.
The H.R. 4 provisions reinstating the ability of the
Attorney General to certify jurisdictions for Federal observers
and the ability to certify Section 203 jurisdictions for the
assignment of observers would undoubtedly help deter and
prevent discrimination against language minority voters and
ensure that they receive the mandatory language assistance as
observers may be stationed inside of the polls to monitor the
assistance the voters are entitled to receive under the law.
We lose the trust of voters by not passing this law to
reinstitute the preclearance requirements for the States
showing a history of violation of voting law. Seeking
forgiveness once the harm is done rarely results in an adequate
remedy once it comes to voting rights violations, as the
professor from Loyola discussed.
In closing, we support passage of H.R. 4 with the goal of
improving language access services to language minority voters
by supporting coverage under Section 203 and Section 4(e) of
the Voting Rights Act.
Thank you very much.
[The statement of Ms. Romero-Craft follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Raskin. And thank you very much for your testimony.
We will proceed now under the infamous 5-minute rule for
questions that each of our members will have.
I am picking up a drift that most of the members of the
panel are skeptics of the Supreme Court's decision in Shelby
County v. Holder, and I think it was abominable, myself.
However, is there anybody who thinks that the Supreme Court,
the current Supreme Court, is in any mood to reverse itself and
to get rid of the Shelby County holding?
It doesn't look like it. Okay. So we have to work, then,
within the structure created by the Court in Shelby County.
There is something of a straitjacket that was imposed upon us,
although one of the multiple flaws of the decision is that it
was rather vague and inarticulate about what exactly the
standard was for defining the legitimacy of congressional
action under the 14th and 15th Amendments here.
Let me pose this question. Does everybody agree that City
of Boerne v. Flores is the controlling regulatory standard that
we need to meet this congruence and proportionality test?
I see, Mr. Adegbile, you are shaking your head.
Mr. Adegbile. No. So, as I read in Shelby County, the Court
spent a lot of time analyzing Katzenbach and the rationality
standard, and the standard it articulated is much more
consistent with Katzenbach than it is with Boerne.
There was not an extended discussion of Boerne and its
progeny. In fact, I know--because I submitted the briefs--that
in the underlying briefs, both in Northwest Austin and in
Shelby County, there were extensive discussions of the
standard, but the Court in both Northwest Austin and in Shelby
County did not take up and frame the standard in those terms.
Mr. Raskin. All right. So you don't think that the majority
on the Court today would bring a congruence and proportionality
prism to interpreting the constitutionality of whatever we
enact in Congress?
Mr. Adegbile. As the chairman knows, predicting exactly
what a new Supreme Court will do--it has different personnel
now than it did at the time--is a very difficult exercise.
However, when these issues have been put to the Court in the
context of the last reauthorization, the Court did not
expressly adopt the Boerne standard, and it had many
opportunities to do so.
Mr. Raskin. All right. But we want something that is going
to hold up. I mean, is it better for us to err on the side of
caution in terms of thinking about this?
Professor Levitt.
Mr. Levitt. So I just want to--``yes'' is the short answer,
but I think H.R. 4 amply does that.
I will also say, there is some sense to the distinction----
Mr. Raskin. Could you just take us quickly through H.R. 4,
through a congruence and proportionality analysis?
Mr. Levitt. Sure. And in this area, they are related. What
the Court is concerned with is that Congress is trying to
redefine--the Court doesn't want to let Congress redefine the
substantive violations of a constitutional amendment. But I
don't think that H.R. 4 comes anywhere near doing that. It
takes steps that are tailored to current conditions in a way
that is designed to either remedy the present effects of past
intentional discrimination or to prevent and deter, in the
present tense, intentional discrimination immediately on the
horizon.
And I think each of the provisions of H.R. 4--the coverage
provision for preclearance, notice requirements, the
requirement to adjust equitable relief standards--each of those
are tailored, in fact. Even though I agree with Mr. Adegbile, I
don't think they have to be under Boerne, I think each of those
are actually tailored to Congress's enforcement authority, not
just under the 15th Amendment but under the 14th Amendment and,
as my colleague has said, under the Elections Clause.
Mr. Raskin. Okay.
