[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE PROPOSALS TO STRENGTHEN
THE VOTING RIGHTS ACT
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL
RIGHTS, AND CIVIL JUSTICE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
Thursday, October 17, 2019
__________
Serial No. 116-57
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
44-449 PDF WASHINGTON : 2021
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chairman
MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking
SHEILA JACKSON LEE, Texas Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.,
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia DEBBIE MUCARSEL-POWELL, Florida
THEODORE E. DEUTCH, Florida VERONICA ESCOBAR, Texas
KAREN BASS, California STEVE CHABOT, Ohio
CEDRIC L. RICHMOND, Louisiana LOUIE GOHMERT, Texas
HAKEEM S. JEFFRIES, New York JIM JORDAN, Ohio
DAVID N. CICILLINE, Rhode Island KEN BUCK, Colorado
ERIC SWALWELL, California JOHN RATCLIFFE, Texas
TED LIEU, California MARTHA ROBY, Alabama
JAMIE RASKIN, Maryland MATT GAETZ, Florida
PRAMILA JAYAPAL, Washington MIKE JOHNSON, Louisiana
VAL BUTLER DEMINGS, Florida ANDY BIGGS, Arizona
J. LUIS CORREA, California TOM MCCLINTOCK, California
SYLVIA R. GARCIA, Texas DEBBIE LESKO, Arizona
JOE NEGUSE, Colorado GUY RESCHENTHALER, Pennsylvania
LUCY MCBATH, Georgia BEN CLINE, Virginia
GREG STANTON, Arizona KELLY ARMSTRONG, North Dakota
MADELEINE DEAN, Pennsylvania W. GREGORY STEUBE, Florida
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 MIKE JOHNSON, Louisiana, Ranking
JAMIE RASKIN, Maryland Member
ERIC SWALWELL, California LOUIE GOHMERT, Texas
MARY GAY SCANLON, Pennsylvania JIM JORDAN, Ohio
MADELEINE DEAN, Pennsylvania GUY RESCHENTHALER, Pennsylvania
SYLVIA R. GARCIA, Texas BEN CLINE, Virginia
VERONICA ESCOBAR, Texas KELLY ARMSTRONG, North Dakota
SHEILA JACKSON LEE, Texas
JAMES PARK, Chief Counsel
PAUL TAYLOR, Minority Counsel
C O N T E N T S
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October 17, 2019
Page
OPENING STATEMENTS
The Honorable Steve Cohen, Subcommittee on the Constitution,
Civil Rights, and Civil Liberties.............................. 3
The Honorable Mike Johnson, Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 5
The Honorable Jerrold Nadler, Chairman, Committee on the
Judiciary...................................................... 7
WITNESS
The Honorable Terri A. Sewell, Member of Congress................ 12
Oral Testimony................................................. 12
Prepared Testimony............................................. 14
J.M. (Morgan) Kousser, Professor of History and Social Science,
California Institute of Technology............................. 17
Oral Testimony................................................. 17
Prepared Testimony............................................. 20
Thomas A. Saenz, President & General Counsel, Mexican American
Legal Defense and Educational Fund............................. 46
Oral Testimony................................................. 46
Prepared Testimony............................................. 47
Bryan P. Tyson, Partner, Taylor English Duma LLP................. 50
Oral Testimony................................................. 50
Prepared Testimony............................................. 52
Bryan Sells, Former Senior Staff Attorney, American Civil
Liberties Union Voting Rights Project.......................... 60
Oral Testimony................................................. 60
Prepared Testimony............................................. 62
John Eastman, Henry Salvatori Professor of Law and Community
Service, Chapman University Dale E. Fowler School of Law....... 76
Oral Testimony................................................. 76
Prepared Testimony............................................. 78
Arturo Vargas, Chief Executive Officer, National Association of
Latino Elected and Appointed Officials Educational Fund........ 81
Oral Testimony................................................. 81
Prepared Testimony............................................. 83
John C. Yang, President and Executive Director, Asian Americans
Advancing Justice.............................................. 00
Oral Testimony................................................. 111
Prepared Testimony............................................. 112
Janai Nelson, Associate Director--Counsel, NAACP Legal Defense
and Educational Fund........................................... 122
Oral Testimony................................................. 122
Prepared Testimony............................................. 167
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Item for the record submitted by Janai Nelson, Associate
Director--Counsel, NAACP Legal Defense and Educational Fund.... 126
APPENDIX
Items submitted for the record by The Honorable Steve Cohen,
Chairman, Subcommittee on the Constitution, Civil Rights, and
Civil Liberties................................................ 184
LEGISLATIVE PROPOSALS TO STRENGTHEN THE VOTING RIGHTS ACT
Thursday, October 17, 2019
House of Representatives
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to call, at 10:06 a.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Cohen
[chairman of the subcommittee] presiding.
Present: Representatives Cohen, Nadler, Raskin, Scanlon,
Dean, Garcia, Jackson Lee, Collins, Johnson of Louisiana, and
Cline.
Staff Present: David Greengrass, Senior Counsel; John Doty,
Senior Adviser; Madeline Strasser, Chief Clerk; Moh Sharma,
Member Services and Outreach Adviser; Julian Gerson, Staff
Assistant; James Park, Chief Counsel; Keenan Keller, Senior
Counsel; Will Emmons; Professional Staff Member; and Matt
Morgan, Counsel.
Mr. Cohen. The Committee Subcommittee on the Constitution,
Voting Rights, Civil Rights, Civil Liberties, et cetera, will
come to order.
Without objection, the chair, in its infinite wisdom, is
authorized to declare recesses of the Subcommittee at any time.
Before we get started with this hearing, I want to say what
is probably on everybody's mind and hearts is that we are
saddened greatly by the loss of a great American, great
congressperson, but a great American and human being in Elijah
Cummings, who passed away this morning.
Elijah Cummings was a defender of the Constitution, man of
great knowledge and wisdom and grace and exhibited that in all
his work in Congress, particularly as chairman of the Oversight
Committee, where in a position that become and did become
somewhat adversarial, he did not allow it to go beyond what was
the maximum allowance for differing perspectives and views and
worked with the Republicans. I think he had the respect of Mark
Meadows and others on that committee.
So, I would suggest that we take a moment of silence and in
our own ways reflect on our own time that we are given and the
wonderful opportunity we had to share our lives with
Congressman Cummings, and send the best to his family. So, with
that, we will take a moment of silence.
[Moment of silence.]
Mr. Cohen. I would now like to recognize for comments
concerning our departed colleague the Ranking Member, Mr.
Johnson.
Mr. Johnson of Louisiana. Thank you for that, Mr. Chairman.
It is certainly appropriate here in the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties for us to honor
the memory of this great man. We were all stunned this morning,
as you said, to hear of the sudden passing of our colleague
Elijah Cummings. A group of our conservative leaders happened
to be meeting for breakfast this morning, and I want you to
know we prayed for him and our family and our country. It is a
really sad day for all of us.
While he and I rarely agreed on matters of public policy, I
just want to tell you I always found him to personally be a man
of great sincerity and decency and integrity, and I really
enjoyed talking with him about his life experiences. We could
all learn from one another. We did more of that.
We all deeply respected Chairman Cummings, and I just want
to say I think on behalf of all my Republican colleagues, I
know that he will be deeply and sorely missed on Capitol Hill.
So, thanks for that opportunity.
Mr. Cohen. You are welcome, Mr. Johnson.
I would now like to recognize Chairman of the full
committee, who knew Mr. Cummings for many, many years, for his
thoughts.
Chairman Nadler. I thank you very much, Mr. Chairman.
I join Chairman and the Ranking Member in mourning the loss
of my great friend and colleague Elijah Cummings. He was a man
of integrity and intellect. He served his constituents, his
country, and the causes he believed in with passion and with
grace.
It is fitting that we are considering voting rights today
as Elijah was a champion of equality and civil rights on behalf
of all those in society who have been left behind. He was also
a leader in Government oversight and defending the rights of
Congress to hold the executive, any executive accountable. He
was a true partner in these efforts. His passing is a great
loss for our institution and a great loss for his constituents
and a great loss for our country.
Elijah's presence, passion, and moral clarity will be
missed. My heart goes out to his family, his constituents, and
to all of us who will miss him so very, very deeply.
I yield back. Thank you, Mr. Chairman.
Mr. Cohen. Mr. Collins, you are recognized.
Mr. Collins. Thank you, Mr. Chairman.
I want to, before we get started today, just echo what has
already been said in the kind words of Chairman and also
Chairman of the full committee. When I first got to Washington,
DC, I didn't realize it at the time was the privilege of
serving on OGR. I had three committees--Foreign Affairs, OGR,
and then this committee. Mr. Cummings was the Ranking Member,
and it was during a very contentious time, and many times I can
remember seeing him, as we would travel back and forth on the
train back and forth between the Capitol and the hearings and
the long hearings.
The thing that amazed me always was that even when we could
have the most sharpest disagreements--this was during the time
of him and Mr. Issa going at it a great deal--it was always we
would get on that train, and it was, ``How is your family?'' It
was always about, what is going on in your world?
We actually bound on an issue of pharmacy. He had worked in
a pharmacy when he was younger, and we were talking about PBMs.
He joined me in my dislike and great dislike of pharmacy
benefit managers. To see that humanity, and I can see you
shaking your head, there is a great equalizer here. We are all
passionate about what we do, and that is what we are sitting
here for.
At the end of the day, there is a commonality of death and
loss that remind us, one, of our own mortality, but also of the
process. I saw something this morning on the TV screen as I was
running because it happened and announced right after I got up,
and it had the date of his birth and the date of his death.
Those will be brought out again, but it was that middle bash
that is what Elijah Cummings will be known for. It is why he
will be a picture on the wall in OGR.
There will many things discussed. He personally meant to me
a great competitor, a great fighter for what he believed in and
the people he fought for, but also would be one that also could
reach across the aisle. He and I had a bill together that
continued our criminal justice reform. It is sitting in the
Senate today, and I will actually challenge the Senate, today
or tomorrow will be a great day to honor him and pass that bill
as we go forward.
So, again, thank you, Mr. Chairman, for allowing me to do
that. I will have an opening statement later, but I wanted to
yield back.
Mr. Cohen. So, I welcome everyone to today's hearing on
``Legislative Proposals to Strengthen the Voting Rights Act,''
and I will recognize myself for an opening statement.
Today's hearing on ``Legislative Proposals to Strengthen
the Voting Rights Act'' is part of a series of hearings that
the House Judiciary Subcommittee on the Constitution, Civil
Rights, and Civil Liberties is holding this Congress to assess
ways we can once again give effect to the preclearance
requirement of section 5 of the Voting Rights Act of 1965.
The Supreme Court effectively gutted that requirement in
Shelby County v. Holder, when it struck down the coverage
formula to determine which jurisdictions would be subject to
preclearance. As a result, the preclearance provision remains
dormant unless and until Congress adopts a new coverage
formula. Our focus of today's hearing is on proposals that
would create a new coverage formula, as the Supreme Court
invited Congress to do so in the Shelby decision. It would also
strengthen the Voting Rights Act in other ways.
H.R. 4, introduced by Representative Sewell, Terri Sewell
of Alabama, would, among other things, establish a coverage
formula that would cover States where 15 or more voting rights
violations have occurred over the previous 25 years or where 10
or more violations occurred if at least one of those violations
was committed by the State itself.
A political subdivision would be covered if it committed 3
or more violations within the previous 25 years. A jurisdiction
would be covered for a maximum of 20 years.
Similarly, H.R. 1799, introduced by Representative
Sensenbrenner of Wisconsin, would, among other things,
established a coverage formula, although this bill proposes a
shorter, 15-year lookback period in covered jurisdictions with
fewer violations over that shorter lookback period.
The right to vote is the right that guarantees all other
rights in our democracy. Unfortunately, the right of African
Americans and other Members of racial and language minorities
to vote has been threatened and undermined throughout our
Nation's history. The Voting Rights Act with an effective
preclearance provision went a long way towards righting that
wrong.
Sadly, since the effective neutering of the preclearance
provisions, voting rights for minorities once again is under
sustained assault in many parts of this country. We have
gathered substantial evidence over the course of six prior
hearings before this subcommittee, as well as in one hearing
before the full House Judiciary Committee, and hearings before
other committees that has resulted in a detailed record of
voter suppression efforts by States and localities in the
effective absence of preclearance since the Shelby County
decision.
North Carolina, for example, passed a sweeping voter
suppression law that a Federal appeals court ultimately held to
be unconstitutional, finding that it intentionally ``targeted
African Americans with almost surgical precision.''
We also heard about recent measures to make it difficult or
impossible for minority voters to exercise their right to vote.
These measures include polling place closures and relocations,
the purging of voter rolls that disproportionately target
racial and ethnic minority voters, discriminatory photo ID
laws, and restrictions on ex-felon voting, all of which are
designed to make it harder for African Americans and other
racial and ethnic minorities to vote.
The extent that these measures have historically been used
to suppress the voting rights of racial and ethnic minorities
is worth considering whether Congress should adopt a practice-
based preclearance regime in addition to a geographic coverage
formula. Last month, in Memphis, we learned about Tenessee's
third-party registration law that would impose draconian
penalties on groups like the League of Women Voters, who work
to register new voters, for minor errors and omissions in
registration forms. This law was the subject of a successful
legal challenge.
Back in May, we learned about a similar law in Texas and
about many other examples of voter discrimination in that
State, and we have seen States engage in racial gerrymandering
designed to dilute the strength of minority voters.
The Voting Rights Act preclearance provision requires
certain jurisdictions with a history of voting discrimination
against racial and language minority groups--those
predominantly, though not exclusively, in the Deep South--to
obtain approval of any changes to their voting laws or
procedures with the Department of Justice or the U.S. District
Court for the District of Columbia before that change could
take effect.
This mechanism ensured that new voting rules and practices
in jurisdictions with a history of discrimination were fair to
all voters. It rightly prevented potentially discriminatory
voting practices from taking effect before they could harm
minority voters, and in this way, preclearance proved to be a
significant means of protection of minority voting rights.
Therefore Congress had repeatedly reauthorized the
preclearance provision on an overwhelmingly bipartisan basis,
most recently in 2006, when the House passed the Voting Rights
Act reauthorization by a vote of 390 to 33 and the Senate by a
98 to 0 vote. A result due in no small part to the substantial
efforts of then House Judiciary Committee Chairman James
Sensenbrenner.
In the absence of an effective preclearance regime, it is
unsurprising that discriminatory measures have and will
continue to undermine the voting rights of racial and language
minority voters and erode our democracy. While section 2 of the
Voting Rights Act, which prohibits discrimination in voting,
remains in effect, it is, by itself, a less effective,
significantly more cumbersome, and often prohibitively
expensive way to enforce the act.
Most importantly, plaintiffs cannot invoke section 2 until
after an alleged harm has taken place. Requiring discrimination
victims to rely solely on such a remedy effectively neuters the
act. The onus, therefore, is on Congress to create a new
coverage formula to restore the act's most important
enforcement mechanism, its preclearance requirement. Moreover,
Congress should consider other ways to strengthen enforcement
of the act, including provisions to extend bail-in
preclearance, use of election observers, and notice and
transparency requirements, as well as ways to facilitate the
enforcement litigation by private parties.
With preclearance, you stop the harm before it exists.
Without preclearance, the harm exists, and then later, you can
do something to nullify the law, but the harm has been done,
closing the barn door after the horse is out.
I thank our witnesses and our Members for being here today,
and particularly Congressman Sewell for her sponsorship and her
long work on this effort, and I look forward to a lively and
substantive discussion.
Now I recognize Mr. Johnson for his opening statement.
Mr. Johnson of Louisiana. Thank you, Mr. Chairman.
As I have said at previous hearings of this subcommittee,
we all agree that discriminatory treatment in voting based on
race or sex is abhorrent. It is prohibited by the Constitution,
as it should be, and it is prohibited by Federal statute, as it
should be. We all agree on that.
We have come a long, long way in the history of this
country, and at hearings like this, we hear a lot about the
most shameful chapters of our history, and we have to
acknowledge that. I mean, it is important to note that some of
the worst political violence of the Reconstruction era
following the Civil War occurred in my own home State of
Louisiana, where African-American Republicans, by the way, died
defending the integrity of the ballot box.
In 1873, for example, William Kellogg was the Republican
running for Governor in Louisiana, and he won with the support
of African-American Republicans. The biographer of Ulysses S.
Grant, Ron Chernow, writes about some of the episodes of that
time period. It was violent. It was bloody.
Many Democrats refused to accept the results of that
election, and when William Ward, an African-American
Republican, ran against Christopher Nash, a White Democrat in
Grant Parish, Louisiana, on Easter Sunday in that year so long
ago, as the biographer describes, Mr. Nash led a mob of several
hundred whites to set the Colfax courthouse ablaze, and dozens
of African Americans were killed in that fire, despite
surrendering. This was perhaps one of the worst injustices
perpetuated against African Americans during Reconstruction.
As terrible as that era was, less than 20 years later, in
1890, Frederick Douglass was still able to give a speech in
Washington, DC, here, in which he said, ``I have seen the
darkness gradually disappearing and the light gradually
increasing. One by one, I have seen obstacles removed, errors
corrected, prejudices softened, proscriptions relinquished, and
my people advancing in all the elements that make up the sum of
the general welcome.''
Fortunately, and by God's grace, America has continued to
grow in innumerable ways since Mr. Douglass' moving speech all
those years ago. Over the last several decades, in a reversal
of prior history trends, we are delighted to say African
Americans have been moving to and not from Southern States,
which now offer more economic opportunities for everyone.
In fact, statistics show that Southern States are actually
the most popular destinations for African Americans and
Hispanic Americans who are moving to better opportunities.
According to the Center for Opportunity and Urbanism, among
cities ranked by the African-American home ownership rate,
median household income, and the share of total self-
employment, almost all of the best cities today are in the
South. We are proud of that. The employment rate among African
Americans without a college degree is highest in the South.
Too often, complaints of discrimination in voting really
have nothing to do with discriminatory treatment. Instead,
rules entirely neutral on their face are sometimes claimed to
be discriminatory simply because they have disparate impact on
one group or another. Disparate impacts are not proof of
discrimination. Indeed, they are statistically inevitable.
To speak on the bill, we will be discussing today, H.R. 4
would prevent States from enforcing their neutral voting laws
if they aren't approved by the Justice Department, which, as we
all have to acknowledge here, is an entity with a history of
politicizing its power in the past. It would do so based on
claims of disparate impact, which are statistically inevitable
and not evidence of any discriminatory treatment, as I said.
The disparate impact approach to civil rights and the
assumption that different outcomes are the result of
discrimination is fundamentally unsound for the same reason
social scientists are trained that correlation does not imply
causation. In other words, there can be all sorts of
correlations between one event and another, but that doesn't
answer the question as to why that correlation exists.
Sometimes we give a simple example. The price of a loaf of
bread may be $2.50. It may be that it is statistically more
difficult for the average member of one group or another to
afford that loaf of bread, but that doesn't mean the price of a
loaf of bread is discriminatory on its face.
Regarding discriminatory treatment in voting that is
actually based on race, we have section 3 of the Voting Rights
Act, which is permanent Federal statutory law, remains in place
and in full effect, and it is really important because it
allows any Federal judge, upon proof of discriminatory
treatment in voting based on race, to subject the offending
jurisdiction to whatever preclearance regime the court deems
appropriate.
Our fear is that H.R. 4 would go far beyond what is
constitutionally permissible and allow a politicized Justice
Department to veto or amend State voting laws to the political
advantage of the party in power, whichever party that may be.
As one of the witnesses before us today will explain, Congress
can't constitutionally enact legislation denying States and
localities control over their voting rules when there is no
evidence, they have been engaging in discriminatory treatment
in voting based on race.
The Supreme Court's holding in City of Boerne v. Flores
held that a law enacted pursuant to the Fourteenth amendment
must be congruent and proportional to actual constitutional
violations that can be established in an evidentiary record. In
considering whether a law satisfies Boerne's congruence and
proportionality standard, the Court assesses whether a record
of actual constitutional violations exist that is intentional
discrimination in voting based on race.
The Supreme Court has taken a dim view of statutes aimed
primarily at eliminating disparate impacts that don't
themselves violate the Fourteenth Amendment. That is just what
H.R. 4 does. This Committee and other organizations claim to
have compiled evidence to demonstrate the need to amend the
Voting Rights Act, but the list of examples overwhelmingly
includes DOJ objections to State and local voting Rule changes
under section 5 of the old Voting Rights Act section 2 cases,
in cases in which a discrimination may be stopped--a
jurisdiction may have stopped defending the case after the
district court level.
Department of Justice section 5 objections are just that
and not official determinations by a court of ultimate
jurisdiction that a State or locality actually engaged in
disparate treatment in voting based on race. Section 2 cases
can continue to be brought today; just as other civil rights
cases are brought. So, such cases don't demonstrate the need to
amend the Voting Rights Act.
In cases in which a jurisdiction may have stopped defending
the case or settled the case after the district court level, it
may simply indicate the jurisdiction simply couldn't afford to
continue appealing the case up to a higher court, where the
jurisdiction may ultimately have won if it could have afforded
its own defense.
With all that said, I look forward to hearing from all our
witnesses today. We always have an open ear. It is an important
discussion.
I yield back. Thank you.
Mr. Cohen. Thank you, Mr. Johnson.
It is now my pleasure to recognize Chairman of the full
Judiciary Committee, the gentleman from New York and a longtime
supporter of voting rights, Mr. Nadler, for his opening
statement.
Chairman Nadler. Thank you, Mr. Chairman.
Over the past several months, this Subcommittee under
Chairman Cohen has held a series of hearings examining the
State of voting rights in America. In 2006, Mr. Chabot chaired
the same hearings, and I was the Ranking Member on the
subcommittee, and we held many hearings preparatory--to
establish the record preparatory to the renewal of the Voting
Rights Act in 2006.
The hearings that have been held over the past several
months have documented a disturbing set of challenges,
particularly in light of the Supreme Court's decision in Shelby
County v. Holder, which effectively gutted the Voting Rights
Act section 5 preclearance requirement by striking down the
formula for determining which jurisdictions are subject to
preclearance.
Today, we turn our attention to legislative proposals that
would reinvigorate section 5, including H.R. 4, the Voting
Rights Advancement Act, introduced by Representative Terri
Sewell, and H.R. 1799, the Voting Rights amendment Act,
introduced by Representative James Sensenbrenner. While these
bills differ in their particulars, both propose new coverage
formulas that, if enacted, would once again give effect to
section 5 and would add other enhancements to the act.
I applause both Members for their longtime leadership and
bipartisan congressional efforts on this issue. I also
especially thank Mr. Sensenbrenner for his leadership in
shepherding the 2006 reauthorization of the Voting Rights Act,
including its section 5 preclearance requirement, to enactment
with overwhelming bipartisan support when he served as chairman
of the full committee.
When Congress passed the Voting Rights Act in 1965, it
aimed to deliver on what had long been an empty promise to
African Americans and other people of color--the right to
participate in our democracy as equal citizens. The Act not
only prohibited States from denying the right to vote based on
race, but it also required certain States and other local
jurisdictions that had practiced the most severe forms of
discrimination to get approval from the Justice Department or
from a Federal district court before making any changes to
their voting laws.
Congress enacted this preclearance requirement to address
what the Supreme Court called an ``unremitting and ingenious
defiance of the Constitution'' by States determined to suppress
the vote. States would enact laws designed to disenfranchise
Black voters, like literacy tests, and when those laws were
struck down by the courts after years of litigation, the States
would simply switch to some other method of voter suppression,
like poll taxes.
This meant that Black voters could be shut out of the
polling place even if they succeeded in every lawsuit against a
discriminatory voting law practice because a new one would
already be in place to keep them from the ballot box.
Preclearance helped to curtail sharply this relentless game of
whack-a-mole and helped to ensure full and equal voting rights
for the first time for all Americans.
Six years ago, however, the Supreme Court effectively
gutted the section 5 preclearance provision in its disastrous
decision in Shelby County v. Holder. Despite the fact that this
subcommittee, of which I was the Ranking Member at the time,
heard from dozens of witnesses and assembled thousands of pages
of evidence of ongoing discrimination when it last reauthorized
the act, the Supreme Court decided to substitute its judgment
as to the facts for that of Congress.
By a 5 to 4 vote, the Court essentially held that the law
was a victim of its own success. In the Court's view, because
things had improved in the jurisdictions subject to
preclearance, Congress could no longer justify imposing
preclearance on those jurisdictions.
Justice Ruth Bader Ginsburg put it this way in her dissent.
``Throwing out preclearance when it has worked and is
continuing to work to stop discriminatory changes is like
throwing away your umbrella in a rainstorm because you are not
getting wet.''
She was right. The Shelby County decision unleashed an
almost immediate deluge of voter suppression laws across the
Nation, including in many States and other jurisdictions that
had been subject to preclearance before Shelby County. Within
24 hours of the decision, Texas and North Carolina moved to
reinstitute draconian voter ID laws, both of which were later
held in Federal courts to be intentionally racially
discriminatory, but they were in effect for several years and
suppressed the vote.
We have heard substantial evidence about these and other
ongoing voter suppression laws in six hearings before this
Subcommittee so far this year. Another troubling aspect of the
Court's reasoning in Shelby County was its emphasis on the
supposed ``equal sovereignty'' of the States and on States'
authorities to administer elections, even when they had abused
that authority by denying the right to vote.
The Court's reasoning barely acknowledged that the
constitutional amendments enacted after the Civil War during
Reconstruction were intended fundamentally to reorder Congress'
relationship to the States and to give Congress the power to
supersede State sovereignty when needed to enforce the mandates
of those amendments.
Indeed, before the Civil War, before those amendments, the
United States was generally described in the plural, ``The
United States have done this'' or ``are considering that.''
After the Civil War, it was replaced by the singular to show
where the sovereignty really resided.
The Fourteenth amendment guarantees equal protection under
the law, and the Fifteenth amendment prohibits any State from
denying the right to vote on the basis of race. Crucially, both
amendments give Congress the power to enforce these rights by
``appropriate legislation.'' The Supreme Court has held that
this authority under the Fifteenth amendment means Congress
``may use any rational means'' to make laws against racial
discrimination in voting.
Notwithstanding the Shelby County decision, the Court has
thus far left this highly deferential rationality test in
place. In short, Congress has the power, indeed the obligation,
to reverse this tide of voter suppression laws. The Fourteenth
and Fifteenth Amendments expressly empower us to enact laws
protecting the right to vote and guaranteeing the equal
protection of all citizens.
Although the Supreme Court's decision in Shelby County did
great damage, the Court made clear that it was not striking
down preclearance altogether. In fact, the Court expressly said
that Congress could ``draft another formula based on current
conditions.''
So that is what we have set out to do. We have already held
a series of hearings this year documenting an ongoing and
pervasive threat to voting rights in various parts of the
country. If we can target a coverage formula to those
jurisdictions that have been the worst offenders in recent
years, as well as towards those voting practices that are known
to have a history of being used in a racially discriminatory
manner, including racial gerrymandering, annexations to dilute
minority voting power, shifts from single member to at-large or
multi-member districts, imposition of strict voter ID laws, and
the removal of polling places from minority voting areas, then
there is every reason to believe that under current law,
Congress has the full authority to act.
We can no longer afford to wait. The right to vote lies at
the very core of our democracy and is the foundational--and is
foundational to the Rule of law and is under assault in many
places across this country.
I look forward to hearing from today's witnesses and to
forging a path ahead to protect the sacred right to vote for
all Americans.
I thank you, Mr. Chairman. I yield back.
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.
Mr. Collins. Thank you, Mr. Chairman. I appreciate that.
The right to vote is of paramount importance in a
democracy, and its protection from discriminatory barriers has
been grounded in Federal law since the Civil War and more
recently through the Voting Rights Act of 1965. A Supreme Court
decision called Shelby County will be mentioned many times
today, but it is important to remember that in that decision,
the Supreme Court only struck down one outdated provision of
the Voting Rights Act, namely an outdated formula based on
decades-old data that doesn't hold true anymore describing
which jurisdictions had to get approval from the Department of
Justice before their voting rules went into effect.
It is important to point out the very important provisions
of the Voting Rights Act remain in place, including Sections 2
and Sections 3. Section 2 applies nationwide and prohibits
voting practices or procedures that discriminate based on race,
color, or the ability to speak English. Section 2 is enforced
through Federal lawsuits, just like other Federal civil rights
laws, and the United States and civil rights organizations have
brought many cases to enforce the guarantees of section 2 in
court, and they may do so in the future.
Section 3 of the Voting Rights Act also remains in place.
Section 3 authorizes Federal courts to impose preclearance
requirements on States and political subdivisions that have
enacted voting procedures that treat people differently based
on race in violation of the Fourteenth and Fifteenth
Amendments.
If a State or political subdivision is found by the Federal
court to have treated people differently based on race, then
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 at the
court's discretion.
This means that such State or political subdivision would
have to submit all future voting Rule changes for approval to
either the court itself or to the Department of Justice before
such Rule changes would go into effect. As set out in 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 the preclearance requirement
of section 5 preclear its voting changes by submitting them
either to the court or to the Attorney General.
Again, section 3's procedures remain available today to
those challenging voting rules as discriminatory. Just a couple
of 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 Hispanic influence.
The city, which the court had ruled had a long history of
discrimination against minorities, was required to have their
future voting rules changes precleared by the Department of
Justice for the next 6 years, during which time the Federal
judge retains jurisdiction to review before enforcement any
change to the election map or plan that was in effect in
Pasadena on December 1, 2013.
A change to the city election plan can be enforced without
review by the judge only if it has been submitted to the U.S.
Attorney General and the Justice Department and has not
objected within 60 days.
Voting rights are protected in this country, including my
own State of Georgia, where Latino and African-American voter
turnout has soared. Between 2014 and 2018, voter turnout
increased by double digits for both men and women in both
communities. I would like to invite my friends on this dais,
and especially the ones from the State of Georgia, to consider
the data, which shows that our State is diverse and politically
engaged and growing in that political involvement all the time.
Despite the claims that we have heard in this Committee
from Stacey Abrams and others that she won election--in fact,
she lost--and that voter suppression is endemic in Georgia, the
facts disagree. So do the values of Georgians and Americans. We
are committed to ensuring the ballot box is open to all
eligible voters. We are committed to making sure constitutional
means are used to accomplish that. We are committed to
protecting the value of every American's voice by securing our
elections from fraud.
These are our priorities. These are our principles. I look
forward to hearing those today as we put this in proper context
to look forward on how best to move forward.
With that, I yield back.
Mr. Cohen. Thank you, Mr. Collins.
We welcome our witnesses and thank them for participating
in today's hearing. There is a 5-minute rule. I ask you to stay
within the 5 minutes. When your light switches from green to
yellow, it means you have got a minute to go. When it turns to
red, it means you should be finished.
Before proceeding with testimony, I remind each witness
that there is a statute, 18 U.S.C. 1001, that says if you say
anything here in your written or oral statements that is false
that you can be subject to penalty of fine or imprisonment up
to 5 years or both. So just tell us the truth, easy enough to
do.
Our first panel today is Representative Terri A. Sewell.
Congressman Sewell represents Alabama's Seventh Congressional
District. She is currently serving her fifth term in Congress.
She is the first African-American woman to represent Alabama in
Congress.
She sits on the House Ways and Means Committee, where she
serves as vice chair; serves on the House Permanent Select
Committee on Intelligence, where she is chairwoman of the
Subcommittee on Defense, Intelligence, and Warfighter Support.
She has also served in a number of House leadership roles,
including currently as the chief deputy whip and as a member of
the Democratic Steering and Policy Committee.
She is a member of the Congressional Black Caucus, where
she is co-chair of the Voting Rights Task Force, and co-chair
of the Congressional Voting Rights Caucus.
Congressman Sewell was the first Black valedictorian of
Selma High School and is an honors graduate of Princeton
University and Oxford University in England. She received her
law degree from Harvard Law School.
Congressman Sewell in her 5 minutes, I am sure, will tell
you why the Voting Rights Act is important, why preclearance is
important, and why if it doesn't hurt, why not deal with it?
Congressman Sewell, you are recognized.
TESTIMONY OF HON. TERRI A. SEWELL
Ms. Sewell. Thank you.
To Chairman Nadler, to Ranking Member Collins, to
Subcommittee Chair Cohen, and Ranking Member Johnson, and to
all the distinguished Members of this committee, thank you for
inviting me to share with you why I believe we should pass H.R.
4, the Voting Rights Advancement Act.
First, I want to join my colleagues in acknowledging the
passing of Congressman Elijah Cummings. Elijah was a giant
among us. He loved his district, and he loved this country. His
legacy will live on in all our hearts and in all the wonderful
works that he has done for this Nation.
I am here today because the issue of voting rights is
personal to me. Growing up in Selma, Alabama, I was surrounded
from an early age by stories about the voting rights movement.
These were not the stories told in the history books, but
lesser-known stories of everyday people, acting with
extraordinary bravery.
Knowing the bravery and courage of the people of the
community that I represent provided me with the strength, the
resilience, and the inspiration to pursue my own dreams. Now,
as the first Black congresswoman from Alabama, I believe I have
a duty to protect and advance their legacy. The Voting Rights
Act of 1965 is one of the crowning achievements of their
legacy.
The Supreme Court, as we have heard time and time again,
gutted the Voting Rights Act of 1965 in its decision in Shelby
County v. Holder, which struck to the heart of the VRA. It came
about because of a case in Alabama, redistricting of Calera
City Council seat in Shelby County, Alabama. That seat was
redrawn in a way that dramatically changed the racial makeup of
its electorate.
The Department of Justice vowed--or voided the new map on
the basis that it was racially discriminatory, and the Supreme
Court ruled for the first time that section 4 was
unconstitutional and, therefore, gutted the full protections of
the Voting Rights Act by making section 5 null and void.
With this powerful deterrent gone, a wave of restrictive
voting laws came into play. Just 5 years after the ruling,
nearly 1,000 polling stations were closed across the country.
State legislatures, like Alabama, moved to cut access to early
voting, purge voter rolls, and impose strict voter ID.
In my home State, just one day after the Supreme Court's
decision in Shelby, Alabama began to require photo
identification to vote. The photo ID law was passed in 2011 but
had been previously blocked by the Voting Rights Act not
because it required an ID. An ID sounds valid. It was the type
of ID. No longer could Alabamians present a Social Security
card. I must tell my colleagues, it is a validly issued Federal
ID, a Social Security card.
Instead, under the law in Alabama, now a hunting license
was permissible and as well as a fishing license was
permissible. Adding insult to injury, Alabama announced in 2015
the closure of 31 driver's license offices, one of the primary
places that one goes to receive a photo ID. The majority of
these DMV closures were in my county, a county that is majority
black.
Alabama was not alone, and you will hear testimony from all
these witnesses that other States also installed new voter ID
laws that were pernicious in its effect. In fact, the Brennan
Center for Justice said that 24 States have imposed
restrictions on voting since 2010.
The bill that I have before you today, and I am honored to
carry this bill, is H.R. 4, the Voting Rights Advancement Act.
As has been said by Subcommittee Chair Cohen, it would be a
modern-day formula. It would have a lookback year of 25 years,
and it would allow 15 or more adjudicated violations of voting
rights within the past 25 years to be covered in the formula.
The Shelby decision allowed for the enforcement of creative
new barriers. My bill, in particular, would get to known
practices, known practices like creating districts that are
limited from at-large--being from district only to at-large
districts. The Voting Rights Advancement Act, my legislation,
would also seek to advance the VRA by requiring a nationwide
practice-based preclearance for known discriminatory practices,
including the creation of at-large districts, inadequate
multilingual voting materials, restrictions on polling
stations, and annexation of nearby populations to dilute voting
rights. These known practices have historically been associated
with voter discrimination and voter suppression.
In conclusion, I would like to say it is our job, as
Members of Congress, to do what we know is right. In the face
of known discriminatory practices in voting rights, a
fundamental right, that one of our colleagues, John Lewis, was
bludgeoned on a bridge in my hometown for, I want to quote the
words of Amelia Boynton Robinson, who died at 103 and was my
special guest at the State of the Union in 2015.
She said because so many people would come up to her, they
would say, ``We stand on your shoulders, Ms. Amelia. We stand
on your shoulders.'' She would often say, ``Get off my
shoulders. Do your own work.''
I say to the Subcommittee and I say to this Committee do
your own work. Make sure that the full protections of the
Voting Rights Act are reinstated and vote for H.R. 4, the
Voting Rights Advancement Act.
Thank you, sir.
