[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
 VOTING RIGHTS ACT AFTER THE SUPREME COURT'S DECISION IN SHELBY COUNTY

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION 
                           AND CIVIL JUSTICE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 18, 2013

                               __________

                           Serial No. 113-35

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov



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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

           Subcommittee on the Constitution and Civil Justice

                    TRENT FRANKS, Arizona, Chairman

                    JIM JORDAN, Ohio, Vice-Chairman

STEVE CHABOT, Ohio                   JERROLD NADLER, New York
J. RANDY FORBES, Virginia            JOHN CONYERS, Jr., Michigan
STEVE KING, Iowa                     ROBERT C. ``BOBBY'' SCOTT, 
LOUIE GOHMERT, Texas                 Virginia
RON DeSANTIS, Florida                STEVE COHEN, Tennessee
JASON T. SMITH, Missouri             TED DEUTCH, Florida

                     Paul B. Taylor, Chief Counsel

                David Lachmann, Minority Staff Director


                            C O N T E N T S

                              ----------                              

                             JULY 18, 2013

                                                                   Page

                           OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Chairman, Subcommittee on the 
  Constitution and Civil Justice.................................     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution and Civil Justice.................................     2
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     5
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     6

                               WITNESSES

J. Christian Adams, Attorney Election Law Center, PLLC
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
Robert A. Kengle, Co-Director, Voting Rights Project, Lawyers' 
  Committee for Civil Rights Under Law
  Oral Testimony.................................................    26
  Prepared Statement.............................................    28
Hans A. von Spakovsky, Senior Legal Fellow, The Heritage 
  Foundation
  Oral Testimony.................................................    41
  Prepared Statement.............................................    43
Spencer Overton, Professor of Law, The George Washington 
  University Law School
  Oral Testimony.................................................    52
  Prepared Statement.............................................    54

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Ranking Member, Subcommittee on the Constitution and Civil 
  Justice
    Prepared Statement of the Honorable Jerrold Nadler, a 
      Representative in Congress from the State of New York, and 
      Ranking Member, Subcommittee on the Constitution and Civil 
      Justice....................................................    73
    Prepared Statement of the NAACP Legal Defense and Educational 
      Fund, Inc..................................................    75
    Prepared Statement of the National Urban League..............    84
    Joint Prepared Statement of Asian Americans Advancing Justice 
      and Asian American Legal Defense and Education Fund........    87
    Letter from the Anti-Defamation League (ADL).................    96
    Prepared Statement of the American Civil Liberties Union 
      (ACLU).....................................................    99
    Prepared Statement of Gary R. Redding, Legal Fellow, on 
      behalf of the Rural Coalition..............................   108