The opponents of the Voting Rights Act say that Section 2
lacks constitutional authority under the 14th Amendment because
the amendment requires a showing of purpose but Section 2
applies to both deliberate and effective discrimination. And
so, in turn, they say that a new preclearance formula cannot be
based on the existence of Section 2 violations.
Justice Thomas seems to believe that the Voting Rights Act
does not protect against discriminatory vote dilution based on
race or ethnicity, and he said as much in Cooper v. Harris.
So, Professor Tolson, let me come to you. Is there any
reading of Shelby County that casts doubt on the
constitutionality of Section 2? And what is your response to
the issue of whether Section 2 violations should form the basis
for activating the Section 5 coverage formula?
Ms. Tolson. I don't think Shelby County stands for the
proposition that Congress doesn't have the authority to
legislate based on discriminatory effects. I think that the
Court is looking for a legislative record that is a mix of
both.
One thing I want to point out that I think is quite
pertinent here is the fact that we are focusing a lot on the
15th Amendment--right?--this focus on race. There is also a
branch of equal protection jurisprudence that deals with the
right to vote as a fundamental right that does not focus on or
require a showing of intentional racial discrimination.
So if there is evidence that States are abridging or
denying the right to vote and the legislative record reflects
that, Congress can legislate based on that authority.
Mr. Raskin. Okay.
Finally, let me close on this question to you, which is: Do
you think we have reason to worry that we will jump through all
of these hoops to create a better coverage formula and then the
next sweeping attack on the Voting Rights Act will be to
dismantle Section 5, saying the preclearance requirement itself
is unconstitutional?
Ms. Tolson. All you can do is your job.
Mr. Raskin. Yeah. But is there a way that we can prepare
for that?
Ms. Tolson. I think that H.R. 4, as it stands, is
consistent with current understanding of the Constitution. We
can't predict what a Justice Kavanaugh or a Justice Gorsuch
might do, and I don't think that----
Mr. Raskin. Do we need to thicken up the legislative record
about Section 5 to say that it is still needed, that the
preclearance----
Ms. Tolson. Right. And I also think that Congress needs to
be clear about the sources of authority pursuant to which it is
acting. Force the Court to articulate if it is exceeding the
scope of congressional authority under the Elections Clause,
under the 14th and 15th Amendments. Not just race, though.
Right? It is also about voting.
Mr. Raskin. Thank you very much.
I am over my time, and I am happy to recognize the ranking
member for his questioning.
Mr. Johnson of Louisiana. Thank you.
And, Professor Tolson, I tell him to do his job all the
time, okay?
I have a few questions for Professor Morley.
What are some of the features about a Federal law that
makes the Supreme Court more likely to strike it down as
exceeding the scope of Congress's power under Section 5 of the
14th Amendment?
Mr. Morley. So if you look at the Supreme Court's
precedents after City of Boerne v. Flores in which it
considered some very well-known laws as they applied to State
governments, laws such as the Age Discrimination in Employment
Act, laws such as the Americans with Disability Act, Family and
Medical Leave Act, the types of features that the Court took
into account in determining congruence and proportionality
included comparing the scope of the law, how much State action,
how many State laws, how many State acts the Federal law
prohibited, comparing that to the subset of actually
unconstitutional State action.
So, basically, the broader the law went, the broader the
range of its prophylactic protection, the more State action
that wasn't actually unconstitutional the Federal law covered.
That weighed more heavily against it, and that required a
proportionally greater showing by Congress that such sweeping
prophylactic relief is necessary.
And if you look at some of the reasons why those other laws
were deemed to be overbroad under the congruence and
proportionality standard, it was because, in part, they applied
to all State conduct, not only intentionally discriminatory
conduct but State actions that had a disparate impact against
members of certain groups. It applied to all State actions, not
just intentional discrimination or not just intentional
violations of constitutional rights but also negligent or
inadvertent State actions.
And the Court also looked to the applicability of the law,
that if the law was made nationally applicable, if there wasn't
an attempt to try to cabin it to places where there actually
was evidence of constitutional violations, that also tended to
weigh against the validity of the law under Section 5.
