[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
CONTINUING CHALLENGES TO THE VOTING
RIGHTS ACT SINCE ``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
__________
JUNE 25, 2019
__________
Serial No. 116-31
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available http://judiciary.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
39-717 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
----------
JUNE 25, 2019
OPENING STATEMENTS
Page
The Honorable Steve Cohen, Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 41
The Honorable Mike Johnson, Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 43
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 45
The Honorable Doug Collins, Ranking Member, Committee on the
Judiciary...................................................... 47
WITNESS
Kristen Clarke, President & Executive Director, National Lawyers'
Committee for Civil Rights Under Law
Oral Testimony............................................... 2
Prepared Testimony........................................... 4
The Honorable Stacey Abrams, Chair, Fair Fight Action
Oral Testimony............................................... 49
Prepared Testimony........................................... 52
The Honorable Kyle Hawkins, Solicitor General of Texas, Office of
the Texas Attorney General
Oral Testimony............................................... 57
Prepared Testimony........................................... 59
Leah C. Aden, Deputy Director of Litigation, NAACP Legal Defense
& Educational Fund, Inc.
Oral Testimony............................................... 83
Prepared Testimony........................................... 86
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Item for the record submitted by the Honorable Sylvia Garcia,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 113
Item for the record submitted by the Honorable Veronica Escobar,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties...................................................... 161
Statement for the record submitted by the Honorable Sheila
Jackson Lee, Subcommittee on the Constitution, Civil Rights,
and Civil Liberties............................................ 166
Item for the record submitted by the Honorable Doug Collins,
Ranking Member, Committee on the Judiciary..................... 179
APPENDIX
Item for the record submitted by The Honorable Steve Cohen,
Chairman, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 192
CONTINUING CHALLENGES TO THE VOTING RIGHTS ACT SINCE SHELBY COUNTY V.
HOLDER
----------
TUESDAY, JUNE 25, 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 2:44 p.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Cohen
[chairman of the subcommittee] presiding.
Present: Representatives Cohen, Nadler, Raskin, Dean,
Garcia, Escobar, Jackson, Johnson, Collins, Gohmert, Jordan,
Reschenthaler, Cline, and Armstrong
Staff Present: David Greengrass, Senior Counsel; John Doty,
Senior Advisor; Lisette Morton, Director, Policy Planning and
Member Services; Madeline Strasser, Chief Clerk; Moh Sharma,
Member Services and Outreach Advisor; Susan Jensen,
Parliamentarian/Senior Counsel; Julian Gerson, Staff Assistant;
Keenan Keller, Senior Counsel; Will Emmons, Professional Staff
Member; Paul Taylor, Minority Counsel; and Andrea Woodard,
Minority Professional Staff Member.
Mr. Cohen. The Committee on the Judiciary Subcommittee on
the Constitution, Civil Rights, and Civil Liberties will come
to order. Without objection, the chair is authorized to declare
a recess of the subcommittee at any time. We welcome everyone's
attendance here in the hearing on Continuing Challenges to the
Voting Rights Act in Shelby County v. Holder. We know this is
the 6th anniversary of Shelby County v. Holder.
Normally, what we would do is I would give an opening
statement of 5 minutes, and then the ranking member would give
one of 5 minutes, but Ms. Clarke, one of our witnesses, has a
3:40 train, which would have been easy to accomplish if it
weren't for the House of Representatives' schedule. And with
the permission of the ranking member, we are going to go
straight to her statement and then go back into the traditional
my talk, he talk, somebody else talk, the panel.
So Ms. Clarke, thank you so much for being here. Ms. Clarke
is the President and Executive Director of the National Lawyers
Committee for Civil Rights Under Law, one of the Nation's
leading civil rights organizations. She previously worked for
several years at the NAACP Legal Defense and Education Fund,
where she helped lead the organization's work in the areas of
voting rights and election law across the country and worked on
cases defending the constitutionality of the Voting Rights Act.
Prior to joining the Legal Defense Fund, she worked in the
Civil Rights Division at the cannot of justice, serving as a
prosecutor in the criminal section of the Division of Voting
Rights and redistricting cases through the division's voting
section. She received her J.D. from Columbia University and her
Bachelor's degree from another ivy school called Harvard.
I normally give you the warning. I give you the warning.
You start, you have got a green light, it goes off in 4
minutes, a yellow light, and that means you have got--yellow
light is off, you have to got to go to the train. You are
recognized for 5 minutes.
STATEMENTS OF KRISTEN CLARKE, PRESIDENT AND EXECUTIVE DIRECTOR,
NATIONAL LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW; HON.
STACEY ABRAMS, FOUNDER AND CHAIR, FAIR FIGHT ACTION; HON. KYLE
HAWKINS, SOLICITOR GENERAL OF TEXAS, OFFICE OF THE TEXAS
ATTORNEY GENERAL; LEAH ADEN, DEPUTY DIRECTOR OF LITIGATION,
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.
STATEMENT OF KRISTEN CLARKE
Ms. Clarke. Thank you, Chairman Cohen, Ranking Member
Johnson, and members of the Subcommittee on the Constitution,
Civil Rights, and Civil Liberties. My name is Kristen Clarke,
and I serve as the President and Executive Director of the
Lawyers' Committee for Civil Rights Under Law, and I thank you
for the opportunity to testify today on challenges to voting
rights.
My testimony today is shaped by my experience as an
attorney who started off her career enforcing Section 5 of the
Voting Rights Act at the Justice Department, as someone who
litigated the Shelby County versus Holder case, and as someone
who has worked to protect voting rights their entire career.
The Voting Rights Act of 1965 transformed American
democracy, and the Supreme Court's evisceration of the Section
5 preclearance provision of the Act, coupled with a Justice
Department that has abdicated its responsibility for enforcing
remaining provisions of the Act, have placed the voting rights
of our Nation's most vulnerable communities in peril. These
dynamics have created a perfect storm, resulting in the
resurgence of voting discrimination and voter suppression at
levels not seen since the days of Jim Crow. It is worth
underscoring that the current administration has not filed a
single case under the Voting Rights Act. The Justice
Department's silence is deafening.
The Lawyers' Committee for Civil Rights Under Law has been
at the forefront of the battle for equal voting rights since it
was created in 1963 at the request of President John F. Kennedy
to enlist the private bar's leadership and resources in
combating voting discrimination and more. Today, our vast
docket of voting rights litigation is among the most
comprehensive and far-reaching, both geographically and in
terms of issues raised, as any in the Nation.
And by way of our election protection program, the Nation's
largest nonpartisan voter protection effort, anchored by the
866 Our Vote hotline, we have vetted complaints from tens of
thousand of voters since Shelby, many revealing systemic voting
discrimination. In short, this is how Shelby has impacted our
democracy.
First, we have seen the resurgence of discriminatory voting
practices, some motivated by intentional discrimination. And
this discrimination has been most intense in the very
jurisdictions that were once covered by Section 5. They range
from the consolidation of polling sites to make it less
convenient for minority voters to vote, to the curtailing of
early voting hours, the purging of minority voters from the
rolls under the pretext of list maintenance, strict photo ID
requirements, abuse of signature match verification
requirements to reject absentee ballots, the threat of criminal
prosecution, and more.
Second, we have seen increased levels of recalcitrance and
hostility among elected officials who institute and reinstitute
discriminatory voting changes with impunity. Well-known
examples come out of North Carolina, where the legislature
adopted an omnibus bill that the Fourth Circuit found was
crafted with surgical precision. My written testimony includes
an appendix that outlines several cases since the Shelby
decision that evidence this hostility.
Third, the loss of public notice regarding changes in
voting practices that could have a discriminatory effect is
significant. Most suppressive actions occur in small towns
sprinkled across the country, where constant oversight is
difficult, if not impossible.
Fourth, the public no longer has the ability to participate
in the process of reviewing practices before they take effect.
And between 2000 and 2010, DOJ received between 4,500 and 5,500
submissions, capturing between 14,000 and 20,000 voting changes
per year. Without Section 5, communities are in the dark, and
unable to share critical information that can help to
illuminate the discrimination that sometimes underlies voting
changes.
Fifth, the preclearance process had an identifiable
deterrent effect that is now lost.
Sixth, the status quo is not sustainable. Civil rights
organizations are stepping up to fill the void created by the
Shelby decision at insurmountable expense.
And finally, this will be the first redistricting cycle in
decades if Congress fails to restore the Voting Rights Act. A
little over 12 years ago, both Chambers of Congress
reauthorized the Act with tremendous bipartisan support. Many
members of the House present for that vote are still here
today. Bipartisan support for the Act has been consistent
across the decades and should remain so today. The Supreme
Court has put the ball in Congress' court, and this body must
take action now to help our country safeguard the right to vote
for all. Thank you.
[The statement of Ms. Clarke follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. You are welcome, Ms. Clarke, and thank you for
your testimony. Because you are leaving, I want to first thank
you, and I want you to know we are going to have the hardest
questions for you. You still have to answer questions that we
give you in writing, and you are going to get the hardest ones.
Ms. Clarke. I thank you, Chairman.
Mr. Cohen. I am sure you will handle them deftly.
Ms. Clarke. Absolutely. Thank you, Chairman.
Mr. Cohen. You are welcome. Thank you so much.
I will now recognize myself for an opening statement. The
right to vote is the most fundamental right of citizenship in
our democracy. It is the base where it all starts, and that is
where it happens. Yet, for most of our Nation's history, too
many of our citizens have been denied the right to vote. For
over a century, women were denied the right to vote, and for a
century and a half, African Americans were the most brutally
attacked, denying their rights to vote, especially in the deep
south.
On August 6 of 1965, our Nation took a momentous step
towards correcting that injustice when President Lyndon Johnson
signed into law the Voting Rights Act. That was the results of
years of efforts by the civil rights monument led by heroes
like our colleague, Representative John Lewis, and Dr. Martin
Luther King and others, to get Congress to act on protecting
voting rights for African Americans.
I fear, however, the developments of the last several years
have undermined the Act's basic protections. That is because 6
years ago today in Shelby County v. Holder, the Supreme Court
effectively suspended the Act's Section 5 preclearance
requirement by striking down the coverage formula in Section 4
that determined which jurisdictions would be subject to
preclearance.
In essence, they said not necessarily that those
jurisdictions that had been under preclearance had cleaned up
their act, but there were other jurisdictions that were maybe
equally as bad or had done bad deeds as well. So they let the
bad actors out because they thought there were new bad actors,
and they kind of opened the door for everybody.
Under that preclearance requirement, certain jurisdictions,
predominantly in the deep south that had a history of
discriminatory voting methods, they were required to obtain the
approval of the Justice Department or the U.S. District Court
for the District of Columbia before any proposed changes to
voting practices or procedures could take effect. That
preclearance requirement was crucial to vigorous and effective
enforcement of the Act's guarantee of equal voting rights.
The purpose of this preclearance requirement is to ensure
the jurisdictions that are most likely to discriminate against
minority voters would bear the burden of proving that any
change to their voting laws were not discriminatory, rather
than placing the burden of proof on discrimination victims. By
placing the burden on jurisdictions with a history of
discrimination to prove their innocence, Section 5 rightly
prevented potentially discriminatory voting practices from
taking effect before they could harm minority voters. In this
way, Section 5 proved to be a significant means of protection
for the rights of minority voters.
Section 2 of the Voting Rights Act, which prohibits
discrimination voting and remains in effect is, by itself, a
less effective and significantly more cumbersome and expensive
way to enforce the Act, factors that would dissuade even those
with meritorious claims from pursuing enforcement litigation.
Most importantly, plaintiffs cannot invoke Section 2 until
after an alleged harm has taken place, thereby eroding the
effectiveness of the Act, which is to see that the harm doesn't
ever take place. The result of these factors would be the many
practices and restrictions that undermine equal votes will
simply go unchallenged because the harm has been done.
These are reasons why Congress has repeatedly reauthorized
Section 5 on an overwhelmingly bipartisan basis, most recently
in 2006, when the House passed the VRA by a vote of 390-33, in
the Senate 98-0. So at this time, it wasn't the Congress'
fault. We were good.
Incredibly, the Court's majority in Shelby County claimed
that there was no evidence to support Congress' findings of
continued discrimination in voting in the then-covered
jurisdictions, notwithstanding thousands of pages of record
evidence compiled by this subcommittee in 2006. This
subcommittee, then in Republican hands, demonstrated a
continuing need for this coverage formula.
Telling events since the Shelby County decision have proved
how wrong the Court was in its conclusion. Within hours of the
decision, States like Texas and North Carolina that have been
the subject of the Act's preclearance requirement, announced
their intent to impose strict voting identification
requirements. Other States that had also been subject to
preclearance also wasted no time pursuing voting restrictions,
and, once again, threatened to undermine the minority of voting
rights, including practices like restriction or elimination of
early voting, same-day registration, and bans on ex-offenders
from voting, all of which make it disproportionately harder for
racial and ethnic minorities to vote. It has a disparate impact
against black voters, African American voters.