 VOTING RIGHTS ACT AFTER THE SUPREME COURT'S DECISION IN SHELBY COUNTY

                              ----------                              


                        THURSDAY, JULY 18, 2013

                        House of Representatives

                   Subcommittee on the Constitution 
                           and Civil Justice

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 11:06 a.m., in 
room 2141, Rayburn Office Building, the Honorable Trent Franks, 
(Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, Goodlatte, Sensenbrenner, 
Chabot, King, Smith of Missouri, Conyers, Nadler, Scott, Watt, 
Jackson Lee, and Deutch.
    Also Present: Representative Lewis.
    Staff present: (Majority) Paul Taylor, Majority Counsel; 
Tricia White, Clerk; (Minority) David Lachmann, Subcommittee 
Staff Director; and Veronica Eligan, Professional Staff Member.
    Mr. Franks. The Subcommittee on the Constitution and Civil 
Justice will come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Committee at any time.
    I will now recognize myself for 5 minutes for an opening 
statement.
    In Shelby County v. Holder, the Supreme Court this term 
held that Section 4 of the Voting Rights Act, which sets out 
the formula that was used to determine which state and local 
governments must comply with the Voting Rights Act's 
preclearance requirements, is unconstitutional and can no 
longer be used. Those preclearance requirements made certain 
jurisdictions subject to special procedures when they changed 
their voting laws, such that they had to have their laws 
approved by the U.S. Attorney General or a three-judge panel of 
the U. S. District Court for the District of Columbia before 
those laws could go into effect.
    Section 4 set forth a formula for determining if a 
jurisdiction was covered by the preclearance requirements. That 
formula, based on data from 1965, applied the preclearance 
requirements to those states or political subdivisions that had 
maintained a test or device as a prerequisite to voting as of 
November 1st, 1964, and had less than 50 percent voter 
registration or turnout in the 1964 presidential election.
    In 1970, Congress reauthorized the Act for another 5 years 
and extended the coverage formula in Section 4 to jurisdictions 
that had a voting test and less than 50 percent voter 
registration or turnout as of 1968. In 1975, Congress 
reauthorized the Act for seven more years and extended its 
coverage to jurisdictions that had a voting test and less than 
50 percent voter registration or turnout as of 1972. In 1982, 
Congress reauthorized the Act for 25 years, but did not alter 
its coverage formula. In 2006, Congress again reauthorized the 
Voting Rights Act for 25 years, again without changing its 
coverage formula.
    The Supreme Court majority in Shelby County wrote that, 
``the Framers of the Constitution intended the States to keep 
for themselves, as provided in the 10th Amendment, the power to 
regulate elections,'' and that states have ``broad powers to 
determine the conditions under which the right of suffrage may 
be exercised.'' It held that the Voting Rights Act departed 
from these basic principles by suspending, once again, ``all 
changes to state election law, however innocuous, until they 
had been precleared by Federal authorities in Washington, 
D.C.''
    As the Court stated, ``In 1966, we found these departures 
from the basic features of our system of government justified. 
At the time, the coverage formula, the means of linking the 
exercise of the unprecedented authority with the problem that 
warranted it, made sense. Nearly 50 years later, things have 
changed dramatically.'' The Court noted that in the covered 
jurisdictions, ``voter turnout and registration rates now 
approach parity. Blatantly discriminatory evasions of Federal 
decrees are rare, and minority candidates hold office at 
unprecedented levels. The tests and devices that blocked access 
to the ballot have been forbidden nationwide for over 40 
years.''
    While the Court recognized that the 15th Amendment commands 
that the right to vote shall not be denied or abridged on 
account of race, and it gives Congress the power to enforce 
that command, it held that, ``The amendment is not designed to 
punish for the past. Its purpose is to ensure a better 
future.''
    To serve that purpose, Congress, if it is to divide the 
states, must identify those jurisdictions to be singled out on 
a basis that makes sense in light of current conditions.
    Finally, the Court made it clear that its decision ``in no 
way'' affects the permanent nationwide ban on racial 
discrimination in voting found in Section 2 of the Voting 
Rights Act, nor did its decision affect Section 3 of the Voting 
Rights Act, which allows courts on a case-by-case basis to put 
states and political subdivisions under preclearance 
requirements based on current violations that 
unconstitutionally limit voting rights.
    And with that, I am going to yield to the Ranking Member 
for his opening statement. Thank you.
    Mr. Nadler. Thank you, Mr. Chairman.
    Today we review the impact of the Supreme Court's decision 
in Shelby County v. Holder. As the Ranking Member of this 
Subcommittee when we reauthorized the Voting Rights Act in 
2006, I had the privilege of working on a bipartisan and 
bicameral basis with the then-chairman of the full Committee, 
Mr. Sensenbrenner, the then-chairman of the Subcommittee, Mr. 
Chabot, our Ranking Member, Mr. Conyers, and the gentleman from 
North Carolina, Mr. Watt, in guiding the reauthorization 
through the Congress.
    We spent months reviewing the evidence, gaining a firm 
grasp of the current state of voting rights and the impediments 
to the exercise of the franchise as it exists in the present 
day. We were persuaded, as were an overwhelming majority of the 
Members of this House and every single Member of the Senate who 
voted, that the remedies contained in the special provisions 
were still necessary and were well suited to the challenge of 
voting rights.
    We did consider revising the formula challenged in Shelby 
County but determined that the existing formula still served as 
a useful and effective method of applying Section 5 where 
needed. That determination was not based solely on the 
questions focused on by the Court and identified by Congress in 
1965 but by the full weight of the evidence we found in 2006.
    The Court, arrogating to itself the quintessentially 
congressional power to decide what facts are relevant and what 
constitutes an appropriate remedy, struck down the formula in 
Section 4, eviscerating and rendering a nearly dead letter the 
preclearance provisions of Section 5.
    Congress long ago made the correct determination that 
requiring voters to go to court after they had already been 
disenfranchised rendered voting rights unenforceable and 
encouraged local political leaders to rig the system to their 
advantage. To be clear, the Voting Rights Act is not solely 
about racial animus. It is about political power. It is not a 
matter of determining whether one part of the country is ``more 
racist'' than another but only whether certain jurisdictions 
engage in conduct requiring special scrutiny to protect the 
right to vote.
    Excluding minorities from effective participation in our 
democracy renders them something less than full citizens. Here, 
Justice Scalia was dead wrong. The right to vote in a free and 
fair election is not a racial entitlement but rather the 
birthright of every American regardless of race.
    As a far more forward-looking and intelligent Supreme Court 
said in Reynolds v. Sims in 1964, ``Undoubtedly, the right of 
suffrage is a fundamental matter in a free and democratic 
society. Especially since the right to exercise the franchise 
in a free and unimpaired manner is preservative of other basic 
civil and political rights, any alleged infringement of the 
right of citizens to vote must be carefully and meticulously 
scrutinized.''
    The Voting Rights Act has stood for a half-century as a 
testament to our commitment that everyone must have an equal 
share in the governance of our Nation if our democracy is to 
have any claim to legitimacy. While it is true that we have 
made substantial progress in our Nation since 1965, much of it 
attributable to Section 5 of the Voting Rights Act and our 
other civil rights laws, it is also true that we are not yet 
free of efforts to manipulate the system in ways that 
disempower minority groups.
    As we stated in the Committee's report to accompany the 
2006 reauthorization issued by this Committee, ``Despite the 
substantial progress that has been made, the evidence before 
the Committee resembles the evidence before Congress in 1965, 
and the evidence that was present again in 1970, 1975, 1982 and 
1992. In 2006, the Committee finds abundant evidentiary support 
for reauthorization of the Voting Rights Act's temporary 
provisions.''
    We reviewed the extent to which the kinds of first-
generation devices have been addressed and found that Section 5 
had improved voter participation in covered jurisdictions, just 
as the Court's majority later noted. We also observed that, 
``Sections 5 and 8 have been vital prophylactic tools 
protecting minority voters from devices and schemes that 
continue to be employed by covered states and jurisdictions.'' 
We went on to note, ``The Committee received testimony 
revealing that more Section 5 objections were lodged between 
1982 and 2004 than were interposed between 1965 and 1982, that 
such objections did not encompass minor inadvertent changes. 
The changes sought by covered jurisdictions were calculated 
decisions to keep minority voters from fully participating in 
the political process. This increased activity shows that 
attempts to discriminate persist and evolve such that Section 5 
is still needed to protect minority voters in the future.''
    So the voluminous evidence we compiled showed clearly that 
the need in the covered jurisdictions remained. We also showed 
at that time that the rate of Section 2 reversals of voting 
rights changes in covered jurisdictions was more than twice the 
rate in non-covered districts across the country. So the 
voluminous evidence that we compiled showed clearly that the 
need in the covered jurisdictions remained and that the special 
provisions were necessary and effective in protecting voting 
rights in those jurisdictions.
    Rather than proving that the formula in Section 4(b) was 
obsolete, the statistics cited by the Court demonstrated the 
continuing need and effectiveness of Section 5. That brings us 
to today's hearing. I strongly believe that the facts we found 
in 2006 made a compelling case for retaining Section 5 and 
applying it to covered jurisdictions, which include, I might 
add, my own district in New York City.
    What we need to do as a first order of business before we 
start to look at what we might do to address the Court's 
decision is to determine the impact of that decision. Just as 
we moved with great care and deliberation in 2006 in a 
bipartisan manner, I would urge Members not to put the cart 
before the horse by trying to examine specific cases and 
possible remedies until we have a better understanding of where 
we are right now.
    I know that not every Member of this Committee supported 
the reauthorization of the Voting Rights Act, but I hope that 
we can nonetheless work cooperatively in the same bipartisan 
spirit that guided our 2006 deliberations to address the 
Court's decision.
    I hope the witnesses can address some of the following 
questions. What remains of the Voting Rights Act? What is the 
status of voting changes precleared or denied preclearance 
since 2006? Are any jurisdictions still covered by Section 5? 
If so, based on what? What tools does the Justice Department 
still have to fight voter disenfranchisement?
    There are obviously applications of the Voting Rights Act 
upon which Members of this Committee strongly disagree. I would 
hope that rather than allowing ourselves to get bogged down 
with the most controversial cases of the day, we take a step 
back, look at Section 5 and at what the Court did. Ultimately, 
as our experience since 1965 has clearly shown, the specifics 
change over time, but the need for preclearance has remained 
constant. The value of Section 5 has been its ability to 
respond in real time to constantly changing efforts to 
disenfranchise voters. I hope we can keep our focus where it 
belongs and lead to some progress.
    Thank you, Mr. Chairman.
    Mr. Franks. And I thank the gentleman.
    And I would now yield to the Chairman of the full 
Committee, Mr. Goodlatte from Virginia.
    Mr. Goodlatte. Thank you, Mr. Chairman. I appreciate your 
holding this hearing.
    Last month, the Supreme Court struck down one part of the 
Voting Rights Act, namely Section 4, which automatically placed 
certain states and political subdivisions under the Act's 
Section 5 ``preclearance'' requirements. Those preclearance 
requirements prevented voting procedures in covered states from 
going into effect until the new procedures had been subjected 
to review and approval either after an administrative review by 
the Department of Justice or after a lawsuit before the Federal 
district dourt for the District of Columbia.
    When the Voting Rights Act was first enacted, the 
jurisdictions automatically subject to these special 
``preclearance'' requirements were identified in Section 4 of 
the Act by a formula setting out certain criteria for coverage. 
The first element in the formula was that a state or political 
subdivision of the state would be covered if it maintained on 
November 1, 1964, ``a test or device'' restricting the 
opportunity to register and vote. The second element of the 
formula provided that a state or political subdivision would 
also be covered if the Director of the Census determined that 
less than 50 percent of persons of voting age were registered 
to vote on November 1, 1964, or that less than 50 percent of 
persons of voting age voted in the presidential election of 
November 1964.
    In Shelby County, the Supreme Court struck down this method 
by which jurisdictions were automatically deemed covered by the 
preclearance provisions, finding that the original coverage 
formula was, and I quote, ``based on decades-old data and 
eradicated practices . . . In 1965, the states could be divided 
into two groups: those with a recent history of voting tests 
and low voter turnout and registration, and those without those 
characteristics. Congress based its coverage formula on that 
distinction. Today, the Nation is no longer divided along those 
lines, Yet the Voting Rights Act continued to treat it as if it 
were.'' The Court further criticized Section 4's formula as 
relying on ``decades-old data relevant to decades-old problems 
rather than current data reflecting current needs.''
    Now it is important to note that under the Supreme Court's 
decision in Shelby County, other very important provisions of 
the Voting Rights Act remain in place, including Sections 2 and 
3.
    Section 2 applies nationwide and prohibits voting practices 
or procedures that discriminate on the basis of race, color, or 
the ability to speak English. 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 intentionally discriminatory voting procedures in 
violation of the 14th and 15th Amendments. If a state or 
political subdivision is found by the Federal court to have 
discriminated in voting, then the court has discretion to 
retain supervisory jurisdiction and impose preclearance 
requirements on the state or political subdivision 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 
the Department of Justice before such rule changes could go 
into effect. Again, Section 3's procedures remain available 
today to those challenging voting rules as discriminatory.
    I think it is absolutely critical that we make sure that 
the rights of those to register and vote in the United States, 
regardless of race or gender or national origin or other 
protected areas, be preserved, and that we encourage all 
Americans to register and vote, and that we protect those 
rights.
    I look forward to hearing from all of our witnesses today, 
to hearing their assessment of the ramifications of the Court's 
decision.
    Mr. Franks. And I thank the gentleman.
    And I would now yield to the Ranking Member of the 
Committee, Mr. Conyers from Michigan.
    Mr. Conyers. Thank you, Chairman Franks.
    What a day. I just left a Nelson Mandela celebration of his 
life and legacy. He is 95 years old today, and here we are at 
this very critical juncture in terms of Shelby County.
    Now, the Voting Rights Act is the crown jewel of our 
Nation's civil rights laws. Claiming seniority but not age, I 
was a newly elected Member of Congress in 1965 and was 
privileged to vote in favor of that act when it passed this 
Committee in the House. Many Members hold the Act in an almost 
sacred place, like our colleague John Lewis, who shed his blood 
and nearly his life in support of its passage.
    Without question, the Act has been an unqualified success, 
helping rid our Nation of legal barriers to voting 
discrimination, paving the way for the election of the first 
African-American in our history to the White House.
    But these successes do not mean that the work of the Voting 
Rights Act is complete. And for that reason, my colleague, Jim 
Sensenbrenner, and I compiled a voluminous record in support of 
reauthorization of the Act in the year 2006. This record in 
many respects greatly exceeded previous reauthorization 
efforts. Most importantly, we carefully followed the parameters 
set out in the City of Boerne v. Flores in updating the Act so 
that it would pass legal scrutiny and protect voters from well-
documented continuing discrimination.
    In response to legal challenges to the Act following 2006, 
we asserted congressional authority to enact voting rights 
legislation under the 13th, 14th, and 15th Amendments of the 
Constitution in two separate amicus briefs. We were confident 
that the United States Supreme Court, following precedents set 
in South Carolina v. Katzenbach and the City of Rome v. United 
States, would uphold the constitutionality of the Act. This 
explains why I and many of my colleagues, most legal 
commentators were deeply disappointed by the Court's 5-4 
decision in Shelby County v. Holder, which invalidated the 
coverage formula or trigger in Section 4(b) of the Act as being 
outdated.
    As a result of Shelby, Section 5 of the Act, which requires 
preclearance for jurisdictions covered by Section 4(b), is 
effectively suspended. Section 5 is the Act's key provision 
requiring covered jurisdictions to obtain advance approval from 
the Department of Justice or a three-judge panel before they 
can implement voting changes. The suspension of Section 5 
immediately enables jurisdictions with a clear and recent 
history of discrimination to dilute the impact of minority 
voting through redistricting and to implement procedures that 
could create barriers to the ballot box.
    In addition, the suspension of Section 5 preclearance 
deprives the Justice Department of a critical tool that has 
been used to protect the voting rights of minority citizens in 
jurisdictions with a history of discrimination.
    Although the Supreme Court has invited Congress to pass an 
updated coverage formula, the opinion left unresolved several 
important questions. The most immediate of these issues 
pertains to the current state of existing voting rights 
enforcement law during the interim between this ruling and the 
enactment of any new coverage formula.
    Fortunately, today's hearing provides an important 
opportunity for us to address this issue and others presented 
by Shelby. I want to thank again Committee Chairman Goodlatte 
and Subcommittee Chairman Franks for promptly scheduling this 
hearing. We must use this opportunity to promptly craft a 
legislative solution that enables the Justice Department to 
effectively enforce the rights of minority voters in covered 
jurisdictions within the contours of the Constitution.
    I know every Member of this Committee to be fair 
individuals of good faith, and I pledge to work with every one 
of you to respond to the Supreme Court's decision on a 
bipartisan basis. It is therefore my hope that immediately 
after this hearing and over the recess we can begin the process 
of informal discussions with each other in order to protect our 
citizens' voting rights to the fullest extent possible 
consistent with our Constitution.
    I hold up a record entitled ``Department of Justice 
Objections under Section 5.'' Between the years 2000 and 2012, 
there are scores of voting changes that were objected to or 
withdrawn. It is important to our discussion today as we 
discuss how Congress will continue to address states and 
political subdivisions that may still be engaged in voting 
discrimination.
    I thank the Chairman.
    Mr. Franks. And I thank the gentleman.
    And without objection, other Members' opening statements 
will be made part of the record.
    I just want to thank everyone for their presence here 
today, and I will now introduce our witnesses.
    Our first witness is J. Christian Adams, counsel to the 
Election Law Center. Mr. Adams previously served in the Civil 
Rights Division of the Department of Justice as a career 
attorney in the voting section.
    Our second witness is Robert Kengle, the Acting Co-Director 
of the Voting Rights Project of the Lawyers' Committee for 
Civil Rights Under Law. Mr. Kengle previously served for over 
20 years in the Department of Justice voting section.
    Our third witness today is Hans von Spakovsky, Senior Legal 
Fellow at the Heritage Foundation. Mr. von Spakovsky previously 
served in the Justice Department as counsel to the Assistant 
Attorney General for Civil Rights, where he worked on enforcing 
the Voting Rights Act.
    Our final witness today is Professor Spencer Overton of the 
George Washington University Law School. Mr. Overton has also 
served as the Principal Deputy Assistant Attorney General at 
the Department of Justice in the Office of Legal Policy.
    We are very grateful for all of you being with us today.
    Now, each of the witnesses' written statements will be 
entered into the record in its entirety, and I would ask that 
each witness summarize his or her testimony in 5 minutes or 
less. And to help you stay within that time, there is a timing 
light in front of you. The light switch will turn from green to 
yellow, indicating that you have 1 minute to conclude your 
testimony. When the light turns red, it indicates that the 
witness' 5 minutes have expired.
    Before I recognize the witnesses, it is the tradition of 
the Subcommittee that they be sworn, so if you would please 
stand to be sworn.
    [Witnesses sworn.]
    Mr. Franks. Let the record reflect that the witnesses 
answered in the affirmative.
    I now recognize our first witness, Mr. Adams, and if you 
will please turn your microphone on before speaking, sir.

