[Senate Hearing 113-842]
[From the U.S. Government Publishing Office]
S. Hrg. 113-842
THE VOTING RIGHTS AMENDMENT ACT, S. 1945:
UPDATING THE VOTING RIGHTS ACT
IN RESPONSE TO SHELBY COUNTY V. HOLDER
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
----------
JUNE 25, 2014
----------
Serial No. J-113-67
----------
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. Hrg. 113-842
THE VOTING RIGHTS AMENDMENT ACT, S. 1945:
UPDATING THE VOTING RIGHTS ACT
IN RESPONSE TO SHELBY COUNTY V. HOLDER
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JUNE 25, 2014
__________
Serial No. J-113-67
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
99-960 PDF WASHINGTON : 2017
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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
Kristine Lucius, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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JUNE 25, 2014, 10:06 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California,
prepared statement........................................... 155
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 152
WITNESSES
Witness List..................................................... 43
Carvin, Michael A., Partner, Jones Day, Washington, DC........... 6
prepared statement........................................... 89
Garcia, Hon. Sylvia R., State Senator, Texas State Senate,
District 6,
Houston, Texas................................................. 5
prepared statement........................................... 44
Ifill, Sherrilyn, President and Director-Counsel, NAACP Legal
Defense and Educational Fund, Inc., Washington, DC............. 11
prepared statement........................................... 127
Johnson, Rev. Dr. Francys, State President, Georgia NAACP,
Statesboro, Georgia............................................ 8
prepared statement........................................... 105
addendum to prepared statement............................... 114
Thernstrom, Abigail, Ph.D., Adjunct Scholar, American Enterprise
Institute, Washington, DC...................................... 10
prepared statement........................................... 120
addendum to prepared statement............................... 125
QUESTIONS
Questions submitted to Michael A. Carvin by Senator Grassley..... 158
Questions submitted to Sherrilyn Ifill by Senator Grassley....... 160
Questions submitted to Abigail Thernstrom by Senator Grassley.... 159
ANSWERS
Responses of Michael A. Carvin to questions submitted by Senator
Grassley....................................................... 161
Responses of Sherrilyn Ifill to questions submitted by Senator
Grassley....................................................... 166
Responses of Abigail Thernstrom to questions submitted by Senator
Grassley....................................................... 163
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
African American Ministers in Action (AAMIA), Reverend Timothy
McDonald III, Chairman, Reverend Dr. Robert P. Shine, Vice-
Chair, and Minister Leslie Watson Malachi, Director, June 25,
2014, letter................................................... 200
Am Kolel Jewish Renewal Community of Greater Washington et al.,
June 25, 2014, letter.......................................... 268
Ameinu et al., June 25, 2014, letter............................. 274
American-Arab Anti-Discrimination Committee (ADC), Samer E.
Khalaf, Esq., President, June 24, 2014, letter................. 223
American Association of Retired Persons (AARP), Nancy A. LeaMond,
Executive Vice President, State and National Group, June 4,
2014, letter................................................... 170
American Bar Association (ABA), James R. Silkenat, President,
June 25, 2014, letter.......................................... 204
American Civil Liberties Union (ACLU), Laura W. Murphy, Director,
Washington Legislative Office, and Deborah J. Vagins, Senior
Legislative Counsel, Washington Legislative Office, statement.. 206
American Constitution Society (ACS), William Yeomans, Nicholas
Stephanopoulos, Gabriel J. Chin, Samuel Bagenstos, and Gilda R.
