[Senate Hearing 113-332]
[From the U.S. Government Publishing Office]






                                                        S. Hrg. 113-332

     FROM SELMA TO SHELBY COUNTY: WORKING TOGETHER TO RESTORE THE 
                  PROTECTIONS OF THE VOTING RIGHTS ACT

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 17, 2013

                               __________

                          Serial No. J-113-20

                               __________

         Printed for the use of the Committee on the Judiciary





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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
            Bruce A. Cohen, Chief Counsel and Staff Director
              Kolan Davis, Republican Chief Staff Director












                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    40
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     2
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     9
Hirono, Hon. Mazie, a U.S. Senator from the State of Hawaii, 
  prepared statement.............................................    44

                               WITNESSES

Witness List.....................................................    39
Lewis, Hon. John, a Representative in Congress from the State of 
  Georgia........................................................     4
    prepared statement...........................................    45
Sensenbrenner, Hon. F. James Jr., a Representative in Congress 
  from the State of Wisconsin....................................     6
    prepared statement...........................................    49
Weinberg, Luz Urbaez, Commissioner, City of Aventura, Florida....    11
    prepared statement...........................................    56
Carvin, Michael A., Partner, Jones Day, Washington, D.C..........    13
    prepared statement...........................................    66
Levitt, Justin, Associate Professor of Law, Loyola Law School, 
  Los Angeles, California........................................    15
    prepared statement...........................................    79

                               QUESTIONS

Questions submitted by Senator Franken for Michael A. Carvin.....    92
Questions submitted by Senator Franken for Justin Levitt.........    94
Questions submitted by Senator Grassley for Luz Urbaez Weinberg..    95
Questions submitted by Senator Grassley for Michael A. Carvin....    96
Questions submitted by Senator Grassley for Justin Levitt........    97

                         QUESTIONS AND ANSWERS

Responses of Luz Urbaez Weinberg to questions submitted by 
  Senator Grassley...............................................    98
Responses of Michael A. Carvin to questions submitted by Senators 
  Franken and Grassley...........................................    99
Responses of Justin Levitt to questions submitted by Senators 
  Franken and Grassley...........................................   104

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

American Civil Liberties Union (ACLU), Laura W. Murphy, Director 
  and Deborah J. Vagins, Senior Legislative Counsel, statement...   141
Asian Americans Advancing Justice and AALDEF, written testimony..   150
Common Cause, Karen Hobert Flynn, Interim Co-CEO and Senior Vice 
  President for Strategy and Programs, written testimony.........   159
Fair Vote--The Center for Voting and Democracy, Bob Richie, 
  Executive Director and Drew Spencer, Staff Attorney, written 
  testimony......................................................   166
National Congress of American Indians, Jefferson Keel, President, 
  written testimony..............................................   171
ADL, Barry Curtiss Lusher, National Chair and Abraham H. Foxman, 
  National Director, statement...................................   175
NAACP Legal Defense and Educational Fund, Inc., Sherrilyn Ifill, 
  President & Director-Counsel; Ryan P. Haygood, Director, 
  Political Participation Group; Leslie M. Proll, Director, 
  Washington Office, statement...................................   178
National Council on Independent Living (NCIL), Jim Dickson, 
  Acting Co-Chair, statement.....................................   188
National Urban League, statement.................................   196
Rural Coalition, Gary R. Redding, Legal Fellow, statement........   199
U.S. Public Interest Research Group Democracy Advocate Blair 
  Bowie, testimony...............................................   208
The Leadership Conference on Civil and Human Rights, Wade 
  Henderson, statement...........................................   209
Constituent supporters, statement for the record, submitted by 
  Senator Chris Coons............................................   214
``EXPOSED: The Corporations Funding the Annual Meeting of the 
  Powerful Right-Wing Front Group ALEC'', article by Zaid Jilani, 
  August 5, 2011, submitted by Senator Durbin....................   292

 
     FROM SELMA TO SHELBY COUNTY: WORKING TOGETHER TO RESTORE THE 
                  PROTECTIONS OF THE VOTING RIGHTS ACT

                              ----------                             


                        WEDNESDAY, JULY 17, 2013

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 1:13 p.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Feinstein, Durbin, Whitehouse, 
Klobuchar, Franken, Coons, Blumenthal, Hirono, Grassley, and 
Cruz.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. I am happy to welcome back to the Senate 
Judiciary Committee one of my heroes, Congressman John Lewis, 
and another dear, dear friend from so many battles over the 
years--not battles with each other but battles we have joined 
together on--Jim Sensenbrenner. And I welcome everyone to this 
important hearing. It is on an issue that affects all 
Americans: our right to vote.
    The title of today's hearing, ``From Selma to Shelby 
County: Working Together to Restore the Protections of the 
Voting Rights Act,'' speaks of the historic effort to protect 
our voting rights and expresses our determination to continue 
to work together to affirm the Voting Rights Act.
    From its inception and through several reauthorizations, 
the Voting Rights Act has always been a bipartisan effort, and 
I hope that is going to continue. And part of that tradition is 
right here with John Lewis and Jim Sensenbrenner, two highly 
respected Members of the House of Representatives, one a 
Democrat, one a Republican, and from different States, but both 
with a shared commitment to voting rights. So I look forward to 
working with both of them as we seek to restore the protections 
of the Voting Rights Act after the Shelby County case.
    The historic struggle for individual voting rights reached 
a turning point on the Edmund Pettus Bridge in Selma, Alabama, 
on March 7, 1965. I had just gotten out of law. A group of 
peaceful marchers led by John Lewis, a young John Lewis, were 
brutally attacked by State troopers. We call it ``Bloody 
Sunday'' today from the graphic photographs, and it became a 
catalyst for the passage of the Voting Rights Act. Congressman 
Lewis later said that ``your vote is precious, almost sacred. 
It is the most powerful, nonviolent tool we have to create a 
more perfect union.''
    To me, and to millions of others, he is a hero, and I thank 
him for being here today.
    In 2006, Republicans and Democrats in the Senate and in the 
House of Representatives joined together to pass a 
reauthorization of the landmark Voting Rights Act with 
overwhelming bipartisan support. One of the reasons we were 
able to do it is the courageous Chairman of the House Judiciary 
Committee, Congressman Sensenbrenner, a true leader of that 
effort. In fact, having been here at that time as the Ranking 
Member of this Committee and watching what went on, I can say 
that we would not have been able to reauthorize that without 
his leadership in the House Judiciary Committee. I was proud to 
work with him back then, and I thank him for coming here to 
testify today. And I think he and I and Congressman Lewis were 
very happy when we saw the President sign that in the Rose 
Garden--on a gorgeous day, I might add.
    In Shelby County v. Holder, five Justices of the Supreme 
Court held that the coverage formula of the Voting Rights Act 
was outdated. But even the five Justices who struck down the 
coverage formula in Section 4 have acknowledged that 
discrimination in voting continues to be a problem. As Chief 
Justice Roberts said, ``voting discrimination still exists; no 
one doubts that.'' And that is why we are here today.
    The Supreme Court has called on Congress to come together 
to update the Voting Rights Act. We have to work together--not 
as Democrats or Republicans, but as Americans. People die in 
other parts of the world trying to obtain the right to have a 
free country with a free right to vote. Americans should not be 
denied it by just the application of local laws. We need a 
strong Voting Rights Act.
    Dr. King proclaimed: ``When the architects of our republic 
wrote the magnificent words of the Constitution and the 
Declaration of Independence, they were signing a promissory 
note to which every American was to fall heir.''
    We owe it to our children, and I might say in a very 
personal way our grandchildren, to restore the Voting Rights 
Act to fulfill this promise and uphold the Constitution. No 
one's right to vote in any part of this great Nation should be 
suppressed or denied, yet we continue to see that 
discriminatory practice today. Every one of us, I do not care 
what our political alliances are, we should be totally opposed 
to suppressing votes. So let us work together on that.
    Senator Grassley, we will hear from you, and I know that 
Congressman Lewis has a flight, so after you finish, I am going 
to turn to him.

 OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM 
                       THE STATE OF IOWA

    Senator Grassley. It is very right for you to hold this 
hearing, Mr. Chairman, after a significant decision by the 
Supreme Court and the extent to which Congress has a duty to do 
it in our checks and balances of Government.
    The Voting Rights Act guarantees the fundamental right to 
vote for all qualified voters, regardless of race or language. 
The right to vote guarantees the protection of other rights. 
The law was necessary to address a shameful history. I have 
voted to reauthorize the Act. I appreciate the testimony of our 
congressional colleagues, and I welcome both of them here and 
point out specifically for Representative Lewis that your 
participation in the Bloody Sunday helped lead to enacting the 
law and creating your enduring place in history. Thank you for 
being here today.
    We should be pleased that our country has made advances in 
race relations since the Voting Rights Act was passed. The Act 
contributed to the progress. No doubt, though, more progress 
must be made and should be made, and a hearing such as this 
will help that dialogue to continue.
    We last voted to reauthorize in 2006. Much has changed 
since then. The voter turnout rate was higher last year among 
registered African American voters than for other classes of 
people. More African American and Hispanic candidates than ever 
are winning elections.
    Now, I say that because the Supreme Court has found these 
facts to be of constitutional significance. We are here today 
largely because Congress failed to heed the Supreme Court's 
2009 warning that the differing treatments of States in the 
preclearance coverage formula raised serious constitutional 
questions. Eight Justices said so. The ninth would have struck 
the law down at that time. Congress could have drafted a new 
coverage formula to address those concerns. We could have 
created a formula based on 21st century realities, not the 
dramatically different conditions that existed in the 1960s and 
1970s.
    The Court then ruled as it did. Many people believe that 
Section 2 is the heart of the Voting Rights Act, unlike Section 
5 that prohibits voter discrimination nationwide. Unlike 
Section 5, Section 2 can be used to challenge procedures before 
they take effect through injunctions. Over the years, the 
preclearance process has led to many fewer objections to 
proposed election law changes. Since the last reauthorization, 
only 31 objections have been made. There have been no 
objections raised to any changes in seven of the 16 States that 
are covered in whole or in part and in three of the States that 
are fully covered. A total of 99.86 percent of submissions have 
been approved. Additionally, the racial gap in voter 
registration and turnout is now lower in the States that were 
originally covered in Section 5 than is the case nationwide.
    The Court has given Congress the opportunity to draft a new 
constitutional coverage formula. I disagree with a member of 
this Committee across the aisle who said, ``As long as 
Republicans have a majority in the House and Democrats do not 
have 60 votes in the Senate, there will be no preclearance.'' 
Cynicism and defeatism have never before characterized 
reauthorization of the Voting Rights Act. Rather than blaming 
Republicans for blocking a bill that does not exist, the 
majority should bring forth a proposal for updating the 
coverage formula in a constitutional way. We should cover the 
whole country.
    We could identify jurisdictions engaging in discrimination 
in the 21st century and where Section 2 is inadequate. There 
may be other options. I look forward to seeing what is brought 
before the Committee.
    I certainly understand why there is no proposal yet, but 
for any new bill to pass, we must respect the Constitution's 
pronouncements. The Court based its ruling in part on the Tenth 
Amendment. Specifically, the Court said, ``The Constitution 
provides that all powers not specifically granted to the 
Federal Government are reserved to the States or citizens 
thereof,'' and I would point out the word ``specifically.''
    This is a formulation of the Tenth Amendment I have never 
seen before. It means that Congress can only enact laws that 
fall within the powers the Constitution specifically gives it, 
such as the enumerated powers of Article I and the 15th 
Amendment, which is the constitutional basis for the Voting 
Rights Act.
    The Supreme Court's ruling requires Congress to show 
greater respect for the limitations of its power as against 
State authority. It is language that must be kept in mind if 
Congress considers legislation amending the Voting Rights Act. 
And the Court last month also ruled under the Constitution's 
Election Clause that Congress may regulate ``how Federal 
elections are held but not who may vote in them.'' Those 
decisions are left to the States.
    Further, any legislative fix should not threaten 
commonsense measures to ensure the integrity of voting, such as 
constitutional voter identification laws. Overwhelming 
majorities support these requirements. They know that the right 
to vote is denied as completely when a valid vote is canceled 
by the vote of someone ineligible to vote as when an eligible 
voter is blocked. And the Supreme Court has just ruled that, 
``It would raise serious constitutional doubts if a Federal 
statute precluded a State from obtaining the information 
necessary to enforce its voter qualifications.''
    This hearing is very important, and I commend you, Mr. 
Chairman, for holding it as soon as you are after the Shelby 
decision. I welcome all the witnesses.
    Thank you.
    Chairman Leahy. Well, thank you.
    We will start, as I said, with John Lewis. Also, on a 
personal point, I still remember with great fondness your 
introduction of me when I received a civil rights award, the 
Humphrey Award. I thought it was one of the culminations of my 
career in the Senate to be introduced by you. And we have seen 
especially recently so many times on television some of the 
scenes of 50 years ago. So I am glad you are here. Congressman 
Lewis, please go ahead, sir.