               TESTIMONY OF J. CHRISTIAN ADAMS, 
               ATTORNEY ELECTION LAW CENTER, PLLC

    Mr. Adams. Thank you, Mr. Chairman, Ranking Member Nadler. 
Thank you for the opportunity to testify in this important 
matter.
    Separating fact from fiction about the Supreme Court's 
recent decision in Shelby County is essential to chart future 
effective and constitutionally permissible civil rights 
enforcement.
    Reports of the demise of the Voting Rights Act have been 
greatly exaggerated. What remains of the Voting Rights Act? 
Everything else. It is simply hype to suggest that the Supreme 
Court's decision in Shelby has left voters in America 
unprotected. Deliberately stoking fears, deliberately targeting 
certain racial groups for disinformation, deliberately ignoring 
the multiple protections which remain in the Voting Rights Act 
does a disservice to the Nation and to civil rights.
    In Shelby County, the Supreme Court found that in 2013 
these half-century-old triggers had become obsolete. 
Mississippi was captured, but so was New Hampshire. Arkansas, 
the epicenter of school desegregation in 1957, was not covered, 
but Michigan was. Some counties in North Carolina were covered, 
but neighboring counties weren't. Virginia, a state which 
elected a Black governor and twice voted for President Obama, 
was captured by Section 4.
    When the coverage formula was written in 1965, My Fair Lady 
had just won the Oscar for Best Picture, My Girl by the 
Temptations topped the charts, and Bonanza was the most watched 
show on television.
    Our Constitution vests states with the power to run their 
own elections. This diffusion of power is designed to protect 
individual liberty. Yet in 1966, the Court properly justified 
Section 5's intrusion into state sovereignty because some 
states had engaged in ``widespread and persistent 
discrimination,'' which the Court characterized as an 
``insidious and pervasive evil.'' This language demonstrates 
the heavy empirical burdens necessary to justify Federal 
intrusion into state sovereignty.
    Does ``widespread and persistent discrimination'' manifest 
as an ``insidious and pervasive evil'' in 2013? Obviously the 
Supreme Court thinks no, at least as it pertains to the 
triggers of the invalidated Section 4.
    In Shelby, the Supreme Court also rejected the concept of 
so-called second-generation structural racism to justify 
continued Federal oversight in 15 states. According to the 
Supreme Court, genuine, direct, and immediate racial 
discrimination alone justifies Federal intrusion into state 
sovereignty, not vague and attenuated so-called second-
generational structural discrimination.
    The Court made it clear that only certain current 
conditions could justify a Section 5 coverage formula. Among 
the touchstones listed in Shelby are: blatantly discriminatory 
evasion of Federal decrees; lack of minority office holding; 
tests and devices; voting discrimination on a pervasive scale; 
flagrant voting discrimination; rampant voting discrimination. 
Federal intrusion into powers reserved by the Constitution to 
the states must relate to these empirical circumstances.
    The Court in Shelby also concluded that Congress weakened 
the constitutionality of the Voting Rights Act in 2006 when it 
altered the Section 5 standards. Beginning in 2006, submitting 
jurisdictions were forced to prove a negative, thus increasing 
the constitutional injury to states.
    A 2009 objection in Kinston, North Carolina, demonstrates 
this abusive and legally indefensible position that will be 
adopted by the Justice Department in that file. Kinston, a 
majority Black jurisdiction, in a referendum, decided to dump 
partisan elections and move to non-partisan elections. The DOJ, 
exploiting the 2006 reauthorization burden shift, objected to 
the change. The objection was explicitly based on the 
indefensible and immoral position that Black voters would not 
know for whom to vote if the word ``Democrat'' was not next to 
a candidate's name.
    But the Voting Rights Act remains alive and well. Section 2 
is the nationwide prohibition on racial discrimination, and it 
remains in full force and effect. Unfortunately, the Justice 
Department has failed to bring a single Section 2 case in over 
4 years. They have left it to private plaintiffs to sue, such 
as they did in Fayette County, Georgia.
    Section 3 of the Voting Rights Act also remains the law. 
This is the opt-in provision where oversight under Section 5 
can still follow. After Shelby, Section 203 and Section 4(e) of 
the Voting Rights Act are still in full force and effect to 
protect minority language voters.
    And finally, Section 11 of the Voting Rights Act, really, 
in my view, the heart of the Voting Rights Act, remains in full 
force, protecting against voter intimidation, threats or 
coercion.
    Thank you very much for the opportunity to testify.
    [The prepared statement of Mr. Adams follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Franks. And I thank the witness.
    And I will now recognize our second witness, Mr. Kengle. 
And, sir, if you will please turn on your microphone before 
speaking. Mr. Kengle.

   TESTIMONY OF ROBERT A. KENGLE, CO-DIRECTOR, VOTING RIGHTS 
     PROJECT, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW

    Mr. Kengle. Good morning, Chairman Franks, Ranking Member 
Nadler, Members of the Subcommittee. My name is Bob Kengle. I 
am co-director of the Voting Rights Project at the Lawyers' 
Committee for Civil Rights Under Law in Washington, D.C. The 
Lawyers' Committee was formed in 1963 at the request of 
President John F. Kennedy to bring together the members of the 
private bar to combat racial discrimination. We are celebrating 
our 50th anniversary. The job is not yet complete.
    I thank you for the opportunity to testify this morning on 
behalf of the Lawyers' Committee concerning the Supreme Court's 
decision in the Shelby County v. Holder case and its 
implications.
    I had the honor of serving over 20 years in the voting 
section at the Department of Justice, where I litigated 
numerous cases under Section 2 and Section 5 of the Voting 
Rights Act. I also supervised a number of Section 5 submissions 
and Section 5 objection analyses. I have been a member of the 
Voting Rights Project at the Lawyers' Committee since 2007, and 
I have continued to work on a broad range of voting rights 
matters, including the Shelby County case.
    In Shelby County v. Holder, the Supreme Court held that the 
coverage formula contained in Section 4(b) of the Voting Rights 
Act is unconstitutional for purposes of determining the 
jurisdictions to which the preclearance requirements of Section 
5 would apply. As a result, preclearance review under Section 5 
is now in suspended animation.
    My written testimony today stresses that stopping racially 
discriminatory voting changes before they are put into effect 
is what made Section 5 so unique and so successful. Voting is 
the fundamental preservative right in our country. It endangers 
all other rights when voting is denied or abridged on account 
of race.
    The existing Federal voting rights laws all have their 
strong points, but only one screens out discriminatory voting 
changes before they take hold, Section 5--and Section 5 has 
been paralyzed by the Shelby County decision.
    Under Section 2 of the Voting Rights Act, preliminary 
injunctions are extremely rare, even in the most meritorious 
cases. Section 2 is a vital and powerful tool. It is 
constitutional. But as it stands today, Section 2 is not an 
adequate substitute for Section 5.
    Section 3(c) of the Voting Rights Act, which provides a 
form of preclearance by court order, is an after-the-fact 
remedy because it requires a Federal court to first find 
serious constitutional violations before it can order any type 
of preclearance.
    Let me stress, racial voting discrimination needs to be 
stopped before it takes hold. It would be a political and moral 
abdication to say that we need not be concerned if 
discriminatory voting practices can be used for years while 
lawsuits to stop them wind their way through the courts. But as 
the law stands now, that is what you should expect to occur as 
a result of the Shelby County decision.
    As you consider today's testimony, I want to stress four 
important points about the Shelby decision. First, the Supreme 
Court did not find Section 5 unconstitutional. The case was a 
direct attack on the constitutionality of Section 5; the Court 
did not find it unconstitutional.
    Second, the Supreme Court did not hold that racial 
discrimination no longer exists. In fact, the Court's opinion 
said voting discrimination still exists; no one doubts that. I 
agree with that part of the decision.
    Third, the Supreme Court did not undermine the 
retrogression principle, which serves as the Section 5 effect 
standard. The retrogression standard was the product of the 
Supreme Court's decision in 1976 in the Beer case, and the 
Supreme Court repeatedly has upheld it in other cases.
    Fourth, the Supreme Court did not restrict classes of 
evidence upon which Congress can rely to target remedial 
measures. Congress can look at all probative evidence of 
discrimination.
    As I discussed in detail in my testimony, the suspension of 
Section 5 leaves a critical gap in the Federal protections for 
the right to vote. The Shelby County decision completely upends 
the traditional process, the traditional standard for dealing 
with discriminatory voting changes. Now, it falls to the 
Justice Department and private groups to identify 
discriminatory changes between the time they are adopted and 
implemented, gather enough evidence to state a claim, carry the 
burden of proof, and persuade a court to issue a preliminary 
injunction. If any of those steps fail, then the discriminatory 
change can go into effect unstopped.
    Despite the best efforts, I think that is what is going to 
happen. In some cases, we can expect that to occur.
    Congress does not intrude on states' rights when it 
enforces the 15th Amendment by appropriate legislation. States 
have no reserved right to use racially discriminatory voting 
laws.
    I once again respectfully thank the Chair, the Ranking 
Member, and the Members of the Subcommittee for the opportunity 
to testify today. I look forward to answering your questions.
    [The prepared statement of Mr. Kengle follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Franks. Thank you, Mr. Kengle.
    I would now recognize Mr. von Spakovsky for 5 minutes.