[The statement of Ms. Sewell follows:]
STATEMENT OF HON. TERRI A. SEWELL
Chairman Nadler, Ranking Member Collins, and distinguished
Members of the Committee, thank you for inviting me to share
with you why I believe we should pass the Voting Rights
Advancement Act.
I am here today because the issue of voting rights is
personal for me. Growing up in Selma, I was surrounded from an
early age by stories about the Voting Rights Movement. These
were not the stories told in history books, but lesser-known
stories of everyday people acting with extraordinary bravery.
Knowing what the people of my community were capable of
provided me the strength, resilience and inspiration to pursue
my own dreams. Now, as the first African American Congresswoman
from Alabama, I believe I have a duty to both protect and
advance their legacy. The Voting Rights Act of 1965 is one of
the crowning achievements of that legacy.
The Supreme Court's Shelby County v. Holder case that
struck the heart of the VRA was borne from the redistricting of
a Calera city council seat in Shelby County, Alabama. After the
2nd district seat was redrawn in a way that drastically changed
the racial makeup of its electorate, the Department of Justice
voided the new map on the basis that it was racially
discriminatory. Shelby County filed a lawsuit against the
Justice Department that made its way to the Supreme Court after
several appeals. The Supreme Court found the coverage formula
in section 4b of the VRA unconstitutional, which gutted the
law's preclearance provision and, therefore, its ability to
protect against modern-day barriers to the ballot box.
With this powerful deterrent gone, a wave of restrictive
voting laws went into place. Just five years after the ruling,
nearly 1,000 polling places were closed across the country.
State legislatures also moved to cut access to early voting,
purge voter rolls and impose of strict voter ID laws. While
these actions are not as blatant as forcing American citizens
to guess how many jelly beans are in a jar before allowing them
to register to vote, the effects have been equally damning.
In my home state, just one day after the Court's Shelby
decision, Alabama began requiring photo identification to vote.
The photo ID law was passed in 2011 but had previously been
blocked by the Voting Rights Act, not because it required an ID
in the first place, but because of the restrictions placed on
the kind of ID needed to vote. Hunting licenses are deemed
acceptable; student IDs are not. Social Security cards are no
longer valid to vote, but pistol permits are accepted at the
polls.
Adding insult to injury, Alabama announced in 2015 the
closure of 31 driver's license offices, one of the primary
places to get one of these required photo IDs. The majority of
these DMV closures were in counties in my district with the
highest percentages of Black voters in the state.
Alabama is not alone. State legislatures across the country
moved to make voting more difficult. In North Carolina, for
example, the legislature enacted a far-reaching and pernicious
voter ID bill after the Shelby decision. The North Carolina law
instituted a strict photo ID requirement, curtailed early
voting, eliminated same day registration, restricted pre-
registration, and eliminated the authority of county boards of
elections to keep polls open for an additional hour.
As Justice Ginsburg wrote in her Shelby County dissent,
``Throwing out preclearance when it has worked and is
continuing to work to stop discriminatory changes is like
throwing away your umbrella in a rainstorm because you are not
getting wet.'' In the face of ongoing discrimination,
enforcement of voting rights under current laws is slow,
inadequate, and costly.
To restore the full protections of the VRA, I've introduced
H.R. 4, the Voting Rights Advancement Act (VRAA). My bill would
address the Court's concerns and update the coverage formula to
limit the lookback period to the past 25 years. That means any
State with 15 or more adjudicated violations of voting rights
within the past 25 years would be required to get preclearance
on any changes to their voting laws and election procedures.
The Shelby decision allowed for the enactment of creative
new barriers to voting like restrictive voter ID, inadequately
publicized closures of polling places, and impeding
accessibility to early voting. The VRAA would close the gaping
hole left in voter protection by requiring preclearance from
the Justice Department before enacting these types of changes
to voting. Just as barriers to the ballot box are evolving, our
laws must also evolve and change to keep up with those who
attempt to restrict access to the polls.
The voter suppression we saw in the 2018 midterm elections
makes it clear just how urgent it is that we pass the Voting
Rights Advancement Act and restore the full protections of the
Voting Rights Act. During the 2018 elections, states from
Georgia to North Carolina to North Dakota sought to impose new
voting laws that resulted in a suppressive effect amongst
mostly minority communities. Congress must Act now to stop
discriminatory voter laws before they go into place and swing
elections.
The Supreme Court was clear; only Congress can ratify a new
formula to fully restore section 4 of the VRA. My legislation
does that, but also seeks to advance the VRA by requiring a
nationwide, practice-based preclearance for ``known
discriminatory practices,'' including the creation of at-large
district, inadequate multilingual voting materials, and cuts to
polling places. The VRAA increases transparency by requiring
reasonable public notice for voting changes. The bill also
allows the Attorney General authority to request federal
observers to be present anywhere in the country where a serious
threat to voter access and fair elections exists.
In conclusion, the purpose of H.R. 4 is nothing less than
fortifying the cornerstone of our democracy. Without the vote,
Americans lose their voice in our democracy. So, I urge you to
support the Voting Rights Advancement Act and restore the VRA
to its full strength.
Mr. Cohen. Thank you, Representative Sewell.
Let me ask you a question. Mr. Johnson brought up some
harrowing history in our country where Republicans who had
African-American support were elected and threatened. These
were in, I think, 1873?
Ms. Sewell. Right. During Reconstruction.
Mr. Cohen. Yes. Do you know, in your experience as a
student at Oxford and Princeton and Harvard, of instances in
the last 40 years where similar incidents have occurred?
Ms. Sewell. Yes, sir. I don't have to use my educational
background. I can use my experience growing up in Selma,
Alabama, and my experience as a Member of Congress witnessing
the changes that have been made in my own district.
In my own district, people were denied the opportunity to
get a driver's license after a restrictive law was passed by
the State of Alabama's legislature. That restrictive law
required certain IDs. An ID, we understand, understanding being
able to say who you are is not a problem. It is the type of
IDs.
You know, my father, Coach Andrew A. Sewell, in his latter
years had a massive stroke and was in a wheelchair. He proudly
voted at every election. After the 2013 decision in Shelby and
after Alabama imposed its restrictive photo law, which no
longer allowed a validly issued Federal ID, a Social Security
card, to be presented to show proof of who you were in order to
get your ballot, he had a hard time getting a photo ID.
Well, not because he was black, but because he was
disabled. Do you know that the Dallas County courthouse doesn't
have a ramp to get people who are disabled into the courthouse
to get a free photo ID from the voter registrar? That is
because it was grandfathered in the ADA law.
So, sir, I have to tell you my own personal experience. Dad
woke up early that morning. We were blessed to have a van that
kneels down so his wheelchair could go in. We were blessed to
be able to have home help to help him into that courthouse and
to get that photo ID.
So many of my constituents, and I would say all our
constituents who are disabled may not have that same right.
Mr. Cohen. Thank you, Ms. Sewell.
Dallas County, that is where John Lewis had his march, is
it not?
Ms. Sewell. That is right.
Mr. Cohen. Where he was beaten on the Pettis Bridge to try
to get the Voting Rights Act passed.
Ms. Sewell. That is right. Not just John Lewis, but so many
known and unknown Americans, Black and white, from various
religious backgrounds had the temerity--ordinary Americans--to
really plead to this Government that we live up to the
constitutional ideals of democracy and justice for all.
While we live in a time where people don't have to count
how many marbles are in a jar, I would submit to you that we
still live in times where there are modern-day barriers to
voting. As long as there are modern-day barriers to voting, we,
as a Congress, should be trying to institute and reinstate a
coverage formula in section 4.
I would submit to you that mine in H.R. 4 is the right one.
But I would also submit to you that all of us who see this
injustice know that any formula that would allow preclearance
where there is demonstrated history of voter discrimination in
that State or subdivision would be merited.
Mr. Cohen. Can you tell us--Mr. Collins, and Mr. Johnson
maybe as well, mentioned section 2 and section 3. Can you tell
us why those are not sufficient?
Ms. Sewell. Well, in the Calera case, the case, the Shelby
County v. Holder case, which was a case brought by an African
American who was a city council member. He was the only Black
city council member in Calera.
When he was up for reelection, Calera--the City of Calera--
voted to redistrict all the districts for elections to city
council and to make it an at-large election. It is true that he
could have brought a section 2 violation, but the reality is
you can't un-ring the bell. He lost that reelection because the
minority vote had been diluted by moving from a ward-based or
district-based election to an at-large election.
So, I just have to say that while on its face, even
Alabama's efforts to close down the DMVs, I talked to my
Republication Governor who was a good friend, and I said what
gives? 30-one of those DMVs are in my district, and we now have
in place in 2014 this really more restrictive photo ID law. And
he said, oh, it wasn't because of that. It was because of
budgetary cuts.
Now that, on its face, is true. We, as elected officials,
when faced with the fact that the effect of it was limiting the
opportunity of a certain population of people to get access to
the most popular form of photo ID, a driver's license, we have
to do the right thing. We have to do the right thing.
Mr. Cohen. Thank you.
Mr. Johnson, would you like your time?
Thank you.
We appreciate your appearance and thank you for your
sponsorship of the bill and your service as a colleague.
Ms. Sewell. Thank you.
Mr. Cohen. Our second panel of witnesses will now come
forward, and I guess you have to find chairs or bring them
forward or something.
[Pause.]
Mr. Cohen. Our Subcommittee Members have arrived, and if
any one of them would like to make any remarks concerning Mr.
Cummings, you are recognized at this time.
Ms. Scanlon, you are recognized.
Ms. Scanlon. I actually find it hard to have words. He was
such a giant and will be sorely missed. To be in this hearing
today, when he was such a giant with respect to this issue, is
all the more poignant.
Mr. Cohen. Well said, thank you.
[Pause.]
Mr. Cohen. Thank you, logistics.
Our first witness today is Mr. J. Morgan Kousser. Mr.
Kousser is professor of history and social science at Caltech,
located in the fabulous City of Pasadena, a sister school to
the Polytechnic school, which I attended. His research has
focused on minority voting rights and the legal and political
aspects of race relations in the 19th and 20th centuries. He
has been an expert witness in 35 Federal or State voting rights
cases and a consultant in 10 others.
In 1981, he testified before a Subcommittee of the U.S.
House of Representatives about the renewal of the Voting Rights
Act and in 2008 published the first comprehensive history of
section 5 of the Voting Rights Act.
He received his Ph.D. and his Master's degree from Yale
University, his A.B. from Princeton, and I am sure he has been
to the Pine Burger.
Professor Kousser, you are recognized for 5 minutes.
TESTIMONY OF J.M. (MORGAN) KOUSSER
Mr. Kousser. Thank you, Chair Cohen, Chair Nadler, Ranking
Member Johnson, and distinguished Members. Thank you for
inviting me to testify.
The vast majority of people who have testified before this
Subcommittee in this series of hearings have been lawyers. They
have informed you about the law and about evidence of very
recent voting discrimination. I am a historian and social
scientist. I seek to provide you with a historical perspective,
and I bring you data.
Ten years ago, in the wake of the Northwest Austin case, I
began to create a database of all voting rights actions under
any Federal or State statutes or constitutional provisions--
lawsuits, settlements and consent decrees, objections, and more
information requests under section 5 of the Voting Rights Act.
The database, now documenting 4,090 minority victories under
Federal law and 389 under the California Voting Rights Act from
1957 through 2019, allows evaluations of the adequacy of past
and potential coverage schemes if Congress wishes to replace
section 4 of the VRA, struck down in Shelby County v. Holder.
Further analysis of the database may assist Congress in
evaluating the evidence to determine if there is continuing--
whether there is a continuing need for the protection of the
Voting Rights Act in general and for a preclearance regime in
particular. This testimony draws on that database to make four
principal points.
First, the original coverage scheme of section 4, as
amended in 1975 and 1970, fit the pattern of proven violations
of voting rights extraordinarily well. Ninety-two percent of
the total actions in which minorities were successful concerned
State and local jurisdictions within the area of section 4
coverage.
Second, voting rights violations did not diminish over long
periods of time. There were more than 3 times as many in the 25
years after the 1982 renewal of the VRA than there were in the
25 years from 1957 to 1982, and over 90 percent continued be
concentrated in covered jurisdictions. If voting rights actions
are the proper index, Congress was fully justified in 2006 in
renewing section 5 and keeping the same coverage scheme.
Third, the pattern of voting rights actions is less the
product of the degree of discrimination than of the
opportunities of litigation and administrative action made
available by congressional and especially by Supreme Court
decisions. Congress should take the responsive character of the
pattern of lawsuits into account in evaluating whether there is
a continuing need for preclearance in section 2.
Fourth, the striking success of minorities in using the
State-level California Voting Rights Act to shift from at-large
elections to single member districts reinforces the third point
about the pattern of voting rights actions. Discrimination in
voting rights may have shifted and changed character, but it
has not been obliterated. Rather, unfavorable Supreme Court
decisions have taken away the means to see it.
I have attempted to distill the most important information
presented at greater length in my written testimony into a map,
two graphs, and a few statistics. Map 1 is a particularly
striking version of the fact that the vast majority of cases
and other events originated in covered jurisdictions. The
skyscrapers almost all run from Virginia to Texas.
The pattern of the comparative incidence of cases in
covered and noncovered jurisdictions cannot be explained by the
fact that since section 5 only applied to covered jurisdictions
there had to be more actions in the covered areas. If you look
at section 2 cases or non-Section 5 cases, 82 percent of those
came from covered jurisdictions, and they could be filed
anywhere.
Nor is the pattern the result of a concentration of
minorities in covered jurisdictions. If you control for the
minority percentage, the covered jurisdictions were 6 to 12
times as likely to develop cases as from non-covered
jurisdictions.
Figure 1 shows the number of events over time. There is an
obvious explanation for the variation. It is whether there were
favorable or unfavorable court decisions. Favorable decisions
by the Supreme Court meant there would be more cases brought,
more cases decided in which minorities won. Unfavorable
decisions like Shaw v. Reno or Shelby County meant that the
number of cases would go down.
Finally, look at the CVRA cases from 2007 to 2019 and
compare them with the VRA cases. You will find that there have
been three times as many CVRA cases as VRA cases. The amount of
discrimination still continues. The Congress' responsibility is
to open the lens to allow us to see again.
Thank you.
[The statement of Mr. Kousser follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Professor Kousser.
Our next witness is Mr. Thomas Saenz, President and general
counsel of the Mexican American Legal Defense and Education
Fund, better known as MALDEF. He has been in that position
since 2009. Prior to that time, he served as counsel for the
Los Angeles mayor. Prior to that, he was a litigator for MALDEF
for 12 years and lead counsel in two court challenges to Prop
227, California English-Only Education Initiative.
For 8 years, he taught civil rights litigation as an
adjunct lecturer at USC and has been widely published. He
received his J.D. with honors from Yale, his undergraduate
degree summa cum laude from Yale. He later served as a law
clerk for Judge Harry Hupp of the U.S. District Court for the
Central District of California and the Honorable Stephen
Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.
Yu are recognized for 5 minutes, sir.
TESTIMONY OF THOMAS A. SAENZ
Mr. Saenz. Thank you, Mr. Chair and Members of the
subcommittee.
I am the President and general counsel of MALDEF, and I am
very proud to report that MALDEF is the litigating organization
that brought the lawsuit against Pasadena, Texas, mentioned by
Mr. Collins. It did result in what we believe to be the only
contested bail-in order requiring a jurisdiction to be subject
to preclearance.
It is important to note that that is the only occasion
since Shelby County was decided in 2013 where a contested order
of judicial bail-in was provided. It was after a lengthy and
costly trial.
In addition, we have the experience of more recently
seeking a bail-in order against the State of Texas following
not just one, but two trials on Texas redistricting following
the 2010 Census. Despite findings by that three-judge panel of
intentional discrimination, they declined in their discretion
to order that the State of Texas be subject to preclearance. I
hope this provides some illustration of how section 3 is not an
adequate substitute for a coverage formula that would subject
jurisdictions on a regular basis for known practices and for
histories of discrimination to preclearance by the Department
of Justice or the district court here in Washington, DC.
Both the redistricting challenge in Texas and the Pasadena
case were extremely costly to litigate. Most of those costs
were ultimately borne or will ultimately be borne by the
defendant jurisdictions. That is to say preclearance is
actually, in addition to being a most effective civil rights
provision, perhaps the earliest, one of the earliest and most
effective alternative dispute resolution mechanisms in Federal
law.
Like good ADR, it provides a mechanism outside of the court
system to adjudicate potential disputes. Like good ADR, it
arrives at an efficient, meaning quick, as well as less costly
decision about those potential disputes.
Recognizing that most of those benefits, particularly the
savings in cost, are to the benefit of the covered
jurisdictions themselves means that we should look at expanding
the coverage formula to apply that efficient ADR mechanism as
broadly as possible, consistent with constitutional power to
address potential voting rights violations.
With that said, I want to comment on the known practices'
coverage. It is a supplemental coverage formula in H.R. 4 to
specifically target not jurisdictions, but all jurisdictions
where there is sufficient racial diversity to suggest that
these known practices with a long history of being used to
suppress minority voting rights may be being used in those
circumstances to suppress minority voting rights.
The practices identified, including those already
articulated by the chair and others, include annexing
additional territory and population in a way to dilute a
growing minority population, include converting in part or in
whole from districted elections to at-large, as occurred in
Pasadena, Texas, a change that the major himself attributed to
possibilities created by the Shelby County decision,
recognizing that that shift to at-large seats would not have
been permitted under the preexisting preclearance regime.
They include diminution in multilingual voting materials.
They include access restrictions, such as voter ID. They
include redistricting in a context of a growing minority
population. It is MALDEF's experience in 51 years of promoting
the civil rights of all Latinos living in the United States
that these identified practices have been used repeated to
target the Latino community and others.
This is because the Latino community, given its growth as
the largest minority group in the country for over a decade and
soon to be the largest minority voting community in the Nation,
is often perceived as a threat to those who currently are in
power. They then take steps such as converting, as in Pasadena,
Texas, some of the seats on a council to, at-large, to ensure
that those who are in power can continue to remain power.
We need to be able to use preclearance, an efficient and
effective mechanism, to address these potential voting rights
violations. If the Congress, as it should, is interested in
stopping vote suppression, it should target both the serial
vote suppressors as the main coverage formula would do, as well
as the copycat vote suppressors as known practices coverage
would do. It specifically targets those who use mechanisms used
in the past by those with records of discrimination and used in
the past and then adjudicated to violate the voting rights of
minority groups to ensure that we can stop those changes before
they occur and that we can stop them without the expense,
tremendous expense of section 2 litigation that, as I
mentioned, often ends up being borne by the taxpayers
themselves of the covered jurisdictions.
Thank you.
[The statement of Mr. Saenz follows:]
STATEMENT OF THOMAS A. SAENZGood morning. I am President and
general counsel of MALDEF (Mexican American Legal Defense and
Educational Fund), which has, for over 51 years now, worked to
promote the civil rights of all Latinos living in the United
States. MALDEF is headquartered in Los Angeles, with regional
offices in Chicago; San Antonio, where we were founded; and
Washington, DC.
Since its founding, MALDEF has focused on securing equal
voting rights for Latinos, and promoting increased civic
engagement and participation within the Latino community, as
among its top priorities. MALDEF played a significant role in
securing the full protection of the federal Voting Rights Act
(VRA) for the Latino community through the 1975 congressional
reauthorization of the 1965 VRA. MALDEF has over the years
litigated numerous cases under section 2, section 5, and
section 203 of the VRA, challenging at-large systems,
disc1iminatory redistricting, ballot access barriers, undue
voter registration restrictions, and failure to provide
bilingual ballot materials. We have litigated significant cases
challenging statewide redistiicting in Arizona, California,
Illinois, and Texas, and we have engaged in pre-litigation
advocacy efforts, as well as litigation related to ballot
access and local violations, in those states, as well as in
Colorado, Georgia, Nevada, and New Mexico. As the growth of the
Latino population expands, our work in voting rights increases
as well.
Before the divided Supreme Comi decision in Shelby County
v. Holder, MALDEF relied heavily upon the application of the
section 5 pre-clearance requirements--particularly in Arizona,
Texas, and portions of California--to deter violations of
Latino voting rights and to block any discriminatory proposals
that were submitted for pre-clearance. These beneficial effects
of pre-clearance--and others, including even the basic tracking
of electoral changes with potential impacts on the right to
vote--have been absent following Shelby County because of the
failure to enact a new coverage formula after the 2013 Court
decision.
This has affected MALDEF's ability to respond to the many
challenges faced by the growing Latino voting community. For
example, while MALDEF played a significant role in litigation
before the Shelby County decision when the State of Texas
sought to pre-clear its newly restrictive voter identification
law, we decided to forego participating as counsel in the
section 2 litigation challenging the same law after Shelby
County. While we have great confidence in our colleagues who
litigated that challenge, we were unable to provide our
perspective as the longstanding legal representative of the
Texas Latino community in voting rights issues. Our efforts
were instead channeled to a successful, though costly,
challenge to a change in the city council electoral system in
Pasadena, Texas--a change linked directly by the then-mayor to
the lifting of the pre-clearance obligation by the Shelby
County decision.
As both a rapidly growing population and the nation's
largest minority population, Latinos are regularly and
increasingly seen as a threat to those currently in political
power. As a result of this perceived threat to incumbents, the
Latino community regularly faces violations of the VRA in
several election-related areas. Those in power, whether at
State or local level, think about the perceived threat from the
growing Latino voter pool in racial terms, even if that
perspective is not explicitly acknowledged, and the violations
of the VRA take conspicuously racialized forms even if
justified in other terms--of seniority protection for incumbent
legislators, of competitiveness, or of continuity of
representation, for example.
In the post-Shelby County absence of the protections of
pre-clearance, the dual nature of the pre-clearance provision
in section 5 of the VRA has become apparent--and much missed.
Section 5 has accurately been characterized as perhaps the most
effective civil rights provision ever written into federal law.
It has prevented the implementation of many, many electoral
changes that would have dealt significant harm to minority
voting rights. From discriminatory precinct changes to dilutive
redistricting, section 5 likely deterred substantially more
proposed or conceived electoral changes than the many hundreds
it blocked or modified through a determination made in pre-
clearance review. The civil rights effectiveness of section 5
is acknowledged by all, even those who wrongly believe it is no
longer needed.
Yet, apart from its success as a civil rights protection,
section 5 should also be celebrated as perhaps one of the first
and most effective alternative dispute resolution (ADR)
provisions ever written into federal law. Like more typical ADR
mechanisms, pre-clearance permits a faster, less costly
resolution of disputes that would otherwise be resolved in more
cumbersome and resource-intensive court litigation. Like other
ADR mechanisms, pre-clearance involves streamlined review by a
non-judicial officer who considers the contentions of both
sides on the matter at issue. Of course, unlike mandatory ADR
in other contexts, section 5 allows jurisdictions to opt out
and go directly to court proceedings, in the D.C. federal
court, with in-court expedited review that bypasses the
intermediate appellate court.
Like the most effective ADR, pre-clearance saved lots of
money when it was broadly in effect, most of it for taxpayers
in covered jurisdictions. VRA litigation generally involves fee
awards for prevailing plaintiffs. Thus, covered jurisdictions
under pre-clearance received quick decisions without having to
pay their own attorneys--ordinarily outside counsel who charge
a premium for their VRA expertise--and expert witnesses, and
without also having to pay a prevailing plaintiffs fees and
costs. It is no exaggeration to assert that pre-clearance saved
taxpayers in covered jurisdictions billions of dollars through
avoiding costly litigation.
It is one of the unexplained ironies of modem policymaking
that those who champion mandatory ADR in consumer and
employment contexts are often among those who most vehemently
oppose the revivification of section 5 of the VRA through
enactment of a new coverage formula following the Shelby County
decision. Nonetheless, the Nation plainly continues to need the
protections and efficiencies of pre-clearance in voting rights,
and so Congress must enact a vigorous, fair, and efficient
coverage formula as a substitute for the one in section 4 that
the Supreme Court narrowly struck down in Shelby County.
To meet the needs of the growing Latino voting community--
and not incidentally to continue to save State and local
defendants from the high and rising costs of defending against
litigation under section 2 of the VRA and under other
provisions of federal law--the best coverage formula would
again include rolling measures of recent historical experience
to ensure that recent voting rights violators with significant
voter participation differentials among racial groups are
required to avail themselves of pre-clearance ADR before
implementing any electoral changes.
In addition, however, the new coverage formula must also
address the Latino community's experience of facing tried and
true obstacles to equal electoral participation just as the
Latino voter population approaches critical mass to threaten
the future prospects of those currently in power. In these
circumstances--a fast-growing, but only recently significant,
minority population--a history-based coverage formula alone
would not suffice to prevent and deter, or to evaluate quickly
and cost-effectively, changes that could seriously harm
minority voting rights. Jurisdictions seeking to disenfranchise
an insurgent political threat posed by a fast-growing minority
group should also be required to pre-clear certain, but not
all, electoral changes.
Here, pre-clearance would focus on suspect practices and
dangerous situations arising in the context of rapid growth of
a minority group, rather than on the specific history of a
single jurisdiction. ``Known practices coverage'' (KPC) would
single out for pre-clearance specific practices in
circumstances that pose a significant potential, demonstrated
by broad historical experience, for violations of voting
rights. Creation of at-large seats, annexations of suburban
populations, reductions in multilingual voting materials,
changes in voter qualifications, reductions in voting places,
and redistricting completed by incumbents all raise concerns
when they occur in a jurisdiction that has experienced recent,
significant growth of a specific minority population. Utilizing
pre-clearance ADR rather than costly and time-consuming
litigation in these and other situations would save taxpayers
from paying significant sums to defend entrenched, powerful
incumbents.
``Known practices coverage'' (KPC) is a supplemental
coverage formula incorporated in the proposed Voting Rights
Advancement Act. It would ensure that the efficiencies of pre-
clearance are enjoyed with respect to specific changes that
have historically been employed to restrict the rights of
minority voters, including Members of growing minority
communities that have reached a size to be perceived as a
threat by current government officials. Unlike the main
coverage formula that it is designed to supplement, ``known
practices coverage'' would not be limited to jurisdictions with
troubling and consistent histories of voting rights
suppression. In addition, KPC would not subject every
elections-related change to pre-clearance, only the specific
changes identified in the legislation.
Thus, as the name suggests, KPC focuses on practices rather
than jurisdictions. Still, KPC would not apply universally, but
only to jurisdictions that satisfy thresholds of demographic
diversity and growth. The thresholds ensure that pre-clearance
would only apply where the identified change may have the
intent or effect of suppressing minority voting rights,
including the ability to elect well-qualified candidates of
choice. The limitation to specific practices also means that
the Department of Justice would rapidly regain its expertise in
evaluating the statutorily identified electoral changes, thus
further enhancing the efficiency of pre-clearance as an ADR
mechanism.
The overarching goal of pre-clearance is to efficiently and
effectively prevent the implementation of changes that would
result in minority vote suppression. The pre-clearance
mechanism recognizes that once an election occurs with a change
that suppresses minority votes, it is extremely difficult, if
not impossible, to remedy the voting rights violation
satisfactorily. In light of the overarching goal, the Congress
should address both serial voting tights suppressors--those
jurisdictions whose histories demonstrate a propensity for
using electoral changes that result in significant suppression
of minority voting rights--as well as copycat voting rights
suppressors--those jurisdiction s that adopt changes used in
the past by other jurisdictions to suppress minority voting
rights.
The two proposed pre-clearance coverage formulas are
complementary; the history/geography formula reaches serial
voting rights violators, while KPC reaches copycat voting
rights violators. Applying pre-clearance in both contexts
ensures that significant voting rights violations can be
prevented before irreparable harm is done, and that resolution
of voting rights concerns can occur in a more timely and less
costly manner than otherwise.
Again, the identified practices that would potentially be
subject to pre-clearance under the proposed KPC are practices
with a significant history of being reviewed and held to cause
minority vote suppression. Many of the practices are widely
recognized as troubling practices, particularly when undertaken
in a context of significant demographic change such that a
minority group is newly perceived as a threat to the continued
dominance of the officeholders who are effectively elected
solely by the long-dominant racial group in a jurisdiction.
Because the growth of the Latino community is too often
today--and this will surely only increase in the future--
assumed to be a threat to those currently holding political
power in a jurisdiction, the enactment of KPC as a part of the
new coverage formulas for pre-clearance under section 5 of the
Voting Rights Act is c1itical. MALDEF urges the enactment of
H.R. 4, the Voting Rights Advancement Act, with ``known
practices coverage'' incorporated.
Mr. Cohen. Thank you, Mr. Saenz.
Mr. Bryan Tyson is a partner at Taylor English Duma in
Atlanta, Georgia. He primarily represents governments,
candidates, and companies in election and campaign finance
matters.
He previously advised the Georgia General Assembly during
its 2011 redistricting process and appointed as special
assistant attorney general to assist in securing Federal
approval of all three redistricting plans adopted by the
legislature during a special session. He previously served as a
policy aide to former Congressman Lynn Westmoreland of Georgia.
He received his J.D. from Oak Brook College of Law.
Mr. Tyson, you are recognized for 5 minutes.
TESTIMONY OF BRYAN TYSON
Mr. Tyson. Thank you, Chairman Cohen, Ranking Member
Johnson, Members of the committee, Chairman Nadler. I
appreciate the opportunity to talk to you today about H.R. 4
specifically, the Voting Rights Advancement Act.
I have worked as an expert and litigator in the
redistricting and voting rights field for close to 20 years and
want to share with you today a practitioner's perspective on
both litigating and working with a preclearance regime as it
was in place prior to Shelby County. Although my law firm and I
represent a number of governmental clients, I want to be clear
that I am speaking today in my personal capacity and not on
behalf of any client.
I think we have all recognized and I think it is widely
agreed that the Voting Rights Act of 1965 was one of the most
important pieces of legislation this Congress passed to secure
voting rights for minority citizens. In fact, it is doubtful
that the minority voters would have had voting protections put
in place if not for the Voting Rights Act.
The VRAA, as we are talking about today, seeks to reimpose
the preclearance portion of the Voting Rights Act with a new
formula, and I have some concerns about that formula that I
would like to share with you.
My first concern is the makeup of the formula that allows
counties and other political subdivisions to basically bind a
State in terms of preclearance coverage. Georgia has 159
counties, and as I discussed in my prepared testimony, the
State exercises very little operational control over a number
of voting-related decisions made by those counties.
And under the VRAA's proposed formula, if fewer than 10
percent of the counties in Georgia over a 25-year period had 1
voting rights case they settled, the entire State would be
placed under preclearance, whether the State had actually
engaged in any problematic behavior during that time.
The second concern I have is the VRAA's inclusion of
consent decrees and settlements as a voting rights violation
trigger for purposes of preclearance coverage. Many local
jurisdictions lack the political and financial resources to
fight a voting rights lawsuit even if they have a reasonable
defense and often will settle those cases quickly.
When they are sued, local officials want to know what the
trajectory of the lawsuit, and one of my first things I advise
them is the possibility of them paying both the attorney's fees
and the expert fees of the plaintiffs if they are successful in
the case. For a small county that has a lawsuit filed against
it, even if it has very valid and reasonable defenses to a
section 2 case, the financial burden and the risk of paying the
other side's fees is often too great to pursue a defense, and
they settle.
All the election officials that I have ever worked with in
Georgia have worked very hard to make sure they are doing the
right thing. They are not interested, and we don't have the
pattern of behavior we had in the 1950s and '60s and '70s of
intentional discrimination against minority voters.
My biggest concern with the proposed formula is that the
broad definition of Voting Rights Act violations will lead to a
potential partisan abuse of preclearance and the Voting Rights
Act going forward. A lot of voting litigation today is often
highly organized along partisan lines with a strong incentive
of plaintiff fee recovery. There is an incentive for
organizations to bring voting rights lawsuits.
These types of political efforts to obtain Federal court
and, ultimately, Federal Government oversight of State election
processes will be heightened by the proposed formula in the
VRAA. The incentives will no longer be aligned to really
address problems. Political parties or other interested groups
could strategically file litigation to bring entire States back
under preclearance. States and counties are less likely to
settle even meritorious voting rights cases if it is going to
be considered a strike against them in terms of preclearance
coverage going forward.
Many times, in the election litigation space, the narrative
can get ahead of the data. Georgia, for example, was accused of
massive voter suppression in the 2018 elections, but the data
show a dramatically different picture.
In 2018, Georgia had a record number of registered voters.
Our voter turnout for the midterm elections was 3.9 million
voters, almost exactly matching our turnout in the Presidential
election of 2016. Our voting eligible population turnout rate
was 55 percent, significantly higher than prior midterms.
African-American, Latino, and Asian-American voter turnout
increased dramatically over prior midterm elections in the 2018
election.
Georgia offers automated voter registration, no excuse
absentee voting, and at least 3 weeks of in-person advance
voting, and all those practices were in place for both 2016 and
2018. Far from moving backwards since Shelby County, the data
shows that Georgia has continued to move forward in expanding
opportunities for all individuals to register to vote and
making it easier for all eligible individuals to vote.
Thank you for the opportunity today. I refer to my prepared
testimony, and I am ready to answer your questions.
Thank you.
[The statement of Mr. Tyson follows:]
STATEMENT OF BRYAN TYSON
Introduction
Chairman Cohen, Ranking Member Johnson, and Members of the
Committee, thank you for inviting me to testify today about
H.R. 4, the Voting Rights Advancement Act of 2019 (VRAA), one
of the legislative proposals to update the Voting Rights Act
being considered by the Subcommittee. My name is Bryan Tyson. I
am a partner at Taylor English Duma LLP and have worked as an
expert and litigator in redistricting and Voting Rights Act
litigation for nearly twenty years. My goal today is to share a
practitioner's perspective on the proposed VRAA and identify
several issues for your consideration.
Although my law firm and I represent a number of
governmental clients in Voting Rights Act and election
litigation, I am speaking today in my individual, personal
capacity based on my own perspective and experience. I am not
speaking on behalf of the State of Georgia or any other client.
I. The Voting Rights Act of 1965
The Voting Rights Act of 1965 (VRA) is one of the most
significant pieces of legislation enacted by Congress to secure
the voting rights of minorities across the country. Without the
VRA, our Nation might not have ever effectively protected the
right to vote--our most foundational right--for minority
voters.
From 1965 through the Supreme Court's Shelby County\1\
decision in 2013, section 5 required covered jurisdictions to
submit any changes in election practices to either the Attorney
General or the U.S. District Court for the District of Columbia
for preclearance prior to their implementation.\2\ Covered
jurisdictions under the VRA included all or part of 16 states.
Preclearance was necessary for decades following the enactment
of the VRA because of the intentional racial discrimination in
which governments of covered jurisdictions were engaging. That
intentional conduct was the foundation for a dramatic statute
requiring advance federal approval of a state's actions,\3\
especially in light of the Constitution's Elections Clause that
gives primary responsibility for elections to the states.\4\
---------------------------------------------------------------------------
\1\ Shelby County v. Holder, 570 U.S. 529, 133 S.Ct. 2612 (2013).
\2\ 52 U.S.C. 10304.
\3\ See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 334, 86
S. Ct. 803, 822 (1966) (``exceptional conditions'' justified VRA);
Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 211,
129 S. Ct. 2504, 2516 (2009) (recognizing ``extraordinary'' nature of
preclearance).
\4\ U.S. Const., art. I, Sec. 4, cl. 1.
---------------------------------------------------------------------------
Even after Shelby County, the VRA retains significant
force. Jurisdictions that engage in intentional racial
discrimination can be bailed in under section 3.\5\
Jurisdictions that dilute minority voting strength in violation
of section 2 face litigation with a strong incentive for
plaintiffs: The full recovery of attorney and expert fees.\6\
---------------------------------------------------------------------------
\5\ 52 U.S.C. 10302(c).
\6\ 52 U.S.C. 10301; 10310(e).
---------------------------------------------------------------------------
Given this history, the question for this Committee
regarding the VRAA is whether the burdens it seeks to impose
will benefit minority voting rights and whether the proposed
coverage formula will not be over- or under-inclusive given the
types of triggering events contained in it. Answering those
questions requires weighing a number of considerations that
involve looking back and looking forward.
A. Burden of Preclearance
I'll begin with the nature of preclearance submissions.
Contrary to what some may believe, preclearance submissions are
not simple documents. They are complicated and difficult to
prepare. The Department of Justice required the following
information for each submission:
1. A copy of the document embodying the proposed change
affecting voting.
2. A copy of the document showing the State of the law,
regulation, or practice prior to the proposed change.
3. A statement of the difference between existing law and
the proposed change.
4. The contact information for the individual making the
submission.
5. The name of the jurisdiction responsible for the change.
6. The identification of the body or person responsible for
the change.