STATEMENT OF HON. JOHN LEWIS, A REPRESENTATIVE IN CONGRESS FROM 
                      THE STATE OF GEORGIA

    Representative Lewis. Thank you, Mr. Chairman. I want to 
thank you, Mr. Ranking Member, and members of the Committee for 
holding this important hearing and inviting me to testify 
today.
    Mr. Chairman, I ask unanimous consent that my full 
statement be included in the record.
    Chairman Leahy. Without objection.
    Representative Lewis. Since first being elected to 
Congress, Congressman Sensenbrenner has been a tireless 
champion of the Voting Rights Act. I am very proud and pleased 
to be with him today, my friend, my brother.
    I have said it before and I will say it again to you today 
that Sections 4 and 5 are the heart and soul of the Voting 
Rights Act. The day of the Supreme Court decision broke my 
heart. It made me want to cry. I felt like saying, ``Come, 
come, and walk in the shoes of people who try to register, try 
to vote, but did not live to see the passing of the Voting 
Rights Act.''
    I know that each of you knows this history, but I think it 
is important for the record to note what life was like before 
the Voting Rights Act of 1965.
    When I first came to Washington, D.C., in 1961, the same 
year that President Barack Obama was born, blacks and whites 
could not sit beside each other on a bus traveling through 
Virginia, through North Carolina, through Georgia, Alabama, 
Mississippi, and to New Orleans. We saw signs that read, 
``White Only,'' ``Colored Only.''
    In many parts of this country, people were denied the right 
to register to vote simply because of the color of their skin. 
They were harassed, intimidated, and fired from their jobs and 
forced off of farms and plantations. Those who tried to assist 
were beaten, arrested, jailed, or even murdered. Before the 
Voting Rights Act, people stood in unmovable lines. On 
occasion, a person of color would be asked to count the number 
of bubbles in a bar of soap or the number of jelly beans in a 
jar.
    In 1964, the State of Mississippi had a black voting age 
population of more than 450,000, but only about 16,000 were 
registered to vote. One county in my native State of Alabama, 
Lowndes County, was 80 percent African American, but not a 
single one was able to register to vote. Not one. Selma is 
located in Dallas County, Alabama. During this period only 2 
percent of African Americans were registered to vote in this 
county, and you could only attempt to register on the first and 
third Mondays of each month. Occasionally, people had to pass a 
so-called literacy test.
    Before the Voting Rights Act, three young men I knew--James 
Chaney, Andy Goodman, and Mickey Schwerner--were working to 
register African Americans to vote in Mississippi in 1964. They 
were arrested, released from jail to members of the Klan in the 
middle of the night. Then they were beaten, shot, and killed.
    On March 7, 1965, Hosea Williams, a staff person for Dr. 
Martin Luther King, Jr., and I attempted to lead a peaceful, 
nonviolent march from Selma to Montgomery. As we marched for 
the right to vote, more than 500 men, women, and children were 
chased, beaten, bloodied, and trampled by State troopers, some 
riding horseback. That terrible day became known as ``Bloody 
Sunday.''
    A little over a week later, President Lyndon Johnson came 
before a joint session of the Congress, and he spoke to the 
Nation. He said, ``I speak tonight for the dignity of man and 
for the destiny of democracy.'' And he presented the Voting 
Rights Act to Congress.
    After months of hard work, Congress passed the bill, and on 
August 6, 1965, President Lyndon Johnson signed the Voting 
Rights Act into law and gave me one of the pens he used to sign 
that bill. I remember this period and these struggles like it 
was just only yesterday.
    To this day, I truly believe that we are a better country, 
a better people because of the Voting Rights Act. We have made 
progress. We have come a great distance. But the deliberate, 
systematic attempt to make it harder and more difficult for 
many people to participate in the democratic process still 
exists to this very day. Only hours after the decision was 
announced by the Supreme Court, before the ink was even dry, 
States began to put into force efforts to suppress people's 
voting rights.
    As I said and, Mr. Chairman, as you quoted, in a democracy 
such as ours, the vote is precious; it is almost sacred. It is 
the most powerful nonviolent tool we have.
    It is my belief that the Voting Rights Act is needed now 
more than ever before. A bipartisan Congress and Republican 
President worked to reauthorize this law four times. The burden 
cannot be on those citizens whose rights were or will be 
violated. It is the duty and the responsibility of Congress to 
restore the life and soul of the Voting Rights Act, and we must 
do it, and we must do it now. We must act, and we must act now. 
We must do it on our watch, at this time.
    Again, thank you, Mr. Chairman, Mr. Ranking Member, and 
members of this Committee for the opportunity to testify today. 
Thank you so much.
    [The prepared statement of Representative Lewis appears as 
a submission for the record.]
    Chairman Leahy. Well, thank you, Congressman, and you bring 
us a sense of history. I also thank you for the book that you 
signed to me, ``March (Book One),'' that you helped write and 
edit. It will be seen by all five of my grandchildren.
    I mentioned earlier that Congressman Sensenbrenner is a 
dear friend. We have been friends for years, and he is a civil 
rights icon in his own right. When he was Chairman of the House 
Judiciary Committee in 2006, he introduced the Reauthorization 
of the Voting Rights Act in the House of Representatives. He 
worked tirelessly to build a strong legislative record 
indicating the need for reauthorization of Section 5. I know 
because I watched some of those hearings. As he knows, I came 
by and we discussed it many, many times. But his steadfast 
leadership and his commitment to protecting civil rights for 
all Americans ensured that the bill would become law. I think 
as someone from the other body, I can say--and I was in the 
minority at the time. You, of course, were in the majority, 
your party. I can honestly say that we would not have gotten it 
through had it not been for the work you put in on it in the 
House.
    So I will continue to work with him and to keep this a 
bipartisan issue. It will be a nonpartisan effort. It is one of 
the few things that definitely should. So, Congressman 
Sensenbrenner, please go ahead, sir.

STATEMENT OF HON. F. JAMES SENSENBRENNER, JR., A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF WISCONSIN

    Representative Sensenbrenner. Thank you very much, Mr. 
Chairman, Ranking Member Grassley, distinguished members of the 
Committee. Let me express my appreciation not only for your 
statement and Senator Grassley's statement, but also the 
statements that have been made by my colleague in the House, 
John Lewis of Georgia.
    I am not a civil rights icon. I try to be a mechanic to put 
together legislation that will work. I thought we did it in 
2006. We are going to have to repair a few parts this year. And 
I am certainly on board to try to put something that will last 
for a long period of time.
    I also deeply appreciate the comments that Mr. Lewis has 
made because he is truly a civil rights icon for what he did to 
emphasize the need for voting rights and the Voting Rights Act 
that Congress successfully passed in 1965 and has reauthorized 
since.
    In 2006, I was proud to have served as Chairman of the 
House Judiciary Committee when the Voting Rights Act was last 
reauthorized, including the coverage formula of Section 5. I 
thank you for the invitation to participate in this hearing and 
to provide my perspective on the continued importance of the 
Voting Rights Act.
    In 1965, the Voting Rights Act was signed into law. The 
last was passed at the height of America's civil rights 
movement when citizens of part of the country were fighting 
each other, and sometimes authorities, over how skin color 
impacts upon a person's place in democracy.
    Historic in nature, the Voting Rights Act sought to end 
decades of racial discrimination that prevented minorities from 
fully exercising their constitutional right to vote. The law 
ensured that State and local governments do not pass laws or 
policies that deny American citizens the equal right to vote 
based on race.
    As the leading democracy in the world, the United States 
should work to keep voting free, fair, and accessible. And that 
is why the Voting Rights Act is so important. It makes sure 
that every citizen, regardless of race, has an equal 
opportunity to have a say and to participate in our great 
democracy.
    In 1982, I was pleased to help lead negotiations to 
reauthorize the Voting Rights Act then. The legislation cleared 
the House by a vote of 389-24, and it was signed into law by 
President Reagan. When signing the reauthorization, President 
Reagan stated, ``There are differences over how to attain the 
equality we seek for all our people. And sometimes amidst all 
the overblown rhetoric the differences tend to seem bigger than 
they are. But actions speak louder than words. This legislation 
proves our unbending commitment to voting rights. It also 
proves that differences can be settled in a spirit of good will 
and good faith. As I have said before, the right to vote is the 
crown jewel of American liberties, and we will not see its 
luster diminished.''
    One of my most cherished keepsakes is one of the pens that 
President Ronald Reagan used to sign the 1982 extension. Anyone 
visiting my office will notice that this pen is proudly 
displayed.
    A duty to support the Constitution once again led me to 
shepherd the 2006 reauthorization of the Voting Rights Act. 
While I was Chairman of the House Judiciary Committee, we held 
dozens of hearings examining the effectiveness of the Voting 
Rights Act, whether the VRA should be extended, and if so, what 
the extension should encompass. The Committee assembled more 
than 12,000 pages of testimony, documentary evidence, and 
appendices during its exhaustive consideration. In fact, the 
legislative record accompanying the consideration of the Voting 
Rights Act extension in 2006 is among the most extensive in 
congressional history.
    The Committee's bipartisan conclusion: While we have made 
dramatic progress in ensuring no American is denied his or her 
right to vote based upon the color of his or her skin, the work 
remains incomplete. Again, in a bipartisan fashion, the House 
passed a 25-year extension.
    As we are here today because of the Supreme Court's ruling 
in Shelby County v. Holder, which severely weakens the election 
protections that both Republicans and Democrats have fought so 
hard to maintain over the years, the Court essentially 
disregarded years and years of the extensive work of the 
legislative branch and substituted their own judgment. In a 
narrow 5-4 decision, the Justices voted to eliminate the law's 
existing formula for selecting which places are allowed to make 
changes to their election laws or procedure without clearance 
from the U.S. Department of Justice. Although the Court left in 
place Section 5, a provision that requires States or parts of 
States to ask permission from the Federal Government before 
making changes to their elections, that part of the law has 
little or no effect without the formula in Section 4, which was 
struck down.
    By striking down Section 4 of the 1965 Voting Rights Act 
and thereby gutting the Act's Section 5, Congress is now 
presented with a challenge and a historic opportunity. We are 
again called together to restore the critical protections of 
the Act by designing a new formula that will cover 
jurisdictions with recent and egregious voting records. Our 
sacred Constitution guarantees that an American citizen cannot 
be kept from exercising his or her God-given right to vote 
because of race or color.
    Though the Voting Rights Act has been enormously 
successful, we know our work is not yet complete and 8 years 
ago had 12,000 pages of a record to prove it. Discrimination in 
the electoral process continues to exist and threatens to 
undermine the progress that has been made over the last 50 
years. I am committed to working to pass a constitutional 
response to the Shelby County v. Holder decision, and I look 
forward to working with anybody who wants to approach this 
effort in good Faith. I believe that the Voting Rights Act is 
the most successful of all of our important civil rights acts 
that have been passed since the mid-1950s in actually 
eliminating discrimination. We cannot afford to lose it now, 
and it is our obligation as Senators and Representatives to 
continue it.
    Thank you.
    [The prepared statement of Representative Sensenbrenner 
appears as a submission for the record.]
    Chairman Leahy. Gentlemen, I thank you both very, very 
much, and I wanted to hold this hearing before the August break 
because I want to be able to use the August break to work the 
phones a lot and talk to a lot of people from Vermont and 
people around the country, but be able to use that as a base to 
do it, and I am hoping that the two of you and anybody else in 
the House who would want can join with those of us here in the 
Senate who want when we come back in the fall and see what we 
can do.
    I know you both have a tight schedule. You are welcome to 
stay if you would like, but I would be happy to have the next 
panel come up if you wanted to leave.
    Representative Sensenbrenner. We are due for votes pretty 
soon in the House.
    Chairman Leahy. I better let you go. It is a long way over 
there.
    Representative Sensenbrenner. Sometimes the differences 
between the House and the Senate are the difference between 
here and the moon--hopefully not on this one.
    Chairman Leahy. I hope not on this. In my office--I have an 
office that is just a couple feet from the so-called dividing 
line between the House and the Senate, and I like the fact that 
we are able to walk back and forth across that line often, as 
the three of us have done on many different issues. And I hope 
that both bodies will on this issue, because if you protect the 
right to vote for everybody, it is one of the greatest steps 
you can take to protect a democracy. So I thank you both very, 
very much for being here.
    I would note, as we are going to set up for the next panel, 
Senator Durbin is the Chair of the Civil Rights Subcommittee 
and has held hearings on this. Senator, before we start that, 
did you wish to say something?

  OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 
                   FROM THE STATE OF ILLINOIS

    Senator Durbin. Mr. Chairman, I want to thank you and 
Senator Grassley for this hearing today, and I want to 
congratulate my friend, Congressman John Lewis, for coming over 
and producing testimony that no one else can produce because of 
his singular role in the history of civil rights in America.
    And a special thanks to Congressman Jim Sensenbrenner, who 
shows that there is true bipartisanship alive and well when it 
comes to preserving civil rights. Congressman Sensenbrenner, 
thank you for being here.
    Mr. Chairman, it was 7 years ago that 98 Senators and 390 
House members reauthorized the Voting Rights Act by an 
overwhelming bipartisan vote. After 21 hearings and 90 
witnesses testified, a 15,000-page record was produced. 
Congress passed the bill, and President George W. Bush signed 
the reauthorization. We did so because we all recognized that, 
despite real progress in America, unlawful and unfair 
discrimination in voting remained. I heard some of those 
discriminatory practices firsthand in the series of hearings in 
my Constitution Subcommittee last Congress. Here on the Hill, I 
chaired the first congressional hearing to examine new State 
voting laws that limited early voting, tightened registration 
requirements, and required photo IDs.
    We then took the Subcommittee on the road. At the 
invitation of Senator Bill Nelson, we went to Tampa, Florida, 
and at the invitation of Senator Sherrod Brown, we went to 
Cleveland, Ohio. In those places, we invited election officials 
from both political parties to testify as to changes in State 
law that were being contemplated and implemented in those two 
States of Florida and Texas.
    Mr. Chairman, before there was any testimony taken at great 
length, we asked the election officials a basic question: What 
were the instances of voter fraud in your States of Florida and 
Ohio that led for the States to change the laws relating to how 
people would register to vote and when they could vote and how 
they can vote?
    In both States, the testimony was the same from election 
officials of both political parties. There was no evidence of 
voter fraud. None. These changes took place in the context of 
reducing opportunity for people to vote, period. I am not going 
to defend one person who tries to vote illegally or 
fraudulently. None of us would. But in those two States from 
election officials of both parties, there was no basis for 
these new State laws.
    When the time came to challenge the laws in Federal court, 
what statute did they turn to? The Voting Rights Act. The 
Voting Rights Act asked the very basic question that goes back 
to the 15th Amendment as to whether we are keeping our promise 
to make voting racially free and free for all Americans. And 
that is why this hearing is so important and this testimony is 
so important.
    I am just going to give three quick examples, Mr. Chairman, 
and yield. Do we still need this? Is this something that 
belongs in a museum, this Voting Rights Act, in the Civil 
Rights Museum somewhere? We still need it.
    Listen to what we faced recently. In 2001, in the city of 
Kilmichael, Mississippi, an election was canceled because an 
unprecedented number of African American candidates decided to 
run for office. After the Department of Justice used the Voting 
Rights Act to require the election move forward, the town 
elected its first black mayor and its first majority black city 
council. In 2001, Kilmichael, Mississippi.
    In 2004, officials in Walker County, Texas, threatened to 
prosecute two black students after they announced their 
candidacy for county office. When that threat did not keep them 
off the ballot, county officials tried to limit African 
American turnout by reducing early voting but only at polling 
places near a historically black college with a large number of 
black voters. 2004, Walker County, Texas.
    In 2012, after the 2010 census showed that the African 
American voting population had grown significantly and the 
consolidated municipal government of Augusta-Richmond, Georgia, 
the Georgia Legislature passed a bill to change the date of the 
municipal elections but only in Augusta-Richmond County, 
Georgia. The bill would have changed the election date from 
November when African American turnout was known to be high to 
July, when it was substantially lower. 2012, the State of 
Georgia.
    Do we still need the Voting Rights Act? Yes, we do. That is 
why this hearing is so important.
    Mr. Chairman, I am glad that you brought those two opening 
witnesses, and I am glad that the panel will follow and we will 
have a chance to raise these questions. And I think you are 
right to make this issue an issue to be considered by the full 
Committee rather than just our Subcommittee, and I thank you 
for this opportunity.
    Chairman Leahy. I can assure you your Subcommittee is going 
to have a great deal of work to do on this, as you already 
have.
    Our first witness is Ms. Luz Weinberg. Did I pronounce your 
first name correctly? Luz Urbaez Weinberg. I apologize. She has 
served as city commissioner of Aventura, Florida, since 2005. I 
understand you are the youngest person, the first person of 
Hispanic descent to hold that office; also the vice president 
of the Board of Directors for NALEO, the National Association 
of Latino Elected and Appointed Officials.
    Ms. Weinberg, please go ahead. Your microphone is not on. 
There is a little button on the front there that says ``Talk.''

    STATEMENT OF LUZ URBAEZ WEINBERG, COMMISSIONER, CITY OF 
                       AVENTURA, FLORIDA

    Ms. Weinberg. Thank you. Give me those 10 seconds back.
    [Laughter.]
    Ms. Weinberg. Chairman Leahy, Ranking Member Grassley, and 
members of the Committee, thank you so much for the opportunity 
and the invitation to submit my testimony here on the need to 
restore the protections of the Voting Rights Act.
    Mr. Chairman, as you mentioned, I am a Republican elected 
to serve my city of Aventura as a nonpartisan in the city of 
Aventura, northeast Miami-Dade County, Florida. I am the first, 
indeed I am still the only, Hispanic to hold that office. I 
have taken also statewide and national leadership positions. 
Just recently Governor Rick Scott appointed me to serve on the 
Miami-Dade Expressway Authority, and I also serve as the vice 
president of the National Association of Latino Elected 
Officials. And thank you, Senator Durbin, for joining us last 
month.
    I am here today to share with you my firsthand account of 
the critical impact of the Voting Rights Act in guaranteeing 
access to the ballot box. As a result of the recent Supreme 
Court case, I urge this Committee to once again demonstrate 
your clear and principled commitment to equal voting rights for 
all Americans regardless of race, language spoken, and to also 
act swiftly to restore the protections.
    Whether to maintain the Voting Rights Act, it is not a 
partisan issue. It is a nonpartisan issue. It is an issue for 
all Americans. Whether Republicans or Democrats, all Americans 
strongly believe in fair and equal electoral opportunities.
    My experience serving as an elected official in South 
Florida has afforded me the privilege of being personally 
acquainted with how, absent a proactive, impartial check, 
election policies may disenfranchise ethnic and language 
minority communities.
    Ever since I moved to Florida from Puerto Rico in 1986, I 
have had a front row seat to observe how the unfortunate, 
repeated attempts to adopt and implement policies that continue 
our national history of putting racial, ethnic, and language 
minority voters at a disadvantage. Two main incidents come to 
mind:
    Number one, Osceola County in central Florida is one of 
many counties that have maintained an at-large election system 
for its commissioners. Only when its voters elected to switch 
to single-member districts was the first Hispanic commissioner 
finally elected.
    In reviewing the county's election law changes, the 
Department of Justice identified that the commissioners favored 
a return to at-large elections, in part because they recognized 
that the substantial growth of the county's Latino population 
would lead to Latino voters electing candidates of their 
choice. Since 2002, Osceola County has twice more faced charges 
that its electoral methods would reduce or eliminate Latino 
voting rights.
    Second, in Florida, Latinos are more likely than average to 
have become registered to vote through third-party registers. 
Third-party registers, however, became subject to strict 
reporting requirements, deadlines to return registration forms, 
and large fines in 2011. These requirements were later 
withdrawn, but the change in the law led to several 
organizations like the League of Women Voters suspending their 
voter registration operations in Florida, which, of course, 
then meant a drop that we saw of 39 percent registration.
    In the 1975 expansion of the VRA, five Florida counties 
were singled out for electoral discrimination against Latino 
voters and low participation rates that made them subject to 
the preclearance process set forth in Section 5. The VRA 
protects not just Latinos in these five counties formerly 
subject to preclearance, but it protected all voters statewide. 
For example, through the 1980s and 1990s, preclearance was 
actively used in Florida to ensure that absentee balloting 
procedures did not put underrepresented voters at a 
disadvantage. More recently, the preclearance process forced 
the careful reconsideration of the disproportionate impact that 
Latino voters might experience because of decisions to reduce 
our State's early voting period and to re-scrutinize the 
citizenship of Floridians already registered to vote.
    The successful application of Section 5 has occurred not 
only in Florida in the course of formal requests for 
preclearance. The very fact that these State policymakers have 
had to anticipate fulfilling preclearance requirements has 
influenced them to voluntarily reconsider and reshape proposed 
new election laws.
    For us Floridians, and particularly for Latino voters in 
Florida, the preclearance process of the Voting Rights Act has 
not only been effective but also critical in ensuring the 
preservation of equal electoral opportunities.
    The preclearance mechanism has no peer. It is uniquely 
tailored to prevent irreparable harm to voters and candidates 
by requiring review for discriminatory effect before a new law 
may be implemented. It is, by its very design and definition, 
still very much necessary in our 21st century America.
    On a personal note, I arrived in this country as a native-
born immigrant; that is to say, I am one of millions of Puerto 
Ricans who leave the island for the mainland for a better life. 
I registered to vote as a young adult who had just a couple of 
years before my arrival not spoken a word of English. I have 
three children. I was very proud when my oldest son, Jonathan, 
now 20, registered to vote and voted for the first time 2 years 
ago. Last year, my daughter, Jessica, turned 18, just 2 weeks 
after the election cycle--she missed it--but she was filed and 
ready to vote. Jonathan registered Democrat. Jessica registered 
Independent. Their elected official mother, myself, is a 
Republican. So in my household, we are Latinos, white Latino, 
we are Afro-Latinos, who speak English, who speak Spanish, 
sometimes Spanglish, sometimes very badly; but first and 
foremost, we are Americans in my household. And we take our 
electoral process, exercising our right to vote, ensuring that 
the Voting Rights Act is preserved, we see it as a nonpartisan, 
non-racial, and non-language-dependent priority. And I urge you 
to once again demonstrate your commitment to this priority of 
equal voting rights for all Americans and to please act swiftly 
to restore these protections so very necessary through the 
Voting Rights Act.
    Thank you.
    [The prepared statement of Ms. Weinberg appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much.
    Our next witness is Mr. Michael Carvin, a partner at the 
law firm of Jones Day here in Washington, D.C., where he 
focuses on constitutional and appellate litigation. He has 
testified before this Committee a number of times at the 
invitation of our Republican colleagues, and welcome again, Mr. 
Carvin.