Mr. Johnson of Louisiana. Specifically, are there any
constitutional concerns with the Voting Rights Advancement
Act's proposed definition of a voting rights violation? And
what are the consequences of designating something a voting
rights violation under the act?
Mr. Morley. So if political subdivisions of a State or the
State itself engages in voting rights violations, enough of
those over specified periods of time--and the bill has
different criteria depending on whether the State itself was
involved in a violation--but, basically, enough voting rights
violations, and the State or a political subdivision will be
subject to preclearance requirements under the bill.
And so the definition of voting rights violations under the
bill includes violations of Section 2 of the Voting Rights Act,
including violations that arise under a disparate impact theory
of liability. So Section 2 of the VRA, insofar as it applies to
disparate impact, is already a prophylactic protection.
Preclearance is another prophylactic protection. And so
imposing preclearance requirements based on disparate impact
violations of Section 2 of the VRA is stacking prophylaxis upon
prophylaxis.
That was one of the main reasons in Coleman v. the Maryland
Court of Appeals the Supreme Court held Congress had exceeded
its Section 5 powers. And it was, in fact, drawing from
campaign finance law. That concept of prophylaxis upon
prophylaxis led the Supreme Court to strike down aggregate
contribution limits.
So the more prophylactic protections you are stacking on
top of each other, the further you are away from that core of
an actual constitutional violation.
Another main concern about the definition of voting rights
violations is the fact that it is triggered by a consent decree
or a settlement or an agreement in any case where the
plaintiffs alleged in complaint that the jurisdiction had
violated the Constitution or had violated the VRA.
So even if the parties settle without an admission of
liability, even if a court never finds that the Constitution
was violated, simply by entering into a settlement agreement,
that counts as a Voting Rights Act violation--excuse me--as a
voting rights violation.
So, from a policy matter, you are going to be incentivizing
jurisdictions to continue fighting cases they would otherwise
be willing to settle. You are incentivizing potentially
frivolous litigation simply because even a settlement would be
enough to count as a strike against the State. And particularly
because States and political subdivisions are often litigating
under the threat of being hit with attorneys' fees, they will
often be willing to settle even if they believe that what they
did wasn't actually unconstitutional or didn't actually violate
the VRA.
Mr. Johnson of Louisiana. And I am out of time,
unfortunately. Thank you. I yield back.
Mr. Raskin. Very good.
The gentlelady from Texas, Representative Sheila Jackson
Lee, is recognized for her 5 minutes.
Ms. Jackson Lee. Mr. Chairman, thank you.
And thank you to all of the witnesses that are here before
us today.
Let me ask about your response to Professor Morley. And
here is my question. Is it layered upon layer? Do you feel
States would be so generous that if you just gave them less of
a layering they would respond generously, as has been noted?
And then let me ask the question, as we know, Section 2 is
the hit-and-run. You have already been hit, the car has already
escaped, and you are laying on that side of the highway,
bleeding, and maybe an ambulance will come and rescue you. How
do you perceive this analysis as it relates to where we are
today?
Mr. Adegbile. Thank you for the question.
I would say in the first instance that the bill
contemplates a range of conduct, all of which can lead to a
finding that a jurisdiction needs oversight.
Much of the conduct could be intentional. There are voting
rights violations that can be determined through the use of an
effects standard under Section 2.
But when you look at what you need to do to prevail in a
Section 2 case, the indicia and the proof in the underlying
statute is essentially like intent-light, in some ways. There
are many specific things that are indicative of an intentional
conduct, or conduct certainly that has impact, that is framed
in the context of specific behavior.
Ms. Jackson Lee. You are already harmed. You are already
harmed.
Mr. Adegbile. And, of course, there is an impact and a
minority voting harm.
So this is not a statute that leans entirely on one side or
the other. As we said earlier, the prophylactic power of
Congress to enforce the underlying right is very substantial.
And in the Boerne cases that my colleague cites, repeatedly,
all of those cases pointed to Section 5 of the VRA as being the
iconic statute, the statute that was----
Ms. Jackson Lee. The gold standard.
Mr. Adegbile [continuing]. The statute, right?