              TESTIMONY OF HANS A. von SPAKOVSKY, 
          SENIOR LEGAL FELLOW, THE HERITAGE FOUNDATION

    Mr. von Spakovsky. Thank you, Mr. Chairman. After Shelby 
County, the Voting Rights Act remains a powerful statute whose 
remedies are more than sufficient to stop those rare instances 
of voting discrimination when they occur. There is no need for 
Congress to take any action.
    Section 5 was a temporary, 5-year emergency provision, but 
it was renewed four times, including in 2006, for an additional 
25 years.
    It was an unprecedented, extraordinary intrusion into state 
sovereignty since it required covered states to get Federal 
approval for voting changes. No other Federal law presumed that 
states cannot govern themselves and must have the Federal 
Government's consent before they act.
    Now, the coverage formula of Section 4 was built on the 
disparity between Black and White participation because of the 
widespread, official discrimination in 1965 that prevented 
Black Americans from voting. That is why it was based on 
registration and turnout of less than 50 percent in the 1964 
and then 1968 and 1972 elections when it was renewed. But the 
coverage formula has never been updated in 40 years to reflect 
modern turnout.
    Now, there is no question Section 5 was needed in 1965, but 
time has not stood still. In fact, the Census reports, the May 
2013 report--I have a copy of it right here--on the November 
election showed that Blacks voted at a higher rate than Whites 
nationally by more than 2 percentage points. This same report 
shows that Black voting rates exceeded those of Whites in 
Virginia, South Carolina, Georgia, Alabama and Mississippi, 
which were covered in whole by Section 5; and in North Carolina 
and Florida, portions of which are covered by Section 5. 
Louisiana and Texas, which are also covered, showed no 
statistical disparity between Black and White turnout.
    As Judge Steven Williams of the D.C. Circuit Court of 
Appeals pointed out, jurisdictions covered under Section 4 have 
higher Black registration and turnout than uncovered 
jurisdictions. They have far more Black officeholders as a 
proportion of the Black population than do uncovered ones. And 
in a study of Section 2 lawsuits, Judge Williams found that the 
five worst uncovered jurisdictions have much worse records than 
eight of the covered jurisdictions.
    With no evidence of widespread voting disparities between 
the states, continuing the coverage formula unchanged in 2006 
was irrational. It is the same as if, in 1965, Congress had 
passed Section 5 and said coverage will be based on the 1928 
Hoover or 1932 Roosevelt elections.
    Section 5 was also unprecedented in violating fundamental 
American principles of due process since it shifted the burden 
of proof from the government to the covered jurisdiction. While 
such a reversal of basic due process may have been 
constitutional given the extraordinary circumstances in 1965, 
it cannot be justified today.
    Congress also made a fatal mistake when it expanded the 
prohibition of Section 5 in 2006. As the Court said, the bar 
that covered jurisdictions must clear has been raised even as 
the conditions justifying that requirement have dramatically 
improved.
    Finally, two other serious problems should be noted. The 
effects test of Section 5 has led to a virtual apartheid system 
of redistricting. Rather than helping eliminate racial 
discrimination in voting, Section 5 has provided a legal excuse 
for legislators of both parties to manipulate district lines 
and isolate voters based on their race.
    Second, the Civil Rights Division has abused its power on 
Section 5 on numerous occasions. In the Johnson v. Miller case, 
a Federal court severely criticized the Division for its 
unprofessional behavior and the Division's implicit commands to 
the Georgia legislature over how to conduct its redistricting. 
That cost taxpayers $600,000 awarded to Georgia.
    In the 1990's, a Louisiana Federal district court similarly 
criticized the Division, saying it was using its power ``as a 
sword to implement forcibly its own redistricting policies.'' 
That case cost the American public $1.1 million in attorney's 
fees awarded.
    In 2012, the Division sent a legally preposterous letter to 
Florida claiming that the state government was violating 
Section 5 because it was not preclearing the removal of non-
citizens who had not registered to vote, despite the fact that 
that is a Federal felony.
    The heart of the VRA today is Section 2. It applies 
nationwide. It won't expire, and it bans racial discrimination 
in voting.
    Section 3 is also there. It can be used to supervise any 
jurisdiction with a pattern of racial discrimination. A court 
can appoint Federal examiners and place a jurisdiction in the 
equivalent of Section 5 preclearance so that all voting changes 
have to be precleared. Why reinstate Section 4 when Section 3 
already provides preclearance for those jurisdictions who have 
proved to be recalcitrant in this discrimination area?
    Section 11 prohibits anyone from intimidating or 
threatening or coercing voters. Section 203 and 404 protect 
language minority voters. And none of this discussion even 
mentions the National Voter Registration Act, the Uniformed and 
Overseas Citizens Absentee Voting Act, and the Help America 
Vote Act, which also all have protections for voters.
    There is no evidence of widespread, systematic 
discrimination in the covered states or that they are any 
different from other states, and there is no reason for 
Congress to take any action. Thanks.
    [The prepared statement of Mr. von Spakovsky follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Franks. Thank you, Mr. von Spakovsky.
    Now I would recognize Mr. Overton for 5 minutes.

        TESTIMONY OF SPENCER OVERTON, PROFESSOR OF LAW, 
          THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Overton. Thank you, Chairman Franks, Ranking Member 
Nadler, and Members of the Subcommittee. As a native Detroiter 
and as a graduate of Hampton University, it is a special 
privilege to have an opportunity to testify before Mr. Conyers, 
Mr. Scott, and Mr. Goodlatte.
    Our country was founded on the principle that we are all 
created equal. We have made amazing progress in this country in 
the last 50 years. Our progress is one reason that we are 
viewed as the world's leading democracy.
    Unfortunately, even today, evidence shows that too many 
political operatives still maintain power by unfairly 
manipulating election rules based on how voters look or speak.
    For example, in 2011, in Nueces County, Texas, the rapidly 
growing Latino community surpassed 56 percent of the county's 
population. And in response, county officials gerrymandered 
local election districts to weaken votes by Latinos and make 
sure Latino voters would not control a majority of the county 
commission seats.
    In 2006, in the City of Calera, Alabama, Ernest Montgomery 
was the only African American on the 5-member Calera City 
Council. City officials redrew district lines to drop Mr. 
Montgomery's district from 70 percent African American down to 
30 percent African American. And as a result, African American 
voters in the district were not able to elect the candidate of 
their choice, and the city council lost its sole African 
American member.
    Unfortunately, without Section 5 to block this type of 
racial manipulation, Americans in many areas like Nueces County 
won't have the thousands and sometimes millions of dollars 
needed to bring a lawsuit to stop these unfair changes.
    This local manipulation, local manipulation, is a real 
problem. Over 85 percent of the changes rejected as unfair 
under preclearance were at the local level. I am talking about 
city councils, county commissions, other positions. Many of 
these are non-partisan. And note that the discrimination in 
many of these cases is not related to turnout or registration 
at all. Indeed, high turnout, high registration may prompt, may 
trigger the discriminatory acts.
    Now, some may say that the solution to this problem is more 
lawsuits. I disagree. Lawsuits can cost thousands and sometimes 
millions of dollars. Lawsuits require massive discovery and 
fishing expeditions through boxes of paperwork, hiring 
expensive experts to interpret and piece together data, and 
this expense is not just on the victims of discrimination, but 
these are expenses borne by the Department of Justice, by the 
jurisdictions that implemented the change, and eventually by 
all of us through our tax dollars.
    Another problem is that lawsuits can take years. Too often, 
lawsuits don't stop unfair voting rules before they are used in 
elections and harm voters. In contrast, preclearance was 
relatively quick, efficient, inexpensive. Preclearance also 
generally prevented discriminatory practices before they became 
effective.
    Perhaps the most important point is that preclearance was 
comprehensive. Preclearance deterred jurisdictions from 
adopting many unfair election rules because officials knew each 
and every decision would be reviewed. With litigation, 
political operatives know that many voters won't have the 
information or the money to bring a lawsuit.
    Political operatives know that it is very likely that this 
under-the-radar discrimination will never be challenged.
    Fortunately, Congress can solve these problems by updating 
the Voting Rights Act. The U.S. Supreme Court's decision 
focused on the coverage formula in the 1960's and '70's. The 
Court did not find that the preclearance process itself was 
unconstitutional. Indeed, it explicitly acknowledged that 
Congress has the power under the 15th Amendment to prevent 
voting discrimination.
    Another important point is that the Voting Rights Act is 
not a partisan issue. There have been other times in the past 
when we as Americans have seemed divided in our politics. The 
1960's were turbulent. But Republicans and Democrats came 
together to pass the Voting Rights Act, and every 
reauthorization since that time, Republicans and Democrats 
worked together, as you know, despite so many politically 
divisive issues. In 2006, Congress came together under the 
leadership of Mr. Conyers and Mr. Sensenbrenner and renewed the 
Voting Rights Act with an overwhelmingly bipartisan commitment.
    So we should be proud of our significant progress, but we 
still have work to do. We all agree that voting rights 
violations are wrong, that discrimination is wrong. We should 
all work together to update the Voting Rights Act and to ensure 
that voting is free, fair, and accessible for all Americans. 
Thank you.
    [The prepared statement of Mr. Overton follows:]

    
    
    
    
    
    
    
    
    
    