STATEMENT OF MICHAEL A. CARVIN, PARTNER, JONES DAY, WASHINGTON, 
                               DC

    Mr. Carvin. Thank you, Mr. Chairman, Senator Grassley. 
Obviously the Committee is facing a very serious question, as 
is the entire Congress: Does Shelby County's invalidation of 
Section 5 create some kind of gap in the civil rights laws 
which might expose minority voters to unconstitutional 
discrimination?
    The thrust of my comments today is that there is no gap 
because Section 5 is no longer needed to ensure equal 
opportunity for minority voters for one simple reason, which is 
you have Section 2 of the Voting Rights Act, that has always 
been viewed as the heart of the Voting Rights Act. Section 2 is 
a very muscular provision which was amended by this body in 
1982 to prophylactically eliminate anything that could be 
characterized as purposeful discrimination because it prohibits 
anything with a discriminatory result for minority voters. It 
was ballyhooed then and was universally hailed as an 
extraordinarily successful piece of legislation that has done 
much, much more than Section 5, to eliminate unconstitutional 
voting discrimination.
    Section 5, on the other hand, was limited. It was limited 
in terms of the kinds of voting practices it got at, only 
changes in terms of the States it was addressing and in terms 
of time. It was always a temporary supplement to Section 2.
    So I think the question that the Congress has to grapple 
with is not whether discrimination persists in the 
jurisdictions covered by Section 5, but whether it is the kind 
of discrimination that cannot be effectively remedied by 
Section 2 of the Voting Rights Act. And I would submit that 
there is not much argument that Section 2 is inadequate to the 
task. First, a couple of logical, intuitive points.
    Preclearance requirements do not seem to be necessary for 
two reasons. One is we do not have it in most States. We do not 
have Section 5 on top of Section 2 in most States with respect 
to voting discrimination. And we do not have any kind of 
analogous preclearance requirement for any other form of 
discrimination. Employment, housing, educational discrimination 
is all dealt with through statutes like Section 2 that prohibit 
certain actions, not supplemented in any way by a preclearance 
requirement, even though, for example, employment 
discrimination is much more difficult to prove than voting 
discrimination because it is done in private without the kind 
of ready access you have in the voting context.
    With respect to what we have been calling ``first-
generation ballot access issues,'' I think the finding of 
Congress in 2006 was that those problems had been addressed as 
well in the covered jurisdictions and in the non-covered 
jurisdictions so there was really no reason to extend Section 5 
just to get at those ballot access issues. Section 2 was more 
than adequate in Oklahoma and Arkansas to eliminate that kind 
of voting discrimination, and no one in Congress in 2006 found 
that what was okay in Arkansas was inadequate in Brooklyn or 
Manhattan or Mississippi, in part because Congress found that 
Mississippi actually had the highest participation of black 
voters of any State, but nonetheless remained a covered 
jurisdiction.
    In terms of second-generation issues--and that was the 
principal focus of the Congress in 2006--they said, look, the 
covered jurisdictions have done a terrific job, indeed a better 
job than the non-covered jurisdictions in fostering minority 
participation and turnout, but they are diluting the vote 
through these at-large electoral systems and racial 
gerrymandering. And I would like to make two points about that.
    Section 2 is actually more effective at dealing with 
second-generation vote dilution issues than is Section 5. For 
one thing, Section 5 cannot attack at-large voting systems 
because it only is triggered if there is a voting change. So if 
an at-large election system is in place, it cannot be got at by 
Section 5, but it can be got at by Section 2.
    There has been an argument made which, in my view is 
completely false and counterfactual, which is somehow Section 2 
challenges to racial gerrymandering are too slow or not 
effective enough. That is completely untrue. In every State 
outside of Section 5, people do not sit around before they 
bring their Section 2 lawsuits and say, ``Let us have two or 
three elections and see how things go.'' They do exactly what 
they do in the Section 5 jurisdictions. They go to court before 
the new redistricting plan is entered and seek an injunction. 
The highly publicized case in Texas makes this point 
extraordinarily well. The Section 2 court has done its vote 
dilution work in November 2011, well before the elections in 
2012, while the Section 5 court never issued a decision until 
late August in 2012.
    So the point is that Section 2 courts can act and do act 
just as speedily and just as effectively in dealing with these 
redistricting issues. The only thing that the demise of Section 
5 will help eliminate is the compelled racial gerrymandering 
that the Justice Department imposed on a number of 
jurisdictions to create these districts that were struck down 
as unconstitutional in Shaw and as the protection, as we saw in 
Texas, of white Democrats even though there was not cognizable 
or large minority population in those districts, and, frankly, 
to end the partisan uses by the Republicans of the Voting 
Rights Act. Some of the strongest supporters of the Voting 
Rights Act have always been Republicans because it is 
politically advantageous for Republicans to have these majority 
minority districts because the adjacent districts present 
political opportunities.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Carvin appears as a 
submission for the record.]
    Chairman Leahy. Thank you very much.
    And our next witness is Justin Levitt, associate professor 
of law at Loyola Law School in Los Angeles, a national expert 
in constitutional law and voting rights. Before he joined the 
faculty of Loyola, he was counsel at the Brennan Center for 
Justice at New York University School of Law. He worked on 
cases promoting equal access to voting, and, again, I should 
note that all of your statement or any addition to it will be 
put in the record. Professor Levitt, I do not want you to think 
it is because of anything you have said or are about to say 
that I leave and turn the gavel over to Senator Whitehouse, but 
I am also required back on the floor. But please go ahead, sir.