So to take the idea that the Boerne cases somehow disable a
statute designed to protect voters against discrimination in a
preclearance way is inconsistent with the jurisprudence, no
matter how you slice it.
As to your point about Section 2, Section 2 is very
important, but it is a post-implementation remedy. And both
Professor Levitt and I spoke about the difficulty of that
timing difference. When you have a Section 2 case, they are
very expensive; they take a long time. Very often, the benefits
of incumbency have vested, and you can't unring the bell.
That is what has been lost with the preclearance
protection. In jurisdictions that have patterns over time of
discriminatory voting conduct, you need a different measure.
And, in fact, the history has been that those two measures work
together.
Ms. Jackson Lee. That is the point I was making when I said
the hit-and-run and you are waiting for an ambulance, which is
you have already been harmed under Section 2. So you bifurcated
the answer and then responded to my Section 2 question, and I
appreciate your response.
Professor Tolson, I am impressed with your work suggesting
our broad authority in the 14th and 15th Amendments and our
ability to regulate elections.
Do you think that we could have had a different decision if
the Court had included your analysis as part of their
assessment on the Shelby case?
Ms. Tolson. Yes, ma'am. I do think that--I did file a brief
with a group of law professors arguing that the Elections
Clause provided additional authority for the predecessor to H.
R. 4, but the Court didn't discuss the Elections Clause. And I
just think the Court was kind of committed to striking down the
preclearance regime. So, yeah, I do think that we could have
had a different outcome.
Can I make one other point, ma'am----
Ms. Jackson Lee. Go right ahead.
Ms. Tolson [continuing]. With respect to your other
question?
I just want to point out that a lot of courts don't find
intent because they don't have to, but that doesn't necessarily
mean that intent is not present. So if you look at the Texas
voter ID case, the lower courts found that intent was present
even though a panel of Fifth Circuit later just relied on the
Section 2 analysis.
And so I think that the question of relying on Section 2,
whether or not it is constitutional, is actually quite complex,
because a lot of courts, because Section 2 does not require it,
they do not use an intent analysis. And so I think that the
current bill takes that into consideration.
Ms. Jackson Lee. Thank you so very much.
Mr. Levitt, let me pose again Mr. Morley's long discussion.
The chilling effect that H. R. 4 would provide, it quashed the
generosity of jurisdictions. How do you respond to that?
Mr. Levitt. Well, I think it only chills discrimination.
And so I am not against the chilling effect on discrimination.
The preclearance regime is designed to see whether a
provision is discriminatory or not. It is a simple check before
the provision has the opportunity to do damage in the real
world, to execute the hit-and-run, as you suggest.
It is the sort of grappling with Federal Government
authority that is baked into the 14th Amendment, that is baked
into the 15th Amendment, that is baked into the Election
Clause, which all give Congress the not only authority but
responsibility to make sure that local jurisdictions
administering elections aren't discriminating.
And with respect to the prophylaxis, really, all of these
patterns, as Professor Tolson said, as Mr. Adegbile said, are
looking for patterns of discrimination, warning signs that more
is on the way, that intentional discrimination is on the way.
You are not looking for exact ``gotcha'' moments so much as an
overall pattern that leaves deep concern. That is the reason
for the deterrence; that is the reason for the prophylaxis. And
I think it is amply within congressional power, as Mr. Adegbile
pointed out.
Ms. Jackson Lee. Thank you.
Thank you, Mr. Chairman. I yield back.
Mr. Raskin. Thank you very much.
Let's see. We are recognizing now Mr. Cline.
Mr. Cline. Thank you, Mr. Chairman. I am happy to yield my
time to the ranking member, Mr. Johnson.
Mr. Johnson of Louisiana. I thank Mr. Cline for yielding.
I am going back to Professor Morley again.
You gave such great answers earlier, we will keep going.
Why would you say--this whole argument is framed about
Congress's power under Section 5 of the 14th Amendment being
the main issue here. And I am wondering why Congress can't
simply enact the Voting Rights Advancement Act under its other
constitutional powers, like the Elections Clause or Section 2
of the 15th Amendment.