7. The statutory or other authority that allows the
jurisdiction to decide to undertake the change, along with a
description of the procedures required.
8. The date of the adoption of the change.
9. The date the change is to take effect.
10. An affirmation that the change has not yet been
enforced or administered.
11. An explanation of the scope of the change.
12. A statement of the reasons for the change.
13. A statement of the anticipated effect of the change on
minority groups.
14. A statement of any past or pending litigation involving
the change.
15. A statement that the prior practice has been precleared
or explaining why it is not subject to preclearance.
16. Any other information required by the Attorney
General.\7\
---------------------------------------------------------------------------
\7\ 28 C.F.R. 51.27.
---------------------------------------------------------------------------
The Department of Justice also includes a list of suggested
supplemental information that jurisdictions would be wise to
submit with preclearance submissions:
1. Demographic information, including:
a. Total and voting-age population of the affected area.
b. Registered voters for the affected area by race and
language group.
c. Estimates of population by race and language group
made in connection with the change.
2. Maps showing:
a. The prior and new boundaries of the voting unit or
units.
b. The prior and new boundaries of voting precincts.
c. The location of racial and language minority groups.
d. Any natural boundaries or geographical features that
influenced the selection of boundaries of the prior or new
units.
e. The location of prior and new polling places.
f. The location of prior and new voter registration
sites.
3. Election returns showing:
a. The name of each candidate.
b. The race or language group of each candidate, if
known.
c. The position sought by each candidate.
d. The number of votes received by each candidate, by
voting precinct.
e. The outcome of each contest.
f. The number of registered voters for the last 10 years,
by race and language group, for each voting precinct for which
election returns are furnished.
4. Public notices that show the public had an opportunity
to participate including:
a. Copies of newspaper articles discussing the proposed
change.
b. Copies of public notices that describe the proposed
change and invite public comment or participation in hearings
and statements regarding where such public notices appeared
(e.g., newspaper, radio, or television, posted in public
buildings, sent to identified individuals or groups).
c. Minutes or accounts of public hearings concerning the
proposed change.
d. Statements, speeches, and other public communications
concerning the proposed change.
e. Copies of comments from the general public.
f. Excerpts from legislative journals containing
discussion of a submitted enactment, or other materials
revealing its legislative purpose.
5. For annexations:
a. The present and expected future use of the annexed
land (e.g., garden apartments, industrial park).
b. An estimate of the expected population, by race and
language group, when anticipated development, if any, is
completed.
c. A statement that all prior annexations subject to the
preclearance requirement have been submitted for review, or a
statement that identifies all annexations subject to the
preclearance requirement that have not been submitted for
review.\8\
---------------------------------------------------------------------------
\8\ 28 C.F.R. 51.28.
---------------------------------------------------------------------------
And all of the required and suggested information is just
for a single preclearance submission--which included every
change in a ``voting practice,'' meaning everything from moving
a polling location from one public building to another public
building nearby to statewide redistricting plans.
As an example of these challenges, one county in Georgia
had used a school building as a polling place for years. The
school was undergoing renovations over the summer, but school
officials had assured the election officials that the
renovations would be complete in time for the next election.
But shortly before the election, the school officials notified
the election staff that the school would not be ready in time.
We prepared an emergency preclearance submission to move the
polling place from the school undergoing renovations to another
school that was right next door and had to include all of the
above information.
Failing to obtain preclearance ahead of the election would
have meant the jurisdiction was subject to an enforcement
action (including payment of the plaintiffs' attorney fees) \9\
and was ineligible for bailout because it enforced a voting
change that had not been precleared.\10\
---------------------------------------------------------------------------
\9\ 52 U.S.C. 10303.
\10\ 52 U.S.C. 10303(a)(1)(D).
---------------------------------------------------------------------------
The burden on jurisdictions is significant because not only
must the jurisdiction provide all of this information, it must
do so to prove a negative. Each submission had to show that the
change would not cause a retrogression in the position of
minority voters in order to receive preclearance. Failure to
submit sufficient information would lead to a ``More
Information Request'' or a rejection of the request for
preclearance. This burden was necessary for a State or a
political subdivision to obtain advance federal approval of a
proposed voting change adopted by local policymakers.
B. Past Concerns Regarding Partisan Administration
While necessary in the 1960s and through the 1980s,
concerns about partisan Administration of the Voting Rights Act
in Georgia began to grow in the 1990s. Georgia Democrats in the
1990s were concerned about the ``Bush Justice Department'' and
its rejection of Democratic maps. Georgia Republicans in the
2011 cycle were equally concerned about the ``Obama Justice
Department.''
The men and women of the Voting section are professionals
who are deeply committed to their work. But concerns about
partisan Administration influenced how jurisdictions approached
preclearance in 2011 cycle. For example, Georgia sought
preclearance of its 2011 redistricting maps on both statutory
tracks simultaneously: Filing a declaratory judgment action
seeking preclearance in the D.C. District Court and filing for
administrative preclearance with the Attorney General.\11\ The
lawsuit included an alternative claim: If preclearance was not
granted, then the formula imposing preclearance on Georgia was
unconstitutional.\12\ Texas used a similar strategy when
seeking preclearance of its photo identification requirement
for voting.\13\
---------------------------------------------------------------------------
\11\ Georgia v. Holder, Case No. 1:11-CV-01788 (D. D.C.).
\12\ Id., Complaint at pp. 19-25 (October 6, 2011) available at
http://redistricting.lls.edu/files/
GA%20preclear%2020111006%20complaint.pdf.
\13\ Texas v. Holder, 888 F. Supp. 2d 113, 117 (D.D.C. 2012)
vacated 570 U.S. 928 (2013).
---------------------------------------------------------------------------
II. H.R. 4 Overview
The Committee is considering the VRAA, which would create a
new formula to determine preclearance coverage, replacing the
formula that was struck down in Shelby County. The proposed
formula would cover any State (entirely) in which:
L15 or more voting rights violations occurred in
the State during the previous 25 calendar years; or
L10 or more voting rights violations occurred in
the State during the previous 25 calendar years, at least one
of which was committed by the State itself (as opposed to a
political subdivision within the State).\14\
---------------------------------------------------------------------------
\14\ VRAA, Sec. 3(b)(1)(A).
The formula likewise covers any political subdivision where
three or more ``voting rights violations'' occur in a 25-year
period.\15\
---------------------------------------------------------------------------
\15\RAA, Sec. 3(b)(1)(B).
---------------------------------------------------------------------------
The VRAA's definition of ``voting rights violation''
includes five distinct types of events:
1. A final judgment by a court determining that there has
been ``a denial or abridgement of the right of any citizen of
the United States to vote on account of race, color, or
Membership in a language minority group, in violation of the
14th or 15th Amendment'' anywhere within the State or one of
its subdivisions.
2. A final judgment by a court determining that ``a voting
qualification or prerequisite to voting or standard, practice,
or procedure with respect to voting was imposed or applied or
would have been imposed or applied anywhere within the State or
subdivision in a manner that resulted or would have resulted in
a denial or abridgement of the right of any citizen of the
United States to vote on account of race, color, or Membership
in a language minority group, in violation of subsection (e) or
(f), or section 2 or 203'' of the Act.
3. A final judgment of a court denying a request for
preclearance of a voting change in the State or any political
subdivision.
4. An objection by the Attorney General to any voting
change within the State or any political subdivision.
5. A consent decree or settlement that resulted in the
alternation or abandonment of a voting practice that was
challenged as a denial or abridgment of the right to vote on
account of race, color, or Membership in a language minority
group anywhere in the State.
My testimony will focus primarily on the coverage formula
proposed in the VRAA and its likely unintended consequences
from the standpoint of someone who has prepared preclearance
submissions and litigated voting cases. There are significant
constitutional and practical problems with the provisions of
Sec. 4A of the VRAA that would apply preclearance to all States
and political subdivisions for designated categories of voting
changes, but those problems are not the focus of my testimony
today.
III. Concerns About Formula To Determine Preclearance
The proposed formula raises several immediate concerns for
me as a litigator involving its application, especially because
the proposed formula opens the door to partisan Administration
of the VRA. The Subcommittee should ensure that any version of
the VRAA does not create opportunities for the political abuse
of the VRA to the detriment of its protections for minority
voters.
A. Georgia Lacks Control Over Counties and Other Political
Subdivisions
The first concern with the proposed formula is the ability
of counties and political subdivisions in a State to force the
State into preclearance coverage without any affirmative action
on the State's part. Georgia has 159 counties. The proposed
formula would make the State of Georgia accountable for the
actions of all of its counties--in fact, if fewer than 10% of
counties in the State of Georgia settled a single voting-rights
case over 25 years, the entire State would be covered even if
the State itself had no ``voting rights violations'' at all
during the period in question.
While the Georgia Secretary of State is identified as the
chief elections official for purposes of the Help America Vote
Act (HAVA), his responsibilities do not encompass the entire
Administration of elections. O.C.G.A. Sec. 21-2-50 enumerates
the statutory authority of the Secretary, and none of the 15
enumerated duties gives the Secretary control over counties and
election superintendents. The Secretary must provide training
to county elections officials (O.C.G.A. Sec. 21-2-50(11)), but
he does not watch them process voter registration applications,
count ballots, administer provisional ballots, or control how
local officials undertake those activities. The Secretary must
maintain the official list of registered voters (O.C.G.A.
Sec. 21-2-50(a)(14)), but he does not enter information into
the voter registration system; local voter registrars do.
Similarly, the State Election Board's statutory duties are set
forth in O.C.G.A. Sec. 21-2-31, which also does not give it
control over county officials. The Georgia Election Code is
equally clear that the duties of administering and conducting
elections fall onto local superintendents who ``instruct poll
officers and others in their duties'' and ``select and equip
polling places.'' O.C.G.A. Sec. 21-2-70.
As a result of the current State of Georgia law, the
Secretary of State and State Election Board do not control and
cannot directly prevent a local official(s) from (1) closing
polling places; (2) not distributing provisional ballots; (3)
not allocating sufficient resources to polling places; (4)
processing absentee ballots; or (5) improperly entering
information for voter registration. All of these are county
functions as a matter of law--not the responsibility of the
State. O.C.G.A. Sec. Sec. 21-2-31, 21-250.
But despite these statutory limitations, under the proposed
VRAA formula, Georgia counties and political subdivisions can
engage in behaviors that may garner objections from the
Attorney General or result in litigation that will later bind
the entire State, even if the State has absolutely nothing to
do with a problematic voting practice. This is a far cry from
the intentional discrimination that triggered the preclearance
concept in 1965. Stated differently, the State could be
punished for the bad behavior of one or more of its counties
and political subdivisions over which the State has no control.
The lack of control over jurisdictions also eliminates the
effectiveness of the bailout provisions of section 4 of the VRA
\16\ as a check on the coverage formula. To be entitled to
bailout, a jurisdiction must demonstrate that ``all
governmental units within its territory'' have perfectly
complied with the preclearance requirements during the previous
ten years.\17\ Given the lack of operational control, that is a
nearly impossible standard to meet.
---------------------------------------------------------------------------
\16\ 52 U.S.C. 10303(a).
\17\ Id. at (a)(1)(D).
---------------------------------------------------------------------------
Prior to Shelby County, a small county with little minority
population asked our firm about seeking a bailout from
preclearance under section 4. Like the relationship of the
State and counties, counties in Georgia do not control the
cities within their boundaries. The county had several cities
within it and we served open-records requests on the cities for
their last ten years of preclearance records to attempt to meet
the statutory requirements. The struggle to obtain those
records and affirmatively demonstrate that every voting change
had been precleared ultimately led the county to abandon its
efforts to seek bailout.
Similar problems will remain with the new proposed formula.
A jurisdiction seeking bailout because it was improperly
covered by the proposed coverage formula has to make an
affirmative showing of compliance that will be nearly
impossible if it does not control the ``governmental units
within its territory.'' The proposed formula should not pull
entire states under preclearance due to the actions of
jurisdictions over whom they exercise no control.
B. Local Jurisdictions Tend To Be More Likely to Settle Voting
Cases Than Fight Them Due To Budget Constraints
The VRAA's inclusion of consent decrees and settlements as
a ``voting rights violation'' will also create significant
problems. Many local jurisdictions lack the political will and
financial resources to fight a voting-rights lawsuit, even if
they have a reasonable defense. We are far from the days of
Mississippi Governor Ross Barnett, who could triumphantly
proclaim his resistance to integrating Ole Miss and garner a
political benefit from that stand. Today, a jurisdiction being
sued for voting discrimination is viewed as a very negative
event.
When they are sued, local-government officials want to know
the trajectory of the lawsuit and their potential exposure. As
a practitioner, I have to immediately advise them of the
potential attorney and expert fees they will have to pay if
unsuccessful in their defense of the lawsuit. For a small
county (even if they have a strong argument against the
allegations in the lawsuit), the risk of paying the other
side's fees is often too great to pursue a defense. That is
especially true when voting cases could take several years to
reach a favorable result for a jurisdiction.
Local governments tend to be on one of two extremes when it
comes to voting litigation. First, many local governments will
quickly settle voting lawsuits because of the potential cost
and the negative publicity. For example, in 2006, the U.S.
Department of Justice sued Long County, Georgia over challenges
to Latino citizens' right to vote.\18\ Two days later, the
parties agreed to a consent decree that would govern Long
County's practices related to voters whose eligibility was
challenged.\19\ The quick agreement is a dramatic contrast to
the sustained resistance of local officials that led to the
adoption of the original preclearance provisions in 1965. An
immediate settlement within two days of a Voting Rights Act
lawsuit in 2006 demonstrates a readiness to comply with the
law, not resistance to it. Despite this fact and the
cooperation of local officials, the Long County settlement
would be considered a ``voting rights violation'' counted
against the State of Georgia until the year 2031, 66 years
after the VRA was first adopted.
---------------------------------------------------------------------------
\18\ Complaint, U.S. v. Long County, Ga., Case No. 2:06-cv-00040-
AAA (S.D. Ga. February 8, 2006) available at https://www.justice.gov/
sites/default/files/crt/legacy/2010/12/15/long_ comp.pdf.
\19\ Consent Decree, U.S. v. Long County, Ga., Case No. 2:06-cv-
00040-AAA (S.D. Ga. February 10, 2006) available at https://
www.justice.gov/sites/default/files/crt/legacy/2010/12/15/long_cd.pdf.
---------------------------------------------------------------------------
Second, local governments with a budget to advance
reasonable defenses against Voting Rights Act lawsuits may
fight the lawsuit but ultimately still find the costs to be too
much. For example, Fayette County (a relatively wealthy county
close to the City of Atlanta) was sued in 2011 regarding its
long-time at-large system of electing county commissioners.\20\
The key question of that case involved the interaction of the
constitutional limitations against racial gerrymandering versus
the requirements of section 2 of the Voting Rights Act to
create new majority-minority districts because of African-
American population growth.\21\ That suit dragged on for more
than five years (including a trip to the Eleventh Circuit) \22\
before finally settling with the payment to the plaintiffs of
hundreds of thousands of dollars in attorney fees.\23\ The
settlement ultimately left one at-large district in place but--
despite the carefully negotiated solution agreeable to all
sides--would still be considered by the VRAA as a ``voting
rights violation'' attributable to the State of Georgia for
purposes of preclearance coverage.
---------------------------------------------------------------------------
\20\ Complaint, Ga. State Conf. of the NAACP v. Fayette County Bd.
of Commissioners, Case No. 3:11-cv-123-TCB (N.D. Ga. August 9, 2011).
\21\ See discussion in preliminary-injunction order, Ga. State
Conference of the NAACP v. Fayette Cty. Bd. of Comm'rs, 950 F. Supp. 2d
1294, 1304-1308 (N.D. Ga. 2013).
\22\ Ga. State Conf. of the NAACP v. Fayette Cty. Bd. of Comm'rs,
775 F.3d 1336 (11th Cir. 2015).
\23\ Consent Order (Doc. 289), Ga. State Conf. of the NAACP v.
Fayette Cty. Bd. of Comm'rs, Case No. 3:11-cv-123-TCB (N.D. Ga. January
28, 2016) (settling Board of Education claims); Consent Motion (Doc.
305), Ga. State Conf. of the NAACP v. Fayette Cty. Bd. of Comm'rs, Case
No. 3:11-cv-123-TCB (N.D. Ga. September 2, 2016) (settling Board of
Commissioner claims).
---------------------------------------------------------------------------
In both examples, local officials were trying their best to
do what was right. Current voting cases are nothing like the
resistance encountered by federal officials seeking to enforce
voting rights in the 1960s and 1970s. It is a rare case today
where officials systematically work to injure minority voting
rights. All local election officials with whom I have worked
are motivated to run elections properly and in accordance with
the law. They take extremely personally any allegation that
they are working to disenfranchise any voter.
There will be further unintended effects of making
settlements a trigger for preclearance coverage. Groups
interested in voting access issues are incentivized to sue
rather than work with local officials to correct what they see
as problems, because they now have a method to force
jurisdictions under preclearance. Making settlements a trigger
for coverage also removes incentives for local officials to
settle meritorious litigation involving voting because of the
long-term effect of those settlements. And the fact that those
settlements may bind the State for the next 25 years creates
additional incentives for states to step in to defend local
governments, potentially creating a significant burden on the
courts with continued litigation of cases that could otherwise
be easily settled.
I would urge the Subcommittee to remove the language about
settlements from the VRAA, or at the very least, modify the
language to take into account the nature and extent of the
settlement versus the fact of the settlement itself.
C. The Coverage Formula in the VRAA Raises the Distinct
Possibility of Politicized Enforcement of Preclearance
The prior preclearance regime focused on the evil still
used in section 3(c)'s bail-in provisions: Intentional
discrimination. The targeted efforts of election officials to
stop minorities from registering and voting, driven by racial
animus, was the basis for the ``extraordinary circumstances''
that made the preclearance process constitutionally valid for
decades.
That focus on intentional discrimination is completely
upended by the VRAA. The revised bail-in provisions would give
federal courts the authority to bring a jurisdiction under
preclearance under any violation of section 2's vote dilution
provisions, which can often be unintentional or the result of
changing population demographics.\24\ That is adramatic change
in federal law and significantly raises the stake for every
jurisdiction litigating a section 2 case.
---------------------------------------------------------------------------
\24\ VRAA, Sec. 2(a)-(b).
---------------------------------------------------------------------------
Moreover, because the VRAA defines a ``voting rights
violation'' as an unsuccessful application for preclearance to
the Attorney General or a federal court,\25\ jurisdictions that
simply do not provide sufficient data can find themselves on
the hook for preclearance.
---------------------------------------------------------------------------
\25\ VRAA, Sec. 4(b)(3)(C)-(D).
---------------------------------------------------------------------------
Because jurisdictions must prove the lack of discrimination
in their preclearance submission, allowing a rejection for any
reason to constitute a voting rights violation grants
significant latitude to the Attorney General to force
jurisdictions under preclearance by rejecting applications for
preclearance. At the very least, the VRAA should only include
objections by the Attorney General for grounds other than a
lack of information as a triggering event.
But the inclusion of settlements as a ``voting rights
violation'' is the most dangerous provision that opens the door
to political application of the VRA. Plaintiff groups or an
Attorney General can strategically file lawsuits against small
political subdivisions to force settlements that count against
a jurisdiction for purposes of preclearance, especially as the
25-year window is approaching. As discussed above, the
pressures on elected officials to settle VRA cases is often
significant and groups can target particular political
subdivisions within states, sue them, and force settlements
that then could place jurisdictions under preclearance for the
next 25 years. If the Subcommittee is going to proceed with the
VRAA, it should at the very least require a finding of
intentional discrimination or other changes that would avoid
the high likelihood that politics could become a key driver in
litigation under the VRAA.
D. The Continued Politicization of Voting Litigation Adds to
Concerns About the Political Use of the VRAA
The broad definition of ``voting rights violations'' also
raises significant concerns about future political abuse of the
VRA because of the current partisan use of litigation and
arguments about voting practices. Ignoring the oft-quoted
saying, ``the plural of anecdote is not data,'' today's voting
litigation is often highly organized along partisan lines,
frequently combining a variety of scattered events in an
attempt to utilize the federal courts to control elections in
states. These types of political efforts to obtain federal-
court (and Federal Government) oversight of State election
processes will be heightened by the VRAA. Because settlements
of any case involving voting are included as ``voting rights
violations,'' political parties or other interested groups can
strategically use litigation--such as the litigation filed in
Georgia following the 2018 elections--to bring entire states
back under preclearance.
Many election cases are often settled before reaching the
merits stage of the litigation. The settlement then becomes the
basis for further partisan attacks on the electoral system of a
State as ``voter suppression'' that makes a compelling
political story regardless of whether the facts are true.
Unlike the crisis situation across the covered states in 1965,
complaints about election Administration today tend to involve
the collection of scattered stories woven into a partisan
narrative that is contrary to the data on the election as a
whole.
Georgia was accused of massive voter suppression during the
2018 elections. Claims alleged that Georgia election officials
held up over 50,000 voter registration applications, closed
polling places, and targeted minority voters with overly
restrictive database-matching processes. But the data show a
dramatically different picture. In 2018:
LGeorgia had a record number of registered
voters.\26\
---------------------------------------------------------------------------
\26\ See http://sos.ga.gov/index.php/Elections/
current_and_past_3elections_results (last visited October 14, 2019).
---------------------------------------------------------------------------
LGeorgia had record voter turnout for a midterm
election with 3.9 million voters in 2018 that almost matched
the total number of voters who voted in the 2016 presidential
election (4 million). The last midterm election in 2014 had
approximately 2.5 million voters.\27\
---------------------------------------------------------------------------
\27\ Id.
---------------------------------------------------------------------------
LThe voting eligible population turnout rate for
2018 was 55%, significantly higher than the 2014 midterm
(38.6%) and the 2010 midterm (40.6%).\28\
---------------------------------------------------------------------------
\28\ See http://www.electproject.org/2018g (last visited October
14, 2019).
---------------------------------------------------------------------------
LIn 2018, African-American voter turnout increased
32.5% compared to the 2014 midterm.\29\
---------------------------------------------------------------------------
\29\ See http://sos.ga.gov/index.php/Elections/
voter_turn_out_by_demographics (last visited October 14, 2019).
---------------------------------------------------------------------------
LHispanic voter turnout increased 97.7% over the
2014 midterm.\30\
---------------------------------------------------------------------------
\30\ Id.
---------------------------------------------------------------------------
LAsian-American voter turnout increased 98.2% over
the 2014 midterm.\31\
\31\ Id.
---------------------------------------------------------------------------
Georgia offers automated voter registration, no-excuse
absentee voting, and at least three weeks of in-person advance
voting-and all of those practices were in place for the 2016
and 2018 elections.\32\ The Brennan Center for Justice
identified Georgia's automated voter registration program as
the most successful in the country, almost doubling the rate of
voter registration.\33\
---------------------------------------------------------------------------
\32\ See History of AVR & Implementation Dates. Brennan Center for
Justice. https://www.brennancenter.org/analysis/history-avr-
implementation-dates (last visited October 14, 2019). See also State
Laws Governing Early Voting, National Conference of State Legislatures,
http://www.ncsl.org/research/elections-and-campaigns/early-voting-in-
state-elections.aspx (last visited October 14, 2019) and Absentee and
Early Voting, National Conference of State Legislatures, http://
www.ncsl.org/research/elections-and-campaigns/absentee-and-early-
voting.aspx (last visited October 14, 2019).
\33\ Morris, Kevin and Peter Dunphy, AVR Impact on State Voter
Registration, Brennan Center for Justice (April 2019), https://
www.brennancenter.org/sites/default/files/2019-08/Report
_AVR_Impact_State_Voter_Registration.pdf (last visited October 14,
2019).
---------------------------------------------------------------------------
According to the Election Administration and Voting Survey
2018 Comprehensive Report (the ``EAVS Report''), Georgia is the
top State in the country for voter registration through its
driver services department and the sixth in overall voter
registration.\34\ In 2018, significantly fewer absentee ballots
were rejected than in previous years (7,512 in 2018 vs. 18,266
and 13,677 in 2016 and 2014, respectively).\35\ Further,
comparing the number of rejected absentee ballots to the
overall ballots cast, the measure preferred by the
Massachusetts Institute for Technology Election Lab, Georgia's
absentee ballot rejection rate decreased by 40% from 2016 to
2018, from 0.33% to 0.199%.\36\
---------------------------------------------------------------------------
\34\ U.S. Election Assistance Commission, Election Administration
and Voting Survey 2018 Comprehensive Report at 56, 64 (June 2019)
available at https://www.eac.gov/assets/1/6/2018_EAVS_Report.pdf. These
findings are also consistent with an analysis by FiveThirtyEight, which
found Georgia registered and updated more voters than any other State
using automated voter registration. Nathaniel Rakich, What Happened
When 2.2 Million People Were Automatically Registered to Vote,
FiveThirtyEight.com (October 10, 2019), https://fivethirtyeight.com/
features/what-happened-when-2-2-million-people-were-automatically-
registered-to-vote/.
\35\ See the 2018, 2016, and 2014 EAVS reports.
\36\ See 2018 EAVS Report. See also MIT Election Lab Election
Performance Index, https://elections.mit.edu/#state-GA (last visited on
October 14, 2019).
---------------------------------------------------------------------------
The EAVS report also showed that, in 2018, Georgia counted
a higher percentage of provisional ballots compared to previous
elections: 55% of provisional ballots were ultimately counted,
compared with 45% in the 2016 election.\37\ Voters cast more
provisional ballots in 2018 than in 2016 (21,600 total
provisional ballots cast in 2018 vs. 16,739 in 2016),\38\ but
almost all of the increase in provisional ballots (4,793 of the
4,861 increase from 2016) was due to registered voters voting
in the wrong precinct in their county.\39\
---------------------------------------------------------------------------
\37\ 2018 EAVS Report at 33; 2016 EAVS Report.
\38\ Id.
\39\ Id.
---------------------------------------------------------------------------
While some organizations claim a dramatic contraction of
voting rights in Georgia after Shelby County, Georgia has
actually expanded early in-person voting after that decision.
Most Georgia counties provide Sunday voting and add additional
weekend voting days beyond what is required by statute.
Georgia has continued to innovate and expand its election
laws as recently as earlier this year. During an update of
election laws passed in the 2019 legislative session, Georgia
took its existing, precleared HAVA database-matching process
for new voters and ensured that all voters would be immediately
placed into ``active'' status even if they do not match the
database check so long as they produce one of the forms of
identification required by HAVA for first-time registrants.\40\
Georgia's precleared voter-list maintenance process that
previously allowed voters to be removed from the voting rolls
after six years was changed to a more expansive law, not
allowing removal until almost 10 years--matching the renewal
period for State driver's licenses to ensure that updates would
be included in the automated- voter-registration process.\41\
Georgia also restricted counties from changing polling places
within 30-60 days prior to an election.\42\
---------------------------------------------------------------------------
\40\ O.C.G.A. Sec. 21-2-220.1 as amended by 2019 Ga. Laws Act 24
(H.B. 316); O.C.G.A. Sec. 21-12-417(c).
\41\ O.C.G.A. Sec. 21-2-234 as amended by 2019 Ga. Laws Act 24
(H.B. 316).
\42\ O.C.G.A. Sec. 21-2-265(f) as amended by 2019 Ga. Laws Act 24
(H.B. 316).
---------------------------------------------------------------------------
The data tell a different story from the political
narrative. To avoid the partisan usage of the VRA, the
Subcommittee should recognize government officials' willingness
and urgency to settle cases involving voting rights so that it
can make changes. The decisions regarding enforcement of the
VRA should be driven by data, not by partisan considerations.
IV. Conclusion
Protecting voting rights is critically important. But the
VRAA will ultimately undermine the purposes of the VRA. It
includes a number of provisions that will adversely affect the
ability of states and local jurisdiction to effectively operate
elections and opens the door to the partisan use of legislation
designed to protect voting rights.
The Subcommittee should strongly consider amending the
legislation to address intentional discrimination, but at the
very least remove settlements as a triggering event,
recognizing that extraordinary circumstances must be required
to justify the massive federal intervention of preclearance.
Mr. Cohen. Thank you, sir. Appreciate your testimony.
Mr. Bryan Sells is a civil rights lawyer from Atlanta,
Georgia. He specializes in voting rights, election law, and
redistricting. He previously served as special litigation
counsel in the Voting section of the Civil Rights Division of
the Department of Justice from 2010 to 2015.
As part of the Voting Section's management team, he led
teams of trial laws, analysts, and social scientists
investigating and prosecuting violations of Federal voting
statutes, including the Voting Rights Act.
Prior to that time, he served as a senior staff attorney in
the Voting Rights Project of the American Civil Liberties Union
in Atlanta.
He received his law degree from Columbia and his
undergraduate degree from Harvard. He served as law clerk to
the Honorable Myron Thompson of the U.S. District Court for the
Middle District of Alabama.
Mr. Sells, you are recognized for 5 minutes.
TESTIMONY OF BRYAN SELLS
Mr. Sells. Chairman Cohen, Ranking Member Johnson, and
Members of the subcommittee, thank you for the opportunity to
testify at this important hearing.
The Subcommittee heard in priori hearings from two of my
fellow Members of the Native American Voting Rights Coalition,
Dr. James Tucker and Natalie Landreth, who testified that
first-generation voting barriers remain a problem in Indian
country. First-generation barriers are those that limit a
voter's access to registration opportunities, to casting a
ballot, and to having that ballot counted.
The Supreme Court's opinion in Shelby County suggested that
first-generation barriers are largely a thing of the past. That
hasn't been my experience as a litigator in Indian country, and
I will give one example.
In September 2008, officials in sparsely populated Mellette
County, South Dakota, voted to close all but one of the
county's four polling places. Mellette County lies within the
historical boundaries of the Rosebud Indian Reservation, and
Native Americans make up about half of the county's population.
The move was touted as a cost-saving measure designed to
save about $1,000, but it meant that some voters would have to
drive as many as 40 miles each way to cast a vote at the polls.
To make matters worse, South Dakota had one of the restrictive
absentee ballot laws in the country, requiring voters to have
their absentee ballot applications notarized or witnessed by
county officials.
When I analyzed the impact of the closures on Native
Americans, I found that a higher percentage of Indians than
non-Indians would have to travel significant distances to vote
or to cast an absentee ballot. Native Americans were also much
less likely than whites to have access to a vehicle or the
money to pay for gas.
To add insult to injury, the all-white county commission
moved the county's only remaining polling place next door to
the sheriff's office, a place that would further deter Indians
from voting because of a history of friction between Native
Americans and law enforcement in the county.
Thankfully, the county reversed course when my colleagues
and I raised the possibility of a lawsuit. I think this matter
illustrates the continued need to protect Indian voters against
first-generation barriers, and I applaud the Subcommittee for
including first-generation practices like poll closures in the
known practice preclearance provisions of H.R. 4.
Most of my litigation in Indian country, however, has
focused on second-generation barriers, electoral mechanisms
that affect the weight of minority votes like at-large
elections and redistricting. Second-generation barriers are a
major issue in Indian country because the voting rights
revolution that swept through the South in the 1970s and '80s
largely bypassed Indian country, but that is no longer the
case.
In the 7 years between 1999 and 2006, for example, there
were eight second-generation voting rights cases brought by or
on behalf of Native Americans in South Dakota alone. I will
give one quick example.
The case is Blackmoon v. Charles Mix County. Charles Mix
has historically been a county divided. Members of the Yankton
Sioux Tribe, who make up approximately 30 percent of the
county's population, live mainly in the southern part of the
county, and the non-Indian population is concentrated in the
northern and eastern parts of the county.
There is a plaque in the main hall of the county courthouse
recognizing county residents who served in the Vietnam War, and
it lists not a single Indian name, even though many served. The
county is governed by a three-member county commission with
each commissioner elected from a single member district. No
Native American had ever been elected to the commission.
Despite a State law requiring the county to redraw its
districts in February 2002, the county commission decided to
leave its existing districts intact. Four tribal Members then
sued the county, alleging that the districts were
malapportioned and had the purpose and effect of diluting
Indian voting strength. Eventually, the district court ruled in
the plaintiffs' favor on their malapportionment claim and
ordered the defendants to redraw the districts.
The county commission then tried to push through a
redistricting plan that would have continued to dilute Native
American voting strength, but it changed course after Indian
voters got wind of the commission's plan and strongly opposed
it in public hearings. The county then capitulated and adopted
a plan with one majority Indian district that the Yankton Sioux
Tribe had proposed before the litigation even began.
The story does not end there because soon after the county
adopted that plan, White residents circulated two initiative
petitions. One petition to have the northern part of the county
secede from the southern part, and a second petition to
increase the size of the commission from three to five Members.
The first petition fizzled, but the second petition passed
with strong White support. Not long thereafter, we negotiated a
consent decree that, among other things, activated the pocket
trigger in section 3(c) of the Voting Rights Act, and it
requires the county to preclear its voting changes until 2024.
The county subsequently submitted its plan to increase the size
of the county commission to the Department of Justice, which
objected to the change on the ground that the county had not
met its burden of proving that the increase lacked a
discriminatory purpose.
Mr. Cohen. Wrap up.
Mr. Sells. Yes, Chairman. As a result, the new three-member
plan remained in place, and Sharon Drapeau was elected to be
the first woman and the first Native American to serve on the
commission.
I will end there. Thank you.
[The statement of Mr. Sells follows:]
STATEMENT OF BRYAN L. SELLS\1\
---------------------------------------------------------------------------
\1\ J.D., Columbia University; A.B., magna cum laude, Harvard
University. Attorney and managing member at The Law Office of Bryan L.
Sells, LLC. Adjunct professor of law, Georgia State University.
---------------------------------------------------------------------------
Chairman Nadler, Chairman Cohen, Ranking Member Johnson,
and Members of the Subcommittee, I thank you for your
invitation to testify at this hearing on legislative proposals
to strengthen the Voting Rights Act. My testimony this morning
will focus on the need for additional protection for the right
to vote in Indian Country.
I am a civil rights lawyer currently in private practice in
Atlanta. Over the course of my more than 20-year legal career,
I have litigated voting-rights cases on behalf of tribal
Members in Montana, South Dakota, and Wyoming. I was the lead
attorney in Quiver v. Nelson, one of the largest voting-rights
cases in history, and in Bone Shirt v. Hazeltine, a landmark
case challenging South Dakota's statewide redistricting plan on
behalf of Native American\2\ voters. I also serve as an adjunct
professor of law at Georgia State University College of Law,
where I teach election law, and I am a member of the Native
American Voting Rights Coalition, an association of national
and regional grassroots organizations, academics, and attorneys
advocating for the equal access of Native Americans to the
political process.\3\
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\2\ I use the terms ``Native American,'' ``Indian,'' and ``American
Indian'' interchangeably throughout this testimony because there is no
consensus in the law or culture on a single term to describe the
indigenous peoples of the United States. I recognize, however, that
there are often very significant differences between tribal groups.
\3\ For more information about the Native American Voting Rights
Coalition, see Native American Rights Fund, About the Native American
Voting Rights Coalition, available at https://www.narf.org/native-
american-voting-rights-coalition/.
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I will begin with a brief historical overview of the Native
vote from our nation's founding to the present day. I will then
describe some of the voting cases and controversies in Indian
Country on which I have been involved over the course of my
career as a litigator. Those cases, and the volumes of evidence
they generated, offer a compelling demonstration of the need
for a strengthened Voting Rights Act.
A Brief History of Native-American Enfranchisement From 1789 to
the Present
Throughout the American West, Native Americans have faced
voting discrimination ranging in form from outright vote denial
to more subtle restrictions on political participation similar
to those used to disenfranchise African Americans in the
American South.\4\ The original Constitution excluded ``Indians
not taxed'' from the population basis for apportioning
congressional seats among the states,\5\ and Indians generally
had neither the rights of citizenship nor of suffrage in the
early days of the republic.
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\4\ See generally Jeanette Wolfley, Jim Crow, Indian Style: The
Disenfranchisement of Native Americans, 16 Am. Indian L. Rev. 167
(1990); Orlan Svingen, Jim Crow, Indian Style, 11 Am. Indian Quarterly
275 (1987); Daniel McCool, Indian Voting, in American Indian Policy in
the Twentieth Century (Vine Deloria, Jr. ed. 1985).
\5\ U.S. Const. art. I, Sec. 2, cl. 3.