Last year's Georgia Governor's race brought into full view
the range of voter suppression practices in formerly covered
jurisdictions. It may look subtle when viewed in isolation, but
are pernicious and devastating in their cumulative effect. As
Ms. Stacey Abrams, one of our witnesses, the Democratic nominee
for Governor of Georgia in that race, knows from personal
experience, her opponent, Brian Kemp, then the Georgia
Secretary of State, embarked on what were a series of seemingly
naked attempts to shrink the electorate, which was the job of
the Secretary of State on those laws, but he chose to go about
it in a particular manner. He also was her opponent. He is now
the Governor of Georgia.
His office purged more than 1.4 million voters from the
rolls since 2010, including more than 600,000 Georgians in the
year 2017, and then another 90,000 that were not purged in 2017
in The Cleanup Act in 2018. Numerous voter registrations were
cancelled because the voter had not voted in the previous
election. Georgia also closed a tenth of its polling places
since 2012, with the majority of closings occurring in poor
counties, and those with significant African American
populations.
Georgia also enacted a, quote, ``exact match,'' unquote,
law that resulted in 53,000 more voters being given only
pending status on the voter registration because of minor
errors on their registration forms, with more than 70 percent
of those voters being African American. This is exactly the
kind of attrition on voting rights that preclearance would have
stopped from going into effect.
Before the Voting Rights Act, the state of voting rights in
the deep south was abysmal. In the mid 1950s, only one in four
African American voters in the south was registered. With this
robust preclearance requirement, the Act did dramatic positive
effect on black voting registration in the south, which
increased to 62 percent just 3 years after the Act became law,
yet these gains and others are at risk because of the Shelby
decision.
The Supreme Court was wrong, in my opinion, to undermine
the Voting Rights Act. Congress failed to act the last time we
had a chance to do it. Hopefully, we won't fail again. Congress
must now respond. It is imperative that we restore the Voting
Rights Act preclearance requirement, so it is to stay true to
the Act's purpose of ensuring equal voting rights for all.
John Lewis and many others risked their lives. John Lewis
was beaten in the head, marching for voting rights in Selma,
Alabama. Others were killed in Selma, and other places in the
south looking for voting rights. Voting rights are so
important, and we can't let those people's deaths, those
people's injuries, those people's efforts go for naught.
I thank our witnesses for being here. I look forward to
their testimony. I now yield for the opening statement from the
ranking member, the Honorable gentleman from Louisiana, Mr.
Johnson.
Mr. Johnson. Thank you, Mr. Chairman, and thank you all for
being here for your interest today. I appreciate the
opportunity to speak again on the duty and honor that Congress
has to protect the fundamental right to vote in our country.
All the sacrifices, the blood and the sweat and the tears that
were put in by John Lewis and all those other legends and
patriots and heroes will not be forgotten.
While some have raised concerns regarding the Supreme
Court's 2013 decision in Shelby County v. Holder, which struck
down just one part of the Voting Rights Act, I would like to
quote again from parts of that decision, because I think if we
are going to talk about that decision today and its
ramifications, it serves us well to articulate specifically
what the Supreme Court actually said in that decision. I think
the Court aptly described just how far this country has come.
In its majority decision, the Court laid out the
Constitutional infirmities of Section 4 of the VRA as follows,
and I am just going to read you an important excerpt. Quote,
``The Framers of the Constitution intended the States to keep
for themselves, as provided in the 10th Amendment, the power to
regulate elections. Not only do States retain sovereignty under
the Constitution, there is also a fundamental principal of
equal sovereignty among the States. Indeed, the Constitutional
equality of the States is essential to the harmonious operation
of the scheme upon which the Republic was organized. Section 4
of the Voting Rights Act sharply departs from these basic
principles. It suspends all changes to State election law,
however innocuous, until they have been precleared by Federal
authorities in Washington, D.C. In 1966, we found these
departures from the basic features of our system of government
justified.
At the time, the coverage formula, the means of linking the
exercise via unprecedented authority with the problem that
warranted it, made sense. Nearly 50 years later, things have
changed dramatically. In the covered jurisdictions, voter
turnout and registration rates now approach parity. Blatantly
discriminatory evasions of Federal decrees are rare, and
minority candidates hold office at unprecedented levels.
The tests and devices that blocked access to the ballot
have been forbidden nationwide for more than 40 years. The 15th
Amendment commands that the right to vote shall not be denied
or abridged on account of race or color, and it gives Congress
the power to enforce that command. The amendment is not
designed to punish for the past. Its purpose is to ensure a
better future.
To serve that purpose, Congress, if it is to divide the
States, must identify those jurisdictions to be singled out on
the basis that makes sense in light of current conditions. It
cannot rely simply on the past. Regardless of how to look at
the record, however, no one can fairly say that it shows
anything approaching the pervasive, flagrant, widespread, and
rampant discrimination that faced Congress in 1965, and it
clearly distinguished the covered jurisdictions from the rest
of the Nation at that time.
Our country has changed. And while any racial
discrimination in voting is too much, Congress must ensure that
the legislation it passes to remedy that problem speaks to
current conditions,'' end of quote.
That is what the Supreme Court said. And of course, I am
sure everyone in this room agrees with those sentiments, and I
have stated this before, Mr. Chairman, myself. At least some on
this side agreed with what the Court said.
Of course, we all agree that discriminatory treatment in
voting based on race or sex is abhorrent. It is prohibited by
the Constitution, as it should be. It is prohibited by Federal
statue, as it should be. 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 full effect, as it should be.
Several years ago, for example, U.S. District Judge Lee
Rosenthal issued an opinion in a redistricting case that
required the City of Pasadena, Texas, to be monitored by the
Justice Department because it had intentionally changed its
city council districts to decrease influence by citizens of
Hispanic descent. The city, which the Court ruled, has a,
quote, ``long history of discrimination against minorities,''
unquote, was required to have their future voting rules changes
precleared by the Department of Justice for the next 6 years
during which time the Federal judge, quote, ``retains
jurisdiction to review before enforcement any change in the
election map or plan that was in effect in Pasadena on December
1, 2013,'' unquote.
A change to the city's election plan can be enforced
without review by the judge only it if has been submitted to
the U.S. Attorney General, and the Justice Department has not
objected within 60 days.
We support Section 3 in its application to proven instances
of discriminatory treatment in voting, and I look forward to
hearing from all of our witnesses here today. That testimony
will include that of the Office of the Texas Attorney General,
which I understand has argued in the Supreme Court 31 times
since 2000, and they have either completely or substantially
won the vast majority of those cases. The Texas Attorney
General's Office has argued two of the most important VRA cases
in recent memory, Evenwel and Perez, and won them both. In
those decisions, Texas won a total of 13 votes at the Court for
its position compared to just four votes against. This is an
office with a proven track record of legal acumen and
understanding confirmed at the highest levels, and by the U.S.
Supreme Court itself.
Thank you all, again, for your time and testimony. We look
forward to hearing from you, and I yield back.
Mr. Cohen. Thank you, Mr. Johnson.
It is now my pleasure to recognize the chairman of the full
committee, who was the chairman of this committee for many
years, and today I will announce him as the chairman emeritus
of this subcommittee, but the chairman, I guess, is emeritus of
all committees. Mr. Nadler.
Chairman Nadler. Thank you, Mr. Chairman.
The Voting Rights Act of 1965 is one of the most effective
civil rights statutes that has ever been enacted into law. Six
years ago today, however, the Supreme Court issued its
disastrous decision in Shelby County v. Holder, thereby
effectively gutting one of the Act's central enforcement
provisions known as the preclearance requirement, when it
struck down as unconstitutional the Act's coverage formula,
which determined which jurisdictions would be subject to the
preclearance requirement.
Section 5 of the Voting Rights Act contains a preclearance
provision that requires certain jurisdictions with a history of
discrimination to submit any changes to their voting laws or
practices to the Department of Justice for prior approval to
ensure that they are not discriminatory.
To understand why the preclearance requirement was so
central to enforcing the VRA, it is worth remembering why it
was enacted in the first place. Before the Voting Rights Act,
States and localities passed voter suppression laws, securing
the knowledge that it could take many years before the laws
could be successfully challenged in court, if at all. As soon
as one law was overturned, another would be enacted,
essentially setting up a discriminatory game of whack a mole.
Section 5's preclearance provision broke this legal logjam and
helped to stop this discriminatory practice.
Indeed, the success of the Voting Rights Act with this
effective preclearance requirement was apparent almost
immediately after the law went into effect. For instance,
registration of African Americans voters more than doubled in
the south within just 4 years of enactment. Similarly, African
American voter turnout rose from only 6 percent to 59 percent
in just 4 years in Mississippi, and it soared to 92 percent in
Tennessee, 77 percent in Arkansas, and 73 percent in Texas in
that same period.
The Voting Rights Act's success can also be measured in
terms of the number of African Americans holding elected
office, jumping from barely 100 prior to the VRA's enactment to
more than 7,200 today, with 4,800 holding elected office in the
south alone. Moreover, the number of African Americans in
Congress doubled almost immediately after the Voting Rights Act
was enacted; and today, there are 56 African American Members
of Congress. And of course, in 2008, the country elected its
first African American President.
In short, the Voting Rights Act was an unqualified success,
and much of that success can be attributed to the ability to
enforce it vigorously. Central to the ability to enforce
vigorously the Act was its preclearance provision. By striking
down the formula for determining which States and localities
are subject to the preclearance requirement, the Shelby County
decision effectively suspended the operation of the
preclearance requirement itself, and in its absence, the game
of whack a mole has returned with a vengeance.
Within 24 hours of the Shelby County decision, for example,
the Texas Attorney General and North Carolina's General
Assembly announced that they would reinstitute draconian voter
ID laws. Both of these States' laws were later held in Federal
courts to be intentionally, intentionally, racially
discriminatory. But during the years between their enactment
and the Court's final decision, many elections were conducted
while the discriminatory laws remained in place. At least 21
other States have also enacted newly restrictive statewide
voter laws since the Shelby County decision.
Restoring the vitality of the Voting Rights Act is of
critical importance. In 2006, when I was the ranking member of
this subcommittee, we undertook an exhaustive process to build
a record that demonstrated unequivocally the need to
reauthorize the Voting Rights Act, provisions of which, like
the preclearance requirement and the coverage formula that
undergirded it, were expiring. At the time, the committee found
that a majority of southern States were still engaged in
ongoing discrimination. For instance, these States in the
subdivisions engaged in racially discriminatory practices, such
as relocating polling places for African Americans voters, and
in the case of localities, annexing certain wards simply to
satisfy white suburban voters who sought to circumvent the
ability of African Americans to have a fair chance for elected
office in their cities.
Since the Shelby County decision, we have also seen the
emergence of other voter suppression measures, like burdensome
proof of citizenship laws, significant scale-backs to early
voting periods, restrictions and absentee ballots, and laws
that make it difficult to restore the voting rights of formerly
incarcerated individuals. These kinds of voting practices have
a disproportionate negative impact on minority voters.
In the most recent elections in November of 2018, voters
across the country encountered barriers to voting from State
and local laws and circumstances that made it hard, or even
impossible, to vote. For example, as our witness, Stacey
Abrams, can attest to, in Georgia, 53,000 voter registrants, 70
percent of whom are African American, were replaced in pending
status by the Secretary of State, who was also, by
happenstance, Ms. Abrams' election opponent, because of minor
misspellings on their registration forms.
A Federal court ultimately put a stop to this practice on
November 2, 2018, 4 days before the election, because of the,
quote, ``differential treatment inflicted on a group of
individuals who were predominantly minorities,'' closed quote.
While it is true that those seeking to enforce the Voting
Rights Act can still pursue after-the-fact legal remedies even
without preclearance, time and experience have proven that such
an approach takes far longer and is far more expensive than
having an effective preclearance regime. And once the vote has
been denied, it cannot be recast. The damage to our democracy
is permanent. That is why I hope the members on both sides of
the aisle and in both Chambers of Congress will come together
and pass legislation to restore the Voting Rights Act to its
full vitality. The Supreme Court left us instructions on how to
enact a new Section 4 that would pass constitutional muster.
Today's hearing will provide an important opportunity to
renew our understanding of the importance of the Voting Rights
Act and its preclearance provision, and to support our efforts
to craft a legislative solution to restore, where needed, the
preclearance provisions of the Voting Rights Act. I thank our
witnesses, and I look forward to their testimony.
Mr. Cohen. Thank you, Chairman Nadler.
It is now my pleasure to recognize the ranking member of
the full committee, the gentleman from Georgia, Mr. Collins,
for his opening statement.