                               __________
    Mr. Franks. And I thank the gentleman.
    And we will now proceed under the 5-minute rule with 
questions, and I will begin by recognizing the Chairman of the 
full Committee, Mr. Goodlatte, for 5 minutes.
    Mr. Goodlatte. Mr. Chairman, thank you very much.
    I want to thank all four of our witnesses. This has been a 
very good exposition of the Shelby County case and the current 
status of the Voting Rights Act. As I said in my opening 
remarks, it is absolutely critical that we protect the rights 
of all Americans to be protected in their rights to register 
and to vote, and it is important to recognize the many 
provisions in the Voting Rights Act that have been upheld, 
including the opportunity to have preclearance in circumstances 
where a court finds that a jurisdiction has engaged in a 
discriminatory action that results in barring people from 
having the opportunity to register or to vote, and it is 
important that this Committee makes sure that we continue to 
protect that right.
    I had intended to yield my time to former Chairman 
Sensenbrenner, who is not a Member of this Subcommittee but 
who, as Chairman of the full Committee, was presiding at the 
time the Voting Rights Act was last extended, and I am now 
advised that he is not able to return because of a scheduling 
conflict.
    I am going to have to leave myself, and so I know there are 
some other Members of the full Committee who are not Members of 
the Subcommittee, including, I believe, Ms. Jackson Lee and Mr. 
Watt. I understand Mr. Watt does not desire time. So, Mr. 
Chairman, I will yield the balance of my time to the 
gentlewoman from Texas and allow her to ask questions of the 
panel.
    Again, my apologies to the panel for having to leave, but 
also my thanks to each of you. I think this has been a very 
good exposition of the status of the law, and at this time I 
yield to Ms. Jackson Lee.
    Ms. Jackson Lee. Let me thank the Chairman for his 
courtesies, and to the Members as well, to their courtesies, 
and I want to go right to Mr. Overton because he directly 
commented on two points that were raised in the majority 
opinion, and that was the extensive registration of African 
Americans and the turnout of African Americans.
    Let me pose two questions. Turnout is like a roller 
coaster. It is up and down, and there may be some thrills. The 
registration itself likewise goes in spurts depending really on 
the candidate, maybe the issue. Off-year elections may be 
lesser than elections that are not.
    Is it not the barriers--when you think of the 13th and 14th 
Amendment, one giving the vote, one giving citizenship, it was 
an unfettered vote, except as guided by what was then the law. 
Can you speak to that point? Is it not the discriminatory 
barriers that the Court should look at and have chronicled from 
2006 on, as opposed to registration and turnout, which is, in 
essence, in cycles?
    Mr. Overton. Well, thank you very much for your question, 
and you are right in terms of the 14th and 15th Amendment are 
not focused simply on this just formal right to vote in terms 
of the right to cast a ballot, but also to cast a meaningful 
ballot.
    You will remember that the purpose of Section 5 in terms of 
preclearance was to recognize that there may be devices that we 
don't understand that will undermine minority voting rights, 
and as a result we need a tool that is flexible that can adapt 
to new devices that suppress minority votes or dilute minority 
voting----
    Ms. Jackson Lee. So in essence, if I might, preclearance is 
to get rid of the barriers so that your vote can be unfettered 
when you go to the polls, as opposed to doing it after the 
fact.
    Mr. Overton. That is correct, but that would also include, 
for example, Nueces County, where you have 56 percent Latino, a 
large Latino turnout. So that may be a high registration, high 
turnout rate, but one draws districts in a way to ensure that 
Latinos will not control three of the five commission seats but 
are only confined to two of the commission seats.
    Ms. Jackson Lee. That is why the preclearance is vital.
    Mr. Overton. Correct.
    Ms. Jackson Lee. And the enforcement section or an 
enforcement section such as what Section 4(b) was is vital as 
well, and a Section 2 claim does not equal the preclearance 
authority.
    Mr. Overton. That is absolutely right, in large part 
because it is just a different administrative tool. You know, 
litigation has its place in some situations. But when we talk 
about an administrative tool--we have it in many other areas 
like antitrust, et cetera, where we have a tool that 
efficiently prevents, deters discrimination, and does it in a 
way that is not high cost in the way litigation is, is 
comprehensive. Section 5 was an important tool.
    Ms. Jackson Lee. I thank the Chairman, and the I thank the 
Committee for their kindness.
    Mr. Conyers. Mr. Chairman?
    Mr. Franks. If I could, before we move on here, I just 
noticed that Congressman John Lewis was in the room, and I 
wanted to recognize and express our honor that you are among us 
here today, sir, and we appreciate it. You are an icon in this 
movement, and we are very grateful that you have joined us.
    Mr. Conyers. All I wanted to do was to add on to your 
statement an invitation, if you would permit, for him to sit on 
the dais.
    Mr. Franks. Absolutely. Yes, sir.
    Mr. Conyers. Thank you.
    Ms. Jackson Lee. And I yielded back, but I just want to add 
my appreciation for the leadership of Mr. John Lewis and the 
statement of the Edmund Pettis Bridge, and he lives that 
statement every day. I thank him for his courage.
    Mr. Franks. And I would now recognize the Ranking Member of 
the Committee for 5 minutes for questions.
    Mr. Nadler. Thank you, Mr. Chairman.
    Let me ask Mr. Kengle. We know that Section 5 was judged 
necessary, and Section 4 to determine who is under Section 5, 
because without preclearance the Federal Government was always 
playing a whack-a-mole game with local jurisdictions. You would 
knock down one discriminatory practice, they would come up with 
three others. By the time you knocked them down, they came up 
with two more, and you never caught up, and people were always 
discriminated against.
    Given the effective dismemberment of Section 5 by Section 4 
being held unconstitutional, two things. Is Section 3 enough to 
protect against voting discrimination, as we have witnessed it 
post-2006 reauthorization? And why are there such a few number 
of cases in which jurisdictions have been bailed into the 
preclearance regime under Section 3?
    Mr. Kengle. I don't think Section 3 is going to be enough. 
One of the points that I noted earlier was that Section 3 is a 
two-step process. In other words, a plaintiff, or DOJ for that 
matter, cannot just go to a court and say we think that there 
is reason to have this jurisdiction subject to the preclearance 
process, so please give us an order to that effect.
    What has to occur is that the district court has to find 
that there have been violations of the racial discrimination 
protections of the 14th or 15th Amendment. And so that means 
that in practical terms the plaintiff seeking 3(c) coverage has 
to prove that there was intentional discrimination within the 
jurisdiction.
    In my written testimony, I identified some of the burdens 
that are associated with proving intentional discrimination. 
This was a subject that was extensively debated in 1982 when 
Congress amended Section 2 to include what is now known as the 
results----
    Mr. Nadler. Why didn't we at that time add the results to 
Section 3 also?
    Mr. Kengle. I'm sorry?
    Mr. Nadler. When we added the results or effects test to 
Section 2, why didn't we add it to Section 3 at the same time? 
Or was that just----
    Mr. Kengle. Well, I think that--I don't know the answer to 
that. I think that the answer to that is that Section 3 was 
seen as an analog to Section 5. Section 5 was not being 
amended. At that time it was reauthorized, but it was not 
otherwise amended. And so I think that Section 3 was not 
changed in that way because it was seen as providing a 
judicially-based counterpart to Section 5.
    Mr. Nadler. Okay. Now, let me ask you one further question. 
Then I have a question for Mr. Overton.
    Every time we have felt the need to reauthorize the Voting 
Rights Act, we developed and carefully studied a massive record 
before we did so. In 2006, we had over 15,000 pages documenting 
ongoing and persistent election-related discrimination, and 
documenting the utility of preclearance.
    Now, given the broad powers conferred upon Congress under 
the 15th Amendment, and given the exhaustive record of voting 
discrimination compiled by the Congress, can you explain the 
problems around the Court's departure from their traditional 
deference to Congress as justified in Katzenbach v. South 
Carolina and City of Rome v. United States? In other words, how 
did they get around their traditional deference to Congress, 
our massive documentation of the current need, and still 
declare it unconstitutional?
    Mr. Kengle. Did you want Mr. Overton to respond first?
    Mr. Nadler. Either one of you. Mr. Overton, go ahead.
    Mr. Overton. Well, you know, the Court in Shelby County was 
focused on this text in terms of these election years of '64, 
'68, and '72. I think Congress came at this from the standpoint 
of amassing an incredibly significant record, 15,000 pages, 
over 90 witnesses, 20 hearings, that was just massive but maybe 
not tied to that language in '64, '68, and '72. So I really 
read the Court as not even looking at that massive record 
because it said, hey, it is not tied to this formal language 
that is in the statute of '64, '68, and '72.
    Mr. Nadler. So you don't think, then, that it flowed from a 
Boerne analysis that we have to have congruent and 
proportional----
    Mr. Overton. Well, I definitely think Congress was very 
aware of the standards and went out of its way to build a very 
strong record that would pass muster in terms of a Boerne 
analysis or a Katzenbach analysis. But I just think that there 
was a bit of a mismatch between Congress and the Court in terms 
of Chief Justice Roberts really focused on the text of those 3 
years.
    Mr. Nadler. Can I just ask Mr. Kengle to comment on the 
same, last question?
    Mr. Kengle. Yes. I didn't spend a lot of time in my written 
testimony going into the details about the Court's opinion in 
the case because I wanted to address the practical 
significance. But in terms of the Court's application of the 
standard, the Boerne doctrine was curiously absent from the 
Court's discussion, and it is not clear to me to what extent 
the Court would apply some additional type of Boerne gloss to a 
future case as opposed to simply following the standard that 
the Court set out in North West Austin, which is what it 
followed in this case, that current burdens have to be 
justified by current needs.
    The thing about the Court's textual approach and really 
laser-like focus on the text of Section 4(b) is that in other 
contexts the Supreme Court has looked at the actual function 
and the harmonious operation of the provisions of the statute 
and what Congress logically meant to intend when it interpreted 
other portions of the Act. I am thinking in particular of the 
Sheffield case, and even the North West Austin case, because in 
looking at the bailout provision in North West Austin, the 
Court did not really take the literal reading of the statute. 
It took a result that it felt was necessary.
    So in other cases, the Court has departed from the strict 
text of the Act. In this case, it chose not to. But my view is 
that is water under the bridge and we need to now move on to 
address the current evidence and take the appropriate next 
steps.
    Mr. Nadler. Thank you. My time is expired.
    Mr. Franks. I thank the gentleman.
    And I will now recognize myself for 5 minutes for 
questions. If it is all right, I will start with you, Mr. 
Adams. I wondered if you could just generally describe for us 
the process by which lawsuits under Section 3 of Voting Rights 
Act are filed. And this section, of course, is still intact; 
correct?
    Mr. Adams. Yes. Section 2--Section 3 coverage, of course, 
can be triggered by finding that there is intentional 
discrimination under Section 2, and the Supreme Court has laid 
out a rather complex but predictable roadmap. Under Section 2, 
you have to satisfy something called the Gingles preconditions, 
and then you have to go through the Senate factors, of which 
there are seven. I should note that that is for a vote dilution 
claim, a redistricting claim, if you will. I have brought non-
vote dilution Section 2 cases. I brought two of them, and you 
have a slightly different analysis, but it is still applicable.
    There has been testimony and commentary that you can't 
bring it in a non-vote dilution legislative redistricting 
context. That is just not true.
    So you have to prove these Gingle preconditions, and then 
you have to march through the Senate factors. I want to point 
out two of these issues.
    One, Gingles 3. Gingles 3 is a causality requirement that 
racial polarization is causing minorities to lose elections. 
Senate factor 1 is a history of official discrimination. So you 
can still have effective enforcement of civil rights if you 
simply show there is discrimination and that minorities are 
losing elections because of being minorities.
    Mr. Franks. Mr. von Spakovsky, would you add anything to 
that? On Section 2 and 3.
    Mr. von Spakovsky. Yes. It is very interesting hearing 
people say that we need this administrative process. Like I 
said, it violates fundamental due process. The government is 
supposed to prove its case, not the other way around. I am sure 
it would be very easy if we allowed the government to simply 
jail individuals when they were accused of crimes, and then 
force them to prove that they were innocent. That is basically 
what Section 5 did.
    I don't deny that discrimination still occurs, but Section 
2 and Section 3 are powerful weapons to do that, and 
particularly Section 3. Look, what the Supreme Court said was 
you can't put this blanket Section 5 preclearance requirement 
on all these states based on 40-year-old data, particularly 
given the most recent evidence of how that kind of 
discrimination has disappeared. You can't do a blanket 
imposition of this.
    But Section 3 allows you to put in a preclearance 
requirement for specific jurisdictions if the government goes 
to court and actually proves they engage in racially 