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In 1866, when Congress adopted the Fourteenth amendment
after the Civil War, it granted citizenship to ``[a]ll persons
born or naturalized in the United States'' except those not
``subject to the jurisdiction thereof''--a provision
specifically intended to exclude Native Americans from the
franchise.\6\ During debate on the amendment, Senators
expressed dual concerns that Indians were an inferior race and
therefore not worthy of citizenship and that, if granted
citizenship and the right to vote, their numbers could
overwhelm the votes of White citizens in the western
territories.\7\ For example, Senator Jacob Howard of Michigan
declared: ``I am not yet prepared to pass a sweeping Act of
naturalization by which all the Indian savages, wild or tame,
belonging to a tribal relation, are to become my fellow-
citizens and go to the polls and vote with me . . . '' \8\
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\6\ U.S. Const. amend. XIV, Sec. 1.
\7\ See Daniel McCool, Susan M. Olson, and Jennifer L. Robinson,
Native Vote, at 3 (2007).
\8\ Cong. Globe, 39th Cong., 1st Sess. 2895 (1866).
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Notwithstanding the jurisdictional carve-out, the text of
the Fourteenth amendment appeared to leave open the question of
whether Native Americans could gain citizenship, and therefore
the right to vote, by voluntarily subjecting themselves to
federal jurisdiction in some way. But the Supreme Court
answered that question in 1884.\9\ John Elk, a Winnebago
Indian, was born on a reservation but later moved to non-
reservation land in Omaha, Nebraska, where he renounced his
tribal allegiance and claimed U.S. citizenship by virtue of the
citizenship clause of the Fourteenth Amendment.\10\ He then
sought to register and vote but was refused. In Elk v. Wilkins,
the Supreme Court held that the citizenship clause did not
apply to Elk because he was not subject to the jurisdiction of
the United States when he was born.\11\ He could only obtain
citizenship, and therefore the right to vote, through some
affirmative Act of Congress.\12\
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\9\ Elk v. Wilkins, 112 U.S. 94 (1884).
\10\ Id. at 98-99.
\11\ Id. at 102.
\12\ Id. at 103.
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Congress had begun selectively naturalizing certain
Indians, often conditioned on renouncing tribal affiliation and
culture, in the middle of the 1800s.\13\ That effort
accelerated with the Treaty of Fort Laramie in 1868, which
offered citizenship to the Lakota Sioux and the Arapahoe,\14\
and it continued through the early 1900s. By the early 1920s,
about two-thirds of the Indian people in the United States were
citizens,\15\ and Congress conferred citizenship on the
remainder when it passed the Indian Citizenship Act of
1924.\16\
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\13\ See., e.g., Act of Mar. 3, 1843, ch. 101, Sec. 7, 5 Stat. 645,
647 (offering conditional citizenship to the Stockbridge-Munsee tribe).
\14\ 1868 Fort Laramie Treaty, 15 Stat. 635, reprintedin II Charles
J. Kappler, Indian Affairs: Laws and Treaties 998 (1904). article VI of
the treaty offered citizenship to any member of a signatory tribe who
could occupy a plot of land for three years and make at least two
hundred dollars' worth of improvements.
\15\ McCool et al., supra note 7, at 7.
\16\ 43 Stat. 253 (1924).
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Unfortunately, citizenship did not automatically confer
suffrage. The right to vote in both federal and State (or
territorial) elections is determined by State (or territorial
law).\17\ And even though the Fifteenth amendment provides that
states may not deny a citizen's right to vote on the basis of
``race, color, or previous condition of servitude,''\18\ states
found other ways to continue denying the right to vote to
Native American citizens. In 1936, for example, the attorney
general of Colorado opined that Indians had no right to vote
because they were not citizens of the state.\19\ Other grounds
used by states to deny Native American citizens the right to
vote included residency on Indian reservations, continued
tribal enrollment, taxation, and guardianship status.\20\
Gradually, all of the formal restrictions denying Native
American citizens the right to vote were either struck down by
the courts or repealed by State legislatures. But Native
Americans were not fully eligible to vote in every State until
1957, when Utah finally repealed its residency statute.\21\
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\17\ See U.S. Const. art I, Sec. 2, cl. 1; U.S. Const. amend. XVII,
Sec. 1.
\18\ U.S. Const. amend. XV.
\19\ McCool et al., supra note 7, at 9.
\20\ Id. at 11-19.
\21\ Act of Feb. 14, 1957, ch. 38, 1957 Utah Laws 89-90; see
Rothfels v. Southworth, 356 P.2d 612, 613 (Utah 1960).2
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Indian suffrage, however, did not immediately translate
into full political participation.
State and local officials in Indian Country used a variety
of facially neutral tactics, such as onerous registration
requirements, poll taxes, literacy tests, and a host of other
election rules, to make it difficult for Native Americans to
participate in the political process and to elect candidates of
their choice.\22\ These tactics had been used in the South to
prevent African Americans from exerting electoral power, and
they could be used against Native Americans to the same effect.
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\22\ McCool et al., supra note 7, at 20.
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With the passage of the Voting Rights Act of 1965, Native
Americans gained a new tool in the struggle for full political
participation. All of Indian Country was covered by the
nationwide and permanent provisions of the Act. Among other
things, those provisions prohibit voting discrimination on the
basis of ``race or color'' and the use of any ``test or
device,'' such as a literacy test, as a prerequisite for
registering or voting in any federal, State or local
election.\23\ The permanent provisions of the Act were aimed
primarily at voting discrimination against AfricanvAmericans in
the South, but Native Americans were also covered as a
cognizable racial group.\24\ Native Americans were also
expressly covered when Congress amended the Act in 1975 to
address discrimination against Members of language minorities,
and to require certain jurisdictions to provide language
assistance to voters with limited English proficiency.\25\
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\23\ 52 U.S.C. 1A10301, 10303.
\24\ See Rice v. Sioux City Mem'l Park Cemetery, 349 U.S. 70, 76
(1955) (acknowledging that Native Americans are protected by laws that
prohibit discrimination on the basis of race or color).
\25\ See, An Act to Amend the Voting Rights Act of 1965, Pub. L.
No. 94-73, 89 Stat. 400 (1975).
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Enforcement of the Act's permanent provisions was somewhat
lacking in the early years. The extensive voting-rights
litigation campaign that swept through the South in the 1970s,
`80s, and `90s largely bypassed Indian Country. At least one
scholar has attributed this lack of enforcement to a
combination of factors, including a lack of resources and
access to legal assistance among Native Americans, lax
enforcement of the Voting Rights Act by the Department of
Justice, the geographic isolation of Indian reservations, and
the debilitating legacy of discrimination by the State and
Federal Government.\26\
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\26\ Laughlin McDonald, Voting Rights Act in Indian Country: A Case
Study, 29 Am. Indian L. Rev. 43, 53 (2004-2005).
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Over time, however, litigation activity increased. In the
seven years between 1999 and 2006, for example, there were
eight voting-rights cases brought by or on behalf of Native
Americans in South Dakota alone. Recent years have also seen a
number of Indian voting cases in Alaska, Arizona, Montana,
Nevada, North Dakota, South Dakota, Utah, and Wyoming. I had
the privilege of working on some of those cases, and it is to
those matters that I turn next.
Cases Involving At-Large Elections or Multi-Member Districts
Emery v. Hunt
In 1991, the South Dakota legislature adopted a new
legislative redistricting plan using data from the 1990
Census.\27\ The plan divided the State into 35 districts and
provided, with one exception, that each district would be
entitled to one senate member and two house Members elected at-
large from within the district.
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\27\ An Act to Redistrict the Legislature, ch. 1, 1991 S.D. Laws
1st Spec. Sess. 1.
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The exception was the new District 28. The 1991 legislation
provided that ``in order to protect minority voting rights,
District No. 28 shall consist of two single-member house
districts.'' \28\ House District 28A consisted of Dewey and
Ziebach counties and portions of Corson County, and included
the Cheyenne River Sioux Reservation and portions of the
Standing Rock Sioux Reservation. House District 28B consisted
of Harding and Perkins Counties and portions of Corson and
Butte Counties. According to 1990 census data, Indians were 60%
of the voting-age population of House District 28A, and less
than 4% of the voting age population of House District 28B.
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\28\ Id. at 5.
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Five years later, despite its pledge to protect minority
voting rights, the legislature abolished House Districts 28A
and 28B and required candidates for the house to run at large
in District 28.\29\ The repeal took place after an Indian
candidate, Mark Van Norman, won the Democratic primary in
District 28A in 1994. A chief sponsor of the repealing
legislation was Eric Bogue, the Republican candidate who
defeated Van Norman in the general election.\30\ The
reconstituted House District 28 had an Indian voting-age
population of only 29%. Given the prevailing patterns of
racially polarized voting, of which Members of the legislature
were surely aware, Indian voters could not realistically expect
to elect a candidate of their choice in the new district.
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\29\ An Act to Eliminate the Single-member House Districts in
District 28, ch. 21, 1996 S.D. Laws 45.
\30\ Minutes of House State Affairs Committee, January 29, 1996, p.
5.
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Steven Emery, Rocky Le Compte, and James Picotte--all
residents of the Cheyenne River Sioux Reservation--challenged
the repeal in early 2000. They claimed that the changes in
District 28 violated section 2 of the Voting Rights Act, as
well as article III, section 5 of the South Dakota
constitution, which mandated reapportionment once every tenth
year, but prohibited all reapportionment at other times. The
South Dakota Supreme Court had expressly held ``when a
Legislature once makes an apportionment following an
enumeration no Legislature can make another until after the
next enumeration.'' \31\
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\31\ In re Legislative Reapportionment, 246 N.W. 295, 297 (S.D.
1933).
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The plaintiffs' experts analyzed the six legislative
contests between 1992-1994 involving Indian and non-Indian
candidates in District 28 held under the 1991 plan to determine
the existence, and the extent, of any racial bloc voting.
Indian voters favored the Indian candidates at an average rate
of 81%, while whites voted for the White candidates at an
average rate of 93%. In all six of the contests the candidate
preferred by Indians was defeated.\32\
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\32\ Emery v. Hunt, Civ. No. 00-3008 (D.S.D.), Report of Steven P.
Cole, Tables 1 & 2.
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White cohesion also fluctuated widely depending on whether
an Indian was a candidate.
In the four head-to-head white-white legislative contests,
where there was no possibility of electing an Indian candidate,
the average level of White cohesion was 68%. In the Indian-
white legislative contests, the average level of White cohesion
jumped to 94%.\33\ This phenomenon of increased White cohesion
to defeat minority candidates has been called ``targeting.''
\34\
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\33\ Id., Tables 1 & 3.
\34\ See Clarke v. City of Cincinnati, 40 F.3d 807, 457 (6th Cir.
1994) (``[w]hen White bloc voting is 'targeted' against Black
candidates, Black voters are denied an opportunity enjoyed by White
voters, namely, the opportunity to elect a candidate of their own
race'').
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Before deciding the plaintiffs' section 2 claim, the
district court certified the State law question to the South
Dakota Supreme Court. That court accepted certification and
held that, in enacting the 1996 redistricting plan, ``the
Legislature acted beyond its constitutional limits.'' \35\ It
declared the 1996 plan null and void and reinstated the
preexisting 1991 plan. At the ensuing special election ordered
by the district court, Tom Van Norman was elected from District
28A, the first Native American in history to be elected to the
State house from the Cheyenne River Sioux Indian Reservation.
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\35\ In re Certification of a Question of Law, 615 N.W.2d 590, 597
(S.D. 2000).
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Weddell v. Wagner Community School District
The City of Wagner is a border town in Charles Mix County,
South Dakota. The county, in the southeastern part of the State
along the Missouri River, is home to the disestablished Yankton
Sioux Reservation.
The local school district in Wagner was run by a seven-
member school board elected at large to staggered three-year
terms. Although Indians were 42% of the district's total
population and 36% of the district's voting-age population,
Indian voters had not been able to elect a candidate of their
choice to the school board for many years.
In March 2002, three Members of the Yankton Sioux Tribe
filed suit against the school district, alleging that its at-
large elections diluted Indian voting strength in violation of
section 2 of the Voting Rights Act.\36\ The plaintiffs
demonstrated that Native American voters could control at least
two seats if the seven board Members were elected from single-
member districts.
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\36\ Weddell v. Wagner Community School District, Civ. No. 02-4056
(D.S.D. March 22, 2002).
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The parties eventually agreed to settle the case by
replacing the at-large elections with cumulative voting. The
district court approved a consent decree containing the
settlement agreement on March 18, 2003.\37\
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\37\ Weddell v. Wagner Community School District, Civ. No. 02-4056
(D.S.D. March 18, 2003).
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The very first election under the new system resulted in a
tie between an Indian candidate and a non-Indian candidate.
Under South Dakota law, the tie was to be settled with a deck
of cards, and the Indian candidate prevailed by drawing a
queen.
Large v. Fremont County
In 2005, Members of the Eastern Shoshone and Northern
Arapaho Tribes residing on the Wind River Indian Reservation
filed suit against Fremont County, Wyoming. The plaintiffs
alleged that at-large elections for the county's Board of
Commissioners diluted Native American voting strength in
violation of the Constitution and section 2 of the Voting
Rights Act. At the time the suit was filed no Native American
had ever been elected to the county commission despite the fact
that Native Americans were 20 percent of the county's
population and had frequently run for office with the
overwhelming support of Native American voters.
Following extensive discovery and a lengthy trial, the
district court issued a detailed, 102-page opinion on April 29,
2010, holding the at-large system diluted Indian voting
strength. the court made extensive findings about past and
continuing discrimination against Indians, racially polarized
voting, the isolation of the Indian community, and the lack of
responsiveness by the County Commission to the special needs of
Indians. The court concluded: ``The evidence presented to this
Court reveals that discrimination is ongoing, and that the
effects of historical discrimination remain palpable.'' \38\
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\38\ Large v. Fremont County, Wyo., 709 F. Supp. 2d 1176, 1184 (D.
Wyo. 2010).
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As a remedy, the court adopted a plan containing five
single-member districts, one of which was majority-Indian,
giving Native Americans the opportunity to elect candidates of
their choice. The county did not appeal the decision on the
merits but did appeal the remedy provided by the district
court. The court of appeals, however, affirmed the decision of
the district court in 2012.\39\
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\39\ Large v. Fremont County, Wyo., 670 F.3d 1133 (10th Cir. 2012).
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Cases Involving Redistricting Bone
Shirt v. Hazeltine
The State of South Dakota enacted a new redistricting plan
for its 105-member State legislature in November 2001.\40\ The
plan divided the State into thirty-five districts, each of
which elected one member of the State senate and two Members of
the State house of representatives.
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\40\ 2001 S.D. Laws ch. 2.
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Voters elected their two house Members at large in each
district except District 28, which the plan subdivided into two
single-member house districts, Districts 28A and 28B. The plan
contained two majority-Indian districts: District 27 and
District 28A. District 27 encompassed part of the Pine Ridge
Indian Reservation and all of the Rosebud Indian Reservation in
the southern part of the state. Native Americans comprised
approximately 90% of District 27's total population and 86% of
its voting-age population. In majority-white District 26, which
bordered District 27 to the north and east and encompassed the
remainder of the Pine Ridge Indian Reservation, Native
Americans comprised approximately 30% of the total population
and 23% of its voting-age population. In the State as a whole,
Native Americans were approximately 9% of the total population
and 7% of the voting-age population.
Shortly after the 2001 plan became law, Alfred Bone Shirt
and three other Native American voters sued in federal court,
alleging that the plan violated Sections 2 of the Voting Rights
Act.\41\ Among other things, the plaintiffs contended that the
plan diluted Native American voting strength in violation of
section 2 by ``packing'' Native Americans into District 27 with
the result that Indian voters in the neighboring District 26
were unable to elect representatives of their choice.
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\41\ Bone Shirt v. Hazeltine, Civ. No. 01-3032 (D.S.D. Dec. 26,
2001).
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After extensive discovery and a bench trial held over nine
days in April 2004, the district court ruled in a 144-page
opinion that the State's plan violated section 2.\42\ The court
first considered whether the evidence established the three
factors that the Supreme Court identified in Thornburg v.
Gingles \43\ as generally necessary to prove a violation of
section 2. The court then analyzed whether the totality of the
evidence had also shown that Indian voters had less opportunity
than White voters to participate in the political process and
to elect candidates of their choice. In conducting this
analysis, the district court examined twelve additional
factors, and the district court made extensive findings of fact
on each factor.
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\42\ See, Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976, 1053
(D.S.D. 2004).
\43\ 478 U.S. 30, 50-51 (1986).
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With respect to the first Gingles factor, the district
court found that Native Americans in South Dakota are
sufficiently numerous and geographically compact that they
could constitute a majority in at least one more legislative
district than existed in the state's plan.\44\ The court based
its finding on the report and testimony of William S. Cooper,
the plaintiffs' expert demographer, as well as several
redistricting plans drafted by State legislative staffers
during the 2001 redistricting process.
---------------------------------------------------------------------------
\44\ Bone Shirt v. Hazeltine, 336 F. Supp. 2d at 995.
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The district court rejected the defendants' argument that
the required threshold for the first Gingles factor should be
well above 65% of the voting-age population. The court noted
that the defendants had failed to identify any cases in which a
court had ever required such an elevated threshold. The
district court also rejected the defendants' contention that
the plaintiffs' illustrative plans were based on racial
considerations above all else. To the contrary, the court found
that the plans did not subordinate traditional race-neutral
districting principles to racial considerations and did not
consider race any more than reasonably necessary to determine
whether an additional majority-Indian district was possible.
After considering all of the evidence, the district court
concluded that the plaintiffs had satisfied the first Gingles
factor ``as a matter of law.'' \45\
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\45\ Id. at 995.
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With respect to the second Gingles factor, the district
court found that Native Americans in Districts 26 and 27 were
politically cohesive. Turning first to the parties' statistical
evidence, the court found that, despite a difference in
methodology, experts for both parties produced reliable results
which ``demonstrate[d] significant cohesion among Indian
voters.'' \46\ The district court also surveyed the parties'
nonstatistical evidence of cohesion at some length. Relying on
the testimony of numerous witnesses, both expert and lay, and
literally dozens of documentary exhibits, the court concluded
that the nonstatistical evidence, like the statistical
evidence, established Indian cohesion.\47\
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\46\ Id. at 1004.
\47\ Id. at 1004-08.
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The district court rejected the defendants' contention that
Democratic partisanship, not race, was the reason that Native
Americans tended to vote the same way at the polls.\48\ Relying
on statistical and nonstatistical evidence, including two of
the defendants' own lay witnesses, the court found that the
balance of the evidence did not support the defendants' claim.
The district court also rejected the defendants' partisanship
claim as a matter of law, reasoning that section 2 protects a
minority voter's right to elect candidates of choice even if
the voter chooses candidates solely because they belong to a
particular political party. After considering all of the
evidence, the district court found that the plaintiffs had
satisfied the second Gingles factor.\49\
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\48\ Id. at 1008-10.
\49\ Id. at 1010.
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With respect to the third Gingles factor, the court found
that both parties' experts had produced results that ``show[ed]
that non-Indian voters in District 26 vote sufficiently as a
bloc to enable them, particularly in the most probative
elections and in the absence of special circumstances, usually
to defeat the Indian-preferred candidate.'' \50\ Across all of
the many elections on which the district court relied, the
plaintiffs' expert had shown that White voters in District 26
voted sufficiently as a bloc to defeat 21 out of 21 (100%)
Indian-preferred candidates. And the defendants' expert had
shown that White voters defeated 17 out of 25 (68%) Indian-
preferred candidates. Considering all of this evidence in the
aggregate, the district court concluded that the plaintiffs had
satisfied the third Gingles factor.\51\
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\50\ Id. at 1016.
\51\ Id. at 1017.
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Turning to the ``totality of the circumstances,'' the court
found that eleven of the twelve totality factors weighed in the
plaintiffs' favor, and it rejected the defendants' claim on the
twelfth factor that Indian voter apathy alone accounted for the
difficulty Indian voters had experienced in electing candidates
of their choice in District 26.\52\
---------------------------------------------------------------------------
\52\ Id. at 1017-52.
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According to the Supreme Court, the two ``most important''
totality factors are: (1) The extent to which minorities have
been elected under the challenged plan; and (2) the extent to
which voting is racially polarized.\53\ The district court
found that both factors weighed in the plaintiffs' favor. The
defendants admitted, and the district court found, that not a
single Native American candidate was elected to the State
legislature from the area in District 26 between 1982 and
2002.\54\ The district court also found that ``substantial
evidence, both statistical and lay, demonstrates that voting in
South Dakota is racially polarized among whites and Indians in
Districts 26 and 27.'' \55\ It described that polarization as
``extensive'' and at a ``high level.'' \56\ It also found that
White crossover voting dropped precipitously when the Indian-
preferred candidate was an Indian.\57\
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\53\ Gingles, 478 U.S. at 48-49 n.15; accord Harvell v. Blytheville
Sch. Dist. No. 5, 71 F.3d 1382, 1390 (8th Cir. 1995) (en banc).
\54\ Bone Shirt, 336 F. Supp. 2d at 1043.
\55\ Id. at 1036.
\56\ Id. at 1035.
\57\ Id. at 1035.
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The district court's analysis of the totality factors is
also noteworthy because of its extensive findings on South
Dakota's history of discrimination against Native Americans.
The court's review of that history of discrimination covers
more than forty pages in its slip opinion.\58\ The review
synthesizes innumerable documents, many of which were pulled
directly from the state's own session laws.
---------------------------------------------------------------------------
\58\ Id. at 1018-34.
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The review also highlights the testimony of Native American
witnesses who offered their own experiences of discrimination
at trial. For example, Elsie Meeks, a tribal member at Pine
Ridge and the first Indian to serve on the U.S. Commission on
Civil Rights, told about her first exposure to the non-Indian
world and the fact ``that there might be some people who didn't
think well of people from the reservation.''\59\ When she and
her sister enrolled in a predominantly White school in Fall
River County and were riding the bus, ``somebody behind us said
. . . the Indians should go back to the reservation. And I mean
I was fairly hurt by it . . . it was just sort of a shock to
me.'' \60\ Meeks said that there is a ``disconnect between
Indians and non-Indians'' in the state.\61\ ``[W]hat most
people don't realize is that many Indians, they experience this
racism in some form from non-Indians nearly every time they go
into a border town community . . . . [T]hen their . . .
reciprocal feelings are based on that, that they know, or at
least feel that the non-Indians don't like them and don't trust
them.'' \62\
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\59\ Id. at 1032.
\60\ Id. at 1032.
\61\ Id. at 1032.
\62\ Id. at 1032.
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Lyla Young, a Rosebud tribal member, said that the first
contact she had with whites was when she went to high school in
Todd County.\63\ The Indian students lived in a segregated dorm
at the Rosebud boarding school, and were bussed to the high
school, then bussed back to the dorm for lunch, then bused
again to the high school for the afternoon session.\64\ The
White students referred to the Indians as ``GI's,'' which stood
for ``government issue.'' \65\ Young said that ``I just
withdrew. I had no friends at school. Most of the girls that I
dormed with didn't finish high school . . . I didn't associate
with anybody.'' \66\ Even as an adult, Young has had little
contact with the White community. ``I don't want to. I have no
desire to open up my life or my children's life to any kind of
discrimination or harsh treatment. Things are tough enough
without inviting more.'' \67\ Testifying in court was
particularly difficult for her. ``This was a big job for me to
come here today . . . . I'm the only Indian woman in here, and
I'm nervous. I'm very uncomfortable.'' \68\
---------------------------------------------------------------------------
\63\ Id. at 1032.
\64\ Id. at 1032.
\65\ Id. at 1033.
\66\ Id. at 1033.
\67\ Id. at 1033.
\68\ Id. at 1033.
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Arlene Brandis, a Rosebud tribal member, recalled walking
to and from school in Tripp County: ``[C]ars would drive by and
they would holler at us an call us names . . . like dirty
Indian, drunken Indian, and say why don't you go back to the
reservation.'' \69\ Although that was yearsvago, Brandis does
not seen much difference between then and now. White families
in Winner, where she lives now, do not sit near her family at
high school football and basketball games. She believes that
this is because she and her husband are Native American.
---------------------------------------------------------------------------
\69\ Id. at 1033.
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Almost without exception, the tribal Members who testified
at trial could recount incidents of being mistreated,
embarrassed, or humiliated by whites. Based on ``the wealth of
evidence and testimony'' before it, the court concluded that
``there is a long and extensive history of discrimination
against Indians in South Dakota that touches upon the right to
register and to vote, and affects their ability to participate
in the political process on an equal basis with other
citizens.'' \70\
---------------------------------------------------------------------------
\70\ Id. at 1034.
---------------------------------------------------------------------------
Lastly, the district court returned to the defendants'
attempt to attribute the lack of Indian electoral success to
voter apathy and low voter turnout. In particular, the
defendants claimed that the lack of success was due to a lack
of Indian interest in State politics, internal divisions among
the tribes, and a fear among Indian voters that voting in State
and county elections would erode tribal sovereignty.
The district court found, however, that the record refuted
those claims. \71\ ``Throughout South Dakota's history, Native
Americans have made repeated and persistent efforts to
participate in the political process at all levels of
government despite facing outright discrimination and informal
barriers in exercising their right to vote.'' \72\ The court
based its conclusion in part on more than two dozen documentary
exhibits and the testimony of several Native American lay
witnesses who underscored the value of participating in State
and federal elections. Even the defendants own expert
historian, Dr. Michael Lawson, conceded that Native Americans
in South Dakota are not disinterested in State politics. He
added: ``I think there's a growing number of tribal Members who
see the importance of political participation at every level.''
\73\
---------------------------------------------------------------------------
\71\ Id. at 1050-52.
\72\ Id. at 1052.
\73\ Id. at 1052.
---------------------------------------------------------------------------
After reviewing each of the factors in its analysis, the
district court found, based on the totality of circumstances,
that South Dakota's 2001 legislative redistricting plan
``results in unequal electoral opportunity for Indian voters.''
\74\ Accordingly, the court concluded that the plan
``impermissibly dilutes the Indian vote and violates Sec. 2 of
the Voting Rights Act.'' \75\
---------------------------------------------------------------------------
\74\ Id. at 1052.
\75\ Id. at 1052.
---------------------------------------------------------------------------
After finding a violation of section 2, the district court
gave the gave the defendants two separate opportunities to
propose a remedy. Each time they declined to do so. The court
then issued an order adopting one of the plaintiffs' proposed
remedial plans and enjoining the defendants from using the
unlawful plan in future elections.\76\
---------------------------------------------------------------------------
\76\ Bone Shirt v. Hazeltine, 387 F. Supp. 2d 1035, 1044 (D.S.D.
2005).
---------------------------------------------------------------------------
The State appealed, but the Eight Circuit affirmed the
decision of the district court.\77\ The State did not ask the
Supreme Court to hear the case, and the redrawn districts were
used for the remainder of the decade, resulting in Indian-voter
control over one additional seat in the South Dakota House of
Representatives.
---------------------------------------------------------------------------
\77\ Bone Shirt v. Hazeltine, 461 F.3d 1011 (8th Cir. 2006).
---------------------------------------------------------------------------
Kirkie v. Buffalo County
In March 2003, three Members of the Crow Creek Sioux Tribe
filed suit challenging to the county commission districts in
Buffalo County, South Dakota.\78\ The plaintiffs alleged that
the districts were malapportioned in violation of the one-
person-one-vote principle and were adopted or maintained for
the purpose of discriminating against Native American voters.
---------------------------------------------------------------------------
\78\ Complaint, Kirkie v. Buffalo County, Civ. No. 03-5024 (D.S.D.
Mar. 20, 2003).
---------------------------------------------------------------------------
Buffalo County, which according to the 2000 Census was the
poorest county in the United States, had a population of
approximately 2000 people. Approximately 85% of the county's
population was Native American.
The county was governed by a three-member county commission
elected from three single-member districts. Those districts,
which had been in use for decades, contained populations of
approximately 1,550, 350, and 100 people, respectively.
Virtually all of the 1,550 people in commissioner district 1
were Native American, while not a single Indian lived in the
underpopulated district 3. The system not only violated the
``one person, one vote'' standard of the Equal Protection
Clause but had also been clearly implemented and maintained to
dilute the Indian vote and ensure White control of county
government.
The malapportionment persisted, moreover, despite a state-
law made for decennial redistricting. South Dakota law required
a board of county commissioners to redistrict ``at its regular
meeting in February of each year ending in the numeral 2 . . .
if such change is necessary in order that each district shall
be as regular and compact in form as practicable and it shall
so divide and redistrict its county that each district may
contain as near as possible an equal number of residents, as
determined by the last preceding federal decennial census.''
\79\ Minutes of the county commission meeting held in February
2002 reveal that the commissioners considered the issue and
decided--despite the overwhelming inequality among the
districts--that the existing districts ``required no change.''
\80\ The commissioners were, in effect, thumbing their noses at
State and federal redistricting requirements in order to
prevent Native Americans from having a full voice on the
commission.
---------------------------------------------------------------------------
\79\ S.D.C.L. Sec. 7-8-10.
\80\ See Answer, Kirkie v. Buffalo County, Civ. No. 03-5025 (D.S.D.
Apr. 28, 2003), at 10.
---------------------------------------------------------------------------
The parties settled the case in early 2004. In a consent
decree approved by the court, the county was required to redraw
its commissioner districts and to hold a special election for
two ofvthe three seats.\81\ The county also admitted that its
plan was discriminatory and agreed to relief under section 3 of
the Voting Rights Act. That relief included the authorization
of federal observers to monitor elections and the activation of
the ``pocket-trigger'' in section 3(c), which effectively made
Buffalo County subject to the preclearance requirements of
section 5 of the Voting Rights Act through 2013.
---------------------------------------------------------------------------
\81\ Consent Decree, Kirkie v. Buffalo County, Civ. No. 03-5024
(D.S.D. Feb. 12, 2004).
---------------------------------------------------------------------------
Blackmoon v. Charles Mix County
The litigation against Charles Mix County may be the best
example of the continuing need for further protections under
the Voting Rights Act. Charles Mix has historically been a
county divided. Members of the Yankton Sioux Tribe, who make up
approximately 30 percent of the county's population, live
mainly in the southern part of the county, along the banks of
the Missouri River, and in the small towns of Lake Andes,
Marty, and Wagner. Farmers make up the bulk of the county's
non-Indian population, and they are concentrated in the
northern and eastern parts of the county. Social life remains
largely, though informally, segregated. There is a plaque in
the main hall of the county courthouse recognizing county
residents who served in the Vietnam War, and it lists not a
single Indian name even though many served.
The county is governed by a three-member county commission,
with each commissioner elected from a single-member district.
Before the litigation, no Native American had ever been elected
to the commission.
The county's commissioner districts were decades old and
badly malapportioned. The total deviation of the districts from
equality was greater than 19 percent, and White voters were a
majority in all three districts.
In anticipation of redistricting following the 2000 Census,
the Yankton Sioux Tribe sent a letter to the commission in
November 2001 pointing out the malapportionment and proposing a
new plan with one majority-Indian district. State law required
the commission to redraw its districts at its regular meeting
in February 2002 and then prohibited further redistricting for
the rest of the decade.\82\ The February meeting came and went,
however, and the commission decided to leave its existing
districts intact.
---------------------------------------------------------------------------
\82\ S.D.C.L. Sec. 7-8-10.
---------------------------------------------------------------------------
Four tribal Members then sued the county, alleging that the
three commissioner districts were malapportioned in violation
of the one-person-one-vote standard of the Fourteenth amendment
and had been drawn or maintained to dilute Indian voting
strength in violation of section 2 of the Voting Rights
Act.\83\ In response to the suit, the county commission took
the position that its districts were not unlawful, but it also
asked the State legislature to pass legislation establishing a
process for emergency redistricting. The purpose of the bill,
according to its proponents, was to allow the defendants in the
Blackmoon case to render the plaintiffs' claims moot by
modifying the challenged redistricting plan and thereby to
avoid liability in the suit. Because of the urgency of that
goal, the bill's sponsors brought the bill directly to the
House floor, where the House suspended its rules, dispensed
with a hearing, and passed the bill on the same day without the
usual public notice. In the South Dakota Senate, the
defendants' attorneys lobbied aggressively in favor of the bill
and testified in support of it. Although many Native Americans,
including several from Charles Mix County, testified in
opposition to the bill, the Senate passed it shortly
thereafter. Because it contained an emergency clause, the law
went into effect immediately upon the governor's signature. The
new law allowed a county to redistrict any time it became aware
of facts that called into question whether its districts
complied with State or federal law, and the county commission
immediately began the process of redrawing its districts to
avoid court-ordered redistricting.\84\
---------------------------------------------------------------------------
\83\ Complaint, Blackmoon v. Charles Mix County, Civ. No. 05-4017
(D.S.D. Jan. 27, 2005).
\84\ 2005 S.D. Laws., ch. 43.
---------------------------------------------------------------------------
Before the county could complete the redistricting process,
however, the Native American plaintiffs in the Quiver
litigation obtained a temporary restraining order and
preliminary injunction prohibiting the State from enforcing the
new law unless and until it obtained preclearance under section
5 of the Voting Rights Act.\85\ In a strongly worded opinion
granting the injunction, the three-judge district court noted
that State officials in South Dakota ``for over 25 years . . .
have intended to violate and have violated the preclearance
requirements,'' and that the emergency clause in the new law
``gives the appearance of a rushed attempt to circumvent the
VRA.'' \86\ The injunction effectively put the new law on hold
while the litigation against Charles Mix County proceeded.
---------------------------------------------------------------------------
\85\ Quiver v. Nelson, 387 F. Supp. 2d 1027 (D.S.D. 2005) (three-
judge district court).
\86\ Id. at 1034.
---------------------------------------------------------------------------
While the new law was on hold, the district court in
Blackmoon granted the plaintiffs' motion for partial summary
judgment on their malapportionment claim and ordered the
defendants to submit a remedial proposal for court
approval.\87\ The county commission then tried to push through
a redistricting plan that would have continued to dilute Native
American voting strength. Using noncontiguous districts, the
plan included recently developed land along the Missouri River
in the district that, according to the 2000 Census, contained
mostly Native Americans. Because the developments didn't exist
at the time of the 2000 Census, the impact of those voters was
not apparent on the county's proposed plan. Residents of the
county knew full well, however, that most of the voters in the
newly developed area were non-Indian. The county commission
held a hearing on its dilutive plan, and Native Americans
strongly opposed it. In light of that opposition, the county
adopted the plan that had been proposed by the Yankton Sioux
Tribe in 2001, and that remedied both the malapportionment and
the dilution of Indian voting strength.
---------------------------------------------------------------------------
\87\ Blackmoon v. Charles Mix County, 2005 WL 2738954 (D.S.D.
2005).
---------------------------------------------------------------------------
Reaction to new districts was swift. Less than a month
after the county adopted a redistricting plan with a majority
Indian district, a White resident of the northeast part of the
county began circulating a petition to split Charles Mix into
two counties, one part of which would be almost all white. The
petition received significant news coverage, and it was widely
seen as directly related to the Indian victory in the Blackmoon
case.\88\
---------------------------------------------------------------------------
\88\ See Kimberly Kolden, Residents in Charles Mix consider plan to
split county, Mitchell Daily Republic (Feb. 14, 2006).
---------------------------------------------------------------------------
The secession movement fizzled after the media coverage,
and the petitions to divide the county were never turned in.
Instead, a new petitioning effort sprung up--this time seeking
to increase the number of county commissioners from three to
five. In a thinly veiled reference to an Indian candidate who
was running for commissioner in the new majority-Indian
district, the circulator of the petition told the media that
the purpose of increasing the size of the county commission was
to ``take[] power away from one strong commissioner.'' \89\
---------------------------------------------------------------------------
\89\ Monica Wepking, Petition to Change County Commission Numbers,
Lake Andes Wave (June 14, 2006).
---------------------------------------------------------------------------
Native Americans opposed the increase, but it passed in
November 2006 with strong White support. In an effort to stop
the increase from being implemented, tribal Members
successfully circulated a petition to refer the county's five-
member plan to the voters. In a special election on the
referendum, however, the matter failed, and the increase was
scheduled to take effect in 2008.
In early 2007, the district court ruled that the
plaintiffs' remaining claims could go forward and set them for
trial in March 2008.\90\ The primary issue was the plaintiffs'
request for relief under the ``pocket trigger' provisions in
section 3 of the Voting Rights Act, which would require the
county to comply with the preclearance provisions of section 5.
---------------------------------------------------------------------------
\90\ Blackmoon v. Charles Mix County, 505 F. Supp. 2d 585 (D.S.D.
2007).
---------------------------------------------------------------------------
Rather than go to trial, the county requested mediation. In
December 2007, the parties negotiated a consent decree that,
among other things, activated the ``pocket trigger'' in section
3(c) of the Voting Rights Act and requires the county to
preclear its voting changes until 2024. The county subsequently
submitted for preclearance its plan to increase the size of the
county commission from three to five. The Department of Justice
objected to the change on the ground that the county had not
met its burden of proving that the increase was not motivated
by a discriminatory purpose. As a result of the objection, the
three-member plan with one majority-Indian district remained in
place.