Mr. Collins. Thank you, Mr. Chairman, and it is good to be
here, and it is good to have a hearing like this, if for no
other reason, to at least correct the record and things that
have already been said.
Number one. In Georgia, the six counties mentioned, it is a
reminder that in Georgia, all six of those counties are under
local control on where they actually place their voting times--
their voting locations, how many they actually use, and that
has been that way for a long time. We will get into more
discussion about that.
It is interesting that we also talk about scaling back
early voting in others, because as we will find out in this
hearing, myself and actually a witness here today, voted to
scale back 3 weeks in Georgia, and add a Saturday. And at the
time, it was actually attested to on many occasions that it
showed no discriminatory impact.
In fact, actually, some of what we found was actually
helpful to minority turnout in that. So as we look at this,
this is the reason to have a hearing, and I am glad to see
friends and witnesses who are here today.
But the right to vote is of paramount importance in a
democracy. Its protection of discriminatory barriers has been
grounded in Federal law since the Civil War, and more recently,
through the Voting Rights Act of 1965. In 2013, the Supreme
Court struck down a single part of the Voting Rights Act,
Section 4. That provision automatically put certain States and
political subdivisions under the Act's Section 5 preclearance
requirements. Those preclearance requirements prevented voting
rule changes in covered jurisdictions from going into effect
until the new rules had been reviewed and approved, either
following a lawsuit in the D.C. District Court, or by more
often, the Department of Justice.
When the Voting Rights Act was first enacted, Section 4
identified the jurisdictions automatically subject to the
special preclearance requirements according to a formula. The
first part of the formula provided a State or political
subdivision would be covered if it maintained on November 1,
1964, a test or device restricting the opportunity to register
and vote.
The second piece provided a State or political subdivision
would also be covered if the Census director determined that
less than 50 percent of the persons of voting age were
registered to vote on November 1, 1964, or less than 50 percent
of the voting age voted in the 1964 presidential election.
In its Shelby County decision, the Supreme Court struck
down these automatic preclearance provisions, ruling the
original coverage formula was, quote, ``based on decades-old
data and eradicated practices.'' In 1965, the States could be
divided into two groups, those with a recent history of voting
test and low voter registration and turnout, and those without
those characteristics. Congress based its coverage formula on
that distinction.
Today, we see a different place, and yet, the Voting Rights
Act continued to treat it as if it were still in that time. The
courts further criticized Section 4's formula as relying on
decades-old irrelevant data to decades-old problems rather than
current data reflecting current needs.
In Shelby County, the Supreme Court only struck down that
single, outdated provision of the VRA. Significantly, other
very important provisions of the Voting Rights Act remain
firmly in place, including Section 2 and Section 3.
Section 2 applies nationwide, prohibits voting practices or
procedures that discriminate on the basis of race, color, or
the ability to speak English, like other Federal civil rights
laws. Section 2 is enforced via Federal lawsuits. The United
States and civil rights organizations have brought Section 2
cases in court, and still may do so in the future.
Section 3 of the Voting Rights Act also remains in place,
authorizing Federal courts to impose on States and political
subdivisions that have enacted voting procedures treating
people differently based on race in violation of the 14th and
15th amendments. If the court finds a State or political
subdivision treated people differently based on race, the court
has the discretion to retain supervisory jurisdiction and
impose preclearance requirements on the State or political
subdivision as the court sees fit until a future date. This
means that a State or political subdivision would have to
submit all future voting rules and changes for approval to
either the court itself or the Department of Justice before
enacting those changes.
Per the Code of Federal Regulations, under Section 3(c) of
the Voting Rights Act, a court in voting rights litigation can
order, as relief, that a jurisdiction not subject to a
preclearance requirement of Section 5 preclearance voting
changes by submitting them to the court, or to the Attorney
General.
Americans continue to safeguard voting rights for every
citizen. Increased voter turnout reflects that commitment. In
my home State of Georgia, which has been mentioned many times
already, and will probably be again, voter turnout has expanded
mightily. Between 2014 and 2018, turnout among Hispanics and
African American voters has soared, increasing by double digits
in a State that more and more Americans are choosing to call
home.
I look forward to discussing more of that, and hearing that
as we go forward, but also look forward to ensuring that the
ballot box remains open to all eligible voters, and I am
looking forward to this hearing. I appreciate the witnesses
being here. I am sure this will be an interesting discussion in
which hearings tend to set facts straight. And with that, I
yield back.
Mr. Cohen. Thank you, Mr. Collins.
We welcome all of our witnesses. Thank you for your
indulgence in allowing Ms. Clarke to testify and make her
train. I explained to you about the lights: 4 minutes green,
yellow, you have got a minute left. Red, you don't have to go
to the train, but you have to stop. You are all under the
statutes that say that if you say anything that is false in
your testimony, perjury, you are subject to up to 5 years in
prison or both for making such a statement, so all your written
and oral statements to the subcommittee shall be truthful and
honest. I am sure of that.
Our first witness is Ms. Stacey Abrams. Ms. Abrams is the
founder and chair of Fair Fight Action, an organization
dedicated to advancing voting rights and electoral reform. In
2018, she was the Democratic nominee for Governor of the State
of Georgia, the first African American woman in U.S. history
nominated by a major party as its nominee for Governor. In that
election, she received the highest voter turnout of any
Democratic candidate in Georgia's history.
Prior to running for Governor, she served in the Georgia
General Assembly from 2007 to 2017, serving as the House
minority leader from 2010 to 2017, and became the first woman
to lead a party in the Georgia General Assembly, and the first
African American leader of a party in the State House of
Representatives. She received her J.D. degree from Yale Law
School, and her Master of Public Affairs from the LBJ School of
Public Affairs at the University of Texas at Austin, and her
B.A., magnum cum laude, from Spelman College.
Ms. Abrams, you are recognized for 5 minutes. We appreciate
your attendance.
STATEMENT OF HON. STACEY ABRAMS
Ms. Abrams. Thank you, Mr. Chairman, Ranking Member
Johnson, committee members. Thank you for allowing me to
address this important hearing today.
The Shelby decision created a new channel for the troubling
practice of voter suppression during a time of dramatic
demographic change. However, no assault on democracy will ever
be limited to its targets. As the franchise is weakened, all
citizens feel the effects, which is why restoration of the full
power of the Voting Rights Act must occur.
I come today because I was raised in Mississippi, where my
parents joined the civil rights movement as teenagers, and they
instilled in their six children a deep respect for the right to
vote. I came of age in Georgia where I registered voters while
in college, served as Georgia House minority leader, and where
I stood for office as the Democratic nominee for Governor in
2018.
Jurisdictions formerly covered under Section 5, joined now
by States with changing demographics, have raced to reinstate,
or create new hurdles to voter registration, ballot access, and
ballot counting. Among the States, however, Georgia, has been
one of the most aggressive in leveraging the lack of Federal
oversight to use both law and policy to target voters of color.
In 2014, I founded The New Georgia Project, one of the
State's largest voter registration organizations. Minorities
are twice as likely to register through third-party
registration as are whites. Post Shelby, legislation and
practices in States like Georgia, Tennessee, North Carolina,
Texas, Wisconsin, and Florida, seek to impede these activities.
Then-Georgia Secretary of State Brian Kemp, who was also
responsible for the oversight of local elections officials,
refused to take action to process registration forms in a
timely manner. Later, we discovered unpublished internal rules,
such as the 90-day blackout period during which no voter
registration forms were processed, causing delays that denied
registrants the right to vote. In 2017, citizens challenged and
eliminated the secret policy through the Federal courts.
Due to the volume of new Georgia Project registrations,
which we tracked via paper ballots, we also proved the racially
discriminatory effect of the exact match process which requires
perfect data entry by government employees to secure a proper
registration. In 2009, under preclearance requirements, the
Justice Department summarily rejected exact match as
presenting, quote, ``real, substantial, and retrogressive
burdens on voters of color.''
Post Shelby, however, Mr. Kemp implemented the discredited
exact match policies empowered by a lack of Justice Department
preclearance. In 2016, Mr. Kemp agreed to process approximately
34,000 suspended applications. Despite this 2016 Federal
settlement, Kemp ushered another iteration of exact match
through the State legislature in 2017, leading to 53,000
suspended voter registrations in 2018, 70 percent of whom were
black voters, who comprise roughly 30 percent of Georgia's
eligible voters.
Remaining on the voter rolls also poses challenges. Under
Kemp's post-Shelby regime, facially neutral rules for removing
voters who have died or left the State, became tools for voter
purges. In total, he removed over 1.4 million voters from the
rolls, including purging half a million voters in a single day
in 2017, an 8 percent reduction in Georgia's voting population.
An estimated 107,000 of these voters were removed through
arguably unconstitutional application of the use-it-or-lose-it
law.
One of the most pernicious effects of Shelby can be found
in the very act of casting a vote. Section 5 provided an
effective check against hyperlocal suppressive tactics, like
excessive poll closures, or challenge proceedings against
voters of color as occurred in Georgia in 2015. Of 159 counties
in Georgia, 156 counties removed the highest rate of voters
from the rolls post Shelby, which resulted in an increase in
the number of voter being forced to cast provisional ballots.
Last election cycle, separate Federal courts ruled against
Georgia policies for rejecting absentee ballots and valid
applications under trivial pretenses for implementing an
inconsistent provisional ballot system, and for improperly
disallowing access to translators in the polling booths. While
these lawsuits brought remedy to some, thousands more may have
faced similar discrimination, without the resources or the
knowledge to gain relief.
Post Shelby voting rights groups must too often rely on
resource-intensive litigation and advocacy work to protect the
fundamental right to vote for voters of color. This anti-voting
system has the concomitant effect of harming taxpayers as
States must expend tax dollars to defend voter suppression in
court.
At the end of the 2018 contest, I acknowledged the legal
result of an election marred by widespread election
irregularities. I also redoubled my commitment to voting rights
through the creation of Fair Fight Action, which has filed a
federal lawsuit against the Georgia electoral system, asking
for Georgia's preclearance requirement to be reinstated under
Section 3. The proposed Voting Rights Advancement Act, and
Voting Rights Amendment Act, represent considerable progress
towards restoring the power of the Voting Rights Act, including
modern-day protections that require nationwide preclearance to
attack the broad reach of voter suppression.
I strongly urge Congress to take action today, and I thank
you for the opportunity to address this committee.
[The statement of Ms. Abrams follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you very much, Ms. Abrams, and you were
perfect on 5 minutes.
Ms. Abrams. Not my first rodeo.
Mr. Cohen. Not many people have been to a rodeo on this
committee. You have not been a witness.
Mr. Armstrong. I have been to a rodeo.
Mr. Cohen. Okay. Good. Good. Good. Thank you. So have I.
Mr. Kyle Hawkins, who has been to a rodeo, I presume, is
the Solicitor General of Texas. He represents the State in high
profile matters before the Federal and State appellate courts,
including the Supreme Court of the United States. Mr. Hawkins
previously practiced law in Washington, D.C. in the Dallas
office of Gibson, Dunn & Crutcher, LLP, where he was a member
of the appellate and constitutional law practice group. He also
served as law clerk to the Honorable Samuel A. Alito, Jr.,
Associate Justice, United States Supreme Court, and the
Honorable Edith Jones of the U.S. Court of Appeals for the
Fifth Circuit.
Mr. Hawkins is a summa cum laude graduate of the University
of Minnesota Law School, and received his undergraduate degree,
magna cum laude, from Harvard. You have been to a rodeo?
Mr. Hawkins. I have been to many rodeos, Mr. Chairman.
Mr. Cohen. Good. You are recognized for 5 minutes, sir.
Thank you.
STATEMENT OF HON. KYLE HAWKINS
Mr. Hawkins. Chairman Cohen, Ranking Member Johnson, and
members of the subcommittee, thank you very much for inviting
me here today to testify about the Supreme Court's decision in
Shelby County v. Holder.
In Shelby County, the Supreme Court held that the coverage
formula subjecting certain jurisdictions to preclearance under
Section 5 of the Voting Rights Act was unconstitutional. When
Congress enacted the Voting Rights Act of 1965, it imposed a
novel restriction known as preclearance on various southern
States and localities that shared two characteristics: the use
of tests and devices for voter registration, and the voting
rate in the 1964 presidential election at least 12 points below
the national average.
Congress tailored the original formula to include those
States, because it found that widespread and persistent
discrimination in voting in the early 1960s had typically
entailed the misuse of test and devices, and this was the evil
for which the remedies were specifically designed.
The Supreme Court emphasized in Shelby County that the
Constitution's allocation of power to the Federal Government
and the States preserves the integrity, dignity, and residual
sovereignty of the States. The Court explained that the
Constitution also incorporates the fundamental principle of
equal sovereignty among the States, and the powers reserved to
the States by the Framers include broad authority over the
conduct of elections.