STATEMENT JUSTIN LEVITT, ASSOCIATE PROFESSOR OF LAW, LOYOLA LAW 
                SCHOOL, LOS ANGELES, CALIFORNIA

    Mr. Levitt. Not at all, Mr. Chairman, and thank you very 
much.
    Mr. Chairman, distinguished members of the Committee, thank 
you for the invitation to testify here as well.
    Our Constitution expressly gives Congress the specific 
enumerated power and the obligation to ensure that there is no 
electoral discrimination anywhere in the country based on race 
or ethnicity. Congress has repeatedly attempted to step up to 
that responsibility, not perfectly perhaps but pragmatically.
    Shelby County ripped a sizable hole in Congress' work. That 
decision has left Americans today less sure that discrimination 
will not taint their elections. We have to correct that damage.
    Sweeping national statistics hide the fact that, 
unfortunately, there are still public officials who try to 
limit electoral opportunity based on race or ethnicity, 
sometimes because of contempt, sometimes because of perceived 
political advantage. It is disgusting and it is illegal. And 
even with armies of lawyers, it is very hard to fix using 
existing tools like Section 2.
    Normally we in the legal system depend on responsive 
lawsuits, the sort of tools that Mr. Carvin was talking about. 
If there is a legal problem, you sue, you prove harm, and it 
gets fixed. That is the way that the employment system, the 
housing system, the education system works. Exactly as Mr. 
Carvin said. Voting and election laws are different.
    These normal lawsuits attack one practice at a time. 
Officials looking to limit political power based on race just 
switch tactics. Rule X draws a lawsuit? Okay, shift to Y. That 
draws a suit? Okay, shift to Z.
    And important here, the official does not bear the costs of 
this whack-a-mole game. The taxpayers do. And if taxpayers get 
sick of it, it is hard for them to toss them out of office 
because the tactics he is changing affect the very structure of 
how the elections work. Election laws are different.
    Normal lawsuits are also a little bit like ocean liners. 
They are complicated, they are very expensive, they are slow to 
get going. They can take years, and, frankly, I am not sure 
which Texas case Mr. Carvin is talking about. The court in 
Texas still has not delivered a decision on the merits, years 
after the original districts were put in place. There is still 
no decision based on these normal lawsuits.
    In the meantime, when normal lawsuits are taking all of 
this time to get up and going, elections infected with 
discrimination are taking place. We know that elections have 
consequences. Well, discriminatory elections have consequences, 
too. Even when the contest is unjust, the winners still become 
incumbents, and they end up making policy in the meantime. 
While we are waiting to get the election structure right, it 
does not fix the policy that has already been passed. Election 
laws are different.
    These are not just theories. The 2006 Congress collected 
15,000 pages of examples. I have got plenty more from not just 
before 2006, but 2006, 2008, 2010, 2011, ongoing. They include 
some prominent statewide problems, but I am even more concerned 
about local jurisdictions where those most at risk have the 
least resources to fight back.
    These examples also just are not old news. In 2009, 2 
months after the President's Inauguration, Chief Justice 
Roberts, Justice Kennedy, and Justice Alito said, and I quote, 
``Racial discrimination and racially polarized voting are not 
ancient history. Much remains to be done to ensure that 
citizens of all races have equal opportunity to share and 
participate in our democratic processes and traditions.''
    Congress has understood that much remains to be done. 
Repeatedly it has recognized that the existing toolkit of tools 
like Section 2 are powerful, but for the most pernicious 
electoral discrimination, they are also, and here I quote 
again, ``inadequate.''
    In 2006, Congress stepped up to meet the continuing need, 
which brings us to Shelby County. The Supreme Court's ruling 
had an enormous impact, but it also leaves Congress with plenty 
to do. The Court said that the formula Congress used in 2006 to 
cover some States and not others for preclearance purposes was 
not sufficiently tied to current conditions. It did not rule 
out a different formula. It did not rule out the idea of 
preclearance at all. It did not rule out safeguards other than 
preclearance, above and beyond the normal responsive litigation 
toolkit that exists today. It did not say we fixed the problem 
of discrimination in voting. And it did not change the basic 
truth that, quoting Chief Justice Roberts, ``the 15th Amendment 
empowers Congress, not the Court, to determine in the first 
instance what legislation is needed to enforce it.''
    So now it is up to Congress once again. Polls show that the 
American people understand that this extraordinary right still 
needs more than just ordinary protection, whatever that may 
look like. In the last 50 years, Republicans and Democrats in 
overwhelming bipartisan majorities, including every member of 
this Committee who was able to cast a congressional vote in 
2006, have stepped up to offer on a bipartisan basis that extra 
protection these very special rights demand. And I am delighted 
to offer whatever assistance I can as both Houses of Congress 
resume their bipartisan task.
    Thank you very much.
    [The prepared statement of Mr. Levitt appears as a 
submission for the record.]
    Senator Whitehouse [presiding]. Thank you very much, 
Professor Levitt.
    We will begin the questioning with Senator Durbin.
    Senator Durbin. Thanks. Professor Levitt, when I read this 
decision, Shelby County, and noted the logic and argument used 
by the Chief Justice, it seemed to suggest that, absent 
Congress showing brand-new evidence on a regular basis, we are 
dealing with some old problem in America that has virtually 
gone away. That seems to be the majority argument in the case.
    I think back to the last election cycle. There was an 
organization known as the American Legislative Exchange Council 
that was financed by major corporations and major political 
players that went State by State to change the electoral laws 
to restrict the right to vote. I visited two of those States. 
Ms. Weinberg, I was in your State of Florida and, as I 
mentioned, had electoral officials from both parties who could 
not point to a single instance of voter fraud that led to these 
changes. It clearly had some other design.
    Now, many of these changes in State law were challenged 
under the Voting Rights Act under Section 5, for example, voter 
ID, as to whether or not it was discriminatory toward minority 
populations, the disabled, or elderly and the like.
    So I would just ask you if you are familiar with this 
background and believe it is evidence that the Voting Rights 
Act and its protection of that basic right to vote still is a 
vibrant and timely issue.
    Mr. Levitt. Thank you, Senator. I am, and I have had the 
opportunity to speak with you on your Committee about exactly 
these issues that you have been highlighting. They are of 
concern, and they are very much present, and they exist not 
only at the statewide level, but at the county level, at the 
city level, at the municipal level. All the way down at all 
levels of government there are still profound challenges.
    The existing tools that we have now help, but I do not 
believe that they are in any way sufficient. I believe that 
election laws are special and demand more.
    Senator Durbin. I might, Mr. Chairman, ask for unanimous 
consent or permission to enter into the record an exhibit which 
demonstrates the financial supporters of the American 
Legislative Exchange Council. Many corporations, once they 
learned what the agenda was of this council, have withdrawn 
their membership and financial support, but many have continued 
it, and I would like to put this in the record.
    Senator Whitehouse. Without objection.
    [The information referred to appears as a submission for 
the record.]
    Senator Durbin. Let me add quickly, it is their right under 
our Constitution, their right of speech, their right of 
assembly, whatever they want to exercise, to spend their money 
for this purpose to try to change laws. I think it is legal and 
constitutional. But I think everyone should see whether the 
companies that they are doing business with are, in fact, using 
their profits to restrict the right to vote through the 
American Legislative Exchange Council.
    Mr. Carvin, Professor Carvin, you talked about Section 2 
and the fact that it is there as the last bulwark of 
protection, we should not be so distressed about the Court's 
decision as it related to Section 4. Your argument was 
considered by Justice Ginsburg in this Shelby County decision, 
and she noted on page 14, ``Congress produced evidence that 
litigation under Section 2 of the VRA was an inadequate 
substitute for preclearance.'' In other words, we addressed 
that directly when we reauthorized the Voting Rights Act. She 
went on to give two specific areas: ``Litigation occurs under 
Section 2 only after the fact when the illegal voting scheme 
has already been put in place and individuals have been elected 
pursuant to it, thereby gaining the advantages of incumbency. 
An illegal scheme might be in place or several election cycles 
before a Section 2 plaintiff can gather sufficient evidence to 
change it.''
    Then she goes on to say, ``And litigation under Section 2 
places a heavy financial burden on minority voters. Congress 
already also received evidence that preclearance lessened the 
litigation burden on covered jurisdictions as well, because 
preclearance process is far less costly than defending against 
a Section 2 claim.''
    So your argument that Section 2 is a good alternative seems 
to have been addressed directly by Justice Ginsburg. Would you 
like to respond?
    Mr. Carvin. Sure. It is quite factually inaccurate, the 
assertion that you wait in Section 2 cases until elections have 
already occurred to challenge it. Your State is actually a good 
example of this. There has never been a congressional 
redistricting in Illinois, which is not a covered jurisdiction, 
that has not been adjudicated prior to the first election, and 
some have been struck down on Section 2 grounds.
    In the Texas case I was referring to, they entered an 
interim remedial order a year in advance of the elections. 
Section 5 and Section 2 litigation on redistricting is 
indistinguishable. You bring in a bunch of experts. You look at 
prior electoral returns, and you make projections going forward 
for the next----
    Senator Durbin. Mr. Carvin, it is dramatically different in 
my State, because when we put a redistricting or 
reapportionment map together, we know it is going to be 
challenged. The Democrats and Republicans do that for a living 
every 10 years. It is not a question of gathering poor, 
minority, dispossessed plaintiffs and trying to get the money 
together as well as the evidence. We are prepared for this. It 
is a regular ritual in my State and most others.
    Mr. Carvin. And most others. Redistricting is not an 
underlawyered operation here. The notion that these plans are 
somehow sneaking through in the dark of night--Justice Ginsburg 
says you have to wait for four electoral cycles----
    Senator Durbin. But that is a lot different, a lot 
different than some remote rural jurisdiction that might be 
faced with this same allegation of discrimination and have to 
bring together the lawyers, the money, and the evidence to 
challenge under Section 2.
    Mr. Carvin. Your argument, then, Senator Durbin, with 
respect, is not that you have to wait for elections to go by. 
It is that you have to go find a lawyer. We can both agree that 
Justice Ginsburg was flat wrong in suggesting you have to wait 
for elections to go by. As your experience in Illinois shows, 
the lawyers get together right after the map is passed and run 
to court. So that is not true. Does it happen less frequently 
in rural counties? That may be true. But that is the way we 
enforce every civil rights law, from Title VII to Title VIII. 
And in all of them, if you have a meritorious claim, all of 
your expenses are paid for by the other side under the fee-
shifting provision. We have political parties that are directly 
involved in redistricting. There is not a civil rights group in 
the country that does not have a voting system----
    Senator Durbin. I think you have made----
    Mr. Carvin [continuing]. And, of course, we have now got a 
lot of lawyers----
    Senator Durbin. You have made your point on redistricting, 
and I have responded.
    Professor Levitt, I will close by allowing you a chance to 
respond.
    Mr. Levitt. It is odd to hear Mr. Carvin, who is a 
practitioner, step into the realm that I normally find myself 
in, which is pure theory. And I will say that I have also been 
an election practitioner, and I can tell you that the facts on 
the ground look different. Ask Charleston County, ask the 
voters of Charleston County, South Carolina, whether a case was 
brought that they were able to get relief for before the 
election happened, and they will tell you no. The case was 
brought in 2001. Plaintiffs asked for preliminary relief. They 
were denied. Elections happened. Elections happened again. It 
was not until 2004 that the court was able to actually provide 
relief.
    The existing responsive litigation system that we have is 
not only slow, it is expensive. And I am delighted that Mr. 
Carvin is going to front the money for civil rights lawsuits 
all over the country. There are lawsuits that I would love to 
bring now, but I am not independently wealthy and cannot wait 
the 4 years to collect fees.
    There are in my home jurisdiction places that desperately 
need Section 2 lawsuits brought where they are not being 
brought, in part because the data is hard to get, because the 
experts are hard to find and expensive to gather, and because 
particularly, as you mentioned, in the most rural jurisdictions 
there are not armies of lawyers waiting to sweep in. I wish it 
were true. It would be wonderful if it were true. But the fact 
of the matter is that there are lots of jurisdictions that need 
this extra protection, something other than the ability to file 
a responsive lawsuit after a law goes into effect in order to 
fight it.
    Senator Whitehouse. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
you, all of you. I care a lot about this, having been a 
prosecutor for 8 years and actually enforced our election laws 
in the State of Minnesota. We are incredibly proud of our 
State. We have the number one turnout in the country. We have 
same-day registration, which I want to get to in a minute, and 
we also have people enforcing the laws and finding that when 
something does go wrong, we have an enforcement mechanism in 
place, which I think you all know is incredibly important.
    I also was able to go with Congressman Lewis to Selma, as 
many people have done, just this last year, and something 
happened this year which was incredible, and that is that 48 
years after that march across the bridge in Selma, the white 
police chief in Montgomery took his badge off and handed it to 
Congressman Lewis and apologized to Congressman Lewis that the 
police had not protected them on that bridge that day. And it 
made me think a lot about how progress can take a long time. 
And I think we know that, and that is the acknowledgment that 
is made in the need to reauthorize this Act and how incredibly 
important it is to do that.
    So I just want to go to those practical questions here with 
you, Mr. Levitt. I think we have seen recently some new 
barriers to voting. We have certainly seen that since the 
decision with some of the States, things like very strict voter 
ID requirements, things like shortening time periods where 
people can register to vote or can vote early. Could you talk 
about that and how here and now, not just 50 years ago, we are 
starting to see some major problems?
    Mr. Levitt. So that is absolutely right. There are new 
threats to the ability for every eligible American to vote and 
have that vote counted and have it counted meaningfully in a 
way that leads to meaningful representation. And there is no 
doubt about that.
    There is an awful lot that Congress can and perhaps should 
do in order to remedy that, and I would say that in particular 
addressing these new laws, these new practices, and even the 
local versions thereof that discriminate on the basis of race 
and ethnicity is a special point of urgency for Congress. It 
is----
    Senator Klobuchar. Could you elaborate on that?
    Mr. Levitt. Sure. So some of the practices that have gotten 
the most attention are not necessarily the ones that are 
causing the most damage based on race or ethnicity in local 
jurisdictions. Changing the lines for a county commissioner or 
for a justice of the peace election, changing the language 
access materials that are sent out in a particular election, 
moving an election date to a date, as Senator Durbin mentioned, 
that you know is going to have less turnout, and moving that 
date as soon as the voting age population of African Americans 
hits 50 percent in a relevant jurisdiction, that is, changing 
the rules in response to a new perceived threat from minority 
citizens when really the minority citizens are exercising their 
rights as Americans, that is a particularly pernicious problem. 
It is the reason that there are constitutional amendments 
devoted entirely to the subject, and I think it is particularly 
important for Congress to focus on those issues here and now in 
response to Shelby County.
    Senator Klobuchar. Okay. Ms. Weinberg, as a Republican 
local official, I really appreciate you coming because we 
really want to focus on this as bipartisan solutions here. What 