Daniels, May 2014, issue brief................................. 350
American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO), William Samuel, Director, Government
Affairs Department, July 2, 2014, letter....................... 231
American Federation of State, County and Municipal Employees
(AFSCME), Charles M. Loveless, Director of Federal Government
Affairs, statement............................................. 232
American Federation of Teachers (AFT), Randi Weingarten,
President, June 25, 2014, letter............................... 297
Anti-Defamation League (ADL), Deborah M. Lauter, Director, Civil
Rights, statement.............................................. 224
B'nai B'rith International, Allan Jacobs, President, and Daniel
S. Mariaschin, Executive Vice President, June 24, 2014, letter. 233
Bend the Arc: A Jewish Partnership for Justice, Stosh Cotler,
Chief Executive Officer, statement............................. 323
Brennan Center for Justice, ``Shelby County: One Year Later,''
Tomas Lopez, report............................................ 234
Brennan Center for Justice at New York University School of Law,
``The State of Voting in 2014,'' Wendy Weiser and Erik Opsal,
executive summary.............................................. 245
Campaign Legal Center, The, J. Gerald Hebert, Executive Director,
June 25, 2014, letter.......................................... 252
Common Cause, Miles Rapoport, President, statement............... 263
Communications Workers of America (CWA), Shane Larson,
Legislative Director, July 2, 2014, letter..................... 332
Jackson Lee, Hon. Sheila, a Representative in Congress from the
State of Texas, statement...................................... 309
Japanese American Citizens League (JACL), Priscilla Ouchida,
Executive Director, June 17, 2014, letter...................... 273
Johnson, Jr., Hon. Henry C. ``Hank,'' a Representative in
Congress from the State of Georgia, July 17, 2014, letter...... 294
Leadership Conference on Civil and Human Rights, The, Wade
Henderson, President and Chief Executive Officer, and Nancy
Zirkin, Executive Vice President, June 23, 2014, letter........ 183
Mexican American Legal Defense and Educational Fund (MALDEF),
Thomas A. Saenz, President and General Counsel, statement...... 276
National Action Network (NAN), Reverend Al Sharpton, President
and Founder, Reverend W. Franklyn Richardson, Chairman of the
Board, and Janaye Ingram, Acting National Executive Director,
statement...................................................... 326
National Asian Pacific American Bar Association (NAPABA), William
J. Simonitsch, President, statement............................ 280
National Association for the Advancement of Colored People
(NAACP),
Rev. Dr. William J. Barber II, President, North Carolina State
Conference of NAACP Branches, statement........................ 172
National Association of Latino Elected and Appointed Officials
(NALEO), Arturo Vargas, Executive Director, statement.......... 278
National Bar Association, Patricia Rosier, Esq., President, July
2, 2014, letter................................................ 282
National Congress of American Indians (NCAI), Jacqueline Pata,
Executive Director, and Native American Rights Fund (NARF),
John Echohawk, Executive Director, June 25, 2014, letter and
statement...................................................... 283
National Council of Jewish Women, Cipra Nemeth, Vice President of
Legislative and Community Engagement, and Maya Paley, Director
of Legislative and Community Engagement, Los Angeles Section,
California, statement.......................................... 302
National Council of Jewish Women, Karen Warner, Vice President of
Advocacy, Greater Miami Section, Florida, statement............ 303
National Council of Jewish Women, Linda Geller-Schwartz, State
Policy Co-Chair, Florida Vice President (Advocacy), Palm Beach
Section, statement............................................. 304
National Council of Jewish Women, Arlene Davidson, State Policy
Co-Chair, Florida Vice President Public Advocacy, Southeast
Atlantic Sections, statement................................... 306
National Council of Jewish Women, Kitty K. Kaplan, Utah State
Policy Advocate, statement..................................... 308
National Gay and Lesbian Task Force, Washington, DC, statement... 322
National Hispanic Leadership Agenda (NHLA), Hector E. Sanchez,
Chair, and Executive Director, Labor Council for Latin American
Advancement, June 24, 2014, letter............................. 199
National Urban League, New York, New York, statement............. 292
People For the American Way, Marge Baker, Executive Vice
President for Policy and Program, and Jen Herrick, Senior
Policy Analyst, June 25, 2014, letter.......................... 202
Project Vote, Estelle H. Rogers, Esq., Legislative Director, June
24, 2014, letter............................................... 334
Religious Action Center of Reform Judaism, Rabbi David
Saperstein, Director and Counsel, June 25, 2014, letter........ 299
Service Employees International Union (SEIU), Mary Kay Henry,