As the Supreme Court specifically noted in Shelby County,
the Framers of the Constitution intended the States to keep for
themselves as provided in the Tenth Amendment the power to
regulate elections, that is, States have broad powers to
determine the conditions under which the right of suffrage may
be exercised.
Preclearance under Section 5 of the Voting Rights Act is
inconsistent with those central pillars of federalism because
it forbids States to enforce their duly enacted voting laws
until they secure permission from the Federal Government.
Preclearance is thus an extraordinary measure that entails, as
the Court put it in Shelby County, a drastic departure from the
basic principles of federalism. So the real question at issue
in Shelby County was whether the on-the-ground conditions were
sufficient to justify that drastic departure.
The Supreme Court squarely held no. Specifically, it held
that preclearance must be reserved for extraordinary situations
in which a jurisdiction is guilty of pervasive, flagrant,
widespread, and rampant discrimination that cannot be remedied
through normal litigation. That is, preclearance is justified
only when the State is so determined to evade the commands of
the 14th or 15th Amendments, that its citizens will be unable
to protect their constitutional rights through traditional
litigation under existing law.
To be sure, the Supreme Court has recognized past
situations sufficient to justify preclearance. The
extraordinary burdens of a preclearance regime could be
appropriate in a world in which aggrieved citizens are unable
to use traditional litigation to secure relief against a
State's flagrantly unconstitutional voting laws. In 1965,
Congress found that those conditions existed in the States
originally targeted by the preclearance regime, and the Supreme
Court upheld that use of preclearance in the Katzenbach case.
However, more than 50 years later, recent voting rights
litigation in Texas shows that traditional litigation is more
than adequate to identify and prevent violations of the
Constitution and the Voting Rights Act. The courts have not
hesitated to identify potential legal violations, and the Texas
legislature has acted promptly to address them.
For example, in litigation over Texas' voter identification
law, the State agreed to a temporary remedial order to address
a claim under Section 2 of the Voting Rights Act. In the next
legislative session, the Texas legislature amended its voter
identification law to incorporate the court-ordered remedy,
which allows individuals who cannot secure a qualifying photo
ID, to cast a regular in-person ballot by executing an
affidavit at the polls.
The Fifth Circuit later held that the amended statute
provided an effective remedy for the only deficiencies
testified to in the preexisting law. Those actions bear no
resemblance to the conduct that justified preclearance in 1965,
when officials in certain States routinely took steps to evade
Federal court orders and prolong their resistance to the 15th
Amendment. Rather than try to stay one step ahead of the courts
in an effort to defy the Constitution, the State of Texas has
followed the court's lead in an effort to conform its voting
laws to the Constitution and the Voting Rights Act. Under
governing Supreme Court authority, those conditions cannot
justify preclearance.
Thank you, again, for inviting me to testify. I look
forward to your questions.
[The statement of Mr. Hawkins follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir.
Our next witness is Ms. Leah Aden, Deputy Director of
Litigation at the NAACP Legal Defense and Education Fund. She
was a member of the Legal Defense Fund's litigation team in
Shelby County v. Holder. Since that decision, she successfully
led the Legal Defense Fund's efforts to block the
implementation of discriminatory voting changes. She has also
recently authored ``Democracy Diminished: State and Local
Threats to Voting Post Shelby County, Alabama v. Holder,''
which details State, county, and local voting changes proposed
or implemented during the more than 3 years since the Supreme
Court decision in Shelby County, and continues to track post-
Shelby County voting changes.
She received her J.D. from Howard University School of Law
and a B.A. in History and African American Studies from
Columbia University, and also served as law clerk for the
Honorable John T. Nixon, who is a friend of mine at the U.S.
District Court of Appeals for the Middle District of Tennessee,
a very great judge, unusual, and a wonderful human being.
Ms. Aden, you are recognized for 5 minutes.
STATEMENT OF LEAH C. ADEN
Ms. Aden. Thank you. Good afternoon, Chairman Cohen,
Ranking Member Johnson, and Chairman Nadler, and other members
of the subcommittee. Again, my name is Leah Aden, and I am a
Deputy Director of Litigation at the NAACP Legal Defense and
Educational Fund. Thank you for the opportunity to share
information about what LDF has observed regarding barriers to
voting since the U.S. Supreme Court's 2013 decision in Shelby
County, Alabama versus Holder.
Since its founding in 1940 by Thurgood Marshall, LDF's
mission is, and has always been, to promote racial justice and
equality. Beginning with Smith v. Allwright, a case arising out
of Texas, our successful Supreme Court case challenged the use
of all whites primary elections in 1944. And since then, LDF
has fought to overcome the myriad of obstacles put before black
voters to ensure our full, equal, and active participation in
American life.
The right to vote for black people today, and for other
people of color is facing its greatest threat in decades. As
you know, the Shelby County decision invalidated the
preclearance provision of Section 5 of the Voting Rights Act,
removing the obligation of jurisdictions with a history and
ongoing record of discrimination from submitting proposed
voting changes to a Federal authority for approval. This
process ensured that those changes would not discriminate
against African American and other voters.
The result of the Shelby decision was predictable. As
Chairmen Cohen and Nadler have mentioned, within hours of the
decision, the Texas Attorney General tweeted out his intention
to implement a photo ID law that the State had been forbidden
from implementing under Section 5. Other jurisdictions,
including Alabama, followed suit. Even more alarming, voter
suppression has metastasized in the years since the Shelby
decision with places like Wisconsin, North Dakota, and
jurisdictions in Kansas adopting laws and practices which
result in voter suppression.
Since the Shelby decision, LDF has tracked and recorded
discriminatory voting changes in places previously protected by
Section 5 that we can become aware of, and we do so in a
regularly updated report, Democracy Diminished, and we have
provided copies of this report to each member of this
committee. Our documentation and examination of the plethora of
discriminatory voting changes proposed or implemented since
Shelby, our annual Election Day voter protection work, and our
own experience litigating cases, challenging voter suppression
schemes enables LDF to state, unequivocally, that there is a
critical and urgent need for Congress to act to restore and
strengthen the full protections of the Voting Rights Act.
The genius of Congress' Section 5 preclearance mechanism is
that it stopped discrimination before the harm occurred. While
we still have Section 2, as you all have heard, that authorizes
us to challenge discriminatory voting practices in Federal
courts, it is not enough. Even when we are successful
litigating these cases, the relief comes too late and at too
great a cost in terms of time, money, and burden, for hundreds
of thousands of voters. Millions.
One case dramatically illustrates this. We successfully
challenged Texas' voter ID law, judicially recognized as the
most stringent voter ID law in the country. The trial court
found that the law violated Section 2's results test and was
enacted intentionally to discriminate against African American
and Latino voters. We proved at trial that more than a half
million registered voters, and up to a million eligible voters
were disenfranchised by the ID law. The Fifth Circuit Court of
Appeals affirmed that the law violated the Voting Rights Act.
But during the 3 years in which we litigated the case
through trial, and before voters received relief, Texas elected
a U.S. Senator, all 36 members of the Texas delegation to the
U.S. House of Representatives, a Governor, a Lieutenant
Governor, Attorney General, Controller, all 150 Members of the
State house, over 175 trial court judges, and over 75 District
Attorneys. Relief simply was too late for voters across all of
those elections.
Since Shelby, Federal courts have found that officials in
five different States have passed racially discriminatory
voting laws, intentionally for the purpose of discriminating
against black and Latino voters. Ms. Clarke mentioned the North
Carolina case.
There is a voter suppression crisis in our country, and
Congress has an obligation to use the enforcement powers it was
bestowed in the 14th and 15th Amendment to the U.S.
Constitution, to amend the Voting Rights Act to protect
minority voters from racially discriminatory voting schemes.
The Supreme Court, in Shelby, rejected Congress'
determination, despite the extensive record that Congress
amassed that the preclearance process was necessary. The court,
in particular, as you have heard, objected to what it regarded
as a targeting of mostly southern States.
I agree with you, Chairman Cohen, that Congress got it
wrong in Shelby, and substituted its own judgment for Congress,
but the Shelby decision is the law, and any effort by this body
to amended the Voting Rights Act must be undertaken with
attention to the court's guidance in that case. H.R. 4 does
precisely that. It proposes a nationwide formula without
geographic limitation that will require any jurisdiction that
engages in systematic discrimination to submit voting changes
to a Federal authority for preclearance.
And I look forward to hearing your questions and being able
to answer them.
[The statement of Ms. Aden follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you. And I will proceed first with the 5-
minute rule and recognize myself.
First, in your statement, I believe you said the court had
it--Congress had it wrong and the court had it right. Is that
what--did I hear it wrong, or did you say it wrong?
Ms. Aden. If I misstate, misspoke, I definitely mean that
Congress had it absolutely right, and the Supreme Court had it
wrong.
Mr. Cohen. I thought that is what it was. Yeah. Congress
finally got it right.
Ms. Aden. And they got it right on multiple times over
multiplied decades under different administrations.
Mr. Cohen. Right after the Holder case, Texas had a photo
ID law. Ms. Aden, do you know what happened with the attack on
that law and what the Supreme Court--what the courts ruled in
those voter ID?
Ms. Aden. I know it quite well, because I am part of the
team among many members who have been litigating that case now
for 7 or 8 years.
So we have to step back and also remember that the Texas
photo ID law, which has been recognized as the strictest in the
Nation at one time, was adopted in the context of a legislature
that had also adopted racially discriminatory voting plans that
had been found to be intentionally discriminatory for the State
House and for Congress.
That same body, post 2010, adopted a strict photo ID law,
and it was blocked by Section 5, because the record then, as
the record came to show after trial and after several appeals,
prohibited up to 600,000 registered Texas voters, and up to 1
million eligible voters to vote. This was a law that was
crafted to allow people with handgun licenses
disproportionately held by white voters, to vote, but student
IDs, tribal IDs, Native American tribal IDs, Federal and State
employee IDs were carved out of that law, so that people could
not participate in the political process.
We went to trial in 2014, and the Court found that the law
violated the results test of Section 2, and also violated
various provisions of the U.S. Constitution. That case went up,
and the en banc court of the Fifth Circuit confirmed that that
law, and by ``en banc,'' I mean the full panel of the Fifth
Circuit affirmed that that law has discriminatory results. And
our position is that the--and subsequently, remanded the case.
There was an interim remedy. Well, frankly, Texas had to be
forced to come up with a remedy for voting--for its
discriminatory photo ID law. They had to be forced after they
were told by Section 5, after people provided testimony before
them, that the law was discriminatory, they had to be forced
into an interim remedy. That interim remedy was subsequently
upheld by another three-judge panel of the Fifth Circuit.
Frankly, our position is that that decision did not disturb the
intent ruling.
Mr. Cohen. Was that remedy that possibly the law that Mr.
Hawkins said was passed----
Ms. Aden. Yeah, and that is part of----
Mr. Cohen [continuing]. But was that after an election had
taken place?
Ms. Aden. That was after many elections.
Mr. Cohen. So what remedy was available to those voters who
were affected by a law that the court said was discriminatory?
Ms. Aden. Absolutely none. Millions, if not hundreds of
thousands of votes were lost after----
Mr. Cohen. So it is not a rodeo, but the cattle are out of
the barn. They have gone. There is nothing you can do at that
point.
Ms. Aden. They are over. People have been elected. That was
genius behind Section 5, that Congress understood that
elections would take place, and we need to block harm before
elections take place, before the cancer of racial
discrimination takes root, before people get the benefit of
discrimination, and the victims of discrimination have to then
race into court at the cost of hundreds of thousand, if not
millions of dollars, to uproot discrimination.
Mr. Cohen. Thank you so much.
Ms. Abrams, Mr. Hawkins said in his written testimony that
the current conditions in terms of voting rights aren't so bad,
that we have really done a great job, and it is not like 1965,
and we are just doing wonderful, good things, in essence, and
the preclearance requirement is not necessary. In other words,
he thinks the Supreme Court got it right in Shelby when he
concluded that Congress exceeded its constitutional authority
to impose preclearance requirements on certain States and
localities. This is federalism, but sometimes the States go too
far, and they interfere with the Federal statutes or Federal
constitutional privileges, and then the Feds have to come in.
What do you think about Mr. Hawkins' position that we don't
need the preclearance requirement anymore?
Ms. Abrams. I vehemently disagree. I grew up in
Mississippi, I live in Georgia, and I recently went through a
fairly public display of the need for preclearance. Mr. Kemp,
the current Governor, then Secretary of State, had been denied
the ability to impose the exact match policy under
preclearance. The moment Shelby was passed, he reinstituted
this policy.