discriminatory behavior and they are going to do it in the 
future. That is something you can do. You can win those cases, 
and it is not just the government that can bring these. The 
ACLU has a huge voting rights project that brings many cases. I 
just checked their assets. Their assets as of 2012 were $360 
million. They have the ability to bring cases like this if the 
Justice Department is not, but the Justice Department in the 
past has brought Section 2 cases when it was required.
    Mr. Franks. Let me ask a general question to all of you, 
and anyone that feels inclined to respond, we can start down 
here and just go down the line.
    But looking at modern voter registration and voter turnout 
rates in the several states, what do you think they tell us 
about racial progress in America since 1965? Mr. Adams?
    Mr. Adams. Well, as I say in my written testimony, America 
bears absolutely no resemblance in 2013 to 1965, and that is 
exactly what the Supreme Court recognized when it found these 
triggers to be out of date. So we simply don't have the America 
where whack-a-mole was necessary because we don't have 
jurisdictions throughout the South who are going to play whack-
a-mole anymore like they did in 1964. In some places it is 
worse than the South in the North, and that is what was so 
upside-down about the triggers, is you saw more voting 
discrimination cases in places like Euclid, Ohio and Osceola 
County, Florida, which is a non-covered place, and Blaine 
County, Montana then you did in the South.
    Mr. Franks. Mr. Kengle, do you have any thoughts there?
    Mr. Kengle. Yes. What I would want to say about that is 
that in the South, looking at the situation today, I think what 
you see in the South in the covered states is that Section 5 
and Section 2 have wrought an historic transformation in the 
political process, that compared to where we were in 1965, 
there has been tremendous progress in terms of voter 
participation and voter turnout. There is no question about 
that. It is one of the great achievements of the Voting Rights 
Act. It has taken a lot of work. It didn't happen 
automatically. But it has been a great achievement.
    But voter registration and voter turnout are not all of the 
story. When you look at the story, and I saw this when I worked 
in the DOJ because there were a lot of Section 5 submissions 
that came in in the 1980's when I began of voting changes that 
had been enacted in the 1970's, and what you saw was that as 
time went on, the increases in voter registration and turnout 
among minority voters had prompted discriminatory changes to 
election systems; in other words, adding a majority vote 
requirement or going to at-large elections, abandoning single-
member district elections, changes that were diluted in nature.
    So Section 2 addressed that problem in 1982. There is an 
excellent book called Quiet Revolution in the South that 
chronicles how both Section 2 and Section 5 brought about this 
change. But the fact that that success has occurred does not 
indicate that that success is permanent or that that success 
cannot be jeopardized. It can be jeopardized. I am very 
concerned that it will be jeopardized if jurisdictions believe 
that they have the green light to engage in voting 
discrimination and that they can sit back and wait to be sued, 
and then just drag the process out through years of litigation 
and the courts.
    The number of Section 2 cases in which a court has issued a 
preliminary injunction is very, very small. I don't have a 
whole list. It is a small fraction of all Section 2 cases. It 
is not a ready remedy.
    Mr. Franks. All right. Thank you, Mr. Kengle.
    And with that, my time has expired, and I would now 
recognize the distinguished Ranking Member of the full 
Committee, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    I wanted to come back to the head of the Lawyers' Committee 
for Civil Rights Under Law, which incidentally has done a very 
superb job of keeping us on track. I have been to a number of 
the sessions. Let me just raise a concern about the structure 
of the new enforcement regime that might replace the one 
disabled by the Shelby County decision.
    What impact does the opinion have on the status of 
preclearance matters currently under review or pending prior to 
the Court's ruling?
    Mr. Kengle. Well, the immediate--we saw one impact right 
away, Mr. Conyers. There were two appeals pending in the 
Supreme Court from the District Court for the District of 
Columbia. One was a case involving--well, both cases involved 
the State of Texas. One concerned redistricting and one 
concerned voter ID. The Supreme Court vacated the District 
Court judgments in both of those cases and remanded the cases 
back down, presumably for dismissal. There have been some 
motions filed in those cases, so they may not be fully over 
yet. But the Court vacating the judgment I think is an 
indication that the Court considers the judgments in those 
cases that were issued by the D.C. court to now be moot because 
they were done pursuant to an unconstitutional targeting 
formula.
    Because the impact on Section 5 objection letters I think 
is going to be the subject of some litigation in the Federal 
courts pretty soon, I am a little wary of predicting exactly 
what the outcome is going to be, but I think there is going to 
be a very vigorous argument that any objection issued from 2006 
onward has now been invalidated. There may be some arguments 
against that, but I think there is going to be a very strong 
push to have all of those found to be invalid, and that would 
mean that the jurisdictions would then be free to go about 
implementing those objectionable changes unless they have been 
repealed or superseded by other legislation.
    Mr. Conyers. So we should be worried or hopeful?
    Mr. Kengle. I think it is ground for concern. I think that 
the Committee and Subcommittee need to look closely at the 
record of what has occurred after 2006. That is one of the 
things that we had not attempted to do today, is provide a sort 
of comprehensive assessment of what has occurred after 2006. I 
feel strongly that that should be the subject of future 
hearings where it can be concentrated on in detail and that it 
can be put in the context of the other recent and current 
evidence of voting discrimination.
    Mr. Conyers. Professor Spencer Overton, in the 1997 case of 
City of Boerne v. Flores, the Supreme Court stated that 
Congress must develop a complete record before acting 
legislatively, and to tailor its legislative response to that 
record to ensure that its legislation was ``congruent and 
proportional.''
    Now, what kind of problems perhaps has the Court created 
for Congress as it chooses to legislate voting rights 
enforcement in the future?
    Mr. Overton. Thank you, Mr. Conyers. Well, one significant 
problem is that there is one less tool in terms of preventing 
racial discrimination in voting, and it is a significant issue. 
It has certainly been documented. In terms of the Court making 
that move, essentially the Court focused on--as opposed to 
focusing on Congress' record, it focused on the terms of the 
statute and got into this notion of sufficiently related and 
current burdens being justified by current needs in terms of 
those years '64, '68, and '72.
    I do want to just kind of add, Mr. Conyers, when I came 
into this building today, I went through a metal detector, and 
that wasn't a due process violation. It was not sending me to 
jail. There are not metal detectors everywhere. When I go to 
McDonald's, there are not metal detectors. It is just where 
there might be a problem here. The metal detector is less 
expensive than some other security devices. It prevents 
problems before they occur, right?
    Preclearance is a reasonable device when targeted at 
particular areas to deal with problems.
    Mr. Conyers. Thank you so much.
    My time has expired. I thank the Chair.
    Mr. Franks. And I would now recognize the distinguished 
gentleman from Iowa, Mr. King, for 5 minutes.
    Mr. King. Thank you, Mr. Chairman. I appreciate the hearing 
we are holding here today, and I am listening to our witnesses 
and thinking back at that reauthorization time of the Voting 
Rights Act back in 2006. I would first remark on Mr. Overton's 
comment that preclearance is a reasonable device. I would think 
also that voter ID would be a reasonable device. And when I 
look across the country and try to accumulate problems we might 
have with elections, I don't know where to go look, and I 
wouldn't deny that it likely exists in places in the country, 
and probably in smaller areas, much smaller areas than when 
this act was first passed. But I wouldn't know where to go look 
to find real voter intimidation and real discrimination. The 
first place that comes to mind to me when I utter those words 
is Philadelphia.
    So I think there is more damage to the integrity of our 
election system that comes from lack of voter ID than might 
come from voter intimidation. And when I think about the 
discussion about bringing up the Voting Rights Act and perhaps 
rewriting it, that would mean that the authorization would be 
also subject, and I question the wisdom of an authorization 
that would last for more than a generation, 25 years. Thomas 
Jefferson declared a generation to be 19, in case anybody is 
quibbling.
    So the 25-year reauthorization in 2006 I thought was 
imprudent. It is one of the reasons I voted against it. I think 
we need to have a lot more improvement in the integrity of the 
individual ballot, and I think we know that, but there is a 
political barrier in the way. I think if we bring up the Voting 
Rights Act and we have an opportunity then to open it up, I 
think multilingual ballots become a question. There is no 
logical reason that ballots should be in anything other than in 
English. If you take a citizenship test, you have to 
demonstrate proficiency in English.
    I would turn first to Mr. Adams and ask if the Voting 
Rights Act were either allowed to expire or be repealed, is 
there a constitutional protection there for the issues that are 
covered in the VRA, and how would you expect that might be 
worked?
    Mr. Adams. Well, obviously somebody can bring a 1983 action 
under the 15th Amendment, which guarantees the right to vote 
free of racial discrimination. But, of course, Section 2 also 
incorporates those concepts.
    You mentioned voter intimidation. Just last week, a state 
judge in Mississippi determined in a ruling, threw out the 
results of an election because of voter intimidation by a 
political operative working for somebody named Rodriguez Brown. 
This is a proven case of voter intimidation. Will anybody do 
anything about it? Will there be a Federal case brought? 
Somehow, I suspect not.
    Mr. King. Thank you, Mr. Adams.
    Also, if I remember Mr. von Spakovsky's statement, to the 
extent that African American voter turnout is actually higher 
in the non-covered districts than in the covered districts, did 
I hear that correctly? Could you elaborate a little bit?
    Mr. von Spakovsky. Black turnout is better in covered, what 
were covered jurisdictions than non-covered jurisdictions 
around the country; in fact, consistently so. Table 5, which is 
a map from the Census report in May, is really dramatic. I 
mean, it shows Blacks out-voting Whites largely in the covered 
states.
    Mr. King. Can you explain why that is?
    Mr. von Spakovsky. I'm sorry?
    Mr. King. Can you explain why that is?
    Mr. von Spakovsky. Well, one of the reasons, I think, is 
because of Section 5 and the Voting Rights Act, and because the 
kind of systematic discrimination you had in 1965 has virtually 
disappeared.
    And if I could make a point here, people keep saying, well, 
with this gone, these jurisdictions are going to return to 
acting that way. Well, that ignores a very important point. In 
1965, there were no Black elected officials in the covered 
states. That is not true today. In fact, all the statistics and 
the court findings show that those covered states have a much 
larger number of Black elected officials than other parts of 
the country. That is true in states like Georgia and 
Mississippi. And the idea that those officials are themselves 
going to start to discriminate or put up with that kind of 
discrimination, that is just not a reality.
    Mr. King. Okay. But what you have said, I think, is that 
the Voting Rights Act has worked in these covered districts and 
has brought the Black turnout up a little higher than it is in 
the non-covered districts. So does that imply that there is 
discrimination in the non-covered districts, or how would you 
explain the statistical variance?
    Mr. von Spakovsky. Well, we know there is discrimination in 
uncovered jurisdictions because there are Section 2 lawsuits 
that are filed, as Mr. Adams pointed out, in places like 
Euclid, Ohio and other areas. Disparity in turnout between 
different races isn't always due to discrimination. It is 
sometimes just people not being interested in particular 
candidates. I think Ms. Lee talked about the cyclical nature of 
elections.
    But the point is, if Congress is going to have Section 5 
coverage based on the Section 4 formula of low turnout, then 
there are many other places in the country that have never been 
covered under Section 5 that ought to be covered in any new 
version of this law.
    Mr. King. I thank you.
    I would just ask unanimous consent to ask an additional 
question, if the Chair would indulge me?
    Mr. Franks. Without objection.
    Mr. King. Thank you, and I thank the Members of the 
Committee for allowing it. I was very interested when I heard 
Mr. von Spakovsky say about apartheid redistricting, and I 
don't know that that is going to be revisited in this hearing 
if I don't bring it up. I come from a state that has anything 
but that. We have a statutory directive that, without going 
through the definitions in the language, it essentially 
prohibits the gerrymandering by race or by party. We end up 
with, I think, logical districts that are compact and 
contiguous. From that perspective, I see the gerrymandering 
that Mr. von Spakovsky has brought up in this hearing, and 
myself, I would recommend looking at other states drawing 
districts like that without regard to race, ethnicity, the 
residency of any incumbency, and logical, compact, contiguous.
    So I would ask Hans if he would speak to that and just 
elaborate a little bit more for the benefit of the Committee, 
please?
    Mr. von Spakovsky. Look, I don't think it is a good idea 
when you take cities, for example, where the residents, no 
matter what the race, have similar interests, similar public 