The first election under the new districts was held in
November 2006, and Sharon Drapeau was elected to be the first
woman and the first Native American to serve on the commission.
Cases Involving Documentation or Qualifications To Vote
Janis v. Nelson
Eileen Janis and Kim Colhoff, both residents of Pine Ridge,
South Dakota, were registered voters until early 2008, after
they were each convicted of a felony offense and sentenced to
five years of probation but no jail time. Despite the fact that
South Dakota law expressly provided that the right to vote is
denied only while persons convicted of felonies are imprisoned
in the State penitentiary, Colhoff and Janis were removed from
the voter rolls without any notice and denied the right to vote
at their polling places when they attempted to vote in the 2008
presidential election. In front of several other voters,
election officials refused to allow Janis to cast either a
regular or provisional ballot.
In 2009, Janis and Colhoff filed a class-action lawsuit
against State and local election officials, alleging that the
illegal disfranchisement of individuals with felony convictions
has had a disproportionate and negative impact on American
Indian voters who are overly represented in South Dakota's
criminal justice system. The lawsuit also contended that the
removal of individuals' names from the State and county voter
registration lists based on felony convictions for which they
were sentenced only to probation violates their rights to equal
protection and due process under the federal and State
constitutions, the Help America Vote Act, the National Voter
Registration Act and Sections 2 and 5 of the Voting Rights Act.
The defendants moved to dismiss the case on various
grounds, but the district court allowed the suit to
proceed.\91\ Following a period of discovery and mediation, the
parties reach a settlement. The agreement restored Janis and
Colhoff to the rolls and established procedures to prevent
unlawful disfranchisement from happening in the future,
including increased training for election officials and public
education.
---------------------------------------------------------------------------
\91\ Janis v. Nelson, Civ. No. 09-cv-05019 (D.S.D. Dec. 30, 2009).
---------------------------------------------------------------------------
Drivers' Licensing Offices in Todd and Charles Mix Counties
In September 2009, South Dakota announced plans to close 17
of its drivers' licensing offices around the state. Among the
offices to be closed were those in Todd and Charles Mix
counties, both of which were covered jurisdictions subject to
the Act's preclearance mandates. (Todd by section 5 and Charles
Mix by section 3(c)). Residents of those counties would in many
instances have to drive long distances to get a driver's
license or photo ID. Several residents of those counties
complained, and the ACLU began an investigation.
The closure would affect both voter registration and
voting. Under the National Voter Registration Act, drivers'
license offices in South Dakota conduct voter registration, and
the closure of drivers' licensing offices would mean that
residents of Todd and Charles Mix counties would have less
access to motor-voter registration. Access to drivers' licenses
would also affect voting because South Dakota is one of several
states that require each voter to show identification before
voting in person or by absentee ballot\92\ The closure would
likely mean that some voters would not be able to meet the
identification requirements because they would not have an up-
to-date driver's license or state-issued photo identification
card. Census data showed that Native Americans in Todd and
Charles Mix counties had a lower socioeconomic status and less
access to cars than their White counterparts, which would mean
less access to gas money and the ability to travel long
distances to obtain or renew the necessary identification.
---------------------------------------------------------------------------
\92\ See S.D.C.L. Sec. Sec. 12-18-6.1, 12-19-2.
---------------------------------------------------------------------------
The ACLU asked the Department of Justice to send the State
a ``please submit'' letter asking the State to submit its
closure plan to the Attorney General for preclearance. It is
unclear whether the Department did, in fact, send such a letter
or make an oral request for a submission, but the State
announced three weeks later that it was reversing the decision
to close the offices in Todd and Charles Mix counties. The
state's Department of Public Safety, which oversees the
licensing program, issued a statement specifically citing the
preclearance provisions of the Voting Rights Act and the
state's desire to avoid potential litigation as a reason for
its decision.
Cases Involving Voting Locations
Polling Places in Mellette County
In September 2008, officials in sparsely-populated Mellette
County, South Dakota, voted to close all but one of the
county's four polling places. The move was touted as a cost-
saving measure designed to save the cash-strapped county about
$1,000. But it meant that some voters would have to drive as
many as 40 miles each way to the county seat in order to cast a
vote. And, to make matters worse, South Dakota had one of the
most restrictive absentee ballot laws in the country, requiring
voters to have their absentee ballot applications notarized or
witnessed by county officials.
Soon after the county's decision to close the polls, the
Rosebud Sioux Tribe contacted the ACLU's Voting Rights Project
for help. Mellette County is within the historical boundaries
of the Rosebud Indian Reservation, and Native Americans still
make up about half of the county's population.
The ACLU analyzed the impact of the county's decision and
concluded that the poll closure would have a severe and
disparate impact on Native American voters. Not only would a
higher percentage of Indians than non-Indians have to travel
significant distances to vote or cast an absentee ballot, but
Native Americans were also much less likely than whites to have
access to a vehicle or the money to pay for gas. And, to add
insult to injury, the all-white county commission moved the
county's only remaining polling place next door to the
sheriff's office, a place that would further deter Indians from
voting because of a history of friction between Native
Americans and law enforcement in the county. The ACLU prepared
a lawsuit alleging violations of section 2 of the Voting Rights
Act as well as the Fourteenth and Fifteenth Amendments to the
United States Constitution.
One of the largest television stations in the State ran a
story on the poll closure, and word of the ACLU's investigation
got out. Less than 24 hours before the ACLU was prepared to
file suit against the county on behalf of Native American
voters, county officials called a hastily arranged meeting and
rescinded the poll closing ordinance to avoid the possibility
of litigation.
Spirit Lake Tribe v. Benson County
Shortly before the November 2010 election, Benson County,
North Dakota, announced that it was closing all but one of the
county's polling places, including the two that were located on
the Spirit Lake Indian Reservation. The Spirit Lake Tribe filed
suit in federal district court that closing the precincts on
the Reservation would make it difficult or impossible for many
Indians to vote in violation of the federal and State
constitutions and section 2 of the Voting Rights Act.
The tribe moved for a preliminary injunction, and,
following an expedited hearing, the district granted the motion
on October 21, 2010.\93\ The order required the county to
maintain the two polling places on the Reservation, concluding
that closing the precincts would have a disparate impact on
Indian voters who lacked access to transportation or to voting
by mail.
---------------------------------------------------------------------------
\93\ Spirit Lake Tribe v. Benson Cnty., No. 2:10-cv-095, 2010 WL
4226614 (D.N.D. Oct. 21, 2010).
---------------------------------------------------------------------------
In 2012, the parties settled the case, with the county
agreeing to keep the reservation polling places open in future
general elections. The settlement also called for a series of
meetings between county and tribal officials to foster
communication between the two entities.
Wandering Medicine v. McCulloch
In 2012, tribal Members living on the Crow, Northern
Cheyenne, and Fort Belknap reservations in Montana filed suit
against State and local election officials seeking equal access
to in-person late registration and absentee voting
opportunities.\94\ Montana law permits late registration and
early voting at the county seat, but also permits counties to
create satellite locations for these purposes. The plaintiffs
moved for a preliminary injunction ordering the counties to
open satellite offices accessible to voters on the
reservations.
---------------------------------------------------------------------------
\94\ Wandering Medicine v. McCulloch, No. 1:12-cv-0135 (D. Mont.).
---------------------------------------------------------------------------
The Department of Justice filed a Statement of Interest in
the case, arguing that the plaintiffs were likely to succeed on
their claim that the location of the late-registration and
early voting sites violated section 2.\95\ The Department's
brief also contained expert analysis showing that, in order to
access the lone site in the county seat, Native Americans were
forced to travel 189 percent further than White voters in Big
Horn County, 322 percent further in Blaine County, and 267
percent further in Rosebud County.
---------------------------------------------------------------------------
\95\ Statement of Interest of the United States, Wandering Medicine
v. McCulloch, No. 1:12-CV-135-RFC (D. Mont. Oct. 23, 2012), https://
www.justice.gov/crt/case-document/si-wandering-medicine-v-mcculloch-
2012.
---------------------------------------------------------------------------
The district court denied the motion, but the plaintiffs
appealed. In 2014, following the Ninth Circuit's dismissal of
the plaintiffs' appeal as moot,\96\ the parties conducted
further discovery and filed cross motions for summary judgment.
The defendants argued that the plaintiffs' claims were not
cognizable under section of the Voting Rights Act, and the
Department of Justice again filed a Statement of Interest
supporting the plaintiffs' claims.\97\
---------------------------------------------------------------------------
\96\ Wandering Medicine v. McCulloch, 544 Fed. App'x 699 (9th Cir.
2013).
\97\ Statement of Interest of the United States, Wandering Medicine
v. McCulloch, No. 1:12-CV-135-RFC (D. Mont. Apr. 25, 2014), https://
www.justice.gov/crt/case-document/si-wandering-medicine-v-mccullough.
---------------------------------------------------------------------------
In June 2014, the parties agreed to settle the case by
establishing satellite offices on the reservations twice a week
through Election Day.\98\
---------------------------------------------------------------------------
\98\ John S. Adams, Montana Indian Voting Lawsuit Settled, Great
Falls Tribune, June 12, 2014, available at https://
www.greatfallstribune.com/story/news/politics/2014/06/12/montana-
indian-voting-lawsuit-settled/10389781/.
---------------------------------------------------------------------------
Poor Bear v. Jackson County
In September 2014, four Members of the Oglala Sioux Tribe
filed suit against Jackson County, South Dakota, alleging that
the county's refusal to open a satellite office for in-person
absentee voting and registration on the Pine Ridge Reservation
violates section 2 of the Voting Rights Act of 1965 and the
Fourteenth amendment of the United States Constitution.
Under South Dakota law, residents can register and vote in
one stop starting 46 days before an election at locations
designated by each county.\99\ Nothing in South Dakota law
prohibits a county from creating satellite election offices so
that one-stop in-person voter registration and in-person
absentee voting can take place in more than one location. Nor
does South Dakota law require that there be a one-stop site in
the county seat. Yet the only location for one-stop in-person
voter registration and in-person absentee voting in Jackson
County was the election office in Kadoka, the county seat--a
town that is more than 90% white.
---------------------------------------------------------------------------
\99\ See generally S.D.C.L. chs. 12-4, 12-19.
---------------------------------------------------------------------------
Jackson County is geographically large and sparsely
populated. It also has a substantial Native American
population, most of which lives on or near the Pine Ridge
Indian Reservation at a great distance from Kadoka. On average,
Indian citizens in Jackson County have to travel almost two
hours round-trip to reach Kadoka, and that is twice as long as
the average round-trip travel time required for White citizens.
The time and resources required for a trip to Kadoka, combined
with the depressed socioeconomic status of Indians in Jackson
County, made in-person absentee voting and therefore one-stop
voting effectively unavailable for many Indians in Jackson
County.
The plaintiffs filed a motion for a preliminary injunction
in October 2014, but that became moot after the county reversed
course and agreed to open a satellite office that would be more
accessible to Native American voters. That office provided in-
person absentee voting from October 20 until the November 4
election.
The defendants then filed a motion to dismiss, arguing that
the plaintiffs' claims are not cognizable under section 2 of
the Voting Rights Act. The Department of Justice filed a
Statement of Interest supporting the plaintiffs' claims,\100\
and the district court denied the motion.\101\
---------------------------------------------------------------------------
\100\ Statement of Interest of the United States, Poor Bear v.
Jackson County, 5:14-CV-5059-KES (D.S.D. Dec. 23, 2014), https://
www.justice.gov/crt/case-document/si-poor-bear-v-jackson.
\101\ Poor Bear v. Jackson County, 5:14-CV-5059-KES (D.S.D. May 1,
2015).
---------------------------------------------------------------------------
Jackson County thereafter entered into an agreement with
the State of South Dakota under which the County committed to
opening a satellite office accessible to Indian voters during
all federal primary and general elections through January 1,
2023.\102\
---------------------------------------------------------------------------
\102\ Poor Bear v. Jackson County, 5:14-CV-5059-KES (D.S.D. June
17, 2016).
---------------------------------------------------------------------------
Cases Involving the Denial of Attorneys' Fees
The Poor Bear case, discussed immediately above, is also
noteworthy because it illustrates the need to strengthen the
attorneys' fees provisions of the Voting Rights Act.
Most voting-rights litigation is brought on behalf of
private plaintiffs who generally lack the means to pay for
their own attorneys. Like most civil-rights statutes, the
Voting Rights Act contains a fee-provision that changes the so-
called ``American rule'' for attorney fees by allowing
victorious citizen plaintiffs to recover their attorney fees
from the losing party.\103\
---------------------------------------------------------------------------
\103\ 52 U.S.C. Sec. 10310(e).
---------------------------------------------------------------------------
It is well established that plaintiffs who win a judgment
in their favor qualify for the benefits of fee-shifting. What
used to be less clear, however, was whether those parties whose
successes come outside the courtroom could also recover fees.
In the past, the so-called ``catalyst theory'' answered this
question affirmatively. Parties were entitled to fees by
demonstrating that their litigation was the catalyst for
obtaining the relief sought, even though the relief was
obtained through the defendant's voluntary change in conduct or
through a private, non-judicial settlement agreement.
In 2001, however, the Supreme Court rejected the ``catalyst
theory'' in Buckhannon Board and Care Home, Inc. v. West
Virginia Department of Health and Human Resources.\104\ In
Buckhannon, the Supreme Court construed the term ``prevailing
party'' in the fee-shifting provisions of the Fair Housing
Amendments Act and the Americans with Disabilities Act. The
---------------------------------------------------------------------------
\104\ 532 U.S. 598 (2001).
---------------------------------------------------------------------------
Buckhannon majority adopted a narrow view of the term
``prevailing party,'' ruling that, for those two statutes at
least, ``the `catalyst theory' is not a permissible basis for
the award of attorney's fees.'' \105\ The Court required some
``judicially sanctioned'' victory as a prerequisite to a fee
award.\106\
---------------------------------------------------------------------------
\105\ Id. at 610.
\106\ Id.
---------------------------------------------------------------------------
The Supreme Court's rejection of the catalyst theory has
had ``a profoundly negative impact on civil rights
litigation.'' \107\ Buckhannon reduces plaintiffs' leverage in
settlement negotiations because defendants are aware that they
can often avoid a fee award by capitulating, and it also makes
settlement more difficult by taking away the potential for
face-saving out-of-court settlements in which the defendants do
not admit liability.\108\
---------------------------------------------------------------------------
\107\ Rebecca Glenberg, Attorney's Fees and Buckhannon, J. Va. Tr.
Lawyers' Assoc., Vol. 20, No. 4, at 13 (2009).
\108\ See Catherine R. Albiston & Laura Beth Nielsen, The
Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon
for the Private Attorney General, 54 UCLA L. Rev. 1087 (2007).
---------------------------------------------------------------------------
So it was in Poor Bear. The parties litigated the case for
more than two years. The district court had rejected the
counties primary defenses, and the plaintiffs had filed a
motion for summary judgment on the merits. Rather than defend
their position on the merits or engage in settlement
discussions with the plaintiffs, the County entered into a
temporary agreement with the State to offer a satellite voting
location for four election cycles. The County then immediately
sought to dismiss the case on ripeness grounds, and the
district court granted the motion.\109\
---------------------------------------------------------------------------
\109\ Poor Bear v. Jackson County, 5:14-CV-5059-KES (D.S.D. June
17, 2016).
---------------------------------------------------------------------------
The plaintiffs still moved for an award of fees, but the
district court rejected the motion under Buckhannon.\110\ There
was no dispute that the plaintiffs had been the catalyst for
the defendants' capitulation, that was no longer enough to
qualify for fees as a prevailing party.
---------------------------------------------------------------------------
\110\ Poor Bear v. Jackson County, 5:14-CV-5059-KES (D.S.D. Jan. 4,
2017).
---------------------------------------------------------------------------
The plaintiffs in Poor Bear were represented by a non-
profit civil rights organization and private counsel that had
undoubtedly devoted hundreds of hours to the case. Although
they obtained excellent results for their clients, they
recovered nothing. The district court's decision denying fees
risks creating a chilling effect on future voting-rights
litigation in Indian Country, with attorneys less likely to
take a risk on uncompensated cases.
Congress should therefore fix the Voting Rights Act to
restore a plaintiff's ability to recover fees under the
catalyst theory as it existed prior to Buckhannon.
Conclusion
The cases that I have discussed today are just the tip of
the proverbial iceberg. They are only some of the cases in
Indian Country that one attorney has participated in over the
course of a twenty-year career. There are many more such cases
brought in Indian Country by other attorneys, including my
colleagues in the Native American Voting Rights Coalition. But
these cases and the volumes of evidence they generated show
that voting discrimination continues to be a significant
problem in Indian Country. This problem justifies strong
congressional action to ensure that Native Americans, like all
Americans, can be free to participate fully in our democracy.
I thank you for the opportunity to testify here today, and
I look forward to answering any questions that you might have.
Mr. Cohen. Thank you, sir.
Mr. John Eastman, a Henry Salvatori Professor of Law and
Community Service at Chapman University Fowler School of Law,
served as the school's dean from June 2007 to January 2010. He
teaches courses in common law and legal history, among others.
He previously worked in private practice, served as law
clerk for Judge Clarence Thomas of the Supreme Court and for
Judge J. Michael Luttig of the United States Court of Appeals
for the Fourth District.
He received his J.D. with high honors from the University
of Chicago Law School, where he served on the Law Review; Ph.D.
and M.A. from Claremont Graduate School; and a B.A. in politics
and economics from the University of Dallas.
Professor Eastman, you are recognized for 5 minutes.
TESTIMONY OF JOHN EASTMAN
Mr. Eastman. Good morning, Chairman Cohen, Ranking Member
Johnson, Chairman Nadler. Thank you very much for inviting me
to aid in your deliberations on how both to strengthen and
preserve the Voting Rights Act.
That act, as originally adopted in 1965, as everybody has
acknowledged, is one of the signature accomplishments of the
civil rights era, and it has been rightly credited with greatly
reducing and, in many cases, outright eliminating rank
discrimination in voting rights that have persisted in parts of
our country for a century after the conclusion of the Civil
War.
One provision of that act, section 5, was an extraordinary
and drastic departure from the normal Rule that law must have
general applicability even to warrant the name ``law,'' an idea
that has been a mainstay of legal systems since at least Roman
times and certainly here in the United States since the very
founding.
That section's targeting of only certain jurisdictions was
upheld by the Supreme Court at the time only because Congress
had determined, and the Court agreed, that such strong medicine
was needed to address entrenched racial discrimination voting.
As the Court put it in that case, South Carolina v. Katzenbach,
``exceptional conditions can justify legislative measures not
otherwise appropriate.''
That last phrase, ``not otherwise appropriate,'' was a
strong signal from the Court that at some point, the
extraordinary remedy of targeting only certain States with the
drastic remedy of preclearance--of seeking permission from
either the Attorney General or Federal court for every change
in voting law, practice, or procedures--must come to an end.
The States are, after all, separate sovereigns in our
Federal system, and they are not to be treated as children with
a ``Mother, may I?'' advance preclearance supervision of the
Federal Government. That is why from the very beginning,
Members of the Court have expressed concerns about the
constitutionality of section 5, and my prepared written
testimony identifies a number of examples.
That is also why several times over the last two decades,
the Supreme Court itself more broadly has warned Congress that
provisions of the Voting Rights Act have become
constitutionally problematic. In Reno v. Bossier Parish School
Board, for example, the Court warned that a broadening
interpretation of section 5 coverage to read laws that merely
prevented the favoring of racial minority groups would
exacerbate the substantial federalism costs that the
preclearance procedure already exacts, perhaps to the extent of
raising concerns about section 5's constitutionality. Despite
that warning, Congress codified that very requirement just 6
years later in the 2006 amendments to the act.
In the 2003 case of Georgia v. Ashcroft, Justice Kennedy
identified a key anomaly in the law, namely, that conduct which
would be unconstitutional under the Fourteenth amendment was
being required to obtain preclearance under section 5 of the
Voting Rights Act. He added that this fundamental flaw should
be confronted in a case in which the issue was squarely
presented. Quite frankly, his advice there is not just
applicable to the Court, but to Congress as well.
Similarly, in Northwest Austin Municipal Utility District
v. Holder, the Supreme Court noted that the plaintiff had
raised a big question about the constitutionality of section 5
but did not reach that question because a preliminary issue of
statutory construction allowed it to avoid the question at the
time.
The decision was, nevertheless, a broadside criticism of
both section 5 and the triggering formula found in section 4,
criticisms that would come to the forefront in Shelby County.
Although the Shelby County Court invalidated only section 4's
triggering formula, it continued to identify significant
constitutional problems with section 5, problems that, as
Justice Thomas noted in his concurrence, led to the inevitable
conclusion that section 5 is, under modern circumstances,
unconstitutional.
Yet instead of addressing those increasingly manifest
constitutional problems, the Voting Rights Advancement Act,
H.R. 4, doubles down on them. Granted, it proposes a new
triggering formula that is not based on 50-year-old data, the
principal problem identified in Shelby County. That was not the
only problem identified in Shelby County. The very notion that
preclearance requirements apply only in some parts of the
country and not others is itself constitutionally problematic.
Section 5 continues to violate that general rule.
The constitutional problems of the Voting Rights Act, as
have been amended over the years, have run even deeper than
that. I was a law clerk at the Supreme Court when the City of
Boerne case was decided, and that says that the--reminds us
that the power that Congress has under section 5 of the
Fourteenth Amendment, and the identical provisions in a number
of other amendments, is to enforce the provisions of that
amendment, not add to them.
So, when the Congress adds to those requirements, they can
only do so if their remedy is proportional and congruent to the
constitutional violations. Converting the Voting Rights Act, as
happened in 1982, from one focusing on intentional
discrimination to one focusing merely on disparate impact is,
itself, constitutionally problematic under the City of Boerne.
I would encourage this body to look at those kinds of
constitutional infirmities that the Court has repeatedly
brought to your attention in order to save the Voting Rights
Act rather than ensuring that the entire Act ends up being held
to be unconstitutional if we don't Act now to save it.
Thanks so much.
[The statement of Mr. Eastman follows:]
STATEMENT OF JOHN EASTMAN
Henry Salvatori Professor of Law & Community Service Chapman
University's Dale E. Fowler School of Law \1\
---------------------------------------------------------------------------
\1\ Institutional affiliation listed for identification purposes
only. The views presented by Dr. Eastman are his own, and do not
necessarily reflect the views of the Institutions with which he is
affiliated.
---------------------------------------------------------------------------
Good afternoon, Chairman Cohen, Ranking Member Johnson, and
the other Members of the House Judiciary Subcommittee on the
Constitution, Civil Rights, and Civil Liberties. Thank you for
inviting me to aid in your deliberations on how to strengthen
and preserve the Voting Rights Act. That Act, as originally
adopted in 1965, was one of the signature accomplishments of
the civil rights era of the late 1950s and 1960s. It has
rightly been credited with greatly reducing and in many cases
outright eliminating rank discrimination in voting rights that
had persisted in parts of our country for a century after the
conclusion of the Civil War.
One provision of the Act, section 5, was an extraordinary
and drastic departure from the normal Rule that law must have
general applicability even to warrant the name ``law''--an idea
that has been a mainstay of legal systems since at least Roman
times, and certainly here in the United States since the very
founding of our Republic. That Section's targeting of only
certain jurisdictions was upheld by the Supreme Court at the
time only because Congress had determined, and the Court
agreed, that such ``strong medicine . . . was needed to address
entrenched racial discrimination in voting.'' \2\ As the Court
put it in South Carolina v. Katzenbach: ``exceptional
conditions can justify legislative measures not otherwise
appropriate.'' \3\
---------------------------------------------------------------------------
\2\ Shelby Cty., Ala. v. Holder, 570 U.S. 529, 535 (2013) (citing
South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966)).
\3\ 383 U.S. at 334 (emphasis added).
---------------------------------------------------------------------------
That last phrase, ``not otherwise appropriate,'' was a
strong signal from the Court that, at some point, the
``extraordinary remedy'' of targeting only certain states with
the drastic remedy of requiring permission from either the
Attorney General or a federal court for every change in its
voting laws, practices, and procedures must come to an end. The
States are, after all, separation sovereigns in our federal
system, and they are not to be treated as children under the
constant ``mother may I'' advance preclearance supervision of
the Federal Government.
That is why from the very beginning Members of the Court
have expressed concerns about the constitutionality of section
5. See, e.g., Katzenbach, 383 U.S., at 358-62 (Black, J.,
concurring and dissenting); Allen v. State Board of Elections,
393 U.S. 544, 586, n. 4 (1969) (Harlan, J., concurring in part
and dissenting in part); Georgia v. United States, 411 U.S.
526, 545 (1973) (Powell, J., dissenting); City of Rome v.
United States, 446 U.S. 156, 209-21 (1980) (Rehnquist, J.,
dissenting); Id., at 200-06 (Powell, J., dissenting); Lopez v.
Monterey County, 525 U.S. 266, 293-98 (1999) (Thomas, J.,
dissenting); Id., at 288 (Kennedy, J., concurring in judgment).
That is also why, on several occasions over the past two
decades, the Supreme Court itself has warned Congress that
provisions of the Voting Rights Act have become
constitutionally problematic. In Reno v. Bossier Parish School
Board, for example, the Court warned that a broadening
interpretation of section 5 coverage to reach laws that merely
prevented the favoring of racial minority groups would
``exacerbate the substantial federalism costs that the
preclearance procedure already exacts, perhaps to the extent of
raising concerns about Sec. 5's constitutionality.'' \4\
Despite that warning, Congress codified that very requirement
just six years later in the 2006 amendment of the Act.
---------------------------------------------------------------------------
\4\ 528 U.S. 320, 336 (2000).
---------------------------------------------------------------------------
In the 2003 case of Georgia v. Ashcroft, Justice Kennedy
identified a key anomaly in the law, namely, that conduct which
would be unconstitutional under the Fourteenth amendment was
being required in order to obtain preclearance under section 5
of the Voting Rights Act. He added that this ``fundamental
flaw'' ``should be confronted'' in a case in which the issue
was squarely presented, but, quite frankly, that advice is
equally applicable to Congress. Similarly, in Northwest Austin
Municipal Utility District v. Holder, 557 U.S. 193 (2009), the
Supreme Court noted that the plaintiff had raised a ``big
question'' about the constitutionality of section 5, but did
not need to reach the question because a preliminary issue of
statutory construction allowed it to avoid reaching the
constitutional question at that time. The decision itself was
nevertheless a broadside criticism of both section 5 and the
trigging formula found in section 4, criticisms that would come
to the forefront just four years later in Shelby County v.
Holder, 570 U.S. 529 (2013). Although in Shelby County the
Court invalidated only section 4's triggering formula, it
continued to identify significant constitutional problems with
section 5--problems that, as Justice Thomas noted in his
concurrent, lead to the ``inevitable conclusion'' that section
5 is, under current circumstances, unconstitutional.
Yet instead of addressing those increasingly manifest
constitutional problems, the Voting Rights Advancement Act of
2019, H.R. 4, doubles down on them. Granted, it proposes a new
triggering formula that is not based on 50-year-old data, the
principal problem with the old formula identified in Shelby
County. But that was not the only problem identified in Shelby
County. The very notion that preclearance requirements apply
only to some jurisdictions and not others is a significant
departure from the long-standing norm that law must be
generally applicable, not imposing duties only on some. The
general rule, in other words, is that federal laws must, absent
extraordinary circumstances, treat all states as the equal
sovereigns that our
Constitution recognizes. section 5 continues to violate
that general rule, and the proposed new triggering formula
contained in H.R. 4 is a far cry from the pervasive violations
that warranted Congress's resort to that extraordinary remedy
back in 1965, and that led the Court to uphold what was
initially a temporary measure in 1966.
But the constitutional problems with the Voting Rights Act,
as it has been amended over the years, run even deeper than
that. I was a law clerk at the Supreme Court during the October
1996 term, when City of Boerne v. Flores was decided. That case
reminded us of the importance of critical text in section 5 of
the Fourteenth Amendment, that Congress's power is ``to
enforce'' the requirements of the Fourteenth amendment against
the States, not to add to them. The identical language is found
in section 2 of the Fifteenth amendment (which prohibits denial
and abridgement of voting rights on the basis of race), the
Nineteenth amendment (which prohibits denial and abridgement of
voting rights on the basis of sex), section 2 of the Twenty-
Fourth amendment (which prohibits denial and abridgement of
voting rights by reason of failure to pay a poll tax), and
section 2 of the Twenty-Sixth amendment (which prohibits denial
and abridgement of voting rights on the basis of age for anyone
eighteen years or older).
The Supreme Court has held in numerous cases that both the
Fourteenth Amendment's Equal Protection Clause and the
Fifteenth amendment are violated only by a discriminatory
purpose or intent, not merely a disparate effect.\5\ Laws that
do more than ``enforce'' the prohibition on purposeful
discrimination are permissible remedial legislation only if
they are ``congruent and proportional'' to the constitutional
violation, as the Court held in City of Boerne. Two amendments
to the original Voting Rights Act that were added over the
years run afoul of that proposition, and this Committee should
be considering ways to rectify those constitutional violations
rather than expanding them.
---------------------------------------------------------------------------
\5\ Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 265 (1977) (``Proof of racially discriminatory intent or
purpose is required to show a violation of the Equal Protection
Clause.''); Washington v. Davis, 426 U.S. 229 (1976); Wisconsin v. City
of New York, 517 U.S. 1, 19 n.8 (1996) (``Strict scrutiny of a
classification affecting a protected class is properly invoked only
where a plaintiff can show intentional discrimination by the
Government''); City of Mobile v. Bolden, 446 U.S. 55, 62 (1980)
(plurality opinion) (``[A]ction by a State that is racially neutral on
its face violates the Fifteenth amendment only if motivated by a
discriminatory purpose [R]acially discriminatory motivation is a
necessary ingredient of a Fifteenth amendment violation''); Reno v.
Bossier Parish Sch. Bd., 520 U.S. 471, 481 (1997) (holding that a
plaintiff bringing a vote dilution claim under either the Fourteenth or
Fifteenth Amendments must ``establish that the State or political
subdivision acted with a discriminatory purpose'').
---------------------------------------------------------------------------
One such constitutionally problematic amendment occurred in
1982, following the Supreme Court's decision in Mobile v.
Bolden. In that case, the Court held that the original language
of section 2, like the Fourteenth and Fifteenth Amendments
themselves, reached only intentional discrimination. Without
benefit of the Court's subsequent analysis in City of Boerne
confirming that Congress's section 5 enforcement power did not
allow Congress to impose additional substantive requirements on
the states, Congress added language to section 2 that reached
disparate impact rather than merely intentional discrimination.
Section 2 of the Act as originally adopted provided that ``No
voting qualification or prerequisite to voting, or standard,
practice, or procedure shall be imposed or applied by any State
or political subdivision to deny or abridge the right of any
citizen of the United States to vote on account of race or
color.'' Pub. L. 89-110, 79 Stat. 437 (Aug. 6, 1965) (emphasis
added). The amended section provides that ``No voting
qualification or prerequisite to voting or standard, practice,
or procedure shall be imposed or applied by any State or
political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to
vote on account of race or color, or in contravention of the
guarantees set forth in section 4(f)(2), as provided in
subsection (b).'' Pub. L. 97-205, 96 Stat. 131 (June 29, 1982),
now codified at 52 U.S.C. 10301(a) (emphasis added). That
alteration in the language to ``in a manner which results in''
changed the statute from one prohibiting purposeful
discrimination to one prohibiting law that have merely a
disparate impact, which is to say, changed the statute from one
``enforcing'' the provisions of the Fifteenth amendment to one
adding to the substantive requirements of the Fifteenth
Amendment. Constitutionally problematic at the time, the
constitutional infirmity is even more clear after City of
Boerne.
Another amendment to the Act, adopted in 1975, suffers from
a similar infirmity. Purportedly relying on its Fourteenth
amendment section 5 authority, Congress prohibited states and
local governments from conducting elections only in English.
Pub. L. 94-73 (H.R. 6219), 89 Stat 400 (Aug. 6, 1975), now
codified at 52 U.S.C. 10303(f)(1). Specifically, section 203 of
the 1975 Amendments, now codified at 52 U.S.C. 10303(f)(2),
provides that: ``No voting qualification or prerequisite to
voting, or standard, practice, or procedure shall be imposed or
applied by any State or political subdivision to deny or
abridge the right of any citizen of the United States to vote
because he is a member of a language minority group.'' But
``language minority'' is not a suspect classification,\6\ so
under the Fourteenth's Equal Protection analysis,
classifications based on language are subject only to highly
deferential rational basis review.
---------------------------------------------------------------------------
\6\ ``National origin'' is a suspect classification, of course, but
almost by definition, the expansion of the Voting Rights Act to
``language minorities'' reaches a different class of people than those
who have migrated to the United States from different nations and
become naturalized citizens. A precondition of naturalization in most
cases is proficiency in English. 8 U.S.C. 1423.
---------------------------------------------------------------------------
That means that nearly all State laws that implicate
``language minorities'' would be upheld against an Equal
Protection challenge, as long as it might have been viewed as
furthering a conceivable legitimate government purpose. The
additional cost of printing ballots and other election
materials in multiple languages is alone sufficient to pass
rational basis review. As a result, the 1975 amendment was not
designed to ``enforce'' the provisions of the Fourteenth
amendment against States that were violating it, but rather to
impose additional burdens on the States.
The Supreme Court's holding in Nevada v. Hibbs, 538 U.S.
721 (2003), is instructive here. In that case, the Court upheld
the abrogation of State sovereign immunity in a remedial
statute addressing discrimination on the basis of sex (a
suspect class), but distinguished two cases \7\ in which the
Court had struck down an abrogation provision in remedial
statutes addressing discrimination on the basis of age or
disability (non-suspect classes). The difference between the
scrutiny applied to suspect classifications and non-suspect
qualifications was outcome determinative on the issue whether
Congress was enforcing the Fourteenth Amendment, or adding to
it.
---------------------------------------------------------------------------
\7\ Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356,
363 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73-78 (2000).
---------------------------------------------------------------------------
Instead of addressing and curing these existing
constitutional infirmities, H.R. 4 actually exacerbates them.
The proposed amendment to section 3(c) of the Voting Rights Act
adds in enforcement of federal statutes, not just the
Fourteenth Amendment, in a context where Congress's authority
is based solely on its Fourteenth amendment section 5
enforcement authority. Second, the proposed amendment to
section 203(f) expands the existing language dealing with
purposeful discrimination against language minorities, already
constitutionally suspect under City of Boerne and Hibbs, to
disparate impact discrimination, making it even more
constitutionally suspect.
Finally, the proposed change to section 4--the preclearance
trigger formula--fails the ``congruence and proportionality''
test the Supreme Court set out in City of Boerne. Instead of
targeting the extraordinary preclearance remedy afforded by
section 5 to those jurisdictions currently engaged in pervasive
and entrenched discrimination in voting, as was the case with
the original triggering formula upheld in 1966, the new formula
would extend the extraordinary preclearance remedy to any State
in which as few as 10 voting rights violations had occurred in
the prior quarter century--an extremely low threshold that is
far from the massive, pervasive history of voting rights
violations that led to the adoption of section 5 of the
original Voting Rights Act by Congress and upholding of that
provision by the Supreme Court in Katzenbach.
Mr. Cohen. Thank you, Mr. Eastman.
Our next witness is Mr. Arturo Vargas. He is chief
executive Officer of the National Association of Latino Elected
and Appointed Officials, a position he has held since 1994.
Prior to joining NALEO Educational Fund, he held various
positions at MALDEF, and before there, he was senior education
policy analyst at the National Council of La Raza in DC.
He is a nationally recognized expert in Latino demographic
trends, electoral participation, voting rights, the Census, and
redistricting. Master's degree in education, a Bachelor's
degree in history and Spanish from Stanford University.
Mr. Vargas, you are recognized for 5 minutes.
TESTIMONY OF ARTURO VARGASThank you very much, Mr. Chairman.
Chairman Nadler, Ranking Chairman Johnson, and Members of the
Judiciary Committee, thank you for the opportunity to testify
before you today.
I also serve as CEO of the National Association of Latino
Elected and Appointed Officials, a national Membership
organization of Latino public servants from all levels of
government--Democrats, Republicans, and Independents--and very
proud that one of our past national presidents is
Representative Sylvia Garcia.