do you think of what Professor Levitt just said? And do you see 
things that can be helpful on that local level, it is not just 
these national elections?
    Ms. Weinberg. Thank you for the opportunity because I did 
want to touch on that from an actual, practical, on-the-ground 
perspective of Section 2 versus Section 5 and what stays and 
what remains.
    Absent Section 5, what transpired in the State of Florida 
last year with the citizenship clerk would have not been--would 
have continued, would have proceeded, and we would have stood 
to lose over 100,000 votes, a large number of that having been 
from Miami-Dade County. Section 2 alone is not sufficient. 
Section 5 has no peer. Section 2 alone is not sufficient. And I 
cannot stress that enough. It is an after-the-fact policy. And 
it is a cost-prohibitive, after-the-fact policy. And it is an 
evidence-exhaustive, after-the-fact policy, not to mention the 
fact that preclearance has--well, those Section 2 cases, and I 
noted only two in my written testimony, but I can bore you with 
a whole lot of different cases, as I am sure Mr. Levitt is very 
familiar with, that have failed. Section 2 alone is not 
sufficient, and if this hearing could end up with a slogan, 
with my communications background, it would be that without 
preclearance, without Section 5, and only Section 2, it is 
hunting season for discriminatory voting practices.
    Senator Klobuchar. Okay. That is a good line.
    Ms. Weinberg. Thank you.
    Senator Klobuchar. The last thing I wanted to ask about was 
just this idea of same-day registration. They do not have it in 
Florida. I know that. But a number of States have it, including 
a number of States with Republican Governors, and one of the 
things I noticed, as I think--one of the goals here is to just 
make it easier for people to vote. And, in fact, five of the 
six top States for voting percentages have same-day 
registration. There are States like Iowa, there are States like 
New Hampshire, there are States that clearly--Maine, and I do 
not see this as a partisan issue. I see how do we make it 
easier to vote. Representative Ellison in the House and I in 
the Senate, along with Senator Tester, have a bill to have 
same-day registration across the country. Could you talk about 
how that could help, Professor Levitt?
    Mr. Levitt. Sure. And you are absolutely right that 
Minnesota has been a leader in election administration in the 
means that it takes in order to make sure that eligible 
Americans are able to participate. It has leapt to a national 
leadership level.
    Same-day registration is one of the very important tools 
for this. This actually affects all Americans, not just those 
who are unregistered but those who have moved and would need to 
update their registration, not just those who are unregistered 
but those who find there is a problem with their registration 
somewhere, that somebody has put a typo into a system and they 
cannot be found on the records. Not just those who are 
unregistered but those who find when they get to the polls that 
for whatever reason something has gone wrong, election day 
registration provides a fail-safe mechanism to make sure that 
those who are truly eligible can participate on the same terms 
as everyone else.
    It is an immensely important safety net, and it has been 
used, as you say, in States--both Republican and Democratic 
administrators, both Republican and Democratic voters have 
consistently restored election day registration where there 
have been threats to it in States that have had it. The voters 
really like it, and it is obvious why.
    Senator Klobuchar. Thank you. And I would also add to that, 
then move on to my colleagues, that the bottom States with the 
voter turnout, none of the 18 States with the lowest voter 
turnout have same-day registration. Does that surprise you at 
all?
    Mr. Levitt. It does not. It is a great safety net, and it 
makes sure that those who want to and are eligible to vote can 
and do so securely.
    Senator Klobuchar. Thank you.
    Senator Whitehouse. Senator Franken.
    Senator Franken. Thank you. Thank you all.
    I was disappointed with the Supreme Court's decision in the 
Shelby County case, and I was particularly troubled by the 
suggestion at oral argument that Congress passed the Voting 
Rights Act only because it has a nice name and not because of 
the mountains of evidence before Congress or because of this 
body's longstanding bipartisan commitment to the promise of the 
15th Amendment.
    The Voting Rights Act is one of the greatest and most 
consequential achievements of the civil rights movement, as 
Representative Sensenbrenner said. It has improved our 
democratic process tremendously, and I believe that the law 
remains necessary today. The Shelby County decision was a 
setback. Justice Ginsburg put it well in her dissent when she 
wrote, and I am quoting, ``Throwing out preclearance when it 
has worked and is continuing to work to stop discriminatory 
changes is like throwing away your umbrella in a rainstorm 
because you are not getting wet.''
    So I was disappointed with the decision, but I am also 
optimistic that we can fix this, because nobody really disputes 
that the Voting Rights Act is still needed.
    Writing for the majority in Shelby County, Justice Roberts 
credited the Voting Rights Act with ``great strides'' that we 
have taken as a Nation, while also saying, ``Voting 
discrimination still exists. No one doubts that.''
    So it seems to me that the question here is not whether we 
need the Voting Rights Act at all. The question is: What form 
should the law take? I am looking forward to working with all 
my colleagues on the Judiciary Committee to address that 
question in the months ahead. We have enacted a reauthorized 
Voting Rights Act on a truly bipartisan basis on five occasions 
in the past. I am hopeful that we can do it again in 2013.
    Professor Levitt, we have touched on this already, 
preclearance, but I just want to get your response to this 
quote. This is from the House Judiciary Committee's report for 
the 1965 Act regarding preclearance. ``The burden is too heavy, 
the wrong to our citizens is too serious, the damage to our 
national conscience is too great not to adopt more effective 
measures than exist today.''
    Do you believe that statement is still true?
    Mr. Levitt. I do. I think it was right then. And I think 
although unquestionably matters have improved all over the 
country, I think there are still problems that existing tools 
do not adequately address. And for those problems, the burden 
is still too heavy for the existing tools to do the work that 
they need to do to make sure that there is no discrimination on 
the basis of race or ethnicity in the right to vote or have 
that meaningful participation counted anywhere in the country. 
Justice should never be too expensive. Justice should never be 
too slow. Justice should never depend on an army of lawyers 
sweeping in to help. And that is the situation that we have 
now, is we are dependent on the ability to find help whenever 
we can.
    Congress has in the past always recognized that that, for 
our most fundamental right, is not enough, and I take it that 
Congress is here today, this Committee is here today in order 
to start the process of another bipartisan effort to restore 
the recognition that waiting for help is not enough.
    Senator Franken. That is exactly why we are here.
    Professor, from a constitutional law standpoint, I think 
that one of the most important points made in Justice 
Ginsburg's dissent is that the majority departed from 
established precedent with respect to the standard of review 
under the 15th Amendment. In Katzenbach, the Court said that, 
``Congress may use any rational means to effectuate the 
constitutional prohibition of racial discrimination in 
voting.'' In other words, to overturn a statute enacted under 
Congress' 15th Amendment powers, the Court must find that the 
statute is irrational. That seems like a really deferential 
standard, and I agree with Justice Ginsburg that the Court did 
not apply it in Shelby County.
    What are your thoughts on this? And, in particular, what 
standard of review should we expect the Court to use when it 
analyzes potential amendments to the Voting Rights Act?
    Mr. Levitt. You are right, it is difficult to know what 
standard the Court used in Shelby County, if only because it 
did not tell us. The prevailing standard had been very 
deferential to Congress, and the Court tossed out more or less 
with the back of its hand all of the work that Congress had 
done, the 15,000 pages of record. The prevailing standard had 
been a recognition that Congress is the body empowered in the 
first instance to enforce the 15th Amendment, and that the 
legislation they passed should be viewed rationally, and any 
rational basis would suffice. And the Court seemed not to apply 
that standard, seemed to depart from Katzenbach.
    They did not tell us what standard they were applying. What 
they did say was that any step that Congress takes has to 
reflect current conditions, and although I think the old 
standard met that test, they did not. I think that Congress has 
the ability to compile a record of current conditions that 
would more than authorize steps to supplant--steps to 
supplement the very important protections that exist today with 
more protections designed to ensure that there is no 
discrimination on the basis of race or ethnicity. I think 
Congress has plenty of latitude to establish a record 
supporting whatever steps Congress takes to provide the 
protection that we still desperately need.
    Senator Franken. Thank you. And I am sorry I went over 
time, but maybe we can get 16,000 pages if we go a little 
longer this time. Thank you. I yield.
    Senator Whitehouse. Senator Cruz.
    Senator Cruz. Thank you, Mr. Chairman. I would like to 
thank all three witnesses for being here and testifying today. 
I want to ask a couple of questions of Mr. Carvin, and let me 
say at the outset, you and I have known each other a long, long 
time. Indeed, my first job as a practicing lawyer was working 
for you in a very small law firm, and so I commit two things: 
number one, to tell no tales from those days; and, number two, 
to hold you harmless for any mistakes I may make, in this 
Committee or elsewhere in the Senate.
    I would like to ask your legal judgment on what is required 
in response to the Shelby County decision, and the Supreme 
Court in Shelby County noted that Congress had before it in 
2006 thousands of pages of records, as the last exchange just 
highlighted. And the Court went on to say, regardless of how to 
look at the record, however, no one can fairly say that it 
shows anything approaching the pervasive, flagrant, widespread, 
and rampant discrimination that faced Congress in 1965 and that 
clearly distinguished the covered jurisdictions from the rest 
of the Nation at that time.
    The question I want to start off with is: What record would 
Congress need to create in order to come up with a new coverage 
formula that would be constitutional?
    Mr. Carvin. I think the Congress made two basic mistakes in 
2006, and I do not know if they are remediable in terms of real 
empirical evidence. The first was they gathered 15,000 pages of 
evidence about which jurisdictions are bad, but they did not 
use any of that evidence to designate the jurisdictions that 
are covered by Section 5. They relied on electoral information 
from 1968 and 1972, which would be akin to the 1965 Congress 
looking back at the Calvin Coolidge election to figure out who 
should be covered in 1965. So the first thing you need to do is 
look at whatever current information you have and get rid of 
this outdated formula.
    The second finding they never made--and this was the thrust 
of my basic commentary--is identifying a problem that is 
Section 5 curing that Section 2 is not a completely 
prophylactic and effective remedy for. I doubt seriously you 
can make that argument. The one argument that has been made 
today that, again, is demonstrably untrue, as you actually know 
from private practice, this theory that Section 2 litigation 
has to wait three or four electoral cycles before anybody 
brings a lawsuit when we all know that those lawsuits are 
brought before the first election, as your home State of Texas 
vividly illustrates. In fact, Professor Levitt's example makes 
my point about how--he is talking about a challenge to an at-
large system.
    The first point that the Committee needs to understand is 
Section 5 cannot get at at-large systems because it only deals 
with voting changes. So it had nothing to do with getting rid 
of the principal vote dilution technique that was employed in 
the Deep South.
    The second is this was a challenge to the city of 
Charleston that they could have brought at any time. They 
brought the case in January 2001, and they did not even move 
for preliminary injunction until April 2002. They waited 15 
months.
    So it is not as if Section 2 does not give the opportunity 
to get preliminary relief. It is just sometimes that 
plaintiffs, for whatever reason, do not take advantage of it.
    So what Congress would have to do and what, frankly, I do 
not think they can show is that there is such a cognizable 
difference between the jurisdictions that are being covered 
that they need Justice Department oversight 24/7 and the 
districts that are not being covered. There may be a handful of 
districts out there that need that kind of extra supplement for 
Section 2, but Congress has not come close to identifying what 
those would be, particularly since the covered jurisdictions 
are actually doing better today in terms of minority vote 
participation than the non-covered jurisdictions.
    Senator Cruz. Thank you. Let me ask a follow up on that. 
You rightly noted that Section 2 of the Voting Rights Act 
remains in full force, and its protections are entirely in 
place. Section 5--what I would like to ask you is your 
practical experience. You have litigated a number of voting 
rights cases. You have worked with, alongside, and after the 
fact elected officials dealing with Section 5. And what I 
wanted to ask is: While Section 5 was in place, while the 
Department of Justice had the authority to preclear or not 
preclear the decisions of elected officials in States, to what 
extent did Section 5 effectively require elected officials to 
make decisions based upon race?
    Mr. Carvin. There was no question, it has been well 
documented in the 1990s, that the Justice Department had what 
they quite candidly labeled a ``black max'' policy, which was 
you had to maximize the number of black and Hispanic majority 
districts regardless of traditional districting principles, 
which is why you had those districts in North Carolina that ran 
down I-95 and were struck down by the Court as unconstitutional 
racial gerrymanders.
    So the first thing that Section 5 was used for was these 
politically motivated racial gerrymanders, which I hasten to 
add I was involved with in the 1990s and greatly aided the 
Republican Party. There are no bones about that. So everything 
I am telling you today is actually contrary to the Republican 
Party's partisan interests.
    In the latest round of redistricting--Texas is yet another 
good example--they have injected even more politics into the 
discussion because they now say that this new ability-to-elect 
standard that was enacted by Congress in 2006 protects white 
Democrats like Lloyd Doggett in 9-percent black districts. In 
other words, you cannot diminish any Democrat's ability to get 
reelected if they are the party that is predominantly supported 
by minorities.
    So what Section 5 has done is taken a guarantee of equal 
racial opportunities and converted it into a partisan 
preference scheme. So one of the beneficial results of Shelby 
County is that you will be decreasing the amount of politically 
motivated racial gerrymanders, and you will be decreasing the 
amount that race has to be considered. Now, in every district, 
from districts where there is a 9-percent minority population 
to those with a 60-percent minority population, race has 
clearly driven redistricting over the last 30 years.
    Senator Cruz. Thank you, Mr. Carvin.
    Senator Whitehouse. Senator Blumenthal.
    Senator Blumenthal. Thank you. Thank you, Mr. Chairman.
    I want to sort of follow Senator Cruz's questions, which I 
think really elicited something that I found very telling about 
the Supreme Court's opinion. When I heard you describing what 
would be irremediable, I was struck by the observation about 
Congress making a mistake here. And it is pretty much the 
reason that the Chief Justice gave for striking down the 
formula, and I am quoting: ``Congress did not use the record it 
compiled to shape a coverage formula grounded in current 
conditions.''
    Isn't that a legislative judgment, how to use a record, 
whether it is 15,000 pages or 30,000 pages? We are not talking 
about the absence of a record. We are talking about the 
evidence from which Congress could draw a conclusion, and 
perhaps draw a conclusion, as Justice Ginsburg said, that maybe 
things have improved, but one of the purposes of Congress is to 
prevent or, I will quote her, ``guard against backsliding.''
    My view is the Court was legislating in the most 
inappropriate and worst way. Put aside whether you agree or 
disagree with the result. Don't you agree, Professor Carvin--I 
know you have thought and written a lot about this issue. Don't 
you think it was legislating?
    Mr. Carvin. I respectfully disagree, Senator, for this 
reason: If they had re-weighted the kind of evidence that 
Congress had looked at and said, no, it should not be this 
State and that State, then I agree with you they would be 
engaging in----
    Senator Blumenthal. But here the Chief Justice said they 
did not use the evidence, so----
    Mr. Carvin. And that was----