International President, June 24, 2014, letter................. 300
Sikh American Legal Defense Education Fund (SALDEF), Jasjit
Singh, Executive Director, statement........................... 185
State of Georgia, Hon. Brian P. Kemp, Secretary of State, June
20, 2014, letter to Senator Leahy.............................. 271
State of Georgia, Hon. Brian P. Kemp, Secretary of State, June
20, 2014, letter to Senator Grassley........................... 336
State of Louisiana, Hon. Tom Schedler, Secretary of State, June
23, 2014, letter............................................... 338
United Automobile, Aerospace and Agricultural Implement Workers
of America (UAW), International Union, Dennis Williams,
President, statement........................................... 325
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government, or
other criteria determined by the Committee, list:.............. 372
Asian Americans Advancing Justice/AAJC, July 1, 2014, letter:
http://mobile.advancingjustice-aajc.org/sites/aajc/files/
Advancing%20 Justice-
AAJC%20Testimony%20for%206.25.14%20Senate%20Judiciary %20
Hearing%20on%20VRAA.pdf.................................... 372
Lawyers' Committee for Civil Rights Under Law, statement:
http://vrafortoday.org/wp-content/uploads/2014/07/Lawyers-
Com- mittee-VRAA-Senate-Judiciary-hearing.pdf.............. 372
Leadership Conference on Civil and Human Rights, The, report:
http://www.civilrights.org/press/2014/Racial-Discrimination-
in-Voting-Whitepaper.pdf................................... 372
Mexican American Legal Defense and Educational Fund (MALDEF),
National Association of Latino Elected and Appointed Officials
(NALEO), and
National Hispanic Leadership Agenda (NHLA), ``Latinos and the
VRA: A Modern Fix for Modern-Day Discrimination,'' report:
http://www.maldef.org/assets/pdf/VRA_comp.pdf................ 372
THE VOTING RIGHTS AMENDMENT
ACT, S. 1945: UPDATING THE VOTING
RIGHTS ACT IN RESPONSE TO
SHELBY COUNTY V. HOLDER
----------
WEDNESDAY, JUNE 25, 2014,
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 a.m., in
Room SD-106, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Durbin, Whitehouse, Klobuchar,
Franken, Coons, Blumenthal, Hirono, Grassley, Sessions, Cornyn,
Lee, and Cruz.
OPENING STATEMENT OF HON. PATRICK J. LEAHY,
A U.S. SENATOR FROM THE STATE OF VERMONT
Chairman Leahy. Good morning, everybody. I appreciate all
the people who are here today, Senator Grassley and all the
other Senators who are here.
It was just a year ago today that five Justices on the
Supreme Court disregarded extensive findings of Congress and
gutted the Voting Rights Act. I remember the feelings I had
when these five people turned back everything that hundreds of
Members of Congress of both parties, both bodies, had worked so
hard to get through.
But I know that during the oral argument, Justice Scalia
foreshadowed the majority's view of the law when he asserted
that Congress' support of the Voting Rights Act was based on
the ``perpetuation of racial entitlement.'' I could not
disagree more with Justice Scalia, and I would suggest that he
live in the real world and see what is happening in voting
rights throughout this country. There is no right more
fundamental to our existence as American citizens than the
right to vote. Every eligible American is entitled to vote. No
voter should have their vote denied, abridged, or infringed.
In the Shelby County decision, the Justices made clear that
Congress could update the Voting Rights Act based on current
conditions. And I do appreciate that because whether we agree
or disagree with the Supreme Court decision, I and all the rest
of us will follow the Supreme Court decision.
So I worked with Congressman Sensenbrenner--one of the most
respected Republicans in the House of Representatives--as well
as Congressmen Conyers and Lewis--two other very respected
Democrats in the House--to forge a bipartisan compromise to
update and modernize the law. The bill was introduced 6 months
ago on the eve of the weekend celebrating Dr. Martin Luther
King's holiday. Now, at the time I was hopeful that Senate
Republicans would join me in supporting this important bill, as
they had joined in supporting the original Voting Rights Act.
But despite repeated efforts, I am troubled to report that, as
of this hearing, not a single Senate Republican has agreed to
support the effort. But I thank my fellow Senate Democrats on
this Committee who have all joined as cosponsors, and I hope
that my fellow Republicans, especially those who supported the
original Voting Rights Act, would join us.
Unfortunately, the House Republican leadership has shown a
similar lack of willingness to act on this critical bill. Not
only have they refused to vote on or mark up the bill; they
refuse even to hold a hearing. This is unfortunate because the
Voting Rights Act has never been a partisan issue. I remember
standing there with President George W. Bush when he signed it,
the last update, and he and I and Republicans and Democrats,
all of us say how happy we were that bill had gotten through.