In 2016, he had to enter into a Federal settlement, because
34,000 voters were denied the right to vote in an election
cycle; in fact, over two elections cycles. He agreed to the
settlement in 2016, and the very next year, ushered through a
different iteration of the exact same discriminatory policy.
And in 2018, a third court told him to stop it because--sorry,
a second court, because 53,000 voters were suspended from being
able to register to vote. That is a small kernel of an example.
The State of Georgia has found itself in multiple lawsuits
where upon adjudication, the State has been told that their
actions were racially discriminatory. That means that people
have been denied the right to vote. They will never be able to
unring that bell. And I believe that preclearance--in fact, we
know empirically that preclearance would have permitted more
voters to cast their ballots because the policies that denied
them the right to vote would not have been enacted.
Mr. Cohen. Thank you. And I just have to say, because it is
one of the things I think about a lot. You said you are from
Mississippi, and I want to say some nice things about Nina
Simone.
Ms. Abrams. Thank you.
Mr. Cohen. You are welcome.
Mr. Johnson, you are recognized.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Hawkins, Texas has been evoked a number of times today,
and at the outset, let me just ask you: Is there anything that
has been said here today or submitted in the written record
that you would like to respond to as Solicitor General of that
State?
Mr. Hawkins. Yes, Representative. I would like to do that.
Thank you for the opportunity. There has been a lot said about
the Texas voter ID law and litigation, and I would like to set
the record straight on that.
First, no District Court has ever found that any number of
voters were disenfranchised. The Fifth Circuit found that 95
percent of Texas voters already had a qualifying photo ID, and
the ones who didn't could simply get a qualifying photo ID to
comply with that law, which, by the way, has been supplanted by
new legislation and is now obsolete. That is not
disenfranchisement under any reasonable definition.
In any event, the notion that minority voters were targeted
by the voter ID law was contradicted by the plaintiff's own
expert witness, who offered data showing that the small
percentage of Texans who did not already have a qualifying
photo ID, the majority of them were white voters.
I would also like to speak to the importance of voter ID
set against the context of Supreme Court precedent. The Supreme
Court held, in Crawford v. Marion County, that voter ID laws
serve the legitimate State interest of protecting the integrity
and reliability of the electoral process and increasing public
confidence in elections.
As former President Jimmy Carter once explained, the
electoral system cannot inspire public confidence if no
safeguards exist to deter or detect fraud, or to confirm the
identity of voters. The Texas legislature studied this issue
and concluded that in-person voter fraud is a problem. The
legislature concluded in reliance on Crawford, and on the
Carter Baker report, that a photo ID requirement would help
combat in-person voter fraud. Furthermore, voter ID is a key
method for detecting in-person voter fraud. It is very hard to
spot in-person voter fraud absent a photo ID requirement.
Finally, I think the Supreme Court's decision in Purcell v.
Gonzalez, is very instructive on this point, and I would like
to briefly read the key portion of the Supreme Court's binding
analysis:
``A State indisputably has a compelling interest in
preserving the integrity of its election process. Confidence in
the integrity of our electoral processes is essential to the
functioning of our participatory democracy. Voter fraud drives
honest citizens out of the democratic process and breeds
distrust of our government. Voters who fear their legitimate
votes will be outweighed by fraudulent ones will feel
disenfranchised. The right of suffrage can be denied by a
debasement or dilution of the weight of a citizen's vote just
as effectively as by wholly prohibiting the free exercise of
the franchise.'' That is a quote from Purcell v. Gonzalez.
Just a couple of other points on the voter ID litigation.
There were 14 individual plaintiffs in that case, and the
evidence showed that not a single one of those plaintiffs had
been disenfranchised. Nine of them were eligible to vote by
mail without a photo ID. Three had a compliant ID. One chose to
get a California ID instead of a Texas ID, and one had the
documents that were necessary to get an ID.
Finally, voter turnout was unaffected in the elections
following the implementation of S. 14, which was the voter ID
law at issue there. As I indicated, the Texas legislature
passed a new voter ID law, S. 5. That is now law in Texas. It
has not been challenged.
Mr. Johnson. Thank you for clarifying the record. That is
important today. Could you walk us through how a generic case
could be brought under Section 3 of the Voting Rights Act? In
other words, in what steps would it proceed?
Mr. Hawkins. Yes, Representative. I would be happy to do
that. That raises an important point that Section 2 and Section
3 of the Voting Rights Act remain fully intact notwithstanding
the Supreme Court's decision in Shelby County. I believe all of
the witnesses before the subcommittee today agree on that
point.
When somebody believes that they are the victim of
intentional discrimination, they can bring an action under the
Voting Rights Act Section 2. And if, indeed, the conditions are
those that resemble the conditions in 1965 that justified
preclearance in the first place, Section 3(c) provides a remedy
to address that called the bail in process.
The bail in process is like a targeted form of
preclearance. It can be set for a certain amount of time, it
can cover certain areas. It is a surgical ability to impose a
type of preclearance regime on a locality that truly
demonstrates the same conditions that existed in the early
1960s that justified preclearance in the first place. Those two
parts of the Voting Rights Act are still very much in place.
They are being litigated to this day, notwithstanding Shelby
County 6 years ago which had nothing to do with those
provisions.
Mr. Johnson. I am out of time. I appreciate all of you. I
yield back.
Mr. Cohen. Thank you, sir. I now recognize Mr. Nadler for 5
minutes.
Chairman Nadler. Thank you.
Ms. Abrams, as we have in numerous cases, challenging
discriminatory voting laws since the Shelby County decision,
litigation takes years to resolve and can cost millions of
dollars to completion. Moreover, discrimination victims can
initiate such litigation only after they have been harmed. Even
while litigation is ongoing, States that continue to advance
more restrictions on the right to vote.
In a world that is effectively without a preclearance
requirement, how has the cost and length of private litigation
impacted the ability of civil rights groups to protect voters?
Ms. Abrams. It is a crippling burden that has been placed
on organizations that have to seek outside financial support in
order to secure fundamentally guaranteed rights to vote. My
organization, The New Georgia Project, which we founded in
2014, had to pursue years of litigation to undo some of the
challenges we discovered.
As I mentioned earlier, the exact match process only came
to light because of the 34,000 applications that were
suspended. And under a settlement in 2016, 2 years after the
initial election, Secretary Kemp then agreed to restore their
right to vote. We had a 90-day rule, which created a blackout
period during which thousands of applications to register to
vote were not processed, which meant that at least 20,000 that
we know of were held up until after the election. They were not
timely processed because of an unwritten rule, that had
preclearance been in effect, would have come to light.
It took us 2\1/2\ years of litigation and discovery for us
to discover this problem. And in 2017, 3 years after we
uncovered this issue, they finally had a Federal court to
essentially eliminate the ability to use this 90-day suspension
rule.
These are only two examples of what has hit organizations,
is that they are being forced to combat massive State budgets
that allow taxpayers to fund voter suppression until such time
as those who are most vulnerable and most harmed can muster the
resources to defend themselves and to restore the right to
vote.
Chairman Nadler. Thank you.
Ms. Aden, Mr. Hawkins argues that Congress must identify
congruent and proportional constitutional violations.
Specifically, that any State subjected to preclearance has
engaged in rampant, widespread, recalcitrant discrimination so
pervasive that it cannot be adequately addressed by judicial
remedies, in order to constitutionally justify imposing
substantial federalism costs for the preclearance requirement.
He also asserts that based on current facts, Congress could
not meet such a standard and, therefore, may exceed its
authority under the 15th Amendment if we now impose a
preclearance requirement. How would you respond to that?
Ms. Aden. Thank you for that question. So I agree that
Section 5 is meant to get at the whack a mole, the adaptive
discrimination, but I do adamantly disagree that we have to
demonstrate that conditions existed like they were in 1965 or
before then, because Congress surmised with the evidence before
it that discrimination is ingenious, that it morphs into the
next bad thing.
And I think it is important that we also talk and continue
to look at Texas, because the record there is one of many that
shows the pervasiveness of discrimination. The Fifth Circuit
has ruled on the Texas voter ID law, and the merits of that
case have been decided, so I am not going to continue to
dispute that the Fifth Circuit has determined that the law was
racially discriminatory.
But then we can look to what, again, the legislature did
with its redistricting plans. They had found 2011 Congressional
and State House plans had been determined to be intentionally
discriminatory, and I heard members of the commission say that
is abhorrent, that intentional discrimination is abhorrent. We
have seen abhorrent behavior in Texas. And if you look not just
at its ID law, but if you look at the redistricting plans, you
can look at the intentional discrimination found by a District
Court in Pasadena where the Federal court has ordered that
jurisdiction to be subject to bail in. You can see what Waller
County has done, decade after decade, trying to discriminate
against historically black students at Prairie View and AMU.
You can see what the legislature tried to do this last session
with S.B. 9 trying to put through an omnibus voter suppression
bill. I mean, you can look at that one jurisdiction, and Ms.
Abrams can talk in detail about Georgia, and we can look across
the country, and that record exists.
Chairman Nadler. Thank you.
Ms. Aden. Yes.
Chairman Nadler. Thank you. I have one more question----
Ms. Aden. Yes.
Chairman Nadler [continuing]. Before we run out of time.
Should the Department of Justice, or perhaps the court, be
granted, in a new Voting Rights Act jurisdiction, to
retroactively invalidate an election and order a new election
when it is proven that there was substantial discrimination
that exceeds the margin of victory of a candidate?
Ms. Aden. You know, before answering that directly,
Congress is operating at the apex of its power by enforcing the
14th and 15th Amendments. And what we saw during the Section 5,
nearly 50 years of Section 5 operating, is that it was
necessary on certain occasions to invalidate elections.
In fact, the case that came to the Supreme Court in Shelby
County was the result of white voters, someone mentioned
annexations, annexing black voters out of a district. It went
from being 80 percent black to under 30 percent black in a
majority black district, and those annexations over time
weren't precleared.
Ultimately, the law required that an election be held under
a fair electoral system. And so, I do think that that is more
the exception than the rule, and that we need to think about
going forward what mechanism do we have in place so that people
don't have to marshal the resources to run into court.
Congress should also look at strengthening the preliminary
injunction standard, because that is another thing that makes
it very difficult for the victims of discrimination to be able
to stop discrimination before it happens. But to your question,
I do think there are exceptional circumstances where redoing an
election when there has been a racially discriminatory,
abhorrent practice is something that can take place, but we
need a mechanism where no election takes place under a racially
discriminatory regime.
Chairman Nadler. Thank you. My time has expired. I yield
back.
Mr. Cohen. Thank you, Mr. Chair.
I now recognize Mr. Cline, the distinguished member from
the far western part of Virginia.
Mr. Cline. Thank you, Mr. Chairman. I thank the witnesses
for being here.
In 1965, Congress enacted the Voting Rights Act to address
deep-rooted racial discrimination in voting. The Voting Rights
Act was the most significant statutory change since the
Reconstruction period following the Civil War and the
relationship between State governments and the Federal
Government in terms of voting, and it was immediately
challenged in the courts. Between 1965 and 1969, the Supreme
Court issued several key decisions upholding the
constitutionality of Section 5, and affirming the broad range
of voting practices for which preclearance was required.
Now we have the decision in Shelby where the court ruled
Section 4(b) is unconstitutional because it covers formulas
based on data over 40 years old, thereby making it no longer
responsive to current needs and an impermissible burden on the
constitutional principles of federalism that equals sovereignty
of the States.
The Supreme Court decision in Shelby is now considered a
landmark case regarding the constitutionality of the Voting
Rights Act, and with many questions remaining, I am happy to
have this hearing to discuss the impact of Shelby. I would
first--well, let me first ask Mr. Hawkins if there is anything
he would like to respond to that was said.
Mr. Hawkins. Thank you, Representative. Just a couple of
things in response. My colleagues have referred to purposeful
discrimination findings made by District Courts. Not a single
one of them has survived appeal. In the voter ID case, for
example, the court, the Fifth Circuit explicitly vacated and
reversed the District Court's purposeful discrimination finding
in that case. All other findings have met the same fates.
As to the claim that Texas' behavior demonstrates a need
for preclearance, I think the opposite is true. What we have
seen in the redistricting case in the voting rights, or the
voter ID case that we have been talking about today, is Texas
has responded to that litigation by working to conform its laws
to the requirements of the Voting Rights Act, and the
requirements of the Constitution.
As I discussed earlier, when Texas' voting rights--or
excuse me--voter ID law was challenged, S.B. 14, rather than
pursue another appeal to the Supreme Court following the en
banc vote, Texas changed its law. Likewise, in the
redistricting case, in redistricting litigation following the
2010 Census, a Federal District Court ordered interim remedial
redistricting plans into effect, because the legislatively
enacted plans had not been precleared.