Mr. Morley. So the City of Boerne narrowed the scope of
Congress's power under Section 5 of the 14th amendment. The
Court has never revisited its rulings about Section 2 of the
15th Amendment. I believe the Court is likely to construe
Section 2 of the 15th Amendment the same way as it interpreted
Section 5 of the 14th Amendment in Boerne for a few reasons.
Those two provisions, Section 5 of the 14th Amendment and
Section 2 of the 15th Amendment, they have materially the same
language. They are structured the same way. They were adopted
roughly contemporaneously with each other as part of the
Reconstruction amendments.
The purposes, the original intent underlying these
amendments about empowering Congress to enforce the guarantees
provided by the substantive constitutional amendments
themselves were the same.
Historically, Section 5 and Section 2 were read in pari
materia with each other. So during the first round of cases in
which the Court upheld the Voting Rights Act, the Court
analogized both Section 5 and Section 2 to the Necessary and
Proper Clause--right?--``let the ends be legitimate,'' as it
construed both of those provisions as giving Congress virtually
plenary authority over the area.
And so, particularly given their virtually identical
language, structure, history, as well as history of
interpretation, I think it is overwhelmingly likely the Court
would apply that Boerne analysis to Section 2 of the 15th
Amendment.
With regard to the Elections Clause, yes, Congress has far
greater power over Federal elections than it has over State and
local elections. The congruence and proportionality analysis of
Boerne is relevant insofar as Congress is trying to target
State and local elections rather than just Federal elections.
So, certainly, were Congress only regulating Federal elections,
as it has under many other laws, like the National Voter
Registration Act, it would have much greater flexibility.
And I will also note that, historically, States have
generally chosen to apply Federal laws that regulate just
Federal elections to State and local elections as well, even
though they weren't required to, simply because they don't want
to run two separate sets of election systems in parallel to
each other.
Mr. Johnson of Louisiana. So if Congress doesn't adopt a
new statutory formula for preclearance, what other mechanisms
exist to ensure that States and localities don't violate voting
rights?
Mr. Morley. So one option, which several other witnesses
mentioned, is the notion of ex post facto litigation, where a
locality enacts a statute and then either affected voters,
civil rights groups, other plaintiffs go to court and obtain a
restraining order, obtain a preliminary injunction. Obviously,
the Department of Justice is also in a position to do that.
The other main option, though, and one which has been very
heavily underutilized is, under current law, Section 3 of the
Voting Rights Act allows for bail-in. And this is an option
that some courts have been reluctant to utilize. This is an
option where, if a court finds that a jurisdiction has engaged
in an intentional discrimination, it can bail-in that
jurisdiction to preclearance. And so you have an actual
constitutional violation, and you would be then subjecting that
offender, that jurisdiction, to preclearance.
As I mentioned, courts have been reluctant to do this. This
committee could consider the option of strengthening Section 3
of the VRA to either a presumption of bail-in or even mandatory
bail-in when a court finds intentional discrimination.
Mr. Johnson of Louisiana. And the amendment to that
language would be a pretty simple statute, wouldn't it? It
would just be a couple of lines, right?
Mr. Morley. Yes.
Mr. Johnson of Louisiana. You are just changing a couple of
terms.
Mr. Morley. Yes.
Mr. Johnson of Louisiana. I will yield back, Mr. Chairman.
Mr. Raskin. Thank you very much.
Ms. Escobar, you are recognized for 5 minutes.
Ms. Escobar. Thank you, Mr. Chairman.
And thanks so much to all of our panelists.
Mr. Adegbile, since you argued the Shelby County case for
the respondents, for the average American, can you please
describe in layman's terms what the Supreme Court held?
Mr. Adegbile. In layperson's terms, the Supreme Court did
not like the standard that Congress had adopted and
reauthorized to subject certain places in the country to
preimplementation review of their voting changes.
That is to say, States and localities everywhere pass
voting laws and change voting practices somewhat regularly.
Some places in the country have histories of lots of
discrimination in voting. And so the Section 5 preclearance
system was designed to focus on those places, because filing
individual cases was not enough. Why? Because after people won
those cases, the jurisdiction would find another way to
discriminate against the targeted population.