    Senator Blumenthal [continuing]. How can he reach that 
conclusion? They had evidence. If you were to say about a jury 
coming out with a verdict, well, they had evidence but they did 
not use it, courts do not do that. They say, ``There was not 
evidence at all about this element of the crime, so no jury 
could have concluded reasonably.''
    Mr. Carvin. No, but he said that the coverage formula was 
not based on that evidence, so he was saying you need to have 
some reasonable grounds for distinguishing between the States 
you are covering and the States you are not. You cannot just 
pass a law that says everybody east of the Mississippi is a 
covered jurisdiction. And when the coverage formula was 
criticized as not reflecting current realities, the answer was, 
well, we looked at 15,000 pages of testimony. Justice Roberts, 
I think using purely legal analysis, said we will defer like 
crazy if you were relying on that evidence for the coverage 
formula at issue. But since you did not rely on that, there is 
literally nothing to defer to, so, Senator----
    Senator Blumenthal. And for a judge to usurp a jury or 
Congress and say you did not rely on it without having some 
voir dire, some inquiry into what was going on in the juror's 
mind, was there some improper influence here? Don't we open the 
door to courts saying, well, for all of your fact finding, Mr. 
Congress, I am going to look at that evidence, I do not see 
enough of it to sustain this element of the law or this part of 
your decision, and, therefore, we are going to strike it down?
    Mr. Carvin. We defer every day, courts do, to 
administrative agencies, and you are arguing that similar 
deference should be done here. Now, let us assume the EPA 
looked at CO2 when it should have been looking at H2O. It would 
not do them any good to say we based the formula on CO2. We 
could have had a different formula based on H2O. The Court 
would say there is nothing----
    Senator Blumenthal. But it could say the absence of H2O and 
the presence of CO2 is what justifies this decision. I know we 
could go back and forth for some time. I am limited in terms of 
time, and I want to ask the two other witnesses, beginning with 
Professor Levitt, if I may, and perhaps we will be limited to 
you unless the Chairman gives you additional time. How do we 
fix this formula? The Court did not strike down the 
preclearance procedure. It simply struck down the formula, 
which may be, in fact, irremediable if we cannot get a 
bipartisan coalition together, which perhaps the Court counted 
on Congress failing to do, striking down only that part of the 
law and upholding the preclearance procedure. But really the 
task ahead of this Committee and the Senate is to try to arrive 
at a bipartisan substitute.
    Mr. Levitt. And I think there are lots of paths ahead, and 
it is part of why I am so very excited that this Committee is 
convening this hearing now in order to start down that path. 
And there are lots of different potential things that will 
help. The basic premise is the existing tools do not do the 
job. But there are lots of ways to modify the existing tools or 
return the tools that did exist in ways that will do the job, 
or at least further the job. The vigilance has to continue.
    Some of that involves different ways to get information 
about where discrimination is actually occurring, the sorts of 
things that you do not get with having to go out into the world 
to file a lawsuit, but you did get from the preclearance 
process. Some of what I am sure will be discussed are different 
ways to identify where there is the most risk, whether that is 
based on current violations, whether that is based on political 
polarization, whether that is based on other danger signs, you 
will have to look to where the most risk currently is.
    Other things will be done in order to make the available 
Section 2 process less cumbersome, less burdensome, less 
expensive. All of that will help. It may well be that some 
combination of all of the above is what Congress will need, and 
other creative ideas that have not even been put forth yet, in 
order to make sure that Congress is able to effectively stop 
the problem. That is really the task that Congress has. It is 
the task that the Constitution gives to Congress. And I really 
look forward to the months ahead when there will be lots of 
different ideas, most of which, maybe in combination, will be 
sufficient to the task.
    Senator Blumenthal. Thank you very much. I want to thank 
you, Mr. Chairman, and thank all of our witnesses for bringing 
to us the very important insights and intelligence that you 
have given. And I apologize, Mr. Carvin, for cutting you off a 
little bit there.
    Mr. Carvin. No, no, no.
    Senator Blumenthal. And I would welcome, I think other 
members of the Committee would as well, any answers, more 
specific answers you may have to that question I asked about 
the formula.
    Thank you.
    Senator Whitehouse. I am interested in the question of 
deference as well. Here you had a bill--let us just stick with 
the Senate side that I am familiar with. Here you had a bill 
that passed the Senate 98-0. You were dealing with Congress at 
the height of its powers under the steelyard cases. You are 
dealing with a very, very extensive legislative record. We all 
can see that the record was abundant. The Supreme Court made 
the decision that within the halls of Congress, Congress had 
not looked at that record in the right way. And that is a point 
that one could argue and debate.
    It strikes me that the people who actually get elected 
around here knew and demonstrated by their vote that this bill 
was necessary, including the Senators from all of the States 
that were subject to the preclearance procedure.
    Do you think it should not be relevant to the Court, even 
if you are looking at kind of an admission against interest 
theory, as long as you are trying to--you know, once the Court 
starts second-guessing how Congress makes decisions, it opens a 
whole arena of new areas. But you would think that one might be 
that you could follow kind of an admission against interest 
theory and say, look, if both Senators from every State that 
are subject to this have voted for this, they must know 
something about elections in their States. These are not stupid 
people. These are not people who are not familiar with the 
elective process in their State, and they have by their vote 
suggested that this is necessary. Why would that vote by those 
home State Senators not be something entitled to discussion or 
weight by the Court?
    Mr. Carvin. I fully agree with you that it is up to 
Congress to be the ones weighing conflicting evidence. I do not 
think the Court has ever suggested that strong bipartisan 
support affects the constitutional calculus. For example, when 
they struck down the Defense of Marriage Act, it was not 
because Senator Biden had spoken in support of it, it had been 
signed by President Clinton. We are going to infer----
    Senator Whitehouse. But that was different. That was 
different.
    Mr. Carvin. Was it?
    Senator Whitehouse. That was different. That was different 
because the challenge was more or less on the face of the law. 
Here you had a congressional record, and the Court's decision 
was that Congress, in reviewing its record, did not review it 
in the right way. They are actually not looking at the statute 
here. They are looking at the behavior of Congress, and that is 
what is a little bit different. And if you are going to look at 
the behavior of Congress, why not look at the behavior of 
Congress in the form of the actual votes by the actual Senators 
from the actual States who all conceded that this bill was 
necessary.
    Mr. Carvin. Fair enough. If they had second-guessed the 
evidence that Congress was looking at, they would have exceeded 
the judicial role. But they knew what Congress was looking at 
because Congress told them it was looking at 1968 and 1972 
elections. That is what was determining whether or not a 
jurisdiction is subject to this extraordinary preclearance 
requirement or not. And no one, I do not think anyone pretended 
that the situation that existed in 1968 in Mississippi was 
reflective of the situation that existed in all the covered 
jurisdictions. So----
    Senator Whitehouse. Except that one could argue----
    Mr. Carvin [continuing]. They deferred to that judgment. 
They just thought that the judgment----
    Senator Whitehouse. Except that one could argue that the 
Senators from those actual States who actually are involved in 
elections and who presumably know more about elections in those 
States than a Supreme Court judge who has never been elected to 
anything, particularly not in that State, does, they appeared 
to agree.
    Mr. Carvin. But, again, I thought we had agreed, Senator, 
that psychoanalyzing senatorial motives in a vote for DOMA or 
for anything else is not how courts analyze congressional 
enactments. They look at the evidence.
    Senator Whitehouse. Yes, well, I suggest that that is 
exactly what the Court did in this case. They tried to sort of 
psychoanalyze Congress as a body, and I think they failed 
dramatically.
    The other point that I would make I would ask Ms. Weinberg 
to respond to. When we in Congress hear about elections 
concerns, one that we hear an enormous amount about is voter 
fraud. And we have had voter ID laws and all sorts of 
discussions about the problem of voter fraud. You are the one 
elected official on this panel. My experience of voter fraud is 
that it is a problem that is so de minimis as to be virtually 
imaginary. It almost never comes up. It requires somebody to 
not vote and then to have somebody come in and pretend to be 
them and then vote in their place. And clearly there is some 
harm in the very, very infinitesimally rare cases in which that 
happens. But for that tiny, tiny little rare occasion, we have 
had this enormous effort across the country, this enormous 
voter ID effort, and an enormous amount of hue and cry 
politically.
    Here, on the other hand, you have people who show up to 
vote. They want to. And they are told, sorry, wrong day, 
because they changed the day. Devices are used that actually 
prevent people who want to vote from having that opportunity. 
And when you weigh the two of them side by side, it strikes me 
that the level of concern relative to the rarity of somebody 
actually having their vote taken away from a fraudulent person 
coming in and trying to pretend to be them compared to the kind 
of wholesale discriminatory election practices that 
disenfranchise perhaps dozens, hundreds, thousands of people 
and the Court did not seem to be as concerned about that aspect 
of it.
    In your electoral experience, how would you balance the 
risk to the electoral process of voter fraud versus disenfran--
disenfranchisement through laws designed to manipulate and 
deter voting?
    Ms. Weinberg. I have trouble saying ``disenfranchisement'' 
too, so I was happy to see that you do, too.
    Senator Whitehouse. Thank you for bailing me out on that 
one.
    Ms. Weinberg. And, actually, you are correct. And to echo 
Senator Durbin's earlier comments regarding voter fraud, how 
very little is often found in that, and that is certainly the 
case. What we have experienced just as early as last year in 
Florida with the citizenship checks and all these voter ID 
issues, and I love to hear the fact that people recognize that 
there are those who love to come out to vote and do not get to. 
Voter fraud, it is not as significant an issue as the larger 
picture, and here is the deal with the decision having been 
passed, it is already a done deal. Congress now has an 
incredible opportunity to review what the coverage formula 
should be, and I have given you examples briefly in my 
testimony and many others in my written testimony of how we are 
personally on the ground, as local electeds, dealing with our 
voters in our cities.
    I am very scared as an elected official for my constituents 
and the millions of folks in Florida and the millions of 
residents in the United States, and I will tell you why. The 
discriminatory practices of the 1960s which gave birth to the 
Voting Rights Act have gotten what I call my three S's: they 
have gotten extremely sneaky, extremely sophisticated, and 
extremely smarter. So it really behooves Congress at this time 
to take all that into consideration, all the histories of not 
only my five counties in Florida that are under preclearance 
coverage, the non-covered counties that have tried to change 
some election laws that are of question, and I am sure my State 
of Florida is not alone with the other 49 States trying to come 
up with these sneaky, smarter, sophisticated discriminatory 
practices.
    So I think it is a great time for Congress and for the 
decision to have come down as it did, for Congress to revisit, 
because we might not end up with what we had in the 
preclearance formula. I hope that there will be a whole lot of 
better legal protections for voters all across the State and 
all across the country for those specific instances where 
people have been sneaky about it.
    Senator Whitehouse. Thank you.
    While Senator Grassley is settling in, let me ask one more 
question. Senator Cruz asked Mr. Carvin the question about what 
lesson Congress should take from the Court's discussion of the 
role of Congress in all of this and how we should improve our 
record on a going-forward basis. We have another scholar here 
who is interested and expert in this particular field of law. 
Professor Levitt, let me ask you to provide an answer to that 
same question. What lessons should we take from the Shelby 
County decision? And how, when we go about this, can we meet 
the test that the Court has imposed upon us?
    Mr. Levitt. The only real clarity that the Court has 
offered is that what Congress does has to be justified by 
current conditions. I think there is ample evidence that was 
before Congress, I think there is ample evidence that Congress 
can now compile about current conditions requiring more than 
the tools that presently exist, the fact that the existing 
responsive, reactive, expensive, cumbersome tools are powerful 
but not good enough, and that there is ample room for Congress 
to legislate to respond to the fact that the existing tools, 
while powerful, are not good enough. To have proactive and far 
more nimble protections to make sure that the most 
discriminatory laws are stopped before they ever go into 
effect, I think that is what Congress is going to have to focus 
on in the hearings to come. And there are many ways to achieve 
that, but that is the primary task that Congress has before it 
now.
    And I will add that this has always been a task that 
Congress has embraced on a bipartisan basis in the past, and I 
think there is great hope that Congress will do so again in the 
future. Every single reauthorization of the Voting Rights Act 
came with the recognition that Section 2 on its own is not 
enough, and every single time substantial majorities of both 
Republicans and Democrats voted to confirm that. And I look 
forward to Congress creating that record once again now.
    Senator Whitehouse. Let me recognize our distinguished 
Ranking Member, Senator Grassley, but before he begins his 
question, let me ask unanimous consent that testimony provided 
by a variety of groups be added to the record. Without 
objection.
    [The information referred to appears as a submission for 
the record.]
    Senator Grassley. The reason I was not here when you, 
except for the first witness, testified is because I had to be 
over on the floor. I apologize.
    Commissioner Weinberg and Professor Levitt, other than the 
abstract concepts that the professor mentioned in his 
testimony, what specific ideas do you have on how Congress 
should fix the statute? I will start with Commissioner 
Weinberg.
    Ms. Weinberg. Specific ideas on how Congress should fix the 
statute now--and ``fix'' is a good word--actually, there have 
been a few different national organizations that have been 
having conversations on what should be, and here is what I 
think Congress needs to consider very carefully, which I just 
made in my previous comments before you walked in, Ranking 
Member Grassley. It is the fact that these certain areas that, 
first of all, are covered counties, but also the non-covered 
counties, there have been instances and situations in States 
and counties where there have been certain practices that have 
been attempted to be put in place. So Congress needs to look at 
that overall picture on what those events have transpired. That 
would be my first recommendation.
    And, second, I wanted to take the opportunity actually to 
thank the members of the Committee for their recent work on the 
comprehensive immigration reform because that ultimately, of 
course, leads to voters and Voting Rights Act needs.
    But that is really the only concern from my perspective 
that I can see for what Congress needs to do going forward. But 
we are more than happy at NALEO and all of the other 
partnership organizations that we work with to work with 
Congress bipartisanly, nonpartisanly, to help come up with the 
best coverage formula.
    Senator Grassley. Professor Levitt.
    Mr. Levitt. Thank you, Ranking Member Grassley. I think 
there are a number of things that Congress can and should look 
at, including some of those mentioned by Commissioner Urbaez 
Weinberg, some of which I have also spoken about here, some of 
which are in my written remarks.
    In addition to the sort of big, shiny statewide actions 
that Mr. Carvin has been focusing on that will, in fact, draw 
lawyers, I would urge the Committee to consider very carefully 
how it may best prevent and remedy discrimination in smaller 
jurisdictions where the ability to attract talent of Mr. 
Carvin's level is not quite so great.
    Some of what Congress should consider will be 