Consistent with the Supreme Court's instructions in Perez
v. Perry, the District Court conducted only a preliminary view
of claims against the State's plans, but the court-ordered
interim plans made extensive changes. The Texas legislature
repealed its challenged plans and permanently adopted the
court-ordered plans in its next session.
So what we have seen in the case of Texas is a State
conforming its laws to the requirements of the Constitution,
the Voting Rights Act, and the Supreme Court. That is a far cry
from the landscape in 1965 when the covered jurisdictions were
deliberately acting in bad faith to evade the review of the
Supreme Court, forestall their compliance with the 15th
Amendment, and suppress voters illegally.
Mr. Cline. In fact, that is federalism at work, is it not,
the States responding to the court's direction with affirmative
legislative action?
Mr. Hawkins. It is, Representative, and that is one of the
Supreme Court's core themes in the Shelby County decision. The
States created the Federal Government. In no other context do
States have to run their laws by the Federal Government to get
permission in advance of enforcing them.
The preclearance regime that the Voting Rights Act created
was the one exception to that general rule, and it was
justified only by the extreme conditions on the ground in the
south in the early 1960s. That is the core holding of the
Supreme Court's Shelby County decision.
Absent those extreme concerns, federalism and the co-equal
sovereignty of the States does not allow Congress to impose
that type of regime, and that is the core holding of Shelby
County in 2013.
Mr. Cline. In fact, laws such as regular maintenance of
voter rolls and photo ID laws are commonplace among States at
this point, correct?
Mr. Hawkins. Absolutely, Representative. There is nothing
unusual or noteworthy about a State auditing its voter rolls to
ensure that only eligible voters are registered to vote. In
fact, I have just seen in the news this week reports that
California is looking at its own voter rolls to ensure that
only eligible voters are registered.
The coverage I have seen indicated that in Los Angeles
County, there are far more registered voters than there are
eligible voters, and I understand that jurisdiction is taking a
look at that to figure out what is going on. States and
counties do this all the time. They have an obligation to do so
consistent with Federal law to ensure that only eligible voters
are voting.
Mr. Cline. Thank you, Mr. Chairman. I yield back.
Mr. Cohen. Thank you, Mr. Cline.
Mr. Raskin is recognized for 5 minutes.
Mr. Raskin. Mr. Chairman, thank you.
The States did not create the Union. We, the people,
created the Union in the Constitution. That is what we fought
the Civil War about. It was the claim of the confederacy that
it was a handshake among the States, and Lincoln explicitly
rejected that and said the people created the Union and the
Constitution, and no State could opt out of it. No State could
secede, so I think we settled that question a century and a
half ago.
Disenfranchisement used to be relatively simple. In the
first century, the law simply said that African Americans
couldn't vote. Before the Civil War, the States just made it
plain that--then we had a Civil War. We passed the 13th and
14th and 15th Amendments, which established that the States
could not discriminate on the basis of race, and for a period,
the Constitution worked. That was Reconstruction, and we had
African Americans voting in huge numbers throughout the former
confederacy and African Americans getting elected to high
offices in the States and getting elected to this body.
And then there was a savage assault on Reconstruction. Some
of it was through violence led by the KKK, and the former
confederates. But a long period of subtle, legal
disenfranchisement began with literacy tests, poll taxes,
grandfather clauses, white primaries, character exams. And the
second Reconstruction, which was the modern civil rights
movement, targeted all of those practices with the Voting
Rights Act of 1965, and specifically, with Section 5, which Ms.
Aden has elaborated so well here. It said before the States
that engaged in massive disenfranchisement and extinguishment
of people's political rights for decades could make changes to
voting practices, they had to first go to the Department of
Justice, or to the U.S. District Court for the District of
Columbia. Because if we allow them to go ahead and impose
another disenfranchising mechanism, and they finally get to
court 6 months or 8 months or 12 months later, it is too late
to do anything. It is meaningless. That is what Section 5 and
the preclearance requirement is all about.
Now, we are living in a period where there is an attack on
the second Reconstruction, on the modern civil rights movement
and the Voting Rights Act, and we got it from a gerrymandered
conservative Supreme Court in 2013 in Shelby County v. Holder,
which basically decapitated the Voting Rights Act in Shelby
County v. Holder.
Now, Ms. Abrams, it is an honor to have you here before the
House Judiciary Committee. I heard you mention a bunch of new
techniques of disfranchisement, voter purges, 90-day blackout
period, refusing to process voter registration, exact match
process. Can you tell me quickly what are the one or two worst
techniques that were used in Georgia that disfranchised the
people of the State in the last election?
Ms. Abrams. Certainly. Thank you for the question. Exact
match, I think, is the most obvious and deliberate and the
strongest proof point for the need for preclearance, because it
was denied under preclearance and only existed because
preclearance disappeared.
Mr. Raskin. Will you explain just very briefly again what
exact match is?
Ms. Abrams. Exact match requires perfect data entry by
government employees. When you submit your application, if
there is a hyphen missing, if your last name is spelled with a
space, and they decline to enter the space, your application
can be rejected. And in Georgia's system, there is no notice to
the applicant of what the problem is.
So you receive this circular firing squad of receiving
information that you have been rejected. You resubmit the
information. Likely, the government employee resubmits it the
way they typed it the first time, and you never know that the
reason you were rejected was a typographical error.
Mr. Raskin. Very good. Thank you very much. Let's see.
Mr. Hawkins, let me come to you. Texas put out a voting
advisory in January that alleged that as many as 95,000 non-
citizens were on the Texas voter rolls. This advisory fell
apart within days because it became clear that tens of
thousands of people on the State's list were actually U.S.
citizens and were wrongfully included on this list. The State
pulled the advisory back in April in order to resolve multiple
Federal lawsuits that were brought against it.
Now, had Texas counties moved forward with removing people
from the rolls based on this flawed advisory, Texas would have
disenfranchised thousands of people, and yet, presumably, you
would be here to say that that is not something that should
have had to go through the preclearance process, and if it had
happened, they could have sued later. What would you have said
to the thousands of people who had been disenfranchised under
that situation?
Mr. Hawkins. Representative, thank you for bringing up that
example. I would like to address the premise of that question.
The bottom line is that not a single person had his voter
registration cancelled, not a single----
Mr. Raskin. Because of the lawsuits that were brought
against it, right?
Mr. Hawkins. Because Texas did the right thing. There was
an error, a miscommunication between the Texas Department of
Public Safety based on incorrect----
Mr. Raskin. I guess that is the whole point here. Who
should bear the burden of the errors of the State? Should it be
the people of the State who are trying to vote, or should it be
the government officials who should get their hands slapped in
a preclearance investigation by the Department of Justice?
Mr. Hawkins. Your Honor, I--or excuse me. Representative, I
don't think----
Mr. Raskin. That is fine.
Mr. Hawkins. I don't think that the experience that you are
referring to implicates that question. The Secretary of State
does not have the power to remove individuals from the voting
rolls. County officials are responsible for maintaining the
voting rolls in each county, and those county officials may
remove a voter from the voting rolls only after a number of
safeguards have been satisfied, including post removal judicial
review, which is very much a part of the process.
Mr. Raskin. Well, let me ask you this.
Mr. Cohen. Your time is over by a minute. Thank you, Mr.
Raskin.
Mr. Raskin. Thank you, Mr. Chairman.
Mr. Cohen. Do you have to leave for the airport?
Mr. Hawkins. Yes, Mr. Chairman. I have got a flight back.
Mr. Cohen. I am just going to ask you for the heck of it.
What time is your--when does your flight leave?
Mr. Hawkins. My flight leaves at, I believe, 5:50.
Mr. Cohen. You can make it in plenty of time. I don't want
to stop you. But Ms. Abrams' flight is at what, 5:15?
Ms. Abrams. 5:40.
Mr. Cohen. 5:40.
Mr. Raskin. You guys can share a taxicab.
Mr. Cohen. We have got three more people, which is 15
minutes. Can you wait 15 minutes? You will make it, believe me.
I leave in an hour, and I make it.
Mr. Hawkins. Understood, Mr. Chairman.
Mr. Cohen. All right. Let's go. 5 minutes on the nose. Ms.
Garcia, you are on.
Ms. Garcia. I will dispense with any preliminary remarks. I
just want to dive into the comment you just made in response to
my colleague, Mr. Raskin. I mean, I just am sitting here in
disbelief that you are suggesting that Texas did the right
thing in this whole purging order of these 95,000 registered
voters. I mean, the Secretary of State's office and the
Governor and it seems like everyone up in Austin was suggesting
that this was not happening, that it was really, you know,
something that they didn't mean to do. I mean, it took almost 5
months, and the entire Senate not voting for the Secretary of
State which he still did not get confirmed. And to have you sit
here now and say that they were doing the right thing just as
you are suggesting that Texas always is taking the lead, I am
telling you. I was there sitting in the Texas Senate when we
voted on the agreement on the Voting Rights Act--I mean, Voter
ID. We were not taking the lead. I did not like some of it. I
thought it wasn't good enough, but we were pretty much forced
to do it because of the pending Federal court case.
So I just want to clarify the record that some of the
statements that you are making are, quite frankly, quite
misleading, and I take offense to some of them and the
characterizations that you have made.
But having said that, because I said I was not going to
make a preliminary remark, Texas is really almost the poster
child for Voting Rights Act violations. I testified before the
Senate Judiciary Committee back in 2014, and as I reflected on
the testimony I presented there then, not much has changed.
When I testified back in 2014, between 1982 and 2005, for
example, Texas had earned 107 Section 5 objections to voting
policy, second only in number to Mississippi; 97 concerned
local laws and affected about 30 percent of Texas counties home
to disproportionate share, nearly 72 percent of the State's
non-voting population. And it is true, Ms. Aden. How many times
have Federal courts found intentional intent discrimination? Is
it seven, eight? I have lost track.
Ms. Aden. Across five States, there are about 9 decisions
of intentional discrimination since Shelby.
Ms. Garcia. Since Shelby. And how many of those have been
vacated completely, and not sent down for rehearing and another
trial?
Ms. Aden. I believe all of the nine across those five
States are still standing decisions of intentional
discrimination under the Constitution.
Ms. Garcia. Right. They are still standing. Now, which one
of our redistricting maps are we working under? Is it not true
that most--we are still under the temporary maps because we are
still in litigation since the last Census?
Ms. Aden. So the two--there are decisions from after--
decisions related to the 2011 maps that forced the interim
plans that were, in large part, upheld by the Supreme Court,
but those early decisions that led to the interim remedy, those
were based upon findings, preliminary findings of intentional
discrimination, and those have not been disturbed.
When this case eventually made it to the Supreme Court,
while an entire decade had passed and many elections had taken
place, the Supreme Court upheld the discrimination in one
district. So it is a very complicated posture, but our position
is that there are intentional discrimination rulings from 2011.
That is the basis for the bail in relief that advocates are
still continuing to urge in District Courts in Texas. And Texas
represents--it is the poster child, but there is also evidence
from many other States that this body should examine that
warrants Section 5 preclearance.
Ms. Garcia. But the only one where we have a bail-in
provision would be the Pasadena case which actually you said in
my district, in working together with MALDEF, we were able to
litigate that. In fact, I testified about Pasadena at the
Senate Judiciary Committee in the Galveston County case. It
just seems like a lot of that, because my district is 77
percent Latino, and that is where a lot of stuff happens.
Ms. Aden. And I would just correct you. That was the only
court-ordered bail in Pasadena. Since Shelby, Allen Evergreen,
Alabama, a court found intentional discrimination, and the
parties agreed to bail-in, so there two jurisdictions that
since Shelby have been subject to bail-in, but that is far
insufficient.
Ms. Garcia. I am almost losing my time here, but just one
quick question. On this, Section 5 was meant to, as you said,
to get to the harm before it starts. How much does this
litigation cost? I mean, some of these cases go on 5, 6, 7
years. Just ballpark figure. I know every case is different,
but just generally speaking, how much do we have to spend on
this?
Ms. Aden. On average, hundreds of thousands of dollars, if
not millions, and that includes not just challenges to
statewide measures, but even suing one county can cost hundreds
of thousands, if not millions of dollars, and that is both
taxpayers' money to fight discrimination, and that is taxpayer
money drawn by the discriminators to defend discrimination.
Ms. Garcia. Thank you. And Mr. Chairman, I would like to
ask unanimous consent to enter into the record the entire 20
some pages----
Mr. Cohen. Without objection, it will be done.
[The information follows:]
=======================================================================
_______________________________________________________________________
MS. GARCIA FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Ms. Escobar for 5 minutes.
Ms. Escobar. Chairman Cohen, thank you so much for holding
this hearing, especially on this very important anniversary,
and thanks to all of our panelists for being here. I am very
grateful for your testimony.