And so Section 5 changed the game, because it said, rather
than presume that you get to implement these things, we are
going to look at them first, we are going to kick the tires, to
make sure that you are not visiting discrimination on the
communities that have long suffered under this system, and we
are going to make you come forward and show that you don't
discriminate intentionally or it doesn't have a discriminatory
effect.
The Supreme Court didn't like the way that Congress
identified those places that would be subjected to this system.
And that is why, today, we are talking about the new way in
which Congress is intending to have a more current system of
identifying the places that could be subjected to this. And,
frankly, this bill makes everybody eligible to be under the
preclearance regime but also has a clear path to get out. And
it is sort of dynamic and renewing.
Ms. Escobar. Excellent. Thank you so much.
And Ms. Romero-Craft, I hail from the great State of Texas,
where we have legislators and a--we have leadership that has
chosen to make voting much more difficult for minority
communities and minority groups. And I was really taken by your
description of what you witnessed in Florida and the impact
that this has had on voters, specifically voters who are recent
immigrants and whose rights really have been violated.
And so I would like to give you the remainder of this time.
I think it is so important, through these hearings, for the
American public to understand the impact, the human impact, of
changes in law or changes in policy. So can you describe for
the American public more of what you have seen in Florida as a
result of what the Supreme Court upheld?
Ms. Romero-Craft. Sure. Thank you. And thank you for the
time.
So we are actually out in the field a lot. Thanks to the
coalition members, we are able to run election protection
activities to the extent our resources allow. But what we find
is the current climate--specifically for the Latino community,
there is a lot of fear about exercising rights.
Even for folks that are citizens. Take, for example, Puerto
Rican citizens. It is not just relegated to Florida. We travel
to other southern States. And so what we find is that folks are
hesitant to ask for assistance. Even if they raise an issue
that could be and that in some cases is specifically a
violation of voting rights law, they are hesitant to bring
anything forward.
So all of this has a chilling effect. And if individuals
think that they are not going to be protected or heard--we have
had folks even at the registration phase, where they are trying
to register to vote, where they are met with folks that are
unable or unwilling to provide them the language assistance
that they require and is mandated under law. They won't
register to vote.
So all of this is to say that it is very difficult even to
create this relationship when you are looking for folks that
have issues so that they trust you and that they trust that you
are doing the best under what the law provides and that the
folks that are elected officials also should be mandated to do
their work. It is a very difficult position to find yourself in
a room full of elected officials who are resisting to make
changes that are required under the law.
And something I think that folks should understand, as
well, is that, you know, Section 4(e) applies throughout the
country. So any voter who was educated in Puerto Rico in
Spanish has the right to ask for language assistance to all of
the materials related to the election in Spanish.
So I think that is very important to know, and as well as
the Section-203-covered jurisdictions. We still see violations,
even though a lot of those jurisdictions are constantly
reminded of their continuing obligation to language-minority
voters.
Ms. Escobar. Thank you so much.
My time has expired. I yield back.
Mr. Raskin. The gentlelady's time has expired.
Thank you very much.
And I now recognize Mr. Armstrong from North Dakota.
Mr. Armstrong. Thank you, Mr. Chairman.
First of all, Professor Tolson, I am stealing ``all you can
do is your job.'' I think I would have liked taking your class
in law school. I am a big fan of Teddy Roosevelt and the arena,
but it is a little verbose. And that is fantastic.
And, along those lines, when we are talking about current
makeup of the Court, I am reminded of what an old trial lawyer
told me when I started, and that was, ``Win the jury trial, and
then you don't have to worry about the appeal.'' Unfortunately,
in these cases, we don't have it.
But I want to go back to something Mr. Morley said, in that
we always think of these cases in wins and losses, and we don't
always account for settlements. And so, when we are talking
about, like, the definitions in 3(a)(1)--I come from the only
State without voter registration. We have complete vote-by-mail
counties in some areas. I always use the line, ``There is no
such thing as a Federal election. There are just local
elections that elect Federal officers.''
But when you are talking about DOJ and, I mean, the
opportunity for mischief--and I am going to bring in the
private right of action, because you actually write in your
testimony to strengthen that.