informational, getting better information out on the impacts of 
new practices and what they may tell us about discrimination 
ongoing. Some of what Congress should consider may be about 
easing the costs and burdens of the very same responsive 
litigation that Mr. Carvin has been mentioning. Some of what 
Congress should consider I would think would be focusing on, in 
the jurisdictions where we have the most concern, stopping 
discrimination before it takes effect and that is perhaps the 
most important and the most directly targeted by the Shelby 
County decision itself.
    I think all of those probably in some combination will be 
more adequate to fulfill Congress' 15th Amendment both 
opportunity and obligation to ensure that discrimination based 
on race or ethnicity is not found in America. Sadly, we have 
made a lot of progress, but we are not there yet, and I do not 
think that the existing tools will help us get there 
adequately. I think that there is an awful lot that Congress 
can do to further that goal.
    Senator Grassley. Mr. Carvin, apart from maximizing racial 
gerrymandering, are there other ways that the Justice 
Department has applied preclearance requirements that should 
inform our decision of whether or how we might legislate?
    Mr. Carvin. Yes, I think the Justice Department has a very 
regrettable track record of not seeking to enforce non-
discrimination or equal opportunity but, as I mentioned, 
partisan preference. You referred to the partisan 
gerrymandering, which we have already discussed. As I say, in 
the Texas case, they successfully took a very aggressive 
approach that would protect white Democrats even in areas where 
no minority Democrat could be elected.
    Ms. Weinberg referenced the whole question of whether 
efforts to identify citizens is prohibited by Section 5. I 
represented the State of Florida which was using a Federal 
database to identify people who would be committing a Federal 
felony by voting, i.e., non-citizens. But they were nonetheless 
on the voter rolls, and the Justice Department in my mind 
incredibly came in and said it would violate Section 5 to 
deprive people of the ability to commit a felony by being a 
non-citizen that was voting.
    So in many ways, it dilutes voting power because every time 
you elect--every time you allow a fraudulent vote by a non-
citizen or a person who is traveling under false ID, you, of 
course, negate the votes of others.
    The case I brought to challenge the constitutionality of 
Section 5 is yet another example. It was a majority black 
jurisdiction that had made the eminently sensible decision that 
in local elections they wanted to switch from partisan to 
nonpartisan elections. The Justice Department came in and said 
for some reason that the black community in that area did not 
know what was good for black voters and struck it down under 
Section 5 on the theory, again, that it would hurt the election 
of Democrats.
    So it has been a very poor track record of distorting the 
equal opportunity mandate of Section 5 into one of preferences, 
particularly preferences with a partisan result.
    Senator Grassley. Professor Levitt, page 10 of your 
testimony cites objections that the Department of Justice 
raised in the preclearance process from 1982 to 2006. You also 
cited objections since 2000 which occurred at a lower rate. And 
you did not cite any figures of objections since we last 
reauthorized the law. This year the Supreme Court ruled that 
the kinds of selective intrusions on State power that Section 5 
represents can only be justified by current conditions and must 
connect the coverage formula to a problem it targets.
    So my question: In citing data from 1982, which is more 
than 30 years old, and no specific post-2006 data, how does 
your testimony provide contemporary evidence of discrimination 
in particular jurisdictions that the Supreme Court has 
determined is necessary for a constitutional coverage formula?
    Mr. Levitt. To be clear, Senator Grassley, the written 
testimony, including the parts that you mentioned, included 
objections after 2000, not merely limited to 2000 to 2006, but 
at any point after 2000--that is, within the last 13 years, 
this millennium, this century, not in any way ancient history.
    I do not think that the current state of objections alone 
is the full state of the record, that there is still a 
significant problem that Section 2 cannot alone address. That 
is, we have had 73 objections since 2000. In addition to that, 
there have been changes that were submitted that were then 
withdrawn after the Department of Justice asked for more 
information. Those are not always but often an indication that 
they were going to draw an objection, and so those requests as 
well added to the record.
    Beyond that--and here we have a problem relying on Section 
5 alone, and that is that one of the largest impacts of the 
Voting Rights Act has actually concerned changes deterred 
specifically because the preclearance regime exists. Ms. Urbaez 
Weinberg mentioned this in her testimony before, that the very 
fact that it was in place stopped some jurisdictions from 
making changes they otherwise would have put in place.
    Now, despite that, I think you have ample signs that the 
existing problems in recent history, not ancient history, are 
not solvable by the tools that we have today, that there are 
problems with the existing tools that Congress will need to 
fix, and that requires a record not only of objections since 
2000 but also of discriminatory behaviors, some of which were 
in briefs submitted to the Supreme Court and in argument before 
the Supreme Court. We have seen some truly--``regrettable'' is 
not a sufficiently strong word, but I do not think I am allowed 
to use the strong words that I would like--to describe some 
behaviors not in ancient history but as recently as 2011. You 
had members of a State legislature referring to African 
Americans as ``aborigines.'' That is the environment that we 
are in. And that is the environment that still needs amply 
robust tools beyond the tools that currently exist to help 
combat the discrimination that inevitably results.
    I think there are lots of examples that I could give you. I 
would be happy to supply further examples, but I do not know 
that I have the time at the moment, in counties and local 
jurisdictions all over the place that have practices that would 
not be cured by today's laws, that we desperately need Congress 
to supply us tools to combat.
    Senator Grassley. Thank you. I have gone way beyond my 
time.
    Senator Whitehouse. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
you.
    One thing we have not focused on much is the wait time 
issue, the waiting in line, you know, the 102-year-old woman 
who was at the State of the Union who had waited for hours to 
vote. And it is not just anecdotes. A recent study showed that 
in the 2012 election, 22 percent of African Americans and 24 
percent of Hispanics had to wait more than 30 minutes or longer 
to vote, but only 9 percent of white voters had to wait 30 
minutes or longer.
    I will start with you, Commissioner. What do you see as the 
cause of this disparity? And what can be done to remedy it?
    Ms. Weinberg. Thank you for the question. For us personally 
down in Miami-Dade County--and I am not smiling because it was 
funny. I am smiling because it is just incredibly embarrassing, 
what happened in Miami-Dade County. A half-hour, I think it is 
a gross understatement. I personally waited over 2 hours. Had 
it not been for my firm commitment to continue to vote every 
election, I would have probably walked away, as many did, I 
should note.
    At least for us in Miami-Dade County----
    Senator Klobuchar. I assume you would have still won. Okay. 
Good. All right.
    Ms. Weinberg. As for us specifically in Miami-Dade County, 
I can tell you there were several factors, and the statistics 
that you quote are true and unfortunate, and I will tell you 
why they are. These districts that are predominantly 
minorities, that are predominantly African American and Latino 
communities, are either not properly staffed, many of them--and 
we had to deal with our early voting hours execution last year 
in Miami-Dade County, and an extremely long ballot on issues 
that had been held off that could have been voted on earlier. 
So you put together an extremely long ballot, improperly 
staffed, improperly trained personnel to assist those language-
proficient needs of those communities, then you have got 
yourself a formula for hours and hours of wait.
    Senator Klobuchar. And so if someone, say, has an hour-long 
lunch break and they show up and they see that line, they can 
be likely to----
    Ms. Weinberg. Extremely often, and I will tell you why that 
is so bad in these communities. These are communities who work 
hourly wages jobs. These are communities that do their 7 to 3. 
If you eliminate early voting, then there are no real days for 
these communities to go to. An hour lunch is very generous. 
Most of these communities have a half-hour lunch if you are 
lucky. So if you have a half-hour lunch and you have to wait 3 
hours in line, what are you going to do? Are you going to go 
back to work to make sure you have a full paycheck to feed your 
family that week? Or are you going to just forgo your vote?
    Senator Klobuchar. Okay. Thank you.
    Professor Levitt, is this the kind of evidence you are 
talking about?
    Mr. Levitt. Yes, and I completely agree with Ms. Urbaez 
Weinberg. The 30-minute average is only an average, and the 
tail of that swing goes way, way, way, way up, 8 hours in 2004, 
11 hours in 2008, 7 hours in 2012. That is a system that does 
not accommodate its own citizens choosing their own 
representatives, and that system is a system that is broken.
    In some ways, lines are like fevers. They are caused by a 
lot of different factors, and the factors vary from place to 
place. Ms. Urbaez Weinberg is absolutely right that those were 
the factors that were primarily at issue in Florida. I will add 
to that a reduction in the opportunities to vote early in 
Florida contributed to the damage. I know that is something 
that members of this Committee have investigated before.
    These are not unsolvable problems. So Starbucks has figured 
out how not to make you wait 7 hours in line to get a cup of 
coffee. The hours may be--it may be a long wait, but it is not 
7 hours. And that is because they have paid a lot of 
attention--I am going to speak actually on Saturday to the 
National Association of State Election Directors about exactly 
this issue. They have paid a lot of attention to what is known 
in the academic literature as queuing theory, how many people 
are arriving, how many points of service you have to serve all 
of them, and how long each one takes. And all of those are 
things that laws or practices can help alleviate the burdens of 
actual citizens waiting in line to cast their ballot.
    If I had one silver bullet to try and get at much of this 
problem, it would be a massive reform to the registration 
system that we have. Registration problems are at the root of a 
lot of this fever, and you find that in various ways, whether 
it is people arriving at the wrong place or people not finding 
themselves on the rolls when they do arrive, whether it is 
staff who have to deal with registration problems on the ground 
and do not know how to combat it, whether you have problems 
over provisional ballots. A lot of the different things that 
lead to lines have their root in the registration system.
    There are other problems besides, and lots of things that 
can be done, but if I had one change that I could make in order 
to relieve some of that fever, it would be changes to the 
registration system.
    Senator Klobuchar. We have already talked about how the 
same-day registration and other things have actually helped in 
a number of States.
    It looks like you want to respond, Mr. Carvin.
    Mr. Carvin. Just to make the point that long lines are bad, 
but they do not have anything to do with racial discrimination 
or Section 5. Dade County, for example, where all those long 
line were, is not a covered jurisdiction. So the absence or 
presence of Section 5----
    Senator Klobuchar. But as we look at potentially the 
reauthorization and we are looking at new problems that have 
been created over the years or have gotten worse over the 
years, this is certainly something we could look at. We do not 
just have to be stuck in the old ways, which clearly there are 
many of us that like to see the preclearance and do some more 
work with that. But we also could look at other things that we 
could do, and it seems like these long lines are something that 
actually brought Mitt Romney's and Barack Obama's counsel 
together to form a commission to look at what we can do, and we 
could incorporate that work into this.
    Mr. Carvin. Fair enough, and I would suggest that you may 
want to look at Romney and Obama counsel's recommendations 
because this is much less of a civil rights issue than a voting 
administration issue. I note that, for example, the lines were 
the longest in areas which were run by predominantly minority 
cities, and so to turn this into a civil rights issue is sort 
of backward, plus which in 2012 with all these----
    Senator Klobuchar. I actually was looking at how we could 
get more people to vote, and you can call it whatever you want, 
but I think when people are waiting in these lines, we have 
problems. And so we are trying to come up with practical 
solutions after the Court decisions to solve some of these 
problems.
    Mr. Carvin. Fair enough, and I certainly did not mean to 
disagree. It is just the topic of this hearing is Section 5 and 
the damage done by Shelby County. Congress should always be 
looking at long lines, whether it has anything to do with 
Shelby County or Section 5. I just wanted to make the point 
that any such good government regulation of that sort would 
have nothing to do with any problem caused by Shelby County or 
resurrecting Section 5.
    Senator Klobuchar. Just the last thing I wanted to focus on 
is, I think, both Professor Levitt and Commissioner Weinberg, I 
liked some of the reasons you put forth for why Section 2 was 
not enough and why we need to look deeper in that, because one 
of the main things I see as an issue here is deterrence, and 
that is that if people think it is going to take 4 years to 
litigate a case or hundreds of thousands of dollars to hire a 
law firm, that is not really deterrence. So could you talk a 
little bit about that, Professor?
    Mr. Levitt. Sure. And you are right, there are 
jurisdictions, as I mentioned before, that have discriminatory 
laws in place right now that are not being challenged under 
Section 2 because the people in those jurisdictions cannot 
gather the data sufficiently, cannot get the money together to 
hire a lawyer sufficiently, do not have the resources or the 
time to do what is necessary.
    There are other jurisdictions that are locked in current 
litigation that have not seen a resolution to their problems as 
time passes and as the individuals elected under those unjust 
systems continue to make policy.
    Mr. Carvin talked before about the opportunity for swarms 
of lawyers to descend and to try and get preliminary injunctive 
relief. And I wish it were as simple and straightforward and 
easy as he describes. Sometimes it works, and that is great. 
Sometimes it does not, and in part that is because the Supreme 
Court has told courts in 2006, do not jump to conclusions, we 
do not want you offering preliminary relief, particularly right 
before an election, if the facts are still disputed. And often 
in these cases, as you can imagine, the facts are quite 
disputed, which is why preliminary relief like Mr. Carvin is 
talking about is not actually offered that often. I believe at 
the Supreme Court Solicitor General Verrilli mentioned that 
fewer than a quarter of cases end up in a preliminary 
injunction. I believe other attorneys at the Department of 
Justice have said that figure is closer to 5 percent or less. 
All of this means that when discriminatory laws are passed, 
jurisdictions are not deterred from passing those laws by the 
potential prospect maybe of a cumbersome, burdensome lawsuit 
that they are not paying for coming down the line.
    Senator Klobuchar. Last question. Commissioner, just as a 
Republican local elected official, you can see we have strong 
support here from Republican Congressman Sensenbrenner moving 
forward. You want to move forward on reauthorizing this. How 
would you suggest we build this coalition given some of the 
pushback we have seen? What arguments do you think are going to 
work with some of our Republican colleagues to move forward?
    Ms. Weinberg. I think the focus needs to remain on the fact 
that this is an American issue. I think it is the moment that 
we start cutting it down into the prevalent facts in some areas 
and a lot of parts of this country it is a racial issue, 
unfortunately. But we need to keep in mind that it is an all-
American issue. I think if we reach out to the members of my 
party from that perspective, in an ideal world that should be 
sufficient, looking at the overall picture of why are we doing 
this, not for whom are we doing this.
    Senator Klobuchar. Very well put. Thank you.
    Senator Whitehouse. The note of an ideal world being a good 
one to end this particular hearing on, perhaps even an ironic 
note.
    We will adjourn. The record of the hearing will stay open 
for one additional week if anybody wishes to add any material. 
I thank the witnesses, and I thank the Senators who 
participated in the hearing.
    [Whereupon, at 3:15 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
                            A P P E N D I X

              Additional Material Submitted for the Record



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