From its inception through several reauthorizations, it has
always been a bipartisan effort. And it would be a travesty if
the Voting Rights Act were to become partisan for the very
first time in this Nation's history.
The Voting Rights Amendment Act updates and strengthens the
foundation of the original law to combat both current and
future discrimination. It does so in a way that is based on
current conditions.
A year after the Shelby County decision, it is clear that
voters need more protection from racial discrimination in
voting. As we approach the national election, it is not hard to
see the attempts to deny and infringe upon the right to vote
are only increasing. Just last week, the Brennan Center for
Justice released a report called ``The State of Voting in
2014.'' According to this report, since 2010--4 years ago--22
States have passed new voting restrictions that make it more
difficult to vote. Of the 11 States with the highest African
American turnout in 2008, 7 of those States have new
restrictions in place. Of the 12 States with the largest
Hispanic growth from 2000 to 2010, 9 of the 12 have passed laws
to make it harder to vote.
In addition, the Leadership Conference on Civil and Human
Rights released a report last week entitled ``The Persistent
Challenge of Voting Discrimination,'' which details nearly 150
voting rights violations just since 2000. And each of these
cases impact thousands and sometimes tens of thousands of
voters. And without objection, we will place these reports in
the record.
[The reports appear as submissions for the record.]
Chairman Leahy. The statistics and evidence in these
reports reaffirm Chief Justice Roberts's acknowledgment that
``voting discrimination still exists; no one doubts that.''
That is what the Chief Justice said: ``voting discrimination
still exists; no one doubts that.'' Recognizing that, it is
time for Congress to act.
Next week marks the 50th anniversary of the signing of the
Civil Rights Act. Just as Congress came together five decades
ago to enact the Civil Rights Act--and I remember that as a
young law student at Georgetown--Democrats and Republicans must
work together now to renew and to strengthen the Voting Rights
Act. So I hope all Republicans and all Democrats will work with
us to enact the meaningful protections in the Voting Rights
Amendment Act.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Leahy. Senator Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you, Mr. Chairman. Today our
Committee, as you know, considers whether the Voting Rights Act
needs to be amended. For almost 50 years, this Act has made
effective the commands of the 14th and 15th Amendments to
protect the right to vote. Its enactment, as the Chairman just
said, and its support has always been bipartisan. Its
reauthorization was bipartisan on multiple occasions. The
current reauthorization of the law will continue in effect for
another 17 years.
I am pleased to have played a role several times in
reauthorizing the Act. In 1982, I worked extensively with
Senators Kennedy and Dole to make sure the law was extended.
Last year, as has been stated, the Supreme Court ruled that
the formula for preclearance under Section 5 was
unconstitutional. It reminds us that, since 1965, circumstances
have drastically changed, and, of course, for the better. No
one should doubt that voting discrimination is far less
widespread than in the 1960s. For that we have much to be
grateful, and certainly the Voting Rights Act has contributed
to that progress.
Now, in that Supreme Court decision, the Shelby case, all
it did was strike down a formula almost 50 years old that
determined which States and which political subdivisions were
required to ask the Justice Department for prior permission to
make even the most minor changes in voting procedures. Over the
years, Justice has denied a progressively smaller percentage of
these requests. The Justice Department since Shelby County has
continued to bring voting rights cases under Section 2 and
Section 3 of the current law. It has prevailed in a number of
those cases. The current Voting Rights Act is strongly enforced
and is protecting the rights of all Americans to vote.
As the New York Times reported last week, rulings on voter
registration laws ``have ensured that challenges will remain a
significant part of the voting landscape, perhaps for years.''
The bill before us contains problems that the witnesses
will go into shortly. For instance, the bill seems to create
only a fig leaf of protection for legitimate voter ID laws,
which are supported by 70 percent or more of all Americans in
every poll that I have seen. But, arguably, the bill creates a
back-door mechanism that will be used to negate legitimate
voter ID laws.
There is little doubt that this bill goes well beyond
addressing Shelby County and beyond the coverage formulas of
the Voting Rights Act it is meant to replace. Given that
supporters need to show a clear need for this legislation,
especially given that the remainder of the Voting Rights Act
still exists and is being successfully enforced, at this point,
Mr. Chairman, I would like to ask that letters from various
Secretaries of State be included in the record.