But my concern is, I mean, just on a resource and discovery
and paper and all of those types of issues, primarily, when you
take a State as big as North Dakota and deal with one issue, I
mean, you could very easily see a small rural county settling
the case immediately just because they simply do not have the
resources to deal with the issue. And so that one county in
north-central North Dakota could essentially trigger an opt-in
for the whole State.
Am I reading this right?
Mr. Morley. Yes, depending on how many other voting rights
violations have occurred from other political subdivisions in
the State. Yes, that would count as a strike then. That would
apply not just to that political subdivision but then to others
as well within the State.
Mr. Armstrong. And the settlement--I mean, settlement would
be a part of that conversation, right? This isn't all just wins
and losses in those areas.
Mr. Morley. Right. Under the proposed language in H. R. 4,
if a jurisdiction enters into a consent decree, a settlement,
or any other agreement, even if there is no admission of
liability, as long as that initial complaint had an allegation
that there was a constitutional violation or a Voting Rights
Act violation, that settlement would count as a strike, it
would count as a voting rights violation.
Mr. Armstrong. So, then, would even a decision to, like,
amend the voting practice, that could do it as well, right?
Mr. Morley. If that were part of the settlement agreement
or part of the consent decree, absolutely.
Mr. Armstrong. Okay.
And, now, how does the private right of action work? Or how
do you envision it working? Because, I mean, far be it for me,
but, I mean, having--because you strengthen it in your
testimony. I mean, you give some great things. I am not worried
about when it works well; I am worried about when, potentially,
people are interested in creating mischief.
Mr. Morley. So one of the provisions of H. R. 4 allows
current provisions of certain Federal voting rights laws that
currently are only enforceable by the Attorney General to be
enforced by private litigants as well. And the way H. R. 4 is
currently drafted, only voting rights laws that are aimed at
preventing discrimination on the basis of race or color would
be subject to private enforcement.
My suggestion for the committee to consider is, in allowing
private enforcement of voting rights laws, essentially extend
this private right of action not just to voting rights laws
aimed at racial discrimination but at all voting rights laws,
precisely because, on the one hand, you would still have
Article III standing limitations on who is allowed to sue. So
you couldn't have a random person just walk in off the street
and start suing jurisdictions. It would have to be someone who
suffered an injury in fact. So an adversely affected candidate,
an adversely affected voter, potentially a political party.
And by allowing private enforcement of voting rights laws,
you ensure that the rules of the road, the fundamental rules
governing the election, will be enforced and that enforcement
isn't hung up and cases aren't thrown out of court on
technical, non-merits-related grounds, such as what happened in
2008 in a case brought about maintenance of Ohio's voter
registration lists, Ohio Republican Party v. Brunner, where the
Court says: There is no cause of action, so we are not even
going to bother looking at whether election officials are
violating Federal law or not.
Mr. Armstrong. But I am assuming that a private course of
action--same thing, right? There are not just wins and losses;
there can be settlements. And they would qualify in the same
way as if it is brought in any other way, correct?
Mr. Morley. Absolutely. Under H.R. 4, if there is a
settlement and if one of the allegations in the original cause
of action involved racial discrimination in violation of the
Constitution or in violation of Federal voting rights laws,
then any attempt to settle that case would--or a successful
settlement, I should say, would count as a strike, would count
as a voting rights violation.
Mr. Armstrong. Thank you.
And then I am going to just ask Mr. Rich to comment on
that, just about, I mean, how can we assure this is narrowly
tailored enough that it does what we want it to do without
having this area where--I mean, I can't have rural districts
settling just because they have to settle type of thing. I
mean, I am not even sure I disagree with the private action. I
just want to make sure that we are thinking about not only the
ways in which it is used properly but the ways in which it is
used improperly.
Mr. Rich. Well, I----
Mr. Armstrong. You have done this for decades.
Mr. Rich. I am of the opinion that there is a private right
of action to enforce most of the Voting Rights Act, and it has
worked over the years. There are all sorts of protections in
the courts for private rights of actions brought against
jurisdictions. Indeed, I think the jurisdictions have more
resources, usually, than the private plaintiff does. So I don't
see that as a major problem.
Mr. Armstrong. And thank you. My time is up. I agree with
that in most jurisdictions, just probably not most
jurisdictions in my district.