policy problems, and you divide them up into differing 
districts just based on race so that particular individuals or 
particular races can get elected. I mean, that leads to many 
different problems. It does not help integration. It does not 
help bring us together, which is what the Voting Rights Act was 
intended to do.
    But, to be quite frank, politicians like it because it 
produces very safe districts for them where they don't get 
competition. I don't think that is a good thing. Some of the 
witnesses here may agree with me that they don't think that is 
a good thing, and that is a direct result of Section 5 and the 
way it is administered by the U.S. Justice Department.
    Mr. King. Thank you very much. I thank all the witnesses 
and yield back the balance of my time, Mr. Chairman.
    Mr. Franks. I thank the gentleman.
    The gentleman from Virginia, Mr. Scott, is now recognized 
for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Overton, I just wanted to comment on that last one. Are 
overly safe, over-packed districts oftentimes violations of 
Section 5?
    Mr. Overton. Often they are not violations of Section 5, 
but I think it is important to recognize----
    Mr. Scott. An over-packed district where----
    Mr. Overton. Well, certainly an over-packed district would 
be a problem and would be retrogressive here, right?
    Mr. Scott. Thank you.
    Mr. Overton. But I just want to also note that in a place 
like Nueces County, Section 5 prevented the discrimination that 
occurred in Nueces County in terms of the racial districting 
that discriminated against Latinos. So, it is important.
    Mr. Scott. I just wanted to point out that when you get 
these overly safe, over-packed districts, they can violate 
Section 5 on their own.
    One of the concerns I have is not the statewide problems 
but the little problems that can occur in small counties, 
school board elections, town councils, when nobody is looking. 
And we know that all voting changes are not discriminatory. 
They can be unpopular. They can have political effects, but not 
discriminatory. You could have one group wanting more taxes, 
less growth, more education. There could be a lot of reasons 
why a plan may be unpopular, but who would do the initial 
threshold analysis to ascertain whether or not it is 
discriminatory under Section 5 or if you don't have Section 5, 
Mr. Overton?
    Mr. Overton. Well, the benefit of Section 5 is that 
jurisdictions generally have access to information, and they 
provide that basic information to either the Department of 
Justice or to a Federal court to obtain preclearance. So we 
don't have a situation where voters, who may not have a lot of 
resources, have to hire experts and lawyers and go through 
discovery and that kind of thing.
    Mr. Scott. So the threshold analysis to ascertain whether 
or not there is a discriminatory effect is done by the 
jurisdiction, and if you do not have Section 5, that burden is 
on the potential victims of that discrimination who may not 
have the money.
    Mr. Overton. That is correct, and that drives up costs not 
just to the plaintiff, these victims of discrimination, but it 
also drives up costs in terms of expert fees and lawyers' fees 
to the jurisdictions, as well as to the Department of Justice.
    Mr. Scott. And if the victims do not have the resources to 
do the analysis, without Section 5, what happens?
    Mr. Overton. Discrimination persists.
    Mr. Scott. Now, what happens to the officials who are the 
perpetrators of the discrimination?
    Mr. Overton. They go unchecked. They win elections. They 
are entrenched, and they benefit from racial discrimination.
    Mr. Scott. Now, Mr. Kengle, you mentioned the vulnerability 
of any preclearance that was denied since 2006 because of the 
Shelby case?
    Mr. Kengle. There is the potential that that will occur, 
yes.
    Mr. Scott. Why would you not at least go back to 2009? 
Because the Austin utility case had the opportunity to find the 
formula unconstitutional and did not.
    Mr. Kengle. I'm sorry, I did not----
    Mr. Scott. Well, in 2009, you have the Austin utility case 
where the formula, Section 5, was reviewed but it was not found 
unconstitutional.
    Mr. Kengle. The North West Austin case, you mean?
    Mr. Scott. Right.
    Mr. Kengle. Yes.
    Mr. Scott. Why would you go all the way back to 2006 and 
not 2009 for that debate?
    Mr. Kengle. I suppose there could be an argument that you 
would not go back. I think that probably the argument against 
upholding those objections would be based on the idea that from 
2006 on, the Section 4(b) formula was unconstitutional, and 
therefore it couldn't legally be the basis for denying 
preclearance. The argument would be that it would be 
retroactive.
    Mr. Scott. Okay. I have another question I am trying to get 
in real quickly to Mr. Adams.
    You mentioned the bailout and the bail-in. If the original 
formula was constitutional in the late '60's, why have not the 
bail-in and bailout provisions kept the list up-to-date and 
modern? What needs to be done to the bail-in and bailout 
provisions?
    Mr. Adams. I am perplexed why nobody used the bail-in 
provisions, Justice or private plaintiffs. One of the things 
that needs to be fixed in the bail-in provisions is an 
inconsistency that exists in the current statute. It says the 
Attorney General may seek in a case brought with the Attorney 
General involved. But yet, the Attorney General does not have 
standing to assert a 15th Amendment claim, an intentional 
discrimination claim on behalf of somebody else. They can only 
assert a statutory claim.
    So Section 3 has an inherent defect in its language now 
that ought to be fixed, to either add results or effects tests 
or to clarify that the Attorney General can pursue a 15th 
Amendment claim.
    Mr. Scott. Mr. Chairman, could I ask one additional 
question?
    Mr. Franks. Without objection.
    Mr. Scott. Thank you.
    Mr. Overton, a great deal has been talked about 
registration and turnout numbers. You alluded to the idea that 
perhaps when turnout becomes proportional, you are even more 
vulnerable to little schemes and devices. Can you talk about 
that?
    Mr. Overton. Yes, sir. A point here is that it is not 
consistent in terms of turnout levels among covered and 
uncovered states. There are many counties where minority 
turnout is much lower if you look at the precinct and county 
level. And also, if you just look at Latinos and Asian 
Americans who are citizens and voting age population, that 
trails Whites and African Americans. Obviously, Latinos and 
Asian Americans are protected in terms of Section 5.
    But your broader point was it is not just turnout. This 
notion that once a group can actually challenge the status quo 
from a political standpoint, political operatives then have the 
incentive to sometimes manipulate rules to maintain power, and 
they are not reflecting the will of the people.
    So there may be some racially polarized voting, and people 
may vote in terms of racial lines. I am not trying to make any 
judgment on that. The problem is when politicians, as opposed 
to reaching out to those voters and including them and 
mobilizing them and trying to win over their vote, win 
elections by manipulating rules that dilutes the votes of those 
communities or suppresses the votes of those communities.
    Mr. Franks. And I thank the gentleman.
    And I now recognize Mr. Deutch for 5 minutes.
    Mr. Deutch. Thank you, Mr. Chairman.
    Mr. Chairman, writing the majority opinion in Shelby 
County, Chief Justice Roberts wrote that the Voting Rights Act 
employed extraordinary measures to address an extraordinary 
problem of pervasive discrimination in suppressing the right to 
vote. The Chief Justice pointed out that in 1965, Section 4's 
preclearance formula was the kind of strong medicine needed to 
address racial discrimination in voting, an insidious and 
pervasive evil which had been perpetuated in defiance of the 
Constitution.
    Today we begin the task of updating the preclearance 
formula to reflect today's America, and I thank the Chairman 
and Ranking Member for holding this hearing.
    In the '60's, we could rely on overtly racist laws to 
trigger preclearance in the Voting Rights Act. For example, the 
use of literacy tests to establish if ``someone has the moral 
character'' worthy of the right to vote. These are the laws 
that John Lewis and so many other brave Americans fought to 
dismantle, and it is an honor to have you here today, Mr. 
Lewis.
    And while there may be fewer overtly racist laws on our 
books today, when pundits and commentators and TV hosts say 
that racism is behind us, we are avoiding an important 
discussion that has got to take place, and I, frankly, think 
that this is a good place for it to start.
    Racism is still here in this country. It just takes a 
different form. Jim Crow, I would suggest, has been replaced 
with a far more subversive and far-reaching system of 
institutionalized racism. So as this Congress works on a new 
preclearance formula, I humbly suggest that we look beyond the 
scope of laws passed by states that directly impact minorities 
at the polls and begin looking at the racially biased 
application of state laws more generally.
    For how healthy is the democratic process in any state if 
we see institutional racism enshrined in our laws or the 
application of those laws that limit minority access to the 
polls, as well as their basic equal protection under the law, 
laws that too often prevent minority communities from having a 
true and full voice in local, state, and Federal elections?
    Three examples. There has been much discussion about Stand 
Your Ground laws in connection with the recently concluded 
Zimmerman trial. There are 23 states with self-defense laws in 
which there is no duty for a person to retreat from an 
attacker. Nine of these states, including my state of Florida, 
permit a person to stand your ground and use lethal force when 
being attacked. Unfortunately, studies show that Stand Your 
Ground laws mainly protect White people who shoot a Black 
person.
    How healthy is our democracy when, according to an Urban 
Institute analysis of FBI data, White people who kill Black 
people in Stand Your Ground states are 354 percent more likely 
to be cleared of murder charges? Can anyone argue that Stand 
Your Ground laws and the use of such laws reflect modern racial 
bias in state laws and should be considered here in this 
context as we modernize our preclearance for the Voting Rights 
Act?
    The second example. We see institutional racism in the 
application of our drug laws. Blacks and Whites may use 
marijuana at similar rates, but Black Americans are nearly four 
times more likely to be arrested than Whites, according to the 
ACLU. State and local governments have aggressively enforced 
marijuana laws selectively against minority communities, 
placing hundreds of thousands of people into the criminal 
justice system. Shouldn't we ensure that states who throw young 
Black Americans in jail at a disproportionately higher rate 
than White Americans for the same offense are also not passing 
laws to further disenfranchise minority voters?
    And then the third example is this, and it is more 
pertinent and specific to this discussion. We see institutional 
racism in the flood of new voter ID laws. Studies show that as 
many as 11 percent of eligible voters do not have government-
issued photo ID's. Why do many minority voters lack IDs? Often 
they don't need them. Minorities are less likely to have a 
driver's license because they are more likely to live in urban 
areas and often more likely to be poor.
    Shouldn't we recognize that voter ID laws seek to 
disenfranchise certain eligible voters not blatantly based on 
race but based on requirements that have significantly and 
intentionally racial ramifications? Isn't that evidence of 
institutionalized racism, and shouldn't that merit extra 
Federal scrutiny and preclearance in those states that have 
passed those laws?
    Racism has grown more insidious, more subversive, and more 
subtle in the 50 years since the Voting Rights Act, but it has 
not gone away. We have too much yet to do. It is no wonder why 
African Americans in Florida and across America so often feel 
like their voices, if not their lives, are being devalued by 
our laws. It may be harder for us to pinpoint racism, but that 
does not mean it has been abolished. We in the United States 
Congress have a constitutional duty to ensure that we are doing 
everything in our power to protect every voter.
    So as we go through this process, shouldn't we be brave 
enough to acknowledge that if any state law reflects 
institutional racism, that preclearance of laws affecting the 
right to vote in those states should be required? And shouldn't 
the concept of voter suppression be broadened to include the 
more subversive, the frankly much more sophisticated ways that 
institutionalized racism has reared its head?
    These are difficult questions, and we are not going to have 
time to discuss them here today, but I hope as we go forward 
with this discussion of the Voting Rights Act we are willing to 
have the brave conversation that I think will help us immensely 
here on this Committee, and ultimately will serve our country 
well.
    I yield back.
    Mr. Franks. And I thank all of the participants----
    Ms. Jackson Lee. Mr. Chairman?
    Mr. Franks. The gentle lady is recognized.
    Ms. Jackson Lee. Out of courtesy, might I just acknowledge 
as well Barbara Arnwine, who is in the audience, who is the 
President and CEO of the Lawyers' Committee, a decades-long 
advocate, Mr. Chairman.
    So I thank you very much for allowing me to do so, and I 
conclude by wishing for continued hearings of this Committee in 
light of what we have heard today, Mr. Chairman.
    Thank you. I yield back.
    Mr. Franks. I thank the gentle lady.
    I want to thank all of those who have attended here today, 
and I hope this hearing and others hastens the dream of the 
Founding Fathers to recognize that we are all created equal and 
that one day that recognition of the human dignity of every 
last one of God's children will be recognized equally and 
forthrightly.
    I do want to note that all Members will have 5 legislative 
days with which to submit materials for the hearing record.
    I would thank the witnesses and thank the Members in the 
audience, and this hearing is adjourned.
    [Whereupon, at 12:40 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 
 Congress from the State of New York, and Ranking Member, Subcommittee 
                 on the Constitution and Civil Justice