Chairman Leahy. Without objection, they will be included.
[The letters appear as submissions for the record.]
Senator Grassley. And I would like to take a few moments to
say that these letters note that the bill would impose
significant and unnecessary costs on States and localities that
have taken significant steps to eradicate voter discrimination.
And I welcome today's witnesses.
Now, two organizations present today--the NAACP and the
Inc. Fund, as suggested by its name--are nonprofit
corporations. Separate from this bill, the Judiciary Committee
is now considering a proposed constitutional amendment that
would allow Congress to restrict the political activities of
corporations such as Inc. Fund and NAACP. We held a hearing on
the amendment earlier this month. I expect the Committee to
vote on it soon.
An important case in the 1950s brought by the NAACP
litigated by the Inc. Fund led the Supreme Court to recognize
the First Amendment protection of freedom of association. When
the Supreme Court in 1976 ruled that the First Amendment
prohibits limits on campaign and independent expenditures, it
expressly relied on that NAACP case. The constitutional
amendment before the Committee would reverse the 1976 case and
allow Congress to infringe on the ability of nonprofit
corporations such as the NAACP to amplify the voices of their
members in the political process.
These two proposals are said to be about giving voters the
ability to elect candidates of their choice. But one would
censor corporations and the others from presenting differing
views to those voters to help them determine what their choice
actually is. Both of these reflect degrees of elitism.
Proponents of these two measures do not trust voters to
sift through the varying opinions and electoral claims giving
weight to what makes sense and disregarding what does not. And
they do not trust the elected officials the voters chose to
make decisions without spending taxpayer money to ask Justice
Department bureaucrats in Washington for advance approval.
This is the case even when the courts are available to
remedy discrimination.
Now, I happen to trust voters. I do not trust the Attorney
General to properly exercise the expanded powers this bill
would give him.
This Attorney General has repeatedly enforced the law as he
wishes it were written, not as we wrote it. That applies to
drugs, immigration, health care, even the Recess Appointments
Clause of the Constitution. He has treated the exercise of
important congressional oversight powers with disdain. That is
why the House is currently in litigation to hold him in
contempt. Inevitably, that record of lawlessness will be a
factor in consideration of this bill.
I am interested in exploring with our panel today how the
bill would operate and the status of voting rights in America.
Thank you, Mr. Chairman.
Chairman Leahy. Well, thank you very much.
Our first witness is Senator Sylvia Garcia, who serves in
the Texas State Senate, where she represents the 6th District.
Is that correct?
Ms. Garcia. That is correct, Mr. Chairman.
Chairman Leahy. Senator Garcia, please go ahead.
STATEMENT OF HON. SYLVIA GARCIA, STATE SENATOR,
TEXAS STATE SENATE, DISTRICT 6, HOUSTON, TEXAS
Ms. Garcia. Good morning. Thank you for the opportunity to
speak today on the critical importance of modernizing Federal
voting rights protections. My name is Sylvia Garcia, and I am a
State senator in Texas, and also vice chair of our Senate
Hispanic Caucus.
My district is 70 percent Hispanic and about 12 percent
African American. In Texas, Latinos account for 65 percent of
statewide population expansion, and minorities overall
accounted for 89 percent of Texas growth in the past decade.
Texas, and our Nation as a whole, is growing increasingly
diverse. Unfortunately, everyone is not embracing this change.
As Congress considers legislation that would modernize VRA
protections, both Houses must acknowledge and address the fact
that discrimination in voting has deep roots and continues
today.
I will discuss three examples; others can be found in my
written testimony.
First, in my own district, in Pasadena, the voting-eligible
Latino population has dramatically grown in recent years,
making up one-third of its potential electorate and just over
half of its adult population. Not surprisingly, Latinos have
been elected to fill two of the eight single-member seats on
its city council.
The mayor recognized that Latino candidates of choice were
on the cusp of becoming an effective majority of the council,
and to dilute Latino political power, he ramrodded a hybrid
plan, reducing from eight to six the single-member districts
and adding two at-large districts. The proposal had been
discussed before, but never implemented. Despite strong
opposition from residents in public hearings and a citizens
committee, the mayor pursued the change. In debate, he said,
and I quote: ``The Justice Department can no longer tell us
what to do.''