Ms. Jackson Lee [presiding]. The gentleman's time has
expired.
Mr. Rich, before we conclude and before I express
appreciation for all the witnesses that are here and thank the
ranking member for his presence and his thoughtful questions,
let me editorialize and say that I think the Shelby case is one
of the most significant moments in history that really makes
lifeless some of the promises of the Constitution and
particularly some of the amendments in the Bill of Rights. So I
think it is important for this Congress, in a nonpartisan and
bipartisan manner, be able to give the tools back to not only
individual voters but to governmental entities.
One of those points was a comment that Attorney General
Lynch made regarding the DOJ's ability to send observers. And
let me be very clear. I am in a voting rights district. I have
never had a district that has been drawn without either court
approval or instruction. And that means, every election, I am
asking for observers, because my constituents are calling ahead
of time about the fear of being suppressed.
So her point was that Federal observers have been severely
curtailed as a result of the Shelby decision, impacting
elections from November 2016 onward.
What has been the role and importance of Federal observers
in protecting minority voting rights? And how has the loss of
most of the Federal observers impacted elections on the ground
in States like Florida and Texas?
And might I say, they give you an 800-number or I am
calling ahead of time, and I truly feel the impact in the
smaller number of observers who are able to be out in the
field.
Mr. Rich.
Mr. Rich. There is no question that the Federal-observer
provision is one of the important parts of the Voting Rights
Act. If you go back to when the Voting Rights Act was passed,
the importance of having Federal observers at those elections
was crucial. And you are still seeing it in your district. You
need them, because there are racial tensions at these
elections.
Shelby County reduced the number of observers that could be
certified by the Attorney General considerably. The only way
you can get Federal observers now is if there is a court order
authorizing the Attorney General to certify them. Because under
the interpretation that the Department of Justice has given to
the observer provision in the 1965 act is because there are no
longer any Section 5 jurisdictions, which were always the
jurisdictions that could be certified for Federal observers,
that is gone, and, therefore, there is no way to certify
Federal observers for formerly Section 5 jurisdictions.
I just think losing that is not as important as
preclearance, in my judgment, but pretty close. And over the
history of the voting rights enforcement by the Federal
Government, the Federal observer program has been one of the
most important that we have. And the procedures and efforts
that have gone into it have been considerable. OPM trains
observers to be neutral. They are able to be in voting places
and where votes are counted to be sure there is no fraud or
discrimination. And so I fully agree with what former Attorney
General Lynch said, that losing this has been a real step
backward.
Ms. Jackson Lee. Well, let me thank each and every
witness--thank you, Mr. Rich, for your answer. I think the
other telling point is that, in 2020, Section 5 districts will
be going into redistricting without that protection. And let's
hope we will have some protection before then.
Again, let me thank each and every one of the witnesses for
what I think has been an insightful--and not inciting, but
insightful contribution to the task that Congress has, which is
to set the record.
Before I close, Mr. Ranking Member, I want to--without
objection, the opening statement of the chairman of the full
committee will be entered into the record, Mr. Jerry Nadler.
Without objection.
[The statement of Chairman Nadler follows:]
MS. JACKSON LEE FOR THE OFFICIAL RECORD
=======================================================================
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Ms. Jackson Lee. This concludes today's hearing.
I want to thank all of our witnesses for appearing today.
Without objection, all members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
Ms. Jackson Lee. With great thanks, this hearing is
adjourned.
[Whereupon, at 3:29 p.m., the subcommittee was adjourned.]
APPENDIX
=======================================================================
Michael T. Morley, ``Prophylactic Redistricting? Congress's
Section 5 Power and the New Equal Protection Right to Vote,''
William & Mary Law Review, Vol. 95:2053:https://docs.house.gov/
meetings/JU/JU10/20190924/HHRG-116-JU10-20190924-SD001.pdf
Michael T. Morley, ``Remedial Equilibration and the Right
to Vote under Section 2 of the Fourteenth Amendment,''
University of Chicago Legal Forum, Vol. 2015, Article 10:https/
/docs.house.gov/meetings/JU/JU10/20190924/109995/HHRG-116-JU10-
20190924-SDOO2.pdf
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