We are acutely concerned that the Supreme Court's decision
in Shelby County v. Holder has left newly mobilized communities
of historically underrepresented voters of color vulnerable to
efforts to limit their voting participation. Latino voters and
candidates have an increasing presence in elections and elected
office everywhere in the United States.
NALEO Educational Fund's first compilation of the number of
Latinos in elected office revealed that they were present in 33
States. By 2016, the number of States with Latino elected
leaders had grown to more than 40, with Latinos being elected
in locations like urban Northern Virginia, rural corners of
Oklahoma and Iowa, and Western frontier towns, including
Wilder, Idaho, and Casper, Wyoming.
This rapid, visible growth of Latino communities and other
racial and ethnic populations, however, has fostered
perceptions of threat in long and extensive patterns, a
manipulation of election laws and response to minorities'
potential and growing political influence.
In hundreds of instances within the past 35 years,
jurisdictions throughout the country have employed the same
favored tactics repeatedly to suppress the political voice of a
growing mobilizing minority community. The changes that most
merit scrutiny based on their history of misuse include
transitions to at-large or multi-member districts,
redistricting plans devised in the wake of significant
demographic change, annexations and de-annexations, restrictive
identification requirements, wholly placed consolidations, and
withdrawals of language assistance.
I would like to point out three examples of how these
tactics have suppressed, have been designed to suppress Latino
voter participation. One of these has already been mentioned,
the Pasadena, Texas, case that was litigated by MALDEF.
I just would like to lift up the words of the Federal judge
in that case that the intent of the effort to move from single
member districts to at-large seats. The judge said that the
intent was to delay the day when Latinos would make up enough
of Pasadena's voters to have an equal opportunity to elect
Latino-preferred candidates to a majority of the city council
seats.
Population shifts and growth in Latino citizen voting age
and Spanish surname registered voter population made it clear
that this power shift was about to occur. In that trial, it was
revealed that, among other activity, advocates of the ballot
measure that would have converted these districts had
instructed a vendor to remove Latino names from the mailing
list for a document urging support for at-large elections.
In 2006 in Ohio, the State enacted legislation to require
election judges processing voter challenges to distinguish
between native, foreign, and naturalized citizens and singled
out naturalized Americans for extra scrutiny. Only those
challenged voters who were naturalized citizens will be
required to immediately produce proof of citizenship or to vote
a provisional ballot that would only be counted if the voter
displayed proof of citizenship to an election official within
10 days.
As of 2006, the African Americans, Latino, and Asian
Americans constituted just 14.3 percent of the State's total
electorate, but nearly 48 percent of the naturalized Ohioans
eligible to cast ballots. In light of its potential
significantly increased racial and ethnic profiling of Ohio
voters, a Federal court granted a permanent injunction
invalidating this law in October 2006.
In Pennsylvania, some high-profile negative responses to
the change of demographics included events in 2001 and 2002
where poll workers were overheard saying things such as, ``This
is the USA. Hispanics should not be allowed to have two last
names. They should learn to speak the language, and we should
make them take only one last name.'' And they were overheard
saying, ``They can't speak, they can't read, and they come to
vote.''
Poll workers also demanded of Latino voter's photo
identification not required by law and selectively required
only Latino voters to confirm their addresses. A Federal judge
granted a preliminary injunction against the county and
required it to negotiate a plan of remedial action with
community advocates.
We need to prevent these foreseeable harms of these types
of discriminatory election practices, and we urge Congress to
restore the Voting Rights Act to its full strength by enacting
the Voting Rights Advancement Act and its practice-based
preclearance formula.
Thank you for the opportunity to testify.
[The statement of Mr. Vargas follows:]
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Mr. Cohen. Thank you, Mr. Vargas.
Mr. John Yang is president, chief executive director of
Asian Americans Advancing Justice. He leads the organization's
efforts to fight for civil rights and empower Asian Americans
to create a more just America for all through public policy,
advocacy, education, and litigation.
He previously served in the Obama Administration as senior
adviser for trade and strategic initiatives at the U.S.
Department of Commerce. Before that, partner at a major law
firm in DC. He graduated with honors from G.W. Law School here
in DC and served on the George Washington Law Review and moot
court team.
Mr. Yang, welcome, and you are recognized for 5 minutes.
TESTIMONY OF JOHN YANG
Mr. Yang. Thank you, Chairman Cohen. And thank you, Chair
Nadler, and thank you to Ranking Member Johnson and the other
Members of Congress.
Let me first start by offering my condolences as well for
your loss of Representative Cummings. As a civil rights
organization that advances the civil and human rights of Asian
Americans and to promote a fair and just society for all,
Representative Cummings was certainly a beacon for us and a
hero for us on many of the issues that we worked on every day.
I really appreciate the opportunity to testify here today
about known practices coverage and the need to have practice-
based preclearance provisions in the Voting Rights Advancement
Act. In conjunction with the restored coverage formula, it is
critical for Asian Americans to have known practices coverage
and let me tell you a little bit about why this is important
for Asian Americans.
Asian Americans are the fastest-growing community in the
United States. Between the 2000 Decennial Census and the 2010
Decennial Census, we grew by 46 percent. Today, we represent
about 22.6 million Americans in the United States, which is a
little bit over 6 percent. We have grown in the voter rolls
tremendously in the last several election cycles.
Between 2012 and 2016, we have grown by over 1 million
voters. Now that growth is not monolithic. In fact, our fastest
areas of growth are in Nevada, Arizona, North Carolina, and
Georgia. So, it is not only in the major urban centers that
oftentimes people think about with respect to Asian Americans.
Notwithstanding this growth of Asian Americans and the fact
that our community has been here for centuries, whether as
workers for the Transcontinental Railroad, whether as the
Japanese-American soldiers that served in the most decorated
combat regiment during World War II, Asian Americans are often
still seen as outsiders, as foreigners, as aliens. We have been
denied rights entitled to other American citizens, including
the right to vote, the right to be in the United States.
It is only recently in the last 50 years or so that many of
these laws have changed. So, this is not only a problem with
the present, but it is also a problem of the past. It is also a
problem of the present.
Asian Americans are becoming more politically visible, and
our numbers are showing that. So, with that addition in
numbers, with that addition in the electorate, that growth also
creates an increase in racial appeals against Asian-American
candidates and efforts to erect barriers to the ballot for
Asian-American voters.
For example, in 2004, the primary elections in Bayou La
Batre, Alabama, supporters of a White incumbent facing a
Vietnamese-American opponent during the primaries challenged
the eligibility of only Asian-American voters at the polls and
falsely accusing them of not being American citizens or not
being city residents. The losing incumbent's rationale was,
``If they couldn't speak English good enough, then they
probably aren't American citizens.'' That year, Bayou La Batre
did elect its first Asian-American city council member.
One Texas lawmaker suggested that Asian-American voters
should adopt names that are easier for Americans to deal with
to avoid difficulties resulting from voter identification laws.
The statement made clear that the Asian-American community was
not welcome in American politics and notably cast Asian
Americans apart from other Americans.
So, as you have heard from my colleagues and other
witnesses today, these practice-based preclearance programs
focus on these practices that have been shown to be used
against the political voice of a growing emerging community of
voices.
The U.S. Census Bureau forecasts that while the number of
Asian Americans will grow between now and 2040, the proportion
of Asian Americans who are immigrants will decrease, with high
naturalization rates and an increase in U.S.-born Asian
Americans in the upcoming years. What that also means is that
voter participation rates among the Asian-American community
will continue to increase in rapid numbers, and indeed, its
political visibility will only increase as well.
It is precisely for these reasons that restoring and
strengthening the Voting Rights Act is a top priority for our
organization.
Thank you very much.
[The statement of Mr. Yang follows:]
STATEMENT OF JOHN C. YANG
Introduction
The Voting Rights Act of 1965 (VRA) has been vital to the
prevention of actual and threatened discrimination aimed at
Asian Americans in national and local elections, and for
increasing the community's access to the ballot. And while the
VRA continues to protect the voting rights of Asian Americans,
its efficacy has been curtailed by the harmful and short-
sighted decision by the Supreme Court in Shelby County v.
Holder, 570 U.S. 2 (2013) (Shelby County). This testimony will
detail the Asian American electorate and the discrimination
Asian Americans face in the Post-Shelby County world as well as
the need to restore and strengthen the VRA through modernizing
how to determine coverage for section 5 preclearance. While
Asian Americans are the nation's fastest growing racial group
and are quickly becoming a significant electoral force, the
community will not be able to maximize its political power
without the full protection of their voting rights.
Based on the perception of Asian Americans as
``outsiders,'' ``aliens,'' and ``perpetual foreigners, Asian
Americans were denied rights held by U.S. citizens, including
the ability to vote for most of the country's existence. Racist
laws barring Asian Americans from entering the country, staying
in the country or voting in the country, among other
exclusionary laws, were often driven by fear of the ``other''
and the potential threat to the political livelihood of those
in power. This is not only a problem of the past but one that
rears its ugly head in present day and one that is poised to
become even bigger due to the demographic shifts in America. As
the fastest growing racial or ethnic group for almost the last
two decades, Asian Americans are becoming more politically
visible and viable in new jurisdictions across the country,
including the South. With this growth is an increase in racial
appeals against Asian American candidates and efforts to erect
barriers to the ballot for Asian American voters. The practice-
based preclearance provision in the Voting Rights Advancement
Act, in conjunction with a restored coverage formula, is
critical to protecting the emerging political voice of Asian
American voters. In targeting those practices that have been
used through history to silence the political voice of minority
communities just when they begin to reach critical mass and
when they could begin to impact the outcome of elections,
practice-based preclearance will ensure that these practices
are reviewed in areas where Asian Americans and other
communities of color are reaching the point where they are
perceived as threats to ensure that the practice being proposed
is not discriminatory or harmful to the minority community.
Organizational Information
Asian Americans Advancing Justice--AAJC (Advancing
Justice--AAJC) is a member of Asian Americans Advancing Justice
(Advancing Justice), a national affiliation of five civil
rights nonprofit organizations that joined together in 2013 to
promote a fair and equitable society for all by working for
civil and human rights and empowering Asian Americans and
Pacific Islanders and other underserved communities. The
Advancing Justice affiliation is comprised of our nation's
oldest Asian American legal advocacy center located in San
Francisco (Advancing Justice--ALC), our nation's largest Asian
American advocacy service organization located in Los Angeles
(Advancing Justice--LA), the largest national Asian American
policy advocacy organization located in Washington DC
(Advancing Justice--AAJC), the leading Midwest Asian American
advocacy organization (Advancing Justice--Chicago), and the
Atlanta-based Asian American advocacy organization that serves
one of the largest and most rapidly growing Asian American
communities in the South (Advancing Justice--Atlanta).
Additionally, over 160 local organizations are involved in
Advancing Justice--AAJC's Community Partners Network, serving
communities in 33 states and the District of Columbia.
Advancing Justice--AAJC was a key player in collaboration with
other civil rights groups regarding the reauthorization of the
Voting Rights Act in 2006. In the 2012 election, Advancing
Justice conducted poll monitoring and voter protection efforts
across the country, including in California, Florida, Georgia,
Illinois, Texas, and Virginia. And since the 2012 election,
Advancing Justice--AAJC, in partnership with APIAVote, has run
a multilingual Asian election protection hotline, 888-API-VOTE
that provides in- language assistance to voters who have
questions about the election process or are experience problems
while trying to vote.
Asian American Electorate
Since the passage of the 1965 Immigration Act and the end
of race-based immigration quotas, Asian American communities in
the United States have grown dramatically. According to Census
2010, Asian Americans are the nation's fastest growing racial
group, with a growth rate of 46% between 2000 and 2010, growing
to over 17.3 million Asian Americans and making up 6 percent of
the total population.\1\ Today there are over 22.6 million
Asian Americans living in the United States.\2\
---------------------------------------------------------------------------
\1\ Asian Pac. Am. Legal Ctr. & Asian Am. Justice Ctr., A Community
of Contrasts: Asian Americans in the United States: 2011, 6, 16, http:/
/www.advancingjustice.org/pdf/Community_of_Contrast.pdf [hereinafter
Community of Contrasts].
\2\ U.S. Census Bureau, 2018 Population Estimates, Table PEPALL5N:
Annual Estimates of the Resident Population by Sex, Single Year of Age,
Race Alone or in Combination, and Hispanic Origin for the United
States: April 1, 2010 to July 1, 2018 (July 1, 2018).
---------------------------------------------------------------------------
Often viewed as a monolithic group, Asian Americans are
exceedingly diverse with different needs. The country's fastest
growing Asian American ethnic groups were South Asian, with the
Bangladeshi and Pakistani American populations doubling in size
between 2000 and 2010.\3\ Chinese Americans continue to be the
largest Asian American ethnic group, numbering nearly 3.8
million nationwide in 2010, followed in size by Filipino,
Indian, Vietnamese, and Korean Americans.\4\
---------------------------------------------------------------------------
\3\ Community of Contrasts at 9.
\4\ Id.
---------------------------------------------------------------------------
Asian Americans are also geographically diverse and are
growing fastest in non-traditional gateway communities. Asian
American populations in Nevada, Arizona, North Carolina, and
Georgia were the fastest growing nationwide between 2000 and
2010.\5\ California's Asian American population remained by far
the country's largest, with New York, Texas, New Jersey, and
Hawai'i following in size.\6\ Of the 19 states home to more
than 225,000 Asian Americans, six are in the South (Texas,
Florida, Virginia, Maryland, Georgia, and North Carolina) and
four are in the Midwest (Illinois, Michigan, Minnesota, and
Ohio).\7\ The South was the fastest growing region for the
Asian American population during the last decade.\8\
---------------------------------------------------------------------------
\5\ Id. at 8.
\6\ Id.
\7\ Id.
\8\ Asian Americans Advancing Justice, A Community of Contrasts:
Asian Americans, Native Hawaiians and Pacific Islander in the South:
2014, 6, https://www.advancingjustice-aajc.org/sites/default/files/
2016-09/2014_Community%20of%20Contrasts.pdf.
---------------------------------------------------------------------------
At the same time, we saw a parallel increase among Asian
American voters. The number of eligible Asian Americans grew by
over 2 million between 2012 and 2016, with almost an additional
1.14 million added to the electorate. This nearly doubles the
average increase of 620,000 new voters in the prior three
presidential cycles.\9\ 2018 showed a continuation of these
record increases, with an increase of over 1.6 million eligible
Asian Americans in 2018, and an even higher increase in Asian
Americans who actually registered and voted.\10\ This
represented a 24.4% increase in registered Asian Americans and
29.2% increase in Asian Americans who voted between the 2012
and 2016 presidential elections and a 21.3% increase and 43%
increase respectively between the 2014 and 218 midterm
elections (see table below).\11\ This growth will continue,
with Asian American and Pacific Islander (AAPI) voters making
up five percent of the national electorate by 2025 and 10
percent of the national electorate by 2044.\12\
---------------------------------------------------------------------------
\9\ See U.S. Census Bureau, Current Population Survey, Table 2.
Reported Voting and Registration, by Race, Hispanic Origin, Sex, and
Age, for the United States: November 2012, https://www2.census.gov/
programs-surveys/cps/tables/p20/568/table02_5.xls. See also U.S. Census
Bureau, Current Population Survey, Table 2. Reported Voting and
Registration, by Race, Hispanic Origin, Sex, and Age, for the United
States: November 2016, U.S. Census Bureau, https://www2.census.gov/
programs-surveys/cps/tables/p20/580/table02_5.xls.
\10\ Author's calculations of U.S. Census Bureau data available on
voter participation in presidential and midterm elections through its
Current Population Survey.
\11\ Id.
\12\ Center for American Progress and AAPI Data, ``State of Asian
Americans and Pacific Islanders'' (2014), http://ampr.gs/
AAPIreports2014.
---------------------------------------------------------------------------
Table: Asian American Electorate: 2012-2018
Presidential Elections
----------------------------------------------------------------------------------------------------------------
Year Asian CVAP Registered Asian Asians Voted
----------------------------------------------------------------------------------------------------------------
2016................................................... 10,283,000 115,785,000 15,043,000
2012................................................... 8,254,000 4,649,000 3,904,000
Growth in numbers...................................... 2,029,000 1,136,000 1,139,000
Growth by percent (%).................................. 24.6 24.4 29.2
----------------------------------------------------------------------------------------------------------------
Midterm Elections
----------------------------------------------------------------------------------------------------------------
Year Asian CVAP Registered Asian Asians Voted
----------------------------------------------------------------------------------------------------------------
2018................................................... 11,128,000 15,898,000 14,519,000
2014................................................... 19,504,000 4,642,000 2,575,000
Growth in numbers...................................... 1,624,000 1,256,000 1,944,000
Growth by percent (%).................................. 14.6 21.3 43.0
----------------------------------------------------------------------------------------------------------------
The growing Asian American electorate is also starting to
influence election outcomes. Of the 27 congressional districts
in 11 states where Asian American and Pacific Islander voters
could have maximum impact (as identified leading into the 2018
elections), 19 districts had an AAPI electorate that was larger
than the margin of victory.\13\ The 2018 elections also saw 18
additional races where the AAPI electorate was greater than the
margin of victory.\14\ This meant that ``[i]n total, AAPI
voters represented a significant portion of the electorate in
37 congressional races across 17 different states.'' \15\ As
our communities continue to grow and expand in new areas, they
will have even more relevance as it relates to electoral
outcomes.
---------------------------------------------------------------------------
\13\ These were districts where AAPIs represent at least 5 percent
of eligible voters, and where the Cook Political Report had declared
the race to be competitive. Sono Shah, AAPI Voters in 2018
Congressional Elections: Bigger Impact than Anticipated, AAPIData, Nov.
20, 2018, http://aapidata.com/blog/aapi-voters-post18-cd/.
\14\ Id.
\15\ Id.
---------------------------------------------------------------------------
Discrimination Against the Asian American Electorate
Discrimination against Asian American populations is rooted
in the perception of Asian Americans as ``outsiders,''
``aliens,'' and ``perpetual foreigners.'' \16\ Based on this
perception, Asian Americans were denied rights held by U.S.
citizens, including the ability to vote for most of the
country's existence. Until 1943, federal policy barred
immigrants of Asian descent from even becoming United States
citizens, and it was not until 1952 that racial criteria for
naturalization were removed altogether.\17\ Indeed, history is
replete with examples of anti-immigrant sentiment directed
towards Asian Americans, manifesting in legislative efforts to
prevent Asian immigrants from entering the United States and
becoming citizens.\18\
---------------------------------------------------------------------------
\16\ See, e.g., Claire Jean Kim, The Racial Triangulation of Asian
Americans, 27 Pol. & Soc'y 105, 108-16 (1999) (describing history of
whites perceiving Asian Americans as foreign and therefore politically
ostracizing them). Racial stereotyping of Asian Americans reinforces an
image of Asian Americans as ``different,'' ``foreign,'' and the
``enemy,'' leading to stigmatization of Asian Americans, heightened
racial tension, and increased discrimination. Spencer K. Turnbull,
Comment, Wen Ho Lee and the Consequences of Enduring Asian American
Stereotypes, 7 UCLA Asian Pac. Am. L.J. 72, 75 (2001); Terri Yuh-lin
Chen, Comment, Hate Violence as Border Patrol: An Asian American Theory
of Hate Violence, 7 Asian L.J. 69, 72, 74-75 (2000); Cynthia Kwei Yung
Lee, Beyond Black and White: Racializing Asian Americans in a Society
Obsessed with O.J., 6 Hastings Women's L.J. 165, 181 (1995); Note,
Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926, 1930-
32 (1993); see also Thierry Devos & Mahzarin R. Banaji, American =
White?, 88 J. Personality & Soc. Psychol. 447 (2005) (documenting
empirical evidence of implicit beliefs that Asian Americans are not
``American'').
\17\ See Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58, 58-61
(prohibiting immigration of Chinese laborers; repealed 1943);
Immigration Act of 1917, ch. 29, 39 Stat. 874, 874-98, and Immigration
Act of 1924, ch. 190, 43 Stat. 153 (banning immigration from almost all
countries in the Asia-Pacific region; repealed 1952); Leti Volpp,
Divesting Citizenship: On Asian American History and the Loss of
Citizenship Through Marriage, 53 UCLA L. Rev. 405, 415 (2005).
\18\ See, e.g., Philippines Independence Act of 1934, ch. 84, 48
Stat. 456, 462 (imposing annual quota of fifty Filipino immigrants;
amended 1946); Immigration Act of 1924, ch. 190, 43 Stat. 153 (denying
entry to virtually all Asians; repealed 1952); Scott Act of 1888, ch.
1064, 1, 25 Stat. 504, 504 (rendering 20,000 Chinese re-entry
certificates null and void); Naturalization Act of 1790, ch. 3, 1 Stat.
103 (providing one of the first laws to limit naturalization to aliens
who were ``free White persons'' and thus, in effect, excluding African-
Americans, and later, Asian Americans; repealed 1795).
---------------------------------------------------------------------------
Legally identified as aliens ``ineligible for
citizenship,'' Asian immigrants were prohibited from voting and
owning land.\19\ Both immigrant and native-born Asian Americans
also experienced pervasive discrimination in everyday life.\20\
Perhaps the most egregious example of discrimination was the
incarceration of 120,000 Americans of Japanese ancestry during
World War II without due process.\21\ White immigrant groups
whose home countries were also at war with the United
---------------------------------------------------------------------------
\19\ See, Ozawa v. United States, 260 U.S. 178, 198 (1922); see,
e.g., Cal. Const. art. II, Sec. 1 (1879) (``no native of China . . .
shall ever exercise the privileges of an elector in this State'');
Oyama v. California, 332 U.S. 633, 662 (1948) (Murphy, J., concurring)
(noting that California's Alien Land Law ``was designed to effectuate a
purely racial discrimination, to prohibit a Japanese alien from owning
or using agricultural land solely because he is a Japanese alien'').
\20\ People v. Brady, 40 Cal. 198, 207 (1870) (upholding law
providing that ``No Indian . . . or Mongolian or Chinese, shall be
permitted to give evidence in favor of, or against, any White man''
against Fourteenth amendment challenge); see also Gong Lum v. Rice, 275
U.S. 78 (1927) (upholding segregation of Asian schoolchildren).
\21\ See, Exec. Order 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942)
(authorizing the internment); see also Korematsu v. United States, 323
U.S. 214 (1944) (upholding the internment under strict scrutiny
review).
---------------------------------------------------------------------------
States during that time were not similarly detained and no
assumptions were similarly made regarding their loyalty,
trustworthiness and character.\22\
---------------------------------------------------------------------------
\22\ See Korematsu, 323 U.S. at 233, 240-42 (Murphy, J.,
dissenting) (noting that similarly situated American citizens of German
and Italian ancestry were not subjected to the ``ugly abyss of racism''
of forced detention based on racist assumptions that they were
disloyal, ``subversive,'' and of ``an enemy race,'' as Japanese
Americans were); Natsu Taylor Saito, Internments, Then and Now:
Constitutional Accountability in Post-9/11 America, 72 Duke F. for L. &
Soc. Change 71, 75 (2009) (noting ``the presumption made by the
military and sanctioned by the Supreme Court that Japanese Americans,
unlike German or Italian Americans, could be presumed disloyal by
virtue of their national origin'').
---------------------------------------------------------------------------
Racist sentiment towards Asian Americans is not a passing
fad but a continuing reality, fueled in recent years by a
growing xenophobic and racist backlash against immigrants.\23\
Numerous hate crimes have been directed against Asian Americans
either because of their minority group status or because they
are perceived as unwanted immigrants.\24\ Between 2104 and
2015, crimes targeting Asian-Americans tripled in Los Angeles
county.\25\ Nationally, FBI data anti-Asian bias crimes
increased by around 20 percent, from 137 in 2016 to 165 in
2017.\26\
---------------------------------------------------------------------------
\23\ See U.S. Dep't of Justice, Confronting Discrimination in the
Post-9/11 Era: Challenges and Opportunities 10 Years Later, at 4 (Oct.
19, 2011) (noting that the FBI reported a 1,600 percent increase in
anti-Muslim hate crime incidents in 2001), http://www.justice.gov/crt/
publications/post911/post911summit_report_2012-04.pdf.
\24\ See, e.g., Id., at 7-9 (discussing numerous incidents of post-
9/11 hate crimes prosecuted by the DOJ).
\25\ Jenny J. Chen, First-Ever Tracker Of Hate Crimes Against
Asian-Americans Launched, NPR CodeSwitch, Feb. 17, 2017, https://
www.npr.org/sections/codeswitch/2017/02/17/515824196/first-ever-
tracker-of-hate-crimes-against-asian-americans-launched (referencing a
Los Angeles County Commission on Human Relations report on hate
crimes).
\26\ This number likely under-represents the number of hate crimes
and incidents due to underreporting of existing hate crimes and
incidents. Chris Fuchs, Hate Crimes Spiked in 2017. Community Advocates
Think There's Even More, NBC News, Nov. 21, 2018, https://www.nbcnews
.com/news/asian-america/hate-crimes-spiked-2017-community-advocates-
think-there-s-even-n938551.
---------------------------------------------------------------------------
Discriminatory attitudes towards Asian Americans also
manifest themselves in the political process as well. For
example, during a 2009 Texas House of Representatives hearing,
legislator Betty Brown suggested that Asian American voters
adopt names that are ``easier for Americans to deal with'' in
order to avoid difficulties resulting from voter identification
laws.\27\ This statement made clear that the Asian American
community was unwelcome in American politics and notably cast
Asian Americans apart from other ``Americans.'' At a campaign
rally during the 2004 U.S. Senate race in Virginia, incumbent
George Allen repeatedly called a South Asian volunteer for his
opponent a ``macaca''--a racial epithet used to describe Arabs
or North Africans that literally means ``monkey''--and
simultaneously talked about the ``war on terror.'' \28\
---------------------------------------------------------------------------
\27\ G. Ratcliffe, Texas Lawmaker Suggests Asians Adopt Easier
Names, Houston Chron., Apr. 8, 2009, http://www.chron.com/news/houston-
texas/article/Texas-lawmaker-suggests-Asians-adopt-easier-names-
1550512.php.
\28\ See Tim Craig & Michael D. Shear, Allen Quip Provokes Outrage,
Apology; Name Insults Webb Volunteer, Wash. Post, Aug. 15, 2006, http:/
/www.washingtonpost.com/wp-dyn/content/article/2006/08/14/
AR2006081400589.html.
---------------------------------------------------------------------------
We have also seen efforts to undermine the community's
political voice, such as what happened during the 2004 primary
elections in Bayou La Batre, Alabama. Supporters of a White
incumbent, facing a Vietnamese American opponent during the
primaries, challenged the eligibility of only Asian Americans
at the polls by falsely accusing them of not being U.S.
citizens or city residents, or of having felony
convictions.\29\ The losing incumbent's rationale was ``if they
couldn't speak good English, they possibly weren't American
citizens.'' \30\ DOJ's investigation found the challenges
racially motivated and prohibited interference from the
challengers during the general election.\31\ That year, Bayou
La Batre elected its first Asian American to the City
Council.\32\ Similarly, in Harris County (Houston), Texas,
during the 2004 Texas House of Representatives race,
accusations of non-citizen voting were implied in the request
for an investigation by the losing incumbent into the election
resulting in the victory of Hubert Vo, a Vietnamese
American.\33\ While both recounts affirmed Vo's victory, making
him the first Vietnamese American State representative in Texas
history, his campaign voiced concern that such an investigation
could intimidate Asian Americans from political participation
altogether in future elections.\34\
---------------------------------------------------------------------------
\29\ See H.R. Rep. No. 109-478, at 45 (2006); Challenged Asian
Ballots in Council Race Stir Discrimination Concerns, Associated Press,
Aug. 30, 2004, at 2B.
\30\ See DeWayne Wickham, Why Renew Voting Rights Act? Ala. Town
Provides Answer, USA Today, Feb. 22, 2006, http://
usatoday30.usatoday.com/news/opinion/editorials/2006-02-22-forum-
voting-act_x.htm (quoting defeated City Council incumbent Jackie
Ladnier).
\31\ See Id.
\32\ See Press Release, U.S. Dep't of Justice, Justice Department
to Monitor Elections in New York, Washington, and Alabama (Sept. 13,
2004), http://www.justice.gov/opa/pr/2004/September/04_crt_615.htm
(``In Bayou La Batre, Alabama, the Department will monitor the
treatment of Vietnamese-American voters.'').
\33\ See Decided Victory: Heflin's Camp Swelled Store of
Disinformation, Houston Chronicle, Feb. 9, 2005, http://www.chron.com/
opinion/editorials/article/Decided-victory-Heflin-s-camp-swelled-store-
of-1640120.php.
\34\ See Id.; Thao L. Ha, The Vietnamese Texans, in Asian Texans:
Our Histories and Our Lives, 263, 284-85 (Irwin A. Tang ed., 2007).
---------------------------------------------------------------------------
Need for Restoring and Strengthening Section 5 To Protect Asian
American Voters
Section 5 of the Voting Rights Act prohibits the
implementation by covered jurisdictions of ``any voting
qualification or prerequisite to voting, or standard, practice,
or procedure with respect to voting'' without first receiving
approval, or ``preclearance,'' from DOJ or the U.S. District
Court for the District of Columbia.\35\ Section 5 applies to
all voting changes in covered jurisdictions, including
redistricting, annexation of other territories or political
subdivisions, and polling place changes. Voting changes with a
discriminatory purpose or with a retrogressive effect (i.e.,
where the change puts minorities in a worse position than if
the change did not occur) will not be pre-cleared and the
submitting jurisdiction would be prohibited from adopting the
voting change.
---------------------------------------------------------------------------
\35\ 52 U.S.C. 1A10304. The following States are covered by section
5: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South
Carolina, Texas, and Virginia. Only certain counties or towns in the
following states are covered under section 5: California, Florida,
Michigan, New York, North Carolina, and South Dakota. It must be noted,
however, that even if only a part of a jurisdiction is covered by
section 5, congressional and State legislative redistricting plans for
the entire State must be submitted for review. For a detailed listing
of counties and towns covered, please visit http://www.justice.gov/crt/
about/vot/sec_5/covered.php.
---------------------------------------------------------------------------
In enacting the VRA in 1965, Congress recognized that
previous efforts to litigate discriminatory voting practices
were limited in their effectiveness as particularly
recalcitrant jurisdictions would simply replace the struck-down
discriminatory practice with another, newer discriminatory
practice. Responding to the persistent nature of discriminatory
schemes in voting, Congress developed a mechanism in the VRA to
provide a ``check'' on whether proposed voting changes by
particularly bad actors would be problematic for minority
voters--section 5 preclearance. This infrastructure
(preclearance) has been critical to (a) prevent discriminatory
voting practices from going into effect, (b) provide notice to
the community about potential discriminatory changes and (c)
provide a cost-effective and swift mechanism to determine
whether a proposed voting change should be approved. As a
result, voting became more accessible to all communities.
Because of the changing demographics of this country,
section 5 is needed more than ever. Racial tensions often occur
when groups of minorities grow rapidly in an area and where
there is an increase in political relevance of that minority
community, such as Asian American communities across the
country.\36\ This can lead to fear of and resentment toward
Asian Americans by those in power, which can then result in
hampering the Asian American community's exercising of their
right to vote free of harassment and discrimination.
---------------------------------------------------------------------------
\36\ See generally Toni Monkovic, Why Donald Trump Has Done Worse
in Mostly White States, New York Times, Mar. 8, 2016, http://
www.nytimes.com/2016/03/09/upshot/why-donald-trump-has-done-worse-in-
mostly-white-states.html?_r=0 (``Political scientists have written
about the importance of tipping points in ethnic strife or resentment
around the globe. It occurs when one group grows big enough to
potentially alter the power hierarchy.''); see also Audrey Singer, Jill
H. Wilson & Brooke DeRenzis, Metropolitan Policy Program at Brookings,
Immigrants, Politics, and Local Response in Suburban Washington (2009),
https://www.brookings.edu/wp-content/uploads/2016/06/
0225_immigration_singer.pdf (noting that longtime residents of Prince
William County, Virginia, perceived that their quality of life was
diminishing as Latinos and other minorities settled in their
neighborhoods); James Angelos, The Great Divide, New York Times, Feb.
20, 2009, http://www.nytimes.com/2009/02/22/nyregion/thecity/
22froz.html? _r=3&pagewanted=1 (describing ethnic tensions in
Bellerose, Queens, New York, where the South Asian population is
growing); Ramona E. Romero & Cristo<1bal Joshua Alex, Immigrants
Becoming Targets of Attacks, National Campaign to Restore Civil Rights,
Jan. 26, 2009, http://rollback.typepad.com/campaign/2009/01/it-has-
happened-again-in-early-december-less-than-a-month-after-seven-
teenagers-brutally-attacked-and-killed-marcelo-luc.html (describing the
rise in anti-Latino violence where the immigration debate is heated in
New York, Pennsylvania, Texas, and Virginia); Sara Lin, An Ethnic Shift
Is in Store, Los Angeles Times, Apr. 12, 2007), http://
articles.latimes.com/2007/apr/12/local/me-chinohills12 (describing
protest of Chino Hills residents to Asian market opening in their
community where 39% of residents were Asian).
---------------------------------------------------------------------------
This has been seen throughout our country's history.
Concerns about the political impact of new immigrants to
American ran rampant and drove many policy decisions around the
contours of suffrage.\37\ However, ``[i]ntense as apprehensions
about poor European immigrants may have been, they paled in
comparison to American attitudes toward the Chinese and other
east Asians: By the final quarter of the nineteenth century,
most Americans--and especially those on the West Coast--wanted
not only to keep the Chinese from voting but to halt Chinese
immigration and even deport those who were already here.'' \38\
But the federal bar on Chinese (and eventually all Asian)
immigration was not enough for some in the states. For example,
in California in the late 1870s, an anti-Chinese political
party promoted a ``a slew of measures designed to remove the
Chinese from the state's economic and political life. One
proposal even called for disfranchising anyone who hired a
Chinese worker.'' \39\ Their efforts resulted in ``the
California Constitutional Convention of 1878-1879 . . .
pass[ing] almost without objection a series of anti-Chinese
articles. One delegate claimed that without such laws,
California would become `the mercenary Mecca of the scum of
Asia--a loathsome Chinese province.' Although many of these
measures were thrown out by the courts, the suffrage provision
of the 1879 constitution remained in force until 1926. It
specified that ``no native of China'' (the wording was aimed at
circumventing the Fifteenth Amendment's ban on racial barriers)
`shall ever exercise the privileges of an elector in this
State.' '' \40\
---------------------------------------------------------------------------
\37\ Alexander Keyssar, Right to vote: The contested history of
democracy in the United States (2008) (``Right to Vote'').
\38\ Id. at 113.
\39\ Id. at 114.
\40\ Id. Similar provisions appeared in the constitutions of Oregon
and Idaho.
---------------------------------------------------------------------------
Today, the Asian American population is growing rapidly in
previously covered section 5 jurisdictions. Georgia and North
Carolina are among the three fastest-growing Asian American
populations during the last decade.\41\ Five of the states
covered in their entirety and another four states covered
partially by section 5 are among the top 20 states with the
fastest-growing Asian American populations. The remaining
covered states all experienced a growth in their Asian American
populations.\42\ As Asian American communities continue to grow
and move to nontraditional cities and areas of the country, we
have seen an increase in racial appeals and racial
discrimination in elections. The aforementioned ``perpetual
foreigner'' stereotype is embedded in the political process.
Insidious manifestations of the stereotype can be found in the
verbal attacks levied against Asian American candidates and
voters, negative political ads that use the misconception of
``Asia'' as an enemy to the U.S., and manipulation of images of
candidates to trigger negative stereotypes of minority
candidates. As reported in previous testimony by Asian
Americans Advancing Justice--AAJC, the following excerpt
provides some incidents occurring in the South against Asian
American candidates and voters:
---------------------------------------------------------------------------
\41\ Terry M. Ao, Alyson Hong, & Sophia Lai, Census 2000: Asian
Population Demographic Data, 10 (2002), http://
www.advancingequality.org/files/census_handbook.pdf.
\42\ Id.
In November 2005, a candidate of South Asian descent, Tom
Abraham, running for City Council Seat 4 in Orange City,
Florida was mocked by his opponent for his accent at a
community forum. His opponent, Dan Sherrill, claimed that he
could not understand him and was quoted by the Orlando Sentinel
as saying, ``I'm usually not prejudiced, but I don't want an
Indian in my government. As far as I know, he could be a nice
guy, but these kind of people get embedded over here. You
remember 9/11.'' The St. Petersburg Times further reported that
Sherrill said that voters wouldn't support Abraham if they saw
---------------------------------------------------------------------------
and heard him . . . .
. . .