He also argued, without factual validation, that Latino
candidates were not elected to municipal positions because 75
percent of Latinos in Pasadena were ``illegal aliens.''
Given racially polarizing voting in Pasadena, it is
unlikely that the Latino community's choice would win a race
for an at-large seat. Considering the effect, timing, and
racial element of the change, this is a classic case for the
need for preclearance. Absent a full functioning VRA, this
suspect change will proceed to next year's election.
Second, in August 2013, Galveston County seized upon the
Shelby County decision to move a controversial change to reduce
the number of justices of the peace in constable districts from
eight to four. This effectively reduced the districts
containing African American and Latino voter majorities.
Moreover, no public hearings were held. Residents allege that
the county went ahead with the change with full knowledge of
discriminatory effects.
At the State level, within the hour of the Shelby County
decision, our State moved quickly to implement changes which
previously were found by a Federal court to be discriminatory.
Our Texas Attorney General celebrated by tweeting, ``Texas
voter ID laws should go into effect immediately because SCOTUS
struck down Section 4 of VRA today.''
Last, following the 2000 census, the Texas Legislature
failed to agree on congressional maps and ultimately court-
created maps were implemented. In 2004, the legislature enacted
mid-decade redistricting plans. In striking down the
congressional map, Justice Kennedy observed, ``The State took
away the Latinos' opportunity because Latinos were about to
exercise it. This bears the mark of intentional
discrimination.''
The Court required changes to be made to the State's new
maps in order to eliminate the discriminatory impact on Latino
voters. The VRA provisions that remain in effect today are
simply not enough. Local and State officials continue to adopt
laws and impose challenges for minority voters and reduce the
value of their votes. Texas continues to outpace every other
State in enacting discriminatory policies and must be subject
to the strongest protections we can devise. Between 1982 and
2005, Texas earned 107 Section 5 objections, second only to
Mississippi. Without a modernized, full functioning VRA, we are
left with only protracted and expensive litigation as the only
method of attacking against discriminatory voting changes,
which is more costly than the preclearance process.
I conclude with the words of President Johnson on his 1965
VRA address: ``Our duty must be clear to us. The Constitution
says that no person shall be kept from voting because of his
race or his color. We have all sworn an oath before God to
support and defend that Constitution. We must now act in
obedience to that oath.''
Thank you.
[The prepared statement of Hon. Sylvia R. Garcia appears as
a submission for the record.]
Chairman Leahy. Well, thank you very much, Senator Garcia.
Our next witness is Michael Carvin, well known to this
Committee. He is a partner at Jones Day.
STATEMENT OF MICHAEL A. CARVIN, PARTNER,
JONES DAY, WASHINGTON, DC
Mr. Carvin. Thank you, Mr. Chairman, for the opportunity to
comment on proposed legislation to revive Section 5 in the wake
of Shelby County.
I think the basic problem with any effort to revive Section
5 in 2014 is that there is just no need for it given the fact
that Section 2 of the Voting Rights Act is a very effective
remedy for any form of unconstitutional discrimination.
More specifically, the formula in S. 1945 is not designed
to identify those rare jurisdictions where Section 2 would for
some reason be inadequate because it is not even attempting to
get at people who effectively resist constitutional norms. So I
think it exceeds Congress' power to enforce under the 14th and
15th Amendments.
To take a step back and put this in perspective, ever since
Katzenbach, the Supreme Court and common sense tells you that
Section 5 is an extraordinary, unprecedented burden unknown
previously to American law. And like all such burdens,
particularly on sovereign states, it needs to be justified,
particularly since it is selectively imposed on some States and
not on others. And the justification needs to be that this
extraordinary burden is needed to enforce the 14th and 15th
Amendments' prohibition against intentional discrimination. And
the old justification, which resonated in the 1960s and 1970s,
was that Section 2's case-by-case approach, particularly when
Section 2 only prohibited purposeful discrimination, was
inadequate to get at the intransigent Southern jurisdictions.
So we needed those extraordinary Section 5 burdens.