Although I will say I am shocked to hear the opinion that
Texas has done the right thing when it comes to its voter
suppression efforts, because we all know that the consequences
to voter suppression completely change the outcome of elections
and change the public's ability to have true representation in
public office.
Mr. Chairman, I would like to please enter into the record
an article about my Governor, who is reportedly--emails show he
is behind the effort to purge the voter rolls in Texas, an
effort that many of us saw as a surreptitious way to change the
outcome of elections, and to try to circumvent the changing
demographics in our State.
Mr. Cohen. Without objection, it will be done.
[The information follows:]
=======================================================================
_______________________________________________________________________
MS. ESCOBAR FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Escobar. Thank you, Mr. Chairman.
Ms. Abrams, you and I share the fact that we both come from
a State that--States, Texas and Georgia, that were previously
covered under the preclearance formula. In your testimony, you
illustrate the challenges Georgia faces in a post Shelby world,
and I see so many parallels between our two States, given the
example that I just cited.
Can you please expand on the voter roll purges in Georgia?
What are some of the key lessons that you learned that you can
share with us through your work with The New Georgia Project
and Fair Fight Action? What can Texas learn from Georgia?
Ms. Abrams. I am going to decline to answer that question,
but I will answer the larger question. I would say, first of
all, during the tenure of Secretary of State Brian Kemp, 1.4
million voters were purged. In a single day in 2017, half a
million voters were taken off the roll, a reduction of the
Georgia rolls by 8 percent.
Now, to the credit of the State, we have a version of
automatic registration, which has added about 681,000 voters to
the rolls, simply by signing up for their driver's license. The
challenge is that a number of those people who are availing
themselves of that were unlawfully purged during the 1.4
million-person purge.
The challenge is that in Georgia, we face not only
malfeasance, but incompetence. There are people being removed
from the rolls who should not be removed. There is no condition
for their removal, but we have been able to demonstrate that
the communication from the Secretary of State's office has been
inadequate to the task.
There has been a constant attempt to defer responsibility
to the localities to say that it was the county's fault for not
doing so, but the reality is the Secretary of State is the
election superintendent. That is the person in charge. The buck
stops with that person. And the challenge with the way voter
purging happens is that no one is responsible, but voters are
losing their rights.
In the State of Georgia, there has been an argument that
because we had the highest turnout record in Georgia for voter
turnout in 2018, there could not have been voter suppression. I
would argue that that is the moral equivalent of saying that
because more people get in the water, there can't be sharks.
The reality is that voter suppression is adapting to the
changing demographics of our country, and the reality is that
voter purging is one of the tools used. It may be an imperfect
tool, because people will continue to seek their rights. They
believe that they have the right to vote. I grew up with
parents who instilled in me a respect for that right, and there
are those who will aggressively and assiduously pursue it, but
there are so many others, who when rejected by their State,
when rejected by their government, they turn away, and they do
not return.
And that is what is so pernicious about voter suppression,
that we have people who believe now that they have no voice
because of error, because of intentionality, and because of
racial discrimination. And those are challenges that not only
affect Georgia, but they affect the rest of the country.
One thing I will say is that I do believe that one of the
opportunities we have here is to expand the coverage of Section
5. I do believe that there is a broader need for Section 5 to
not simply be afforded or to provide coverage to those States
that have a history of bad action, because the reality is more
States have joined the party. More States have decided that
because they cannot win elections fairly if there is full
participation, then the goal is to limit who can participate.
And that is a fundamental flaw in the process, and it is
dangerous to our democracy, and we have to recognize that voter
suppression, while it may target voters of color, it will
affect us all.
Ms. Escobar. Thank you, Ms. Abrams.
Mr. Chairman, I yield back.
Mr. Cohen. Thank you so much for your courtesy.
Ms. Jackson Lee is recognized for 5 minutes.
Ms. Jackson Lee. Let me thank the committee for holding
this very important hearing, and for the record, I would like
to put the following statement in.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Jackson Lee. Just after the purging of approximately
98,000 individuals in the State of Texas, Solicitor General
Hawkins, Republican officials were quick to claim that the
Secretary of State's actions were further evidence of growing
threat of widespread voter fraud. On January 25, 2019, the
Texas Attorney General sent a tweet proclaiming voter fraud
alert. The Secretary of State discovered approximately 95,000
individuals--this is all a quote--identified by DPS as
noncitizens having a matching voter registration record in
Texas, approximately 58,000 of whom had voted in Texas
elections. Any illegal vote deprives Americans of their voice.
President Donald Trump tweeted 58,000 noncitizens voted in
Texas, with 95,000 non-citizens registered to vote. These
numbers are just the tip of the iceberg. All over the country,
especially in California voter fraud is rampant. Must be
stopped. Strong voter ID.
Ms. Abrams, first of all, thank you for the work that you
are doing in your new leadership, and certainly everyone
watched the numbers of purging that occurred in Georgia. We are
stuck on that, because I think you made a point is that purging
suppresses and oppresses the vote, and it creates an aura of
fear which happened in my Congressional district.
So would you expand on that, with the aura of fear of
purging, and also the exaggeration or the tilt when national
leadership takes up the position that voter fraud is rampant
across the country?
Ms. Abrams. Certainly. Thank you for the question,
Congresswoman. I would say, first, that there is a legitimate
purpose to maintaining effective voter rolls. There is a
legitimate purpose to laws that allow for the cleaning of rolls
for people who have passed way, for people who are no longer
eligible to vote, for people who moved from the State, and I do
not believe there is any well-intentioned person who would say
that cleaning and maintaining the rolls is improper.
But what we argue is that the approach that has been taken
has been so egregious and so flawed and sometimes so directly
intended to harm voters of color, that we have undermined the
intention of actually maintaining access to the rolls.
In the State of Georgia, as I pointed out, 1.4 million
people were purged between 2010 and 2018. Half a million were
purged in a single day in the State of Georgia. That should
raise alarms for anyone, because the reality is when you show
up to vote, and you are told that you cannot cast a ballot
because you have been removed from the rolls, even though you
know that you should not have been, you are now called upon to
become your own attorney, to argue with who is likely a
volunteer that you have the right to vote. And if you happen to
be in one of those hypersuppressive communities, that ability
may be quashed.
Georgia relied on an historic number of provisional ballots
in the 2018 election. That meant that people cast their votes,
believing they were allowed to actually make a choice only to
have those votes later thrown out, and we have found a
disturbing number of people who were given provisional ballots
not because they were not effectively registered but because of
the malfeasance and incompetence of the Secretary of State's
office.
Ms. Jackson Lee. Thank you. Solicitor General Hawkins,
would you not argue, or could you not support the fact that
minority voters are disproportionately affected by purging, and
as I listen to your argument about having prevailed in the
appellate court, you are right. As a lawyer, I understand the
chances you take, but it is well known that the Fifth Circuit
has never been supportive of civil rights legislation through
the ages, so it is nothing unusual that you would have
prevailed.
My question, again, to you is, do you not see the purpose
of looking to, or the purpose of purging outside of what
gubernatorial candidate Abrams indicated of cleaning the rolls
that you have seen being utilized to purge minority voters,
particularly in Texas?
Mr. Hawkins. Thank you for the question, Representative.
First, I am not familiar with the lay of the landscape in
Georgia, and I am not familiar with----
Ms. Jackson Lee. I am only asking you about Texas and the
anecdote--not the anecdote but the statement that I read about
the joy of purging 95,000 individuals through the Secretary of
State's office in Texas.
Mr. Hawkins. Representative, 95,000 individuals were not
purged.
Ms. Jackson Lee. Only after a lawsuit was filed.
Mr. Hawkins. The Secretary of State does not have the power
to remove anybody from the voter rolls.
Ms. Jackson Lee. They sent the information to our local
counties, and I can tell you, it created hysteria.
Mr. Hawkins. And they may remove individuals from the voter
rolls in counties only after a number of safeguards, including
judicial review, have been surpassed. I think it is important
to note that Texas----
Ms. Jackson Lee. The chilling effect was already there.
Mr. Hawkins. I am sorry, Representative?
Ms. Jackson Lee. The chilling effect was already present.
Can you answer about Section 5? Is there any reason for
Section 5 not to be reimplemented?
Mr. Hawkins. Yes. The Supreme Court's decision in Shelby
County, which held that preclearance under the current
landscape is unconstitutional.
Ms. Jackson Lee. If Congress is to reinstitute it, would
there be any reason not to have it reinstituted? I understand
Shelby.
Mr. Hawkins. The Congress should pass legislation that is
constitutional. In fact, Congresspersons have sworn an oath to
the Constitution of the United States.
Ms. Jackson Lee. We intend to do that.
Mr. Cohen. Our time is up. Our time is up.
Ms. Jackson Lee. Thank you. We intend to do that. Thank
you.
Mr. Cohen. Our time is up. Thank you.
Mr. Collins wants to come. Is he here? He is. Mr. Gohmert.
You would like to have questions? We want to get--they want to
ask you questions. You know, it is up to you. He is from Texas,
he is blah, blah, blah, and Ms. Abrams, you are free if you
want to split.
Mr. Nadler for a brief question, and then Mr. Gohmert.
Chairman Nadler. Thank you.
I was intrigued by something that Ms. Abrams said a few
minutes ago when she said that, if I understood you correctly,
that history of discrimination is not sufficient--I don't mean
that--is not the only thing, is not the only thing that should
justify preclearance. What else, in your opinion, should
justify preclearance?
Ms. Abrams. What we have found, not only through the work I
have done in Georgia, but through conversations with colleagues
in other States is that what is currently happening is that as
demographic changes occur, and there are increasing numbers of
people of color who have the right to vote, we are seeing a
concomitant increase in the hurdles that are being placed in
front of them to diminish their opportunity to vote. That has
been seen in Wisconsin, in Ohio, in North Carolina. Across the
country, we have seen increases in the chilling effect on the
access to the right to vote. And therefore, any restoration of
Section 5 should, I believe, set a universal standard that
disallows any processes that would diminish the ability for
people of color to access the right to vote, based not only on
historical precedent, but based on current operations and
current activities.
Chairman Nadler. Thank you very much.
Mr. Cohen. Thank you. And we have cabs for you all, and we
will ask everybody to stay seated when we finish so they can
get out and get to their cabs, and no pictures, no autographs.
They have to make their cabs.
Mr. Gohmert.
Mr. Gohmert. Thank you. Mr. Hawkins, I know you are trying
to catch a plane. Anything you need to respond to? I had some
questions for you, and especially with regard to how Texas uses
Section 2 of the Voting Rights Act. But anything based on what
you have heard you want to add before you have to go?
Mr. Hawkins. Thank you, Representative. I think it is
important to underscore that Texas has a duty under State and
Federal law to ensure that its voting rolls are accurate as
does every other State. And, in fact, Texas has a compelling
interest in ensuring that ineligible voters do not vote.
Now, why is that so? It is because any time somebody votes
unlawfully, that suppresses the vote of a lawful voter. And
that is why we are seeing not just Texas, but many other the
States, including just this week California, auditing voter
rolls to ensure that only registered voters are--that only
eligible voters are registered to vote. That is the purpose of
auditing voter rolls, to ensure that the right to vote is
protected because if somebody who is ineligible to vote votes,
that suppresses the vote of a lawful citizen.
Mr. Gohmert. I appreciate your efforts so much, and I would
like to indicate for the record, and I won't have any further
questions, Mr. Hawkins. I am told that you are trying to get
away.
But with regard to the need for this hearing and all, I
think it is important to note the facts on the reauthorization
of this. I was fairly new here in Congress, but it seemed very
clear to me that since Section 4 had not been changed for about
40 years, it was still penalizing States for sins, wrongs,
decades before by fathers and grandfathers, so to speak. And
so, I know Chairman Sensenbrenner was pushing hard. He didn't
want changes. He was not open to my suggestions.
But we looked at a map of areas where there was a very
definite problem, a disparity in the numbers based on racial
voting, and there were some problems around the country that
were not included in the States that had to get Section 5
clearance. And I had an amendment that would require any State
that had a significant disparity in racial voting, they had to
fall under Section 5.
And let's update that, Section 4. Let's get a new standard
in there. And Chairman Sensenbrenner said, Absolutely not. We
are not changing it. And as I recall, there was a district in
Wisconsin that had a significant disparity problem that might
have fallen under Section 5. And Mr. Conyers was much more open
to the idea of having an amendment that would require any
district, any State in the country with a racial disparity
problem would have brought them under Section 5.