In May 2010, Americans for Job Security ran a television ad set
in Bangalore, India with traditional South Asian music playing
in the background. The ad utilized dark-skinned and accented
actors dressed in traditional South Asian dress facetiously
thanking U.S. Senate candidate and Arkansas Lieutenant Governor
Bill Halter for outsourcing Arkansan jobs abroad . . . .
In June 2010, State Senator Jake Knotts described South
Carolina State Representative Nikki Haley, an Indian American
who was running in the state's gubernatorial race, as ``[a]
f__ing raghead . . . [w]e got a raghead in Washington; we don't
need one in South Carolina . . . [s]he's a raghead that's
ashamed of her religion trying to hide it behind being
Methodist for political reasons.'' Knotts further stated he
believed Haley had been set up by a network of Sikhs and was
programmed to run for governor of South Carolina by outside
influences in foreign countries. . . .
. . .
In September 2010, State Senator Nancy King targeted an
opponent in the Maryland primary race for State Senate,
Maryland State Delegate Saqib Ali, by sending mailers in which
Ali's photograph was altered with darker skin tone and hair.
Despite the King campaign's denial, the difference was clear
when comparing the mailer to the original photo (that was also
included in the mailer).\43\
---------------------------------------------------------------------------
\43\ Testimony for the Senate Judicial Hearing on the Voting Rights
amendment Act of 2014, S.1945, (June 25, 2014) (statement of Asian
Americans Advancing Justice--AAJC) (footnotes omitted), http://
vrafortoday.org/wp-content/uploads/2014/07/AAJC-Testimony-for-6-25-14-
Senate-Judiciary-Hearing-on-VRAA.pdf.
We have continued to see these racist attitudes and
stereotypes permeate our political process over the last
---------------------------------------------------------------------------
several election cycles:
During the 2017 local and statewide elections in
New Jersey, Asian American candidates were targets of racist
propaganda. First, in Edison, New Jersey, two school board
candidates, Jerry Shi and Falguni Patel were targeted with
anti-immigrant mailers that said ``Make Edison Great Again''
and calling for their deportation.\44\ The mailers said that
"[t]he Chinese and Indians are taking over our town,'' and
``Chinese school! Indian school! Cricket fields! Enough is
enough.'' \45\ Next, in Hoboken, New Jersey, Sikh mayoral
candidate, Ravi Bhalla was targeted with racist flyers placed
on car windshields in Hoboken with the message ``Don't let
TERRORISM take over our town!'' above his picture.\46\
Ultimately, despite these xenophobic attacks, all three Asian
Americans won their elections.
---------------------------------------------------------------------------
\44\ Amy B. Wang, `DEPORT': Racist Campaign Mailers Target Asian
School Board Candidates, Washington Post, Nov. 2, 2017, https://
www.washingtonpost.com/news/education/wp/2017/11/02/deport-racist-
campaign-mailers-target-asian-school-board-candidates/?utm_term=.c84
f7d1ab7a2.
\45\ Id.
\46\ Alyana Alfaro, Racist Campaign Literature Surfaces in New
Jersey, Observer, Nov. 6, 2017, http://observer.com/2017/11/racist-
campaign-literature-surfaces-in-new-jersey/.
---------------------------------------------------------------------------
At a Congressional hearing on March 15, 2018,
Japanese-American Congresswoman Hanabusa questioned Interior
Secretary Ryan Zinke about why the Trump Administration
``cancelled funding for a program to preserve the history of
internment camps that held people of Japanese ancestry--most of
them Japanese-Americans--during World War II.'' \47\ As part of
her questioning, Representative Hanabusa began by detailing her
own family's experiences during this atrocious time in American
history. In response, Secretary Zinke, began his response with
an insensitive ``Oh, Konnichiwa.'' \48\ ``Konnichiwa is a
Japanese expression that roughly translates to `good
afternoon.' This prompted Hanabusa to shoot back that it was
still morning, which meant `ohayo gozaimasu' would actually be
the more appropriate greeting.'' \49\ Secretary Zinke's remarks
demonstrate the ongoing ``perpetual foreigner'' problem faced
by Asian Americans; although she is a fourth-generation
American-born member of Congress, Secretary Zinke somehow
thought it appropriate to greet the Congresswoman in Japanese.
---------------------------------------------------------------------------
\47\ Interior Secretary Ryan Zinke criticized for internment camp
remarks, CBS News, March 16, 2018, https://www.cbsnews.com/news/
interior-secretary-ryan-zinke-criticized-for-internment-camp-remarks-
colleen-hanabusa/.
\48\ Id.
\49\ Id.
The community's population growth will also likely lead to
increased efforts to undermine the political voice of Asian
Americans similar to the recent and ongoing efforts to restrict
access to the polls.\50\ Asian Americans are potential swing
voters \51\ and are becoming numerous enough to make the
difference in certain races, and they will be facing new, more
aggressive tactics to minimize their political impact.
---------------------------------------------------------------------------
\50\ See Ari Berman, Texas Voter ID Law Discriminates Against
Women, Students and Minorities, The Nation, Oct. 23, 2013, http://
www.thenation.com/blog/176792/texas-voter-id-law-discriminates-against-
women-students-and-minorities# (noting that Texas' voter ID law likely
would have an extremely disproportionate impact on Hispanic voters);
Emily Deruy, Could New Voter ID Laws Really Disenfranchise 10 Million
Latinos?, Fusion, Sep. 24, 2012, http://fusion.net/justice/story/voter-
id-laws-hinder-10-million-eligible-latinos-11471 (arguing that recent
proof of citizenship and photo identification requirements and voter
roll purges had the potential to disenfranchise millions of Latino
voters); and Christopher Ingraham, Study Finds Strong Evidence for
Discriminatory Intent Behind Voter ID Laws, Washington Post, Jun. 3,
2014, http://www.washingtonpost.com/blogs/wonkblog/wp/2014/06/03/study-
finds-strong-evidence-for-discriminatory-intent-behind-voter-id-laws/
(finding that State legislators who had supported voter ID laws were
less likely to respond to emails sent from voters with Hispanic-
sounding names).
\51\ See Caitlin Yoshiko Kandil, Asian Americans' numbers and
political influence are growing, Los Angeles Times, Sept. 22, 2016,
http://www.latimes.com/socal/daily-pilot/entertainment/tn-wknd-et-0925-
asian-american-voting-20160903-story.html; Seung Min Kim, The one big
Senate race that Asian-Americans could decide, Politico, Aug. 25, 2016,
https://www.politico.com/story/2016/08/senate-nevada-asian-american-
voters-227366.
---------------------------------------------------------------------------
Unfortunately, the U.S. Supreme Court weakened the VRA in
Shelby County. The Court ruled 5-4 that the formula used to
determine section 5 jurisdictions was based on ``decades-old
data and eradicated practices,'' despite the extensive record
confirming that these areas continued to commit acts of voting
discrimination.\52\ Thus, while the Court did not invalidate
section 5, it rendered it useless by invalidating the formula
that determined what jurisdictions were required to submit
voting changes for preclearance. But at the same time, the
Court recognized that ``no one doubts'' that voting
discrimination still exists and invited Congress to pass
legislation with a modernized formula.\53\
---------------------------------------------------------------------------
\52\ Shelby Cnty. v. Holder, 133 S.Ct. 2612, 2627 (2013).
\53\ Id. at 2619.
---------------------------------------------------------------------------
Since the Court invalidated the key enforcement provision
of the Act in 2013, voting discrimination has become harder to
stop. In states, counties, and cities across the country,
legislators pushed through laws designed to make it harder for
minorities to vote. For example, in 2013, mere months after the
Shelby County decision, North Carolina--where the Asian
American population increased by 85 percent between 2000 and
2010--passed H.B. 589. The legislation restricted voting
through a ban on paid voter registration drives; eliminated
same-day voter registration; allowed voters to be challenged by
any registered voter of the county in which they vote, rather
than just their precinct; reduced early voting by a week;
authorized vigilante poll observers with expanded range of
interference; expanded the scope of who may examine
registration records and challenge voters; repealed out-of-
precinct voting; eliminated the flexibility in opening early
voting sites at different hours within a county; and curtailed
satellite polling sites for the elderly or voters with
disabilities. In striking down the law, the Fourth Circuit
found that the legislature purposefully and selectively decided
to attack specific election laws that benefit African American
voters in order to impede their political participation. In
fact, the court noted that ``the new provisions target African
Americans with almost surgical precision'' and ``impose cures
for problems that did not exist.'' \54\ This litigation would
not be necessary if section 5 were still in full force. Indeed,
one State senator noted that it was because of the Court's
decision in Shelby County that the legislature was free to ``go
with the full bill,'' indicating his full awareness that they
would never have received approval for the bill under the full
protections of the VRA. In 2016, 14 states, including Alabama,
Arizona, Mississippi, South Carolina, Texas, and Virginia,
which were previously covered in full or in part by section 5,
had new voting restrictions that include strict photo ID
requirements and registration restrictions in place for the
first time in a presidential election.\55\
---------------------------------------------------------------------------
\54\ Robert Barnes and Ann E. Marimow, Appeals Court Strikes Down
North Carolina's Voter-ID Law, Washington Post, July 29, 2016, https://
www.washingtonpost.com/local/public-safety/appeals-court-strikes-down-
north-carolinas-voter-id-law/2016/07/29/810b5844-4f72-11e6-aa14-
e0c1087f7583_story.html?utm_term=.8e86e5a8273c. See also Complaint,
North Carolina State Conference of the NAACP et al. v. McCrory et al.,
No. 1:13-cv-658 (M.D.N.C. Aug. 12, 2013)., Complaint, League of Women
Voters et al. v. North Carolina et al., No. 1:13-cv-00660 (M.D.N.C.
Aug. 12, 2013)., and, Complaint, U.S. v. The State of North Carolina,
No. 13-cv-861 (M.D.N.C. Sept. 30, 2013).
\55\ Brennan Center for Justice, Webpage on New Voting Restrictions
in America, https://www.brennancenter.org/sites/default/files/analysis/
New_Voting_Restrictions.pdf.
---------------------------------------------------------------------------
As noted in our forthcoming joint report with the Mexican
American Legal Defense and Education Fund (MALDEF) and the
National Association of Latino Elected and Appointed Officials
(NALEO), a legislative fix to the Shelby County decision must
include both a substitute coverage formula and a mechanism that
also addresses the needs of emerging communities of color that
face discrimination aimed to silence their political influence
by those currently in power. A history-based coverage formula
alone is not enough to protect the voting rights of emerging
minority populations. The practice-based preclearance mechanism
in HR 4 focuses on suspect practices that have historically
been utilized to silence the political voice of communities of
color and would require preclearance review (performed by
either the Department of Justice or the federal District Court
in Washington, DC) prior to implementation of the known
practice.\56\ The coverage for Practice-Based Preclearance as
contemplated by HR 4 would apply to diverse jurisdictions
throughout the country, generally defined as those states and
political subdivisions in which two or more racial, ethnic, or
language minority groups each represent 20 percent or more of
the citizen voting-age population or in which a single language
minority group represents 20 percent or more of the voting-age
population on Indian lands located in whole or in part in the
political subdivision. These jurisdictions would only be
required to seek preclearance if they are making one of the
covered changes and not all voting changes. This is important
for Asian American communities that are growing exponentially
in new cities and counties, where they are beginning to emerge
as a potential political power. Preclearance has been proven to
protect the voting rights of Asian Americans and is needed
today.
---------------------------------------------------------------------------
\56\ See the forthcoming joint report from Advancing Justice--AAJC,
MALDEF and NALEO on practice-based preclearance for a deeper analysis
of the specific practices.
---------------------------------------------------------------------------
Section 5 has helped address discriminatory redistricting
plans that continue to be drafted in states with large Asian
American communities. As shown in Perry v. Perez, 132 S. Ct.
934 (2012), the Texas Legislature drafted a redistricting plan,
Plan H283, that would have had significant negative effects on
the ability of minorities, and Asian Americans in particular,
to exercise their right to vote. Since 2004, the Asian American
community in Texas State House District 149 has voted as a
bloc. With Hispanic and African American voters to elect Hubert
Vo, a Vietnamese American, as their State representative.
District 149 has a combined minority citizen voting-age
population of 62 percent.\57\ Texas is home to the third-
largest Asian American community in the United States, growing
72 percent between 2000 and 2010.\58\ In 2011, the Texas
Legislature sought to eliminate Vo's State House seat and
redistribute the coalition of minority voters to the
surrounding three districts. Plan H283, if implemented, would
have redistributed the Asian American population in certain
State House voting districts, including District 149 (Vo's
district), to districts with larger non-minority
populations.\59\ Plan H283 would have thus abridged the Asian
American community's right to vote in Texas by diluting the
large Asian American populations across the state.\60\
---------------------------------------------------------------------------
\57\ See United States and Defendant-Interveners Identification of
Issues 6, Texas v. United States, C.A. No. 11-1303 (D.D.C.), Sept. 29,
2011, Dkt. No. 53.
\58\ See Community of Contrasts, Appendix B.
\59\ See Martin Test. at 350:25-352:25. District 149 would have
been relocated to a county on the other side of the State, where there
are few minority voters. See http://gis1.tlc.state.tx.us/download/
House/PLANH283.pdf.
\60\ In fact, it was only due to section 5 that the Texas
Legislature was not able to dilute the Asian American community's right
to vote. Advancing Justice--AAJC's partner, the Texas Asian-American
Redistricting Initiative (TAARI), working with a coalition of Asian
American and other civil rights organizations, participated in the
Texas redistricting process and advocated on the District 149 issue.
Despite the community's best efforts, the Texas Legislature pushed
through this problematic redistricting plan. However, because of
section 5's preclearance procedures, Asian Americans and other
minorities had an avenue to object to the Texas Legislature's
retrogressive plan, and Plan H283 was ultimately rejected as not
complying with section 5. See Texas v. United States, C.A. No. 11-1303
(D.D.C.), Sept. 19, 2011, Dkt. No. 45, para. 3. Indeed, AALDEF
submitted an amicus brief to the D.C. District Court illustrating how
the Texas plan retrogressed the ability of Asian Americans to elect a
candidate of their choice and violated section 5. However, the U.S.
Supreme Court vacated the District Court of the District of Columbia's
ruling suspending Texas' redistricting map as moot in light of their
decision in Shelby.
---------------------------------------------------------------------------
In addition to discrimination in redistricting, Asian
American voters have also endured voting system changes that
impair their ability to elect candidates of choice. For
example, before 2001 in New York City, the only electoral
success for Asian Americans was on local community school
boards. In each election--in 1993, 1996, and 1999--Asian
American candidates ran for the school board and won.\61\ These
victories were due, in part, to the alternative voting system
known as ``single transferable voting'' or ``preference
voting.'' Instead of selecting one representative from single-
member districts, voters ranked candidates in order of
preference, from ``1'' to ``9.'' \62\ In 1998, New York
attempted to switch from a ``preference voting'' system, where
voters ranked their choices, to a ``limited voting'' system,
where voters could select only four candidates for the nine-
member board, and the nine candidates with the highest number
of votes were elected.\63\ This change would have put Asian
American voters in a worse position to elect candidates of
their choice.\64\
---------------------------------------------------------------------------
\61\ See Lynette Holloway, This Just In: May 18 School Board
Election Results, New York Times, June 13, 1999, http://
www.nytimes.com/1999/06/13/nyregion/making-it-work-this-just-in-may-18-
school-board-election-results.html; Jacques Steinberg, School Board
Election Results, New York Times, June 23, 1996, http://
www.nytimes.com/1996/06/23/nyregion/neighborhood-report-new-york-up-
close-school-board-election-results.html; Sam Dillon, Ethnic Shifts Are
Revealed in Voting for Schools, New York Times, May 20, 1993, http://
www.nytimes.com/1993/05/20/nyregion/ethnic-shifts-are-revealed-in-
voting-for-schools.html.
\62\ See Thomas T. Mackie & Richard Rose, The International Almanac
of Electoral History, 508 (3d ed. 1991).
\63\ See 1998 N. Y. Sess. Laws 569-70 (McKinney).
\64\ See Letter from M. Fung, AALDEF Exec. Dir., and T. Sinha,
AALDEF Staff Attorney, to E. Johnson, U.S. Dep't of Justice (Oct. 8,
1998) (submitted to Congress and on file with counsel). See also,
Voting Rights Act: section 5 of the Act-History, Scope, and Purpose,
Hearing Before the H. Subcomm. on the Const., H. Judiciary Comm., 109th
Cong. 1664-66 (2005) (appendix to statement of the Honorable Bradley J.
Schlozman, U.S. Dep't. of Justice) (providing section 5 objection
letter to Board and summarizing changes made to the voting methods,
along with overall objections to the changes).
---------------------------------------------------------------------------
Furthermore, the ability of Asian Americans to vote is also
frustrated by sudden changes to poll sites without informing
voters. For example, in 2001, primary elections in New York
City were rescheduled due to the attacks on the World Trade
Center. The week before the rescheduled primaries, AALDEF
discovered that a certain poll site, I.S. 131, a school located
in the heart of Chinatown and within the restricted zone in
lower Manhattan, was being used by the Federal Emergency
Management Agency for services related to the World Trade
Center attacks. The Board chose to close down the poll site and
no notice was given to voters. The Board provided no media
announcement to the Asian language newspapers, made no attempts
to send out a mailing to voters, and failed to arrange for the
placement of signs or poll workers at the site to redirect
voters to other sites. In fact, no consideration at all was
made for the fact that the majority of voters at this site were
limited English proficient, and that the site had been targeted
for Asian language assistance under section 203.\65\ With
section 5 no longer applicable in most jurisdictions,
disruptive changes to polling sites, voting systems, and
redistricting plans can now occur unfettered, wreaking havoc on
Asian American voters' ability to cast an effective ballot.
---------------------------------------------------------------------------
\65\ The voters were only protected from this sudden change that
would have caused significant confusion and lost votes because DOJ
issued an objection under section 5 and informed the Board that the
change could not take effect. The elections subsequently took place as
originally planned at I.S. 131, and hundreds of votes were cast on
September 25. See Asian American Legal Defense and Education Fund,
Asian Americans and the Voting Rights Act: The Case for
Reauthorization, 41 (2006), http://www.aaldef.org/docs/AALDEF-
VRAReauthorization-2006 .pdf.
---------------------------------------------------------------------------
Conclusion
Despite the gains that have been made since the enactment
of the VRA, more is left to be done. Voting discrimination, as
Chief Justice Roberts acknowledged in his opinion, is still
very real and very current. The U.S. Census Bureau forecasts
that while the number of Asian immigrants will grow between now
and 2040, the proportion of Asian Americans who are immigrants
will decrease, with high naturalization rate and in increase of
U.S.-born Asian Americans in the coming years. It is likely
that voter participation rates among the Asian American
community, and indeed its political visibility, will only
increase. It is precisely for these reasons that restoring and
strengthening the Voting Rights Act is a top priority for our
organization.
Mr. Cohen. Thank you, sir, Mr. Yang. I appreciate it very
much.
Our next witness is Ms. Janai Nelson, associate director-
counsel for the NAACP Legal Defense Fund. A member of the LDF's
litigation and policy team, she was one of the lead counsels of
Veasey v. Abbott, the Federal challenge to Texas' voter ID law.
Prior to joining the LDF, in 2014 she was associate dean for
faculty scholarship and associate director of Ronald H. Brown
Center for Civil Rights and Economic Development at St. John's
University School of Law, where she was a full professor of
law.
J.D. from UCLA, articles editor at the UCLA Law Review,
consulting editor of the National Black Law Journal, and
associate editor of the UCLA Women's Law Journal. She has a
B.A. from NYU in Mr. Nadler's district. She has served as a law
clerk for the Honorable Theodore McMillian on the U.S. District
Court of Appeals for the Eighth Circuit and the Honorable David
Coar of the U.S. District Court for the Northern District of
Illinois.
Ms. Nelson, you are recognized for 5 minutes. Thank you.
TESTIMONY OF JANAI NELSON
Ms. Nelson. Chairman Cohen, Ranking Member Johnson,
Chairman Nadler, and Members of the subcommittee, my name is
Janai Nelson, and I am the associate director-counsel of the
NAACP Legal Defense and Educational Fund.
On behalf of the Legal Defense Fund, I extend our deepest
condolences for the loss of the Honorable Elijah Cummings. He
was a dear friend of our institution, and we regret his death
immeasurably.
Thank you for the opportunity to testify this morning on
the might of Congress' enforcement power in the area of voting
and the critical need to exercise that power by passing the
Voting Rights Advancement Act. LDF has fought to secure,
protect, and advance voting rights for Black voters and other
voters of color since its founding in 1940 by Thurgood
Marshall.
From our early victory in 1944 eliminating all-white
primaries in Texas to our victory a full 70 years later in 2014
proving the racially discriminatory intent and effect of Texas'
voter ID law, LDF has challenged both blatant racially
exclusionary voting barriers and their modern-day corollaries.
As a result, we can attest to the exigent need for Congress to
restore and strengthen the Voting Rights Act of 1965. Indeed,
Congress has the explicit constitutional duty to ensure the
equally protected vote of every eligible voter regardless of
race.
Racial discrimination in voting is so antithetical to our
democratic ideals that we amended the Constitution to expressly
prohibit it and to expressly delegate to Congress the ability
to enforce its protections, and it is that power that we ask
Congress to exercise today.
Since the Supreme Court's decision in Shelby County v.
Holder, gutting the VRA's preclearance provision in 2013, there
has been a proliferation of discriminatory voting practices
across the country. More than 16 States have passed laws that
made it more difficult for African Americans and other voters
of color to vote. LDF recently published a report summarizing
some of the barriers Black voters faced in seven States in the
2018 midterm elections--Alabama, Florida, Georgia, Louisiana,
Mississippi, South Carolina, and Texas--where voters
experienced poll closures, malfunctioning machines, inaccurate
voter rolls, and long lines up to 4 hours.
With your permission, I would like to enter our report,
``Democracy Defended: Analysis of Barriers to Voting in the
2018 Midterm Elections,'' into the record.
Mr. Cohen. Without objection, that will be done.
[The information follows:]
JANAI NELSON FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Nelson. Thank you.
In addition, leading up to the 2018 elections, there were
widely reported mass purges of Black and Latinx voters in
Georgia and Ohio, fraud on Black voters using absentee ballots
in North Carolina, and new onerous ID requirements imposed on
Native American communities in North Dakota. In short, there is
no shortage of discriminatory voting practices presently
infecting our electoral process.
The VRAA is a measured, flexible, and forward-looking
effort to update the VRA with a new prescription for
preclearance that is directly tied to current voting rights
violations. It is precisely what Shelby County asked and
commands of Congress, to ``draft another formula based on
current conditions.'' A formula that demonstrates that
exceptional conditions justify Federal oversight of an
extraordinary tool to confront racial discrimination in
elections. That was an invitation to this body to enact new
legislation.
Consistent with that mandate, the VRAA's practice-based
preclearance applies equally to all States and political
subdivisions and is triggered only in jurisdictions that have a
significant racial or language minority citizen voting age
population and that seek to employ any of six categories of
voting practices that are known to correlate with racial and
language-based discrimination. It does not impose a ban on
specific voting practices. It does not require continuing or
permanent coverage. It doesn't have a targeted geographic
scope, nor are there prescribed jurisdictions.
Indeed, practice-based preclearance is constitutional
precisely because it targets specific practices and their known
impact on targeted populations and not the jurisdictional
actor. Even though the Supreme Court has held that distinctions
can be justified in some cases, practice-based preclearance
does not offend the principle of equal sovereignty embraced by
the majority in Shelby because it applies to each State equally
based on current data.
Finally, the Congressional Record contains ample evidence
of and justification for practice-based preclearance based on
persistent and ingenious methods of racially motivated voter
suppression. Preclearance is long established as a valid
exercise of power under South Carolina v. Katzenbach, which was
decided a year after the Voting Rights Act. The Supreme Court
has upheld the constitutionality of the Voting Rights Act, as
well as Congress' power to ban facially neutral practices like
literacy tests. I can cite to Oregon v. Mitchell and a plethora
of other cases that uphold that principle, and I will end by
saying that violations of the fundament right to vote are not
ordinary harms. They require extraordinary remedies.
Practice-based preclearance is a direct, measured, and
constitutionally sound response to the current conditions of an
increasingly racial diverse and multilingual electoral that are
fraught with voter suppression. The VRAA is desperately needed
to curb discriminatory incursions on the right to vote that
compromise our elections and diminish the integrity of our
democracy.
Thank you.
[The statement of Ms. Nelson follows:]
STATEMENT OF JANAI NELSON
I. Introduction
Good morning, Chairman Cohen, Ranking Member Johnson,
Chairman Nadler and Members of the Subcommittee. My name is
Janai Nelson, and I am Associate Director-Counsel of the NAACP
Legal Defense and Educational Fund, Inc. (``LDF''). Thank you
for the opportunity to testify this morning on the
constitutionality of Congressional oversight of voting rights
legislation and the specific and urgent need for the strong
provisions outlined in the Voting Rights Advancement Act
(``VRAA'').
Since its founding in 1940 by Thurgood Marshall, LDF has
fought to protect and expand voting rights for Black voters and
other communities of color. Through litigation, public policy,
and public education, LDF seeks structural changes to expand
democracy, eliminate disparities, and achieve racial justice in
a society that fulfills the promise of equality for all
Americans. LDF was launched at a time when the nation's
aspirations for equality and due process of law were stifled by
widespread state-sponsored racial inequality in every area of
life. Our mission has always remained focused on racial justice
and equality. In advancing that mission, protecting the right
to vote for African Americans has been the epicenter of our
work since our inception. Beginning with Smith v. Allwright,
our successful U.S. Supreme Court case challenging the use of
whites-only primary elections in 1944, LDF has been fighting to
overcome a myriad of obstacles to ensure the full, equal, and
active participation of Black voters.\1\
---------------------------------------------------------------------------
\1\ 321 U.S. 629 (1994).
---------------------------------------------------------------------------
LDF has consistently been a leader in the struggle to
secure, protect, and advance voting rights for Black voters and
has repeatedly defended the gains and protections won over the
course of our nearly 80-year history. For these reasons, we are
particularly well-positioned and qualified to definitively
State that there is a critical need for Congress to restore and
strengthen the Voting Rights Act of 1965 (``VRA''). In each
reauthorization of the VRA, LDF has played a critical role:
providing testimony at congressional hearings, publishing
research detailing places with persistent racial discrimination
in voting and defending the right to vote through litigation.
Threats to our electoral system are threats to the very
foundation of our democracy and require comprehensive remedies.
Congress has the explicit constitutional duty to protect the
right of every eligible person to vote, and to ensure that each
vote counts. Indeed, racial discrimination in voting is so
pernicious, so antithetical to our democratic ideals, that we
amended the U.S. Constitution to expressly prohibit it and to
expressly delegate power to Congress to enforce its
protections.\2\
---------------------------------------------------------------------------
\2\ U.S. Const. amend. XV.
---------------------------------------------------------------------------
Since the Supreme Court's 2013 decision in Shelby County v.
Holder there has been a proliferation of discriminatory voting
practices across the country.\3\ By gutting the VRA's
preclearance provision in Shelby, the Supreme Court allowed
jurisdictions with a history and ongoing record of voting
discrimination to change their laws without scrutiny or
oversight from any federal authority. Predictably, within hours
of the decision, states and jurisdictions formerly covered by
section 5, adopted voter suppression practices that were
formerly prevented by preclearance.\4\ section 5 preclearance
was an efficient and effective mechanism for detecting and
redressing the many forms of discrimination before elections
take place--without preclearance, these discriminatory
practices now undermine our democratic process. The immense
record of discriminatory voting practices enacted since the
2013 Shelby decision demands Congress fulfill its
constitutional obligation to protect voters from an onslaught
of new and ``ingenious methods'' of voter discrimination.\5\
---------------------------------------------------------------------------
\3\ Shelby County, Ala. v. Holder, 570 U.S. 529 (2013).
\4\ Ed Pilkington, Texas Rushes Ahead With Voter ID Law After
Supreme Court Decision, The Guardian (June 25, 2013), https://
www.theguardian.com/world/2013/jun/25/texas-voter-idsupreme-court-
decision.
\5\ U.S. Congress, House, Committee on the Judiciary Voting Rights,
89th Cong., 1st sess., 1965, Mar. 18-19, 23-25, 29-Apr. 1, 1965.
---------------------------------------------------------------------------
It is past time for Congress to act. The VRA is universally
acknowledged as the most successful and most transformative
piece of legislation to emerge from the Civil Rights Movement.
It enshrined our most fundamental values ensuring dignity and
equality for all citizens by guaranteeing the right to vote,
which the Supreme Court has called ``preservative of all
rights.'' \6\ For decades, the VRA authorized Congress to
enforce the Fourteenth and Fifteenth Amendments when federal
and State governments ignored and circumvented their
directives. Congress reauthorized the VRA on four separate
occasions--in 1970, 1975, 1982, and most recently in 2006--each
time on a bipartisan basis, with overwhelming support.
---------------------------------------------------------------------------
\6\ Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
---------------------------------------------------------------------------
It is not only imperative that Congress restore the Voting
Rights Act, but that it authorizes an Act that addresses the
modern needs and political climate of the nation. The Voting
Rights Advancement Act does precisely that: It establishes a
new coverage formula for preclearance that is tied to recent
voting rights violations and strengthens other aspects of the
VRA to better address the ingenious methods that are, and will
be, used to suppress the full voting strength of African
Americans and people of color.
II. The Proposed Known Practices Coverage Provision Is
Constitutional on its Face and Consistent with Longstanding
Supreme Court Precedent
Congress has a critical opportunity to pass the Voting
Rights Advancement Act, a measured, flexible and forward-
looking effort to update the VRA. Faced with an extensive
record of racial discrimination in voting practices, Congress
must act
swiftly, deliberately and boldly to restore the now-defunct
preclearance provision. In Shelby, the Supreme Court provided
instructions for Congress to Act in this very instance. The
Court did not overrule the constitutionality of a measured and
properly tailored preclearance provision--nor did it render
other remedies inherently unconstitutional. Indeed, the Supreme
Court found preclearance a ``stringent'' and ``potent''
measure, fully available to Congress to deploy as an
``extraordinary'' tool to confront racial discrimination in
elections and voting systems.\7\ Racial and ethnic
discrimination is an extraordinary harm that necessitates the
extraordinary remedy of preclearance. We urge Congress to
employ the full force of its authority in order to protect the
American people from such a malicious and extraordinary
harm.\8\ The Known Practices Coverage (KPC) provision of the
VRAA is a necessary tool to that end.
---------------------------------------------------------------------------
\7\ Shelby County, 133 S. Ct. 2612, slip op. at 11-12.
\8\ Shelby County, 133 S. Ct. 2612, slip op. at 11-12.
---------------------------------------------------------------------------
The KPC provision of the VRAA would require federal
preclearance of voting practices that are known to correlate
with racial or language-based discrimination only in
jurisdictions that have a significant racial or language
minority citizen voting age population. Indeed, while the
formula applies equally nationwide to all jurisdictions, it is
only triggered if a State actor chooses to adopt or pursue one
of five categories of voting practices with a known
disproportionate, discriminatory impact.\9\ Coverage,
therefore, is not based on geography but rather combines a
demographic threshold with the prevalence of specific, known
practices of voting rights discrimination. Accordingly, KPC is
constitutional specifically because its emphasis is decidedly
on the practices themselves and not the jurisdictional actor.
In this regard, states remain ``equal in power, dignity and
authority'' per the Shelby County mandate.\10\
---------------------------------------------------------------------------
\9\ Proposed Sec. 4(c)(2).
\10\ Shelby County, 133 S.Ct. at 2623 (citing Coyle v. Smith, 221
U.S. 559, 567 (1911).
---------------------------------------------------------------------------
Importantly, KPC also does not impose a strict ban on any
specific voting practices. Instead, the identified practices
are subject to federal preclearance to ensure against potential
discrimination based on race or language minority status
thereby ensuring compliance with Supreme Court precedent. It is
a valid exercise of Congress's constitutional power to require
that practices known to most likely result in racial or
language discrimination--practices with entrenched and virulent
histories of voting discrimination--can be subject to
preclearance.
KPC is a reasonable, flexible response to the very
standards articulated by the Supreme Court. It does not
arbitrarily subject states or political subdivisions to
disparate treatment. Rather, it singles out specifically
tailored discriminatory practices for federal oversight. It has
no specific geographic scope and does not require continuing or
permanent coverage. It does not offend the principle of equal
sovereignty embraced by the majority in the Shelby decision.
Moreover, as the Court noted in NAMUDNO v. Holder, where it
first introduced the principle of equal sovereignty as a
constraint on congressional power in connection with the VRA,
``distinctions can be justified in some cases.'' \11\ The
congressional record contains ample evidence and justification
for KPC on the basis of persistent and ingenious methods of
racially motivated voter suppression.
---------------------------------------------------------------------------
\11\ 557 U.S. 193 (2009).
---------------------------------------------------------------------------
Furthermore, Congress's authority to outlaw practices that
are not per se unconstitutional but are known to perpetuate
racial discrimination stands on ample precedent. The Supreme
Court has repeatedly found that Congress's enforcement powers
have broad reach. In South Carolina v. Katzenbach, the Supreme
Court upheld the constitutionality of the VRA and Congress's
power to ban certain discriminatory voting practices as a
rational exercise of authority.\12\ While the Court recognized
that voting practices like literacy tests were presumptively
lawful and facially neutral, it held that such practices could
still be employed to diminish minority voting power and impede
equal political participation. Furthermore, such practices were
recognized by judicial and legislative bodies to serve no
legitimate purpose other than to perpetuate the exclusion of
African Americans from the political process.\13\ The court
therefore found that Congress ``may use any rational means to
effectuate the constitutional prohibition of racial
discrimination in voting,'' including a nationwide ban of this
known discriminatory practice.\14\
---------------------------------------------------------------------------
\12\ South Carolina v. Katzenbach, 383 U.S. 301 (1966).
\13\ See Lassiter v. Northampton County Board of Elections 360 U.S.
45 (1959).
\14\ South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).
---------------------------------------------------------------------------
In Oregon v. Mitchell, the Court again affirmed Congress's
authority to overturn State laws governing elections if
necessary.\15\ The Court found article 1 section 4 of the
Constitution and the Necessary and Proper Clause gave the
States the power to make laws that govern elections and,
according to a ``long line of decisions in th[e] Court,'' gave
Congress the ``ultimate supervisory power over congressional
elections.'' \16\ Importantly, the Court recognized that the
legislative record surrounding the Thirteenth, Fourteenth,
Fifteenth, and Nineteenth Amendments also supported the finding
that Congress has the authority to prevent racial
discrimination in the electorate without infringing on states'
rights.
---------------------------------------------------------------------------
\15\ Oregon v. Mitchell, 400 U.S. 112 (1970).
\16\ Oregon v. Mitchell, 400 U.S. 112, 124 (1970).
---------------------------------------------------------------------------
In City of Rome v. United States, the Court found it
permissible for Congress to identify and overturn changes to
the voting process that had racially discriminatory effects--
whether intentional or not.\17\ Indeed, while the City of Rome
proved it had not pursued electoral changes with any racially
discriminatory purpose, its proposed changes were denied by the
Department of Justice as they prevented African Americans from
securing local representation. The Court recognized that
Congress's power to repeal changes to voting practices, even in
the absence of intentional racial discrimination, was derived
from the Fifteenth amendment and ruled in favor of the
Department of Justice.
---------------------------------------------------------------------------
\17\ City of Rome v. United States, 446 U.S. 156, 177-78 (1980).
---------------------------------------------------------------------------
The Supreme Court has continued to affirm the proposition
that ``[l]egislation which deters or remedies constitutional
violations can fall within the sweep of Congress's enforcement
power even if in the process it prohibits conduct which is not
itself unconstitutional and intrudes into legislative spheres
of autonomy previously reserved to the States.'' \18\ In both
Tennessee v. Lane and Nevada Dept. of Human Resources v. Hibbs,
the Supreme Court found that Congress may enact ``prophylactic
legislation'' to prohibit practices that are facially
constitutional but discriminatory in effect.\19\ In Kimel v.
Florida Bd. of Regents, the Court further elaborated that
Congress's ``power `to enforce' the [Fourteenth] amendment
includes the authority both to remedy and to deter violation of
rights guaranteed.'' \20\
---------------------------------------------------------------------------
\18\ City of Boerne v. Flores, 521 U.S. 507, 518 (1997).
\19\ See Tennessee v. Lane, 541 U.S. 509, 518-20 (2004); Nevada
Dept. of Human Resources v. Hibbs, 538 U.S. 721, 727-28 (2003).
\20\ Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81 (2000).