    Thank you, Mr. Chairman.
    Today, we review the impact of the Supreme Court's decision in 
Shelby County v. Holder. As the Ranking Member of this Subcommittee 
when we reauthorized the Voting Rights Act in 2006, I had the privilege 
of working on a bipartisan and bicameral basis with the then-Chairman 
of the full Committee, Mr. Sensenbrenner, the then-Chairman of the 
Subcommittee, Mr. Chabot, our Ranking Member, Mr. Conyers, and the 
Gentleman from North Carolina, Mr. Watt, in guiding the reauthorization 
though the Congress.
    We spent months reviewing the evidence, gaining a firm grasp of the 
current state of voting rights--and impediments to the exercise of the 
franchise--as it exists in the present day. We were persuaded, as were 
an overwhelming majority of the members of this House, and every single 
member of the Senate who cast a vote, that the remedies contained in 
the special provisions were still necessary, and were well-suited to 
the challenge of voting rights.
    We did consider revising the formula challenged in Shelby County, 
and determined that the existing formula still served as a useful and 
effective method of applying section 5 where needed. That determination 
was not based solely on the questions focused on by the Court and 
identified by Congress in 1965, but by the full weight of the evidence 
we found in 2006.
    The Court, arrogating to itself the quintessentially congressional 
power to decide what facts are relevant, and what constitutes an 
appropriate remedy, struck down the formula in section 4, eviscerating, 
and rendering a nearly dead letter, the preclearance provisions of 
section 5.
    Congress long ago made the correct determination that requiring 
voters to go to court after they had already been disenfranchised, 
rendered voting rights unenforceable, and encouraged local political 
leaders to rig the system to their advantage.
    To be clear, the Voting Rights Act is not solely about racial 
animus; it is about political power. It is not a matter of determining 
whether one part of the country is ``more racist'' than another, but 
only whether certain jurisdictions engage in conduct requiring special 
scrutiny to protect the right to vote.
    Excluding minorities from effective participation in our democracy 
renders them something less than full citizens. Here, Justice Scalia 
was dead wrong: the right to vote in a free and fair election is not a 
``racial entitlement,'' but rather the birthright of every American, 
regardless of race.
    As a far more forward-looking Supreme Court said in Reynolds v. 
Sims in 1964, ``Undoubtedly, the right of suffrage is a fundamental 
matter in a free and democratic society. Especially since the right to 
exercise the franchise in a free and unimpaired manner is preservative 
of other basic civil and political rights, any alleged infringement of 
the right of citizens to vote must be carefully and meticulously 
scrutinized.''
    The Voting Rights Act has stood for a half-century as a testament 
to our commitment that everyone must have an equal share in the 
governance of our nation if our democracy is to have any claim to 
legitimacy.
    While it is true that we have made substantial progress in our 
nation since 1965, much of it attributable to the Voting Rights Act and 
our other civil rights laws, it is also true that we are not yet free 
of efforts to manipulate the system in ways that disempower minority 
groups.
    As we stated in the Committee's report to accompany the 2006 
reauthorization,
    Despite the substantial progress that has been made, the evidence 
before the Committee resembles the evidence before Congress in 1965 and 
the evidence that was present again in 1970, 1975, 1982, and 1992. In 
2006, the Committee finds abundant evidentiary support for 
reauthorization of VRA's temporary provisions.
    We reviewed the extent to which the kinds of ``first generation'' 
devices have been addressed, and found that section 5 had improved 
voter participation in covered jurisdictions, just as the Court's 
majority noted. We also observed that ``Sections 5 and 8 have been 
vital prophylactic tools, protecting minority voters from devices and 
schemes that continue to be employed by covered States and 
jurisdictions''
    We went on to note,
    The Committee received testimony revealing that more Section 5 
objections were lodged between 1982 and 2004 than were interposed 
between 1965 and 1982 and that such objections did not encompass minor 
inadvertent changes. The changes sought by covered jurisdiction were 
calculated decisions to keep minority voters from fully participating 
in the political process. This increased activity shows that attempts 
to discriminate persist and evolve, such that Section 5 is still needed 
to protect minority voters in the future.
    So the voluminous evidence that we compiled showed clearly that the 
need in the covered jurisdictions remained, and that the special 
provisions were necessary and effective to protecting voting rights in 
those jurisdictions. Rather than proving that the formula in section 
4(b) was obsolete, the statistics cited by the Court demonstrated the 
continuing need and effectiveness of Section 5.
    That brings us to today's hearing. I strongly believe that the 
facts we found in 2006 made a compelling case for retaining Section 5, 
and applying it to covered jurisdictions which include--I might add--my 
own New York City district.
    What we need to do, as a first order of business, before we start 
to look at what we might do to address the Court's decision, is to 
determine the impact of that decision. Just as we moved with great care 
and deliberation in 2006, and in a bipartisan manner, I would urge 
members not to put the cart before the horse by trying to examine 
specific cases and possible remedies until we have a better 
understanding of where we are right now.
    I know that not every member of this Committee supported the 
reauthorization of the Voting Rights Act, but I hope that we can 
nonetheless work cooperatively, in the same bipartisan spirit that 
guided our 2006 deliberations, to address the Court's decision.
    I hope the witnesses can address some of the following questions:

          What remains of the Voting Rights Act?

          What is the status of voting changes pre-cleared or 
        denied preclearance since 2006?

          Are any jurisdictions still covered by Section 5? If 
        so, based on what?

          What tools does the Justice Department still have to 
        fight voter disenfranchisement?

    There are obviously applications of the Voting Rights Act on which 
members of this Committee strongly disagree. I would hope that, rather 
than allowing ourselves to get bogged down with the most controversial 
cases of the day, we take a step back, look at Section 5, and at what 
the Court did. Ultimately, as our experience since 1965 has clearly 
shown, the specifics change over time, but the need for preclearance 
has remained constant. The value of Section 5 has been its ability to 
respond in real time to efforts to disenfranchise voters. I hope we can 
keep our focus where it belongs.
    Thank you, Mr. Chairman.
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