And I said most recently before the second time I talked to
him, he was open to it. He said, you know, Louie, I have been
talking to some of our experts, and they say Yeah, it is a
risk. It might get struck down, so why don't we just go ahead
and wait and see what happens? And I said I just talked to the
previous dean of New York University Law School, and he said he
sees a substantial chance that it will be struck down by the
Supreme Court when it gets there. But the bill was done. They
would not allow my amendment to be passed, and therefore, it
would continue to punish only those who had engaged in
wrongdoing decades before instead of bringing it current to
make districts, States that were failing to have fairness
racially have to answer under Section 5. And just as I
predicted, just as others predicted, it got struck down, and we
are still here without a modification that could have been done
back in that reauthorization.
So anyway, I am hoping that we will work things out. I am
proud of the way Texas has been using Section 2 litigation to
get this straight or get problems straightened out even without
changes to Section 4, and I appreciate the chance to air these
matters, and I yield back. Thank you very much.
Mr. Cohen. Thank you, sir.
We have got two more people that want to ask questions. If
either one of you want to leave, you are free to leave.
Mr. Hawkins. Thank you, Mr. Chairman. I have to take off.
Mr. Cohen. You agreed to 15 minutes. You did it. Thank you
so much for your testimony.
Ms. Abrams, we have got people willing to take you to the
cab and get you out of here.
Ms. Abrams. I can stay.
Mr. Cohen. Great. Thank you, sir.
First, Ms. Dean, you are recognized for 5 minutes.
Ms. Dean. Thank you, Mr. Chairman, and I thank all of the
witnesses, those who had to leave and those for sharing your
views and your expertise.
As we know, this is an important subcommittee hearing. This
is an important set of issues. Suffrage is as fundamental a
right as any in our Constitution, and the right to vote lies at
the very heart of our democracy, that delicate democracy.
Benjamin Franklin famously noted that the Framers left us with
a Republic, but only if we could keep it, and of course,
central to keeping it is public participation in elections. A
government of the people, by the people, for the people should
mean all the people.
And so I was interested--I apologize. I stepped out to go
to another meeting, so if I am being redundant, I apologize. I
hope I am not. I had terrific scouts here listening.
One of the things I was interested in, under Section 5,
jurisdictions were required to provide racial impact data to
the Attorney General as part of the preclearance review
process, including information on the anticipated effect on
racial minority groups and also, where necessary, information
on demographics, maps, annexations, election returns, language
usage. Can you tell me, is that kind of data still being
collected post Shelby?
Ms. Abrams. I will defer to Ms. Aden.
Ms. Dean. Ms. Aden.
Ms. Aden. So you are absolutely correct that through the
process, the burden was on jurisdictions to shine a light on
what they were planning to change, and the burden was on them
to show what was the impact. Was it going to lessen the ability
of people of color, Native American, African American, Asian
American, Latino to be able to participate? And as it stands,
what H.R. 4 does and what we need is that notice again of the
voting changes and the burden to show what the impact is to be
placed on the jurisdictions seeking to implement that law.
Ms. Dean. That is the other piece of it, and from anecdotal
and your personal experience, the other piece is what you just
said, shine a light on the proposed changes so the public was
on notice. The public notice piece. And I assume that has now
dropped away because we no longer have the Section 5
preclearance.
So it is not only shine a light before any changes, the
education of voters, but then also collect the data after to
see what the impact. So now as a result of Shelby, we are not
doing either. Is that right?
Ms. Abrams. Correct. Under Fair Fight Action, we filed
Federal litigation, and among our proofs, we were able to
demonstrate that due to the purging of voters and the patterns
of purging and the number of people who were forced to cast
provisional ballots because of the ineffectiveness and the
malfeasance of that process, there is essentially a racial map
of African American communities that were subject to casting
provisional ballots which have to be remedied. And if you are a
working person, you might get Tuesday off. There is no
allocation in State law to give you Wednesday and Thursday to
go back and fix something that should never have been broken.
Ms. Dean. Right.
Ms. Abrams. We also know that Georgia had an extraordinary
number of poll closures. We had 214 polls close out of roughly
3,000. Those are largely African American communities. And
while those poll closures may have been permissible because of
some nuance of law, what we found was that there was a
disproportionate effect on communities of color, largely
African American, particularly poor. If you do not own
transportation, and there is no public transportation, the
closure of a polling place that is 2 miles from your house now
being moved to 10 miles from your house has not only a chilling
effect on your right to vote, it absolutely negates your
ability to cast that vote.
Ms. Dean. I couldn't say it any more eloquently than that.
I come from a previous experience in the Pennsylvania
legislature, pre-Shelby. Before I had gotten there in 2011, I
guess, or early 2012, Pennsylvania passed a voter ID law which
was ultimately struck down as unconstitutional, but I was a
brand new State representative trying to help people navigate
the world of what am I going to do if I need some sort of
specified identification. We know exactly what that was
intended to do.
And I will close with this notion because I wasn't here.
Sometimes I think witnesses have something they wish they could
have been asked, and they didn't get the chance to say it, so
may I ask you, Ms. Abrams, is there something more that you
wanted to say, and the same to you, Ms. Aden.
Ms. Abrams. I do think, and I want to reiterate this false
connection that is being drawn between voter turnout rates
among communities of color, and voter suppression. These are
not correlated. One can have intentional laws and practices to
discriminate against voters and have a concomitant effort by
communities that care about these issues to push back and to
provide access. I am a part of a long legacy of people who have
responded to oppression by making certain that we overreact,
and that we overperform, but we cannot ignore the fact that
that discrimination still exists. Discrimination doesn't cease
to exist simply because there are those who are willing to
fight back. That fighting back should demonstrate how important
it is to eliminate the discrimination on its face.
Ms. Dean. Thank you, Ms. Aden.
Ms. Aden. And I just want to correct that. The reason why
we focus on Texas is because we love Texas. In fact, we love
the voters of Texas. We want people to participate. So I don't
want today to be a show just about Texas or just about Georgia.
As Ms. Abrams said, Congress can and must hold hearings and
look at the landscape of voter suppression across the country.
Look at what is happening to Native American voters in North
Dakota, where they are required to have an address on their
photo ID, even though many live on reservations and do not have
that. Look at Kansas where one polling place was left open, and
it was out of town, and there is no public transportation. Look
at Wisconsin, which has been invoked. Look across the country.
And it cannot be the case that we are happy with the way that
elections are taking place in our country. It is unacceptable.
And it is because we love the people who want to participate
that is incumbent upon us to work to fix the problem.
Mr. Cohen. Thank you very much. Thank you, Ms. Dean. Now we
recognize Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman.
Ms. Abrams, and one of the things that is good about this,
and I am glad you are here. In 2011, back in a different time
in a different world for both of us, you voted in favor of a
bill to reduce early voting period to 3 weeks and add a
Saturday, correct?
Ms. Abrams. Correct.
Mr. Collins. House Bill 92. I will enter that into the
record. It has been stated earlier by the chairman of this
committee----
Mr. Cohen. Without objection.
[The information follows:]
=======================================================================
_______________________________________________________________________
MR. COLLINS FOR THE OFFICIAL RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Collins. Thank you [continuing]. By the chairman of
this committee that restricting early voting has actually had a
disproportionate impact on minority voters. I know that was
very much a concern for you at the time, and you and
Representative Mark Hamilton had those conversations, and it
was showed that there was either no difference in
participation, or actually, there was at least a benefit to
minority voters at that time. Would you agree with that
statement?
Ms. Abrams. I would agree, but I believe it is important to
clarify. Georgia at the time had an outsized number of early
voting days, 45 early voting days. The national standard, the
gold standard was 21 days. Therefore, what Georgia did by
reducing from 45 to 21 days was to come into conformity with
the most appreciated and the most accepted role for early
voting.
Mr. Collins. Exactly.
Ms. Abrams. However, since that time, there were multiple
opportunities, multiple attempts made in the Georgia general
assembly to actually restrict from 21 to 7 days, and I
vigorously opposed every one of those bills and fought them
back.
Mr. Collins. Reclaiming my time. I was not there. We were
there on this one, and I think the interesting issue was is the
point that I am making is that when you do carefully calculate,
it was to the norm. There was not a discriminal threat, and the
statements of broad impact can't be used all the time because
it leads to bad decisions when you blanketly say something
affects in a disproportionate way.
You just admitted, I just saw, and we had the bill pass.
But in that 3-week period which was part of what was actually
said by our chairman, it did not do that. A 7-day, we could
probably agree on, but in that part, it did not. So you can't
blanketly say bringing back early voting does that.
Another issue that has that has come to mind, and I have a
question. I am glad you said it and a previous witness. You
said there are reasons to keep a voter roll accurate. The
question, though, as you come into this process, you stated
something earlier about exact match that I am not sure we
actually--I want to make sure that we are clear on. And this is
a couple yes-nos. 1.4 million were purged. You say that. It is
in your written testimony. Do you believe all of those were
purged for wrong reasons? Yes or no?
Ms. Abrams. Of course not.
Mr. Collins. Okay. Let's look at that. The question you
also said among the exact match and the 53,000 voter
registrations we will use as you put in your thing was held
hostage. The question has--and you said it is because of
government bureaucrats or government workers who mistakenly put
information in, and that is the only reason you have given that
these exact match doesn't work. Is it not true that, however,
the person who is actually inputting information has to have
accurate information to put in so that it is accurate? Would
that be a fair statement?
Ms. Abrams. I do not believe that fairly characterizes
the----
Mr. Collins. So you do not believe that a statement,
something that is given--if I put a--filled out a form and it
was half filled out, or I did not put my last name, or I did
not put my date of birth, or I did not put an exact--I did not
put an address, is that a form that can be actually used by a
local voter registrar to actually fill out a form that would do
an exact match? Yes or no?
Ms. Abrams. Sir, it is impossible to provide a yes-or-no
answer to that question, because the exact match is not simply
the question of what was put on the form. The challenge with
exact match is not the entry on the form. It is the database
that is then used to verify the access to this information. And
so absent the second part of the process, it is an
impossibility to give a truthful answer to the question
presented.
Mr. Collins. But the truth--and you are still as good as I
remember you. The issue is here, though, is not this. If it is
not right for the exact match, to match what they need to match
for verification process, if I turned it in, still did not
match it up, it was my input on the form or the person
collecting or the group collecting this that did not turn in a
form that a person in the voter registration office could
actually use to do exact match, not what they were matching to.
But if I did not give them proper match, then that is the
problem. There has at least got to be the understanding it is
not just a government data input problem, and we are not
throwing all voter registration people under the bus with this.
I think that is the problem that I have in your answer, because
it implies a governmental problem, which also goes back to a
bigger issue that I have here, and that is the implication that
Brian Kemp, the Governor of the State of Georgia, is the person
behind all of the problems here.
And this has become a bigger question for the State that
you and I love. When you had a former presidential or a
presidential--a current presidential candidate come to Georgia
and make a statement in your defense and basically said that
Stacey Abrams will be Governor of Georgia if Georgia wasn't
racist. I don't think that is what you want Georgia to be
looked at, and I don't think that is what I wanted, and I have
actually talked to this individual. The question is making sure
we have accurate voter rolls, even by your group's
administration, making sure that our accurate voter rolls are
there, and that people have a possibility of doing that.
The question, though--one last question that I have in
here, and we could go on, but I know you have got a flight, and
I will see you again, hopefully under different circumstances,
but one question bugged me from the whole time I watched it.
There was a clip, and you said it even afterwards. When we are
talking about our voter rolls being there for every person,
every citizen, do you believe that non-citizens should vote in
the State of Georgia?
Ms. Abrams. No, and I have never said that non-citizens
should be allowed to vote.
Mr. Collins. What did you say, by the way?
Ms. Abrams. What I said was that the blue wave which was
not a reference to the right to vote, but a reference to the
resistance of this administration's policies that have
disenfranchised, dehumanized, and harmed the ability for people
of the United States of America to fully exercise their rights
and freedoms, that the change that would come, which is
euphemistically referred to as the blue wave would be achieved
by people who are both documented and undocumented. That did
not refer to, and in fact, it has been proven through
Politifact analysis I never once called for anyone who is not
legally eligible to vote to be able to do so. And I would refer
you to our long tenure together, where I worked with Democrats
and Republicans to always ensure the integrity of the right to
vote. It has been my practice as an adult since my time in
college.
And with due respect, the reality is that we as a Nation
stand as an emblem of what democracy can mean, and that is
diminished when there are irregularities, when there are
malfeasance and misfeasance activities that undermine the right
to vote. And that is what I have called attention to, and that
is the work that I am doing.
Mr. Collins. And that is exactly what the problem is, is
when we have the far--even from groups taping----
Mr. Cohen. Our time is up. Thank you, Mr. Collins.
I appreciate the panelists coming and your testimony. We
will have 5 days for members to come up with questions, and
they can submit them in writing, and we would ask you to answer
them.
And with that, the hearing is adjourned.
[Whereupon, at 4:53 p.m., the subcommittee was adjourned.]
=======================================================================
_______________________________________________________________________
APPENDIX
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]