---------------------------------------------------------------------------
Indeed, even after the Shelby decision, the Circuit Courts
have reaffirmed Congress's power to enact prophylactic
legislation under the Thirteenth, Fourteenth and Fifteenth
amendments.\21\ It is well documented and well established in
both the legislative record and caselaw that Congress has the
authority to identify and prohibit manipulations of the voting
process that could be used to disenfranchised minority voters.
---------------------------------------------------------------------------
\21\ See, e.g., U.S. v. Metcalf, 881 F. 3d 641, 644-45 (8th Cir.
2018); Veasey v. Abbott, 830 F. 3d 216, 253 n.47 (5th Cir. 2016) (en
banc); U.S. v. Cannon, 750 F. 3d 492, 503-505 (5th Cir. 2014); U.S. v.
Hatch, 722 F.3d 1193, 1201 (10th Cir. 2013).
---------------------------------------------------------------------------
In banning these practices, Congress relied heavily on the
extensive record of evidence showing depressed voter turnout
and registration in jurisdictions in which these measures were
used.\22\ By holding congressional hearings, field hearings and
engaging in a detailed fact-finding process, while considering
the KPC provision of the VRAA, Congress today operates with the
same care and caution.
---------------------------------------------------------------------------
\22\ South Carolina, 383 U.S. at 309-313.
---------------------------------------------------------------------------
III. Full Restoration of the Voting Rights Act Is Critical to
the Integrity of Our Democracy
Evidence of widespread discrimination against Black voters
is overwhelming and growing, and the need for legislative
action to protect the integrity of our democracy is urgent. The
2013 Shelby decision has undermined the Voting Rights Act, made
our democracy vulnerable and allowed for voter suppression to
go unchecked. Even one election in which the right to vote is
restricted, threatened, or violated, is one election too many.
Violations of our electoral system are not ordinary harms
and must therefore be met with extraordinary remedies. An
election with conditions later found to be racially
discriminatory, has consequences that existing methods of
defense cannot combat. Officials elected under unlawful
conditions influence and create policy that affects all
constituents in their jurisdiction. They may write and
implement legislation that allows them to maintain power or
that targets communities with viable claims of discrimination.
Even if future elections are not tainted by discriminatory
practices, those elected to office under unlawful conditions
have already accessed and used powers intended only for
candidates who constituents fairly and democratically elected.
The inability of the courts to retroactively correct these
wrongs further disenfranchises and threatens to disengage
voters who may understandably believe that their vote does not
matter if discriminatory voting practices are left unchecked.
Racially discriminatory practices in the electoral system have
consequences that preclearance can prevent and correct.
Preclearance was designed as a unique and powerful intervention
to stop discrimination before elections take place.
While section 2 of the VRA authorizes plaintiffs to
challenge racial discrimination in voting after a
discriminatory voting practice is implemented and is a vital
tool of enforcement, it cannot redress some of the most
egregious voting harms. And, while civil rights groups like LDF
continue to actively pursue litigation to protect voting rights
under section 2 of the VRA, we know that litigation alone is
insufficient to stymie the innumerable assaults on the right to
vote. We know that justice has been delayed and denied for
millions of eligible voters across the country.
Even when we prevail in section 2 cases, irreparable damage
is already done. In Texas, during the three years we spent
challenging the state's voter ID law, elections continued to
take place. In that time, and under conditions the court later
found impermissible, voters elected a U.S. senator, all 36
Members of the Texas delegation to the U.S. House of
Representatives, a Governor, a Lieutenant governor, an Attorney
General, a Controller, various statewide Commissioners, four
Justices of the Texas Supreme Court, candidates for special
election in the State Senate, State boards of education, 16
State senators, all 150 Members of the State House, over 175
State court trial judges, and over 75 district attorneys. We
proved at trial that more than half a million eligible voters
were disenfranchised by the ID law but there was no retroactive
solution available. As a result, the voices and votes of
thousands were successfully suppressed.
Voters should not have to wait years to ensure that their
constitutional right to vote is vindicated. Voters should not
have to spend an exorbitant amount of money to litigate a
section 2 case, to ensure their vote has been counted.\23\
Litigation is time consuming and expensive.
---------------------------------------------------------------------------
\23\ NAACP LDF, The Cost (in Time, Money, and Burden) of section 2
of the Voting Rights Act Litigation (Feb. 14, 2019), https://
www.naacpldf.org/wp-content/uploads/Section-2-costs02 .14.19.pdf.
---------------------------------------------------------------------------
In addition to KPC, a full restoration of the VRA should
include provisions that address other modern challenges to our
democracy: The disenfranchisement of formerly incarcerated
people and cyber threats to our election systems. We strongly
urge Congress to adopt the democracy restoration provisions
included in HR 1, For the People Act, along with KPC to further
strengthen its impact.\24\
---------------------------------------------------------------------------
\24\ See For the People Act, H.R. 1, 116th Cong. Sub. E, title I,
Sec. 1402.
---------------------------------------------------------------------------
People of color, specifically African Americans, are
disproportionately represented in the prison population.
Restoring federal voting rights to returning citizens would
roll back unduly restrictive disenfranchisement laws that bar
formerly incarcerated people from participating in democracy
and fully returning to society. LDF has been instrumental in
challenging these restrictive laws across the country.
Recently, we filed suit challenging the implementation of a
thinly-veiled poll tax designed invalidate the express intent
of amendment 4 to the Florida Constitution, the Voting
Restoration Amendment.\25\ Congress must do its part to remove
obstacles to voting for the nearly 4.7 million disenfranchised
citizens who have been released from incarceration and are
still denied the right to vote in federal elections.\26\
---------------------------------------------------------------------------
\25\ Gruver, et al. v. Barton, et al., No. 1:19-cv-121 (N.D. Fla.
2019).
\26\ Morgan McLeod, The Sentencing Project, Expanding the Vote: Two
Decades of Felony Disenfranchisement Reform, (Oct. 2018), https://
www.sentencingproject.org/publications/expanding-vote-two-decades-
felony-disenfranchisement-reforms/.
---------------------------------------------------------------------------
Congress must also address how digital platforms are
increasingly used to influence elections.\27\ As our democracy
faces new and pervasive threats, we encourage Congress to
confront these digital threats within the historic context of
race in the public space. HR 1 includes provisions to prevent
deceptive cyber-practices and to require the Director of
National Intelligence to conduct regular checks on foreign
threats.\28\ It is critical that Congress Act to investigate
and legislate these activities that threaten to severely
compromise the integrity of our elections.
---------------------------------------------------------------------------
\27\ NAACP LDF, LDF Responds to Facebook's New Policy on False
Voter Information Ahead of Election (Oct. 16, 2018) https://
www.naacpldf.org/press-release/ldf-responds-facebooks-new-policy-false-
voter-information-ahead-election/;https://www.washingtonpost.com/
opinions/its-time-to-face-the-facts-racism-is-a-national-security-
issue/2018/12/18/f974646-02e8-11e9-b5df-
5d3874f1ac36_story.html?utm_term=.8a1252669166.
\28\ See For the People Act, H.R. 1, 116th Cong. Sub. D, title I,
Sec. 1302.
---------------------------------------------------------------------------
IV. Conclusion
The mounting record of discriminatory voting changes since
the Shelby decision requires decisive, comprehensive and
restorative Congressional action. Congress has the ultimate and
distinguished authority to enforce the anti-discrimination
principle articulated in the Fourteenth and Fifteenth
Amendments, to protect the vote of every eligible citizen and
ensure that their vote counts.
There have been approximately 10 federal court decisions
finding that states or localities intentionally discriminated
against voters of color since 2013. There is no doubt that
racial discrimination in voting continues to be relentlessly
pursued. We will continue to fight racial discrimination in
electoral systems wherever it may arise, and we will continue
to use all the tools provided to us by Congress. But it is
imperative that Congress use its authority to strengthen the
Voting Rights Act by implementing a new preclearance provision.
The Known Practices Coverage provision deftly responds to the
Supreme Court's express invitation to Congress to ``draft
another formula based on current conditions'' that demonstrates
that ``exceptional conditions'' to justify federal oversight of
State election law practices.\29\ KPC is a direct, measured,
and constitutionally sound response to the current political
conditions of an increasingly racially diverse and multi-
lingual electorate in a context fraught with voter suppression.
This hearing and fact-gathering process are critical to laying
the foundation to fully restore the VRA and enable Congress to
exercise its vital enforcement powers to protect the right to
vote. Thank you.
---------------------------------------------------------------------------
\29\ 570 U.S., 133 S.Ct. at 2631.
Mr. Cohen. Thank you very much.
We will now start our questioning, and I will start and
first ask Ms. Nelson a question. Professor Eastman stated in
his written testimony that section 2's prohibition on voting
measures that have a discriminatory impact, as opposed to ones
that are intentionally discriminatory, is constitutionally
suspect. What is your response to that, Ms. Nelson?
Ms. Nelson. Well, my first response is that that is not the
focus of this hearing, although I believe we owe a response to
an inquiry that intends to lead us in a different direction.
The Voting Rights Act has been upheld on multiple occasions
by the Supreme Court, both section 5 and section 2. Section 5
was most recently clearly rubberstamped by this current Court
in 2013 in the Shelby County decision that all of us lament.
The one thing that came out of that that we can rely on for
some assurance is that the Court had an opportunity to say that
it was unconstitutional and did not.
Instead, it extended an invitation to this body to come
back with a new preclearance formula, and that is exactly what
this body has done, and I hope we will adopt that measure.
In terms of the Voting Rights Act as a whole, the Supreme
Court has never applied the congruence and proportionality test
that Mr. Eastman suggests that came out of the City of Boerne
v. Flores to legislation under the Fifteenth Amendment.
Congress draws heavily upon the enforcement powers of the
Fifteenth amendment in its exercise of enforcement powers in
enacting the Voting Rights Act and enforcing its provisions.
Congress has only--the Court, sorry, has only applied that
in connection with the Fourteenth Amendment, and in that
context, the Voting Rights Act has actually been used as a
beacon of what congruence and proportionality looks like, and I
can cite to several cases that establish that.
Mr. Cohen. Let me ask you one other thing. In his written
testimony, he also said preclearance formula fails the
congruence and proportionality test, which you were talking
about, with respect to Congress' authority under the Fourteenth
Amendment, implicitly importing a testless limitation on our
Fifteenth amendment authority. Do you find that to be without
basis?
Ms. Nelson. Without merit, absolutely. Just to say one word
about the congruence and proportionality test, what it seeks to
do is ensure that when Congress enacts legislation, it is
seeking to remedy and deter congressional violations and not
create new constitutional rights. That is precisely what the
Voting Rights Act does. It is seeking to remedy violations that
many of us here on this panel have identified and that have
already put into the record.
It seeks so deter those constitutional violations by
ensuring that there is preclearance and Federal oversight of
voting changes. It does not in any way alter the fundamental
right to vote that the Supreme Court established back in 1886
as preservative of all rights.
Mr. Cohen. Do you happen to know the history in the 1965
Act when section 5 was first passed, what the history was on
that and why they felt that was necessary?
Ms. Nelson. Well, the history in 1965 came on the heels of
a bloody and violent protest for the right to vote.
Congresswoman Sewell mentioned earlier the very tragic events
in her hometown of Selma that gave rise to the Voting Rights
Act, and that was really just the culmination of decades of
violence visited upon African Americans who dared to exercise
their citizenship through the political process.
Mr. Cohen. Most of those States that were in that formula
were in the Old South. You mentioned some States in your
testimony where you had had litigation, and they were Texas,
Louisiana, Mississippi, Alabama, Georgia, South Carolina, and
there might have been another one, but I think that has got it?
Ms. Nelson. Missouri and--yes, that was not covered by
section 5.
Mr. Cohen. Well, yes, but then they joined the SEC. So, in
essence, they admitted they probably should have been there. It
is a sports thing.
[Laughter.]
Mr. Cohen. Did not the States that were chosen pretty much
mirror the problems that have existed in our Nation with civil
rights laws that have tried to inhibit people's right to vote?
Ms. Nelson. So back in 1965, the States that were covered
under section 5 were States with some of the most virulent
histories of racial discrimination in voting. There were others
that ultimately came to be covered under section 5, including
my home State of New York and New York City, portions of the
city that engaged in racial discrimination.
Mr. Cohen. They did a pretty good job. We have limited
time. So, I want to ask Professor Kousser, who is the
statistics pro, pretty much you showed where most of the cases
have been brought were in those jurisdictions which were
covered by the preclearance requirement. Give us a little flesh
on the bones of that.
Mr. Kousser. Yes, that is true. Also, the '70 and '75 laws
were important. About 20 percent of the instances come from
Texas, which wasn't covered in the original '65 act.
Mr. Cohen. They were in the Southwest Conference.
Mr. Kousser. That is true. It is interesting, if you look
at cases from '57 to '65, there were States that were covered
by the '65, by section 4 under '65 that were--that had no cases
from '57 to '65. Both Carolinas, Virginia, no cases during that
period of time. Congress knew where the voting restrictions
were, but they weren't necessarily exactly where cases had been
brought.
Now we have got a lot more experience. We have got all this
experience from 1957 through 2019 in my tables and database,
which will be available for the Committee to look at if they
want to figure out what practices and where they are. We know
much more fully than people did in 1965 exactly where voting
practices, which have been adjudicated to be illegal or were
parts of settlements or parts of objections, we know exactly
where they were. So, if Congress wants to base something on
that, it has a much fuller legislative record than they had in
'65.
Mr. Cohen. Thank you, Professor.
I recognize Mr. Johnson for questions.
Mr. Johnson of Louisiana. I want to thank you all for being
here. Don't interpret the empty chairs on either side as lack
of interest. This is an extraordinary day on Capitol Hill for
about 15 reasons that I don't need to recount to you, and there
are multiple events and Committee hearings going on
simultaneously.
We have had some of the Republican Members come in and out
of the back. We are all watching you on a big screen in that
room right on the other side of the wall. So, what you say here
is important for the record. You know how this works.
I am watching all of you and your faces, as there has been
testimony and questioning. Let me just start first with
Professor Eastman. Is there anything that has been said so far
that you would just want to respond to that you haven't had a
chance to already?
Mr. Eastman. Two things. I agree with Ms. Nelson that the
Supreme Court has not yet applied its ruling in City of Boerne
to Fifteenth Amendment, but the enforcement language of section
2 of the Fifteenth amendment is identical to the enforcement
language of section 5 of the Fourteenth Amendment. The notion
that they would read that language differently is, therefore,
not something I would anticipate this Court doing.
The second thing, I would really like to explore with
Professor Kousser, and I know he is not an attorney, but if I
could have him in deposition, I would like to explore the
question because he divided his dataset pre and post 1982.
Well, a dramatic change in the Voting Rights Act occurred in
1982. We changed section 2 from an intentional discrimination
statute to a disparate impact statute.
So, I would like to ask whether his dataset controlled for
that? If there was an increase in section 2 intentional
discrimination cases, there might be evidence of an ongoing
problem. If what you have got is new cases that could not have
been brought prior to '82, that is no indication of a problem
with the existing section 2, it is that we have now got a new
cause of action that didn't exist before, and I strongly
suspect it is the latter.
Mr. Johnson of Louisiana. Let me stop you, and I will go to
Professor Kousser. Would you want to respond to that answer?
Mr. Kousser. I will be happy to. What I was trying to show
was that things didn't get better suddenly, as you move on in
the years, that after '82, there were three times as many
violations after '82 as there were before '82. There was a
considerable disagreement as to whether the amendments in 1982,
which I testified on in 1981, were clarification of the law or
a change in the law.
The section 2 had almost never been used before 1980 before
the Bolden case, and so most of the litigation and the events
from pre '82 don't consider, didn't concern section 2. Section
2 was invigorated simply by the discussion and by the fact that
you had specific--a specific checklist in the Senate report for
exactly what you had to do to litigate and win a section 2
case.
So, there were changes to be sure that more attention was
devoted. I don't think that there was a change in congressional
intention. I think Congress had the intent of having an effect
provision in section 2 beforehand.
Mr. Johnson of Louisiana. Let me put the volley back to
Professor Eastman. So, do you want to respond to that?
Mr. Eastman. Yes. Look, the Supreme Court held in--I am
drawing a blank on the case name in 1980 that section 2 only
reached intentional discrimination, in fact, all it can reach
under the City of Boerne ruling. Because to add to that, to
impose a disparate impact cause of action where there is not a
constitutional violation would be adding to the burdens on the
States, not enforcing the burdens on the States contained in
the Fourteenth and Fifteenth Amendment.
So, Congress deliberately changed 1982 in reaction to that
case to make clear that it would allow for disparate impact
claims that had not been the case before, and that is a huge
distinction because any single procedure that you change,
whether you move a polling place down a block, you can make the
case it is going to have a disparate impact. There is no
question that leads to increase in litigation over those
things, increased claims of preclearance, increased grounds for
denial of preclearance. All these things when you go from
intentional discrimination, as prohibited by the Fourteenth and
Fifteenth Amendment, to disparate impact is going to
necessarily drastically increase the potential opportunities
for litigation and challenges.
So, it is not a surprise after those changes. It is also a
change, as I note in my written testimony, makes that provision
more constitutionally problematic after the City of Boerne. The
Court has never confronted that issue, but it has been lurking
out there ever since City of Boerne came in. Lots of
scholarship written about raising that, trying to defend Voting
Rights Act after City of Boerne raising the challenges.
I think eventually this Court is going to confront that
issue, and they have hinted several times in recent opinions
that they are going to do that.
Mr. Johnson of Louisiana. Unfortunately, I am out of time.
I had a whole long list of questions, and we may submit them to
you all after the hearing, if you wouldn't mind--
Mr. Cohen. If you would like to choose the best one, I will
let you do it.
Mr. Johnson of Louisiana. Well, all right. Since you did
that, I am going to pitch it out to Mr. Tyson. Anything you
would want to add that hasn't been said yet. I will do that.
Mr. Tyson. I will be brief, Mr. Chairman. There is one
thing I thought that would be worth clarifying.
The question related to a lot of the terminology that is
thrown around, such as the term ``voter purges'' that are used.
A lot of times what is being referred to as ``voter list
maintenance.'' Under the Help America Vote Act, under the NVRA,
there is a need of jurisdictions to conduct list maintenance,
and the failure to conduct that kind of maintenance to keep the
voter roles updated will lead to further litigation against a
State.
So, in looking at what a State has or has not done in terms
of their list maintenance, I think it is important to look at
not only the numbers of individuals and the people who were
canceled or moved to a different status, but also what the
State has done.
For example, in Georgia, there was a period of time where
there were no removals because of concerns about the data
quality that led to a higher number at one point. Then, since
2018, this year Georgia has significantly updated the ``no
contact'' portion of our voter list maintenance to where people
have a much longer time period.
Mr. Cohen. Thank you. That is about the same time as I went
over.
Mr. Nadler?
Chairman Nadler. Thank you, Mr. Chairman.
Let me first say that the conclusion that Congress rejected
on disparate impact was decided by the Supreme Court in the
Mobile v. Bolden case in 1980, but that was a statutory, not a
constitutional interpretation. Congress clarified that the Act
applied to disparate impact as well as to intentional
discrimination.
Also, I should say that as one of the authors of the
Religious Freedom Restoration Act passed in 1993, I was
certainly no fan and I am no fan of the City of Boerne decision
and which limited that act, and I certainly hope it is not
extended to the Fifteenth Amendment. It is bad enough on the
Fourteenth.
Professor Kousser, in your analysis of voting rights
litigation, you concluded that the pattern of overall cases was
driven less by the amount of discrimination than by the nature
of Supreme Court rulings, essentially that the Court creates
its own lens through which to shape findings of discrimination.
How should Congress respond to the Court's influence in
evaluating the continuing need for section 5 preclearance and
the structure of section 2 litigation? How should we take
account of that?
Mr. Kousser. What you shouldn't do is say that the number
of cases has gone down, and therefore, that proves there is no
need. You should take into account over a longer period of
time--before Shelby County, before Bossier, too, even perhaps
before Shaw v. Reno--the number of cases that came about and
that were filed and won.
You should take into account the experience under the
California Voting Rights Act, which has different sorts of
standards. That is an indication that there are still problems
to be addressed. If you look over the whole period of time and
you looked farther into the database than I was able to go into
in 5 minutes or even in my written testimony, you can see the
different practices that have been used over the period of time
that have had a discriminatory effect on minorities and have
been judged to.
Chairman Nadler. Thank you. Mr. Saenz, I have three
questions for you.
First, what is the strongest constitutional basis for H.R.
4's practice-based preclearance provision?
Mr. Saenz. I think that it satisfies your constitutional
powers, however analyzed, whether that is under the Shelby
County decision, whereas Ms. Nelson pointed out it does not
focus on specific jurisdictions. It does not single out
specific jurisdictions.
Again, I have your concerns as well--the Boerne test were
to apply, that it would satisfy that measure of your
congressional authority as well. These are practices that
historically have correlated with attempts to restrict that
rights of growing minority communities, and I think the record
shows that.
Indeed, all of our experience after Shelby County suggests
it as well, where the Pasadena, Texas case, for example,
involved a mayor who asserted I couldn't do this before Shelby
County. Now, I am going to do it. I want to shift from eight-
member districts to six-member districts and two at-large
seats.
Chairman Nadler. Thank you. Now, inherent in what you are
saying is the answer to my next question, which is how is H.R.
4's practice-based preclearance provision responsive to the
federalism concerns raised by the Supreme Court in Shelby
County?
Mr. Saenz. Yes. I think that it responds to those concerns
by not focusing on any specific jurisdictions, but treating all
jurisdictions, as long as they meet a threshold of diversity
and the size of minority populations and subjects' practices
rather than jurisdictions to the very efficient preclearance
mechanism.
Chairman Nadler. In the same vein, how do you reconcile
support for practice-based preclearance with the push to re-
establish the more traditional geographic-based preclearance
regime?
Mr. Saenz. I think that they serve different needs. The
geographic-based preclearance formula recognizes that there are
creative efforts in certain jurisdictions with long histories,
demonstrated, adjudicated histories of voting rights
suppression where you ought to look at all the electoral
changes that are being considered, no matter what they may be.
While known practices coverage focuses only on specific
identified practices, but with respect to those where there is
a long history of violations, appropriate to look at all the
potential electoral changes being considered.
Chairman Nadler. That would be well within Congress' power
under the section 2 of the Fifteenth Amendment?
Mr. Saenz. Absolutely. I believe that it would meet any
test that could be applied to those coverage formulas because
the record supports very strongly that the jurisdictions that
would come under the geographic formula do have that recent
demonstrated adjudicated history. The practices and known
practices coverage have a similar history across jurisdictions
of being used to suppress minority voting rights.
Chairman Nadler. Thank you very much. My time has expired.
I yield back.
Mr. Cohen. Thank you, Mr. Nadler.
I recognize Ms. Scanlon for 5 minutes of questioning.
Ms. Scanlon. Thank you.
Ms. Nelson, we have appropriated a substantial budget for
the Department of Justice to enforce voting rights based on the
statutes we already have. Why do we need other statutory tools
to combat discrimination based on race or ethnicity in our
elections?
Ms. Nelson. I will respond I think there are two reasons.
One is that the tools that we have are important and robust.
They are necessary, but not sufficient. We have seen since 2013
a flood of voter suppression tactics that would never have
passed preclearance had section 5 been enforced.
In fact, as my colleague Tom Saenz has already said, from
the moment the decision was issued, you had attorney generals,
mayors, and had election officials across the country
acknowledging that they were going to enact laws that had
previously been held to be racially discriminatory, that they
were then going to enact them despite that clear evidence.
The other answer I would give is that we need laws that
will protect voters, no matter the Administration, no matter
the will of any particular Department of Justice to enforce the
laws that we have. Preclearance does just that. It allows for
transparency in electoral processes. It allows for the
Government or, in fact, forces the Government to have to opine
on voting changes in jurisdictions that meet the criteria of
preclearance--I am sorry, practice-based preclearance.
Ms. Scanlon. Okay. Back in February, we had the Acting
Attorney General, Mr. Whitaker, in here, and at that time, we
established through his testimony or refusal to testify that
the Department of Justice under the current Administration had
not brought any actions to enforce the Voting Rights Act. Is
that still true?
Ms. Nelson. I believe that is still true. I don't know of
any action that is currently pending, despite what is widely
reported as an epidemic of voter suppression, particularly
leading up to an election that we already know has--is
threatened by not only domestic voter suppression tactics, but
foreign interference that is also rooted in racial
discrimination, particularly against African Americans.
Ms. Scanlon. So, the acts that we are looking at here today
would provide mechanisms that would supplement Department of
Justice enforcement where the Department of Justice isn't doing
that job?
Ms. Nelson. That is right. It would certainly force that. I
think the VRA, we are focusing on practice-based preclearance,
but it has many other critical provisions, including the
transparency provisions, which I think are the most obvious and
innocuous ones that we could have. We should at least know when
there are changes that might affect minority populations and
other targeted populations in the country so that we can be
ready to combat them if necessary, and if certain triggers are
met, that they will have to go through some Federal oversight.
Ms. Scanlon. I was struck a couple of times. People have
mentioned the language of persistent or unremitting and
ingenious efforts to suppress the vote. It certainly feels as
though we have seen some of that ingenuity on display since the
Shelby decision. So, can you just speak a little bit more to
how the known practices coverage is responsive to the Supreme
Court's concerns in Shelby?
Ms. Nelson. Sure. You know, the Supreme Court said that the
section 4 coverage provision was outdated, that it relied on
the data that we opened the hearing with, was largely based on
Southern States, targeted a particular geographic area of the
country, and seemingly unfair.
So, whether we agree with that notion or not, this
practice-based preclearance addresses that issue by making this
a preclearance provision that is national in scope. Any State,
any political jurisdiction might fall under this preclearance
provision, but only if it reaches a certain threshold in terms
of minority or language-based population and if it is engaging
in one of six potential voting practices that we know are known
to correlate with racial and language-based discrimination.
So, we are not guessing. These are already practices that
have a history of discrimination, and we have a large number of
people who might be subject to that discrimination within that
jurisdiction. That is a recipe for potential suppression, and
all we are asking is that the Federal Government look at that
law and determine whether it will, in fact, suppress the
minority vote.
Ms. Scanlon. That is because it is pretty hard to remedy a
suppression of the vote after the fact, isn't it?
Ms. Nelson. That is right. Once a violation of the right to
vote has occurred, we can use other tools to challenge it. But
if it involves an election, that election is already passed. As
someone said earlier, the bell cannot be un-rung, and those
rights to vote cannot be vindicated.
This can't be a democracy in which we treat the right to
vote so cavalierly.
Ms. Scanlon. Thank you very much for your testimony. I
yield back.
Mr. Cohen. Ms. Garcia, you are recognized for 5 minutes.
Ms. Garcia. Thank you, Mr. Chairman, and thank you for
bringing this hearing to fruition. It is a very important issue
for so many of us across this country.
I want to thank also all the witnesses who are here today.
By 2020, Latinos are expected to become the largest nonwhite
voter population in the United States. The Pew Research Center
estimates that 32 million Latinos could cast a ballot in the
next national election.
Some of us agree that the increase in anti-immigrant
policies, in political speech and rhetoric is part of what is
driving many Latinos to the poll, as well as was the case in my
district and in Harris County during the 2018 elections.
Franchising our minority voters will have widespread benefits
for all Americans and will strengthen our democracy, already
the strongest democracy in the world.
To protect our voting rights of eligible voters, today I
introduced PASA, the Polling Access Safety Act, a bill that
will prohibit interior immigration enforcement around polling
places. We need stronger laws to ensure that Presidents--and as
you stated, Ms. Nelson, not just this one, but for the future--
can't use their extraordinary powers, including using the tools
of ICE, to manipulate our elections in other ways. For example,
to try to scare registered voters away from the polls.
PASA aims to ensure that the Latino vote is fully
protected, eliminating the chilling effect that immigration
enforcement could have on voter turnout on U.S. Citizens.
So, I would like to start with you, Mr. Vargas, and thank
you for the kind words in your opening statement. Would you
agree that interior immigration enforcement around polling
places would chill a voter turnout for Latino U.S. citizens in
mixed status families?
Mr. Vargas. Thank you, Congresswoman, for that question.
Absolutely. H.R. 4 identifies only six known practices that
have been used to suppress Latino voting, but there are many
other tactics that have been used, including the placement of
law enforcement officials at or near polling locations. So
certainly, the placement of immigration enforcement officials
at or near polling locations would be designed to suppress the
Latino vote.
We have seen this already happen in other jurisdictions
around the country where the placement of law enforcement,
specifically in Latino-heavy polling locations, were designed
to scare away Latinos from voting.
Ms. Garcia. Well, thank you for that because I agree with
you. I personally have experienced receiving a purging letter.
I have experienced getting to the poll and being told that my
name was on the list. I have experienced going to a poll and
machines not being ready.
I mean, there are so many tools, and I was glad to see that
Mr. Tyson brought up purging because I think there is more and
more of that going on, particularly in my home State,
regretfully, of Texas.
So, Mr. Saenz, a question for you. What is the latest
status of the issue with the last purging scandal in Texas,
where it was alleged that all these voters were quote,
unquote--and I hate the word, never use it, except I am quoting
this--``illegal aliens.'' I mean, we knew it was false. We knew
it was bogus. But what is the status of the current litigation?
Mr. Saenz. So, fortunately, that litigation was resolved
with the secretary of State withdrawing and being required to
withdraw his letter seeking to cause counties to question
whether naturalized citizens who had naturalized after going to
the DMV to obtain a license had legitimate places on their
voter rolls. It was a purge that targeted, as you know,
naturalized citizens.
The State knew that DMV records were not an accurate
reflection of current citizenship status, but despite knowing
that, it moved forward with challenging and asking county
registrars to challenge the legitimacy of every person who had
gone to the DMV when they were not yet a citizen.
The latest, though, is that this Administration is
currently attempting to access DMVs around the country in
different States to use that data, faulty for the same reason
the data was faulty in Texas for the purpose of voter purge,
use that data to determine the current citizenship of the
population around the country. It is again knowing that the
data isn't accurate but using it to target naturalized
citizens.
Ms. Garcia. Thank you.
Finally, and I only have about 30 seconds, Mr. Kousser,
your Table 2 of your testimony highlights several important
conclusions about patterns of discrimination. In whiter
counties, those in which non-Hispanic whites exceeded 80
percent of the CVAP, the proportion of counties with at least
one successful voting rights action was six times as high in
the covered counties as the noncovered counties.
Can you explain how a focus on litigation findings can
target areas where there is a concentration of discrimination?
Mr. Kousser. Well, obviously, using the congruent and
proportional language of Boerne, it can find exactly where that
discrimination has been and provide a more accurate record and
a concentrated record, a coordinated record that Congress--on
which Congress can base further designs of a new coverage
scheme that the Supreme Court has asked for.
Ms. Garcia. Thank you. Thank you, Mr. Chairman. Like
others, I have other questions that I may submit for the record
later.
Mr. Cohen. You are welcome. Thank you, Ms. Garcia.
Ms. Garcia. Thank you.
Mr. Cohen. Ms. Sheila Jackson Lee of Texas is recognized.
Ms. Jackson Lee. Mr. Chairman, thank you very much.
To the multiple witnesses, let me thank you for your
testimony. We are overlapping in Committee assignments, and as
well, many of us are mourning the loss of my friend and
colleague, the Honorable Elijah Cummings, and so we were
addressing his passing in a public setting.
I would offer to say that he would want us to be in this
room because there were many occasions that we worked together
that he worked with the leaders of this committee, including
Chairman Cohen, on trying to address these questions.
Let me just for an editorial moment indicate how simple it
was in 1965 to just write a simple voting rights bill that
carried us forward and created the opportunity for my
predecessor, the Honorable Barbara Jordan, to serve for the
first time in any public setting.
Barbara Jordan had run in the scheme that was structured in
Texas, which was an at-large scheme, if you will. So, if you
lived in a community of color, you had to run county wide. She
lost every single time. It was only when the voting rights and
the underpinnings of the Voting Rights Act came that it was one
vote, one person, but you had the right to select the person of
your choosing that she went for the first time to the State
senate.
Many people think she went to Congress. She went to the
State senate in a district that she was able to win in. Then
ultimately came to her opportunity to serve in the United
States Congress out of a district, becoming one of two African
Americans to serve in the United States Congress since
Reconstruction.
So, I am disturbed that we are even at this place. In the
last reauthorization of the Voting Rights Act that had all the
bells and whistles that we think were appropriate, 15,000 pages
of testimony that we had the same construct, signed by a
Republican President. Suddenly, a skewed Supreme Court that
didn't understand that even if you think you don't have polio,
according to Justice Ginsburg, you don't need to get rid of the
vaccination, and here we are today.
So, I would like to those who want to answer the question
of why do we believe that we are here today when we had a
perfectly good structure, and I know that we are focusing on
legislation. Then I am going to give two questions, and I hope
in the course of that time, you will be able to answer it.
I know that we are looking at some very outstanding
legislation by Members of this Congress, Mr. Sensenbrenner and
Ms. Sewell, who testified today. We thank them so very much.
It is a complicated process, one that we know that we have
had the input of many civil rights organizations, but it is
still going to tie our hands of looking for 15 or 25 and how
many communities and then a lookback period. I want to hear
from someone is there any other mode that we should add that
may provide--and don't be fearful that you are undermining the
present legislation. That is not the case.
I would be interested in that. I would be interested in,
Mr. Kousser, on your observing. You observed that in the Shelby
County opinion, Justice Roberts was able to pick and choose,
pick and choosing from misleading statistics to contend that
the factual underpinnings that previous Supreme Court decisions
had judged that satisfied treating different States and
localities differently had now been fatally weakened. Can you
explain where Justice Roberts was wrong? That is a specific
question.
Then to Mr. Yang, what are some examples of how known
practices coverage would have impacted emerging Asian-American
communities outside formerly covered in section 5. Let me put
my first question, that overall question to Ms. Nelson, and add
in there the work the NAACP did on felons that intimidates
African Americans, Hispanics, and others that this whole thing
if you are felon that you can't vote, and it discourages people
from going.
Just the overall problem of having to get into the weeds of
all these complicated layers that is going to be so complicated
in order to protect people's right to vote. So, I ask
Chairman's indulgence. Mr. Kousser am I pronouncing your name
correctly, sir?
Mr. Kousser. That is correct.
Ms. Jackson Lee. All right. Then Mr. Yang, the two specific
questions. Ms. Nelson? Thank all the other witnesses.
Ms. Nelson. Thank you for that question. I will try to be
brief.
I think it was Mr. Tyson who mentioned earlier the issue of
voter purging. That is something that we know, and we have
recent proof of, a process that can be manipulated to remove
minority voters from the voting rolls. In fact, this
Administration attempted to create an entire commission aimed
at list maintenance that ultimately intended to purge minority
voters, and it was shut down by the lawsuits brought not only
by the NAACP Legal Defense Fund, but many of our allies, and it
was ultimately an abandoned effort.
That does not mean, though, that State and local actors
can't engage in the same sort of mischief and target minority
voters. So, if I had to choose an additional way to strengthen
this legislation, that would certainly be one.
Then, of course, you raised the issue of the
disenfranchisement of persons with criminal convictions. The
Legal Defense Fund has long advocated for the elimination of
any restriction that is tied to a criminal conviction, whether
the individual is incarcerated or not. The right to vote is
something that should stand alone and apart from any criminal
sentence, and we are currently litigating that issue in Florida
and have been doing that for a few decades now.
If we could make that mandatory, the elimination of any
felon disenfranchisement laws in Federal elections, that would
be an enormous step forward in re-enfranchising millions of
African Americans and Latinos who have been deprived of their
right to vote, and the community contagion that is similar to
what happens when you have mixed status families who are
intimidated by people at the polls, when you have certain
Members of your family who cannot vote because of a criminal
conviction, it actually spreads throughout the community in
terms of depressing civic engagement and creating voter apathy.
So that is something that we would certainly press for if
we had to expand this legislation in any way.
Mr. Cohen. Thank you very much, and thank--
Ms. Jackson Lee. Can Yang and Kousser just quickly? They--
Mr. Cohen. Well, to be honest, I have got to be somewhere,
and we are 2 minutes over.
Ms. Jackson Lee. Can they be 2 minutes answering?
Mr. Cohen. No, they can't. I am going to have to call time.
Ms. Jackson Lee. All right, Mr. Chairman.
Mr. Cohen. Thank you, thank you.
This concludes today's hearing. I want to thank all our
witnesses for appearing today.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
This hearing is adjourned.
[Whereupon, at 12:21 p.m., the Subcommittee was adjourned.]
APPENDIX
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