But I do not think that justification holds true anymore in
2014, and I think the important point for this Committee to
recognize is that the question is not whether or not voting
discrimination continues to exist. It clearly does. The
question is whether or not Section 2 is an effective tool to
remedy that discrimination or whether it needs to be
supplemented with Section 5.
If somebody proposed to the Senate tomorrow we want every
public employer to preclear with the Justice Department all
employment or civil service requirements, you would ask
yourself: Why do we need this extraordinary remedy? Isn't Title
VII's effects test enough? You would not ask yourself: Does
public employment discrimination exist? And that, again, is the
question that is confronting this Committee.
Now, ever since Section 5 has been challenged, the civil
rights groups have reversed their historical view, which was
that Section 2 is an extraordinarily effective voting rights
remedy that had done much to eliminate at-large election
systems and all the other kinds of second-generation voting
discrimination in the South and throughout the entire country.
But now they have changed their tune and say Section 2 is
somehow inadequate. But I would just like to make two basic
points on that.
One is this Congress, the one that is proposing S. 1945,
thinks that Section 2 is a perfectly adequate remedy in the
vast majority of the United States. As I understand it, only
four States would be covered by this coverage formula, which
means that this Congress has made a quite correct determination
that in 46 States Section 2 is more than adequate to remedy
voting discrimination. So it needs to answer the question: Why
are the four selected States so different, so much more
intransigently racist than the other 46 that we need this
extraordinary Section 5 remedy?
The other point I would make is that Section 2 has all of
the attributes of every civil rights law we have got in
employment, housing, and education; it is no different. So if
Section 2 is inadequate to remedy discrimination in voting,
that means Title VII, Title VI, and Title VIII are inadequate
to remedy discrimination in the areas they cover.
In terms of the formula, the key point to understand is it
does not look at people who have violated the Constitution. It
looks at people who have violated Section 2. Well, I do not
think it is logical to say that Section 2 is an inadequate
remedy in circumstances where Section 2 lawsuits have already
been successful. I do not think it is logical to say that these
jurisdictions have engaged in unconstitutional discrimination
based on the fact that they have violated the results test
under Section 2 or the effects test under Section 5, meaning
this formula does not even try and look at jurisdictions that
have violated the Constitution. A State and political
subdivision could be swept under Section 5 even if it is
stipulated that they have never violated the Constitution. I
think the judicial preclearance provision is even more
unconstitutional because it only requires one violation of any
Federal voting rights law.
And my final point is Section 5 is not a guarantee against
racial discrimination or against racial gerrymanders.
Particularly in the arms of this Justice Department, it has
become a very powerful vehicle for racial preferences and
racial gerrymanders, and been used to even invalidate things
that make it more difficult to elect white Democrats, such as
in the Texas redistricting case.
With that, I thank you.
[The prepared statement of Michael A. Carvin appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
Our next witness is Dr. Francys Johnson. He is the State
president of the Georgia NAACP. Reverend Johnson, go ahead,
please.
STATEMENT OF REV. DR. FRANCYS JOHNSON, STATE PRESIDENT, GEORGIA
NAACP, STATESBORO, GEORGIA
Reverend Johnson. Good morning. My name is Francys Johnson.
I am president of the Georgia NAACP. Thank you, Senators Leahy
and Grassley and Members of this Committee for holding this
hearing and for your efforts to ensure the right to vote, the
cornerstone of our democracy, is protected.
Fifty-one years ago, another Georgia preacher, much more
articulate, came to this United States capital, in the shadow
of Lincoln's Memorial, and shared that our Nation's suffering
could be redemptive. He said, ``We have come to this Nation's
capital to cash a check, a demand for payment on a promissory
note that had been signed in the blood and the fortune and
sacred honor of our Founding Fathers.''
It promised in principle that all men were created equal,
would have an inalienable right to life, liberty, and the
pursuit of happiness. Of course, it would take a Civil War and
a Reconstruction under extraordinary Federal protection, a
civil rights movement, and a Second Reconstruction to certainly
make that principle practice.
In 1982, when President Ronald Reagan signed the
reauthorization of the Voting Rights Act, he said, ``actions
speak louder than words. The Voting Rights Act proves our
unbending commitment to voting rights.'' President Reagan also
said that ``the right to vote is the crown jewel of American
liberties, and we will not see its luster diminished.''
While I am here on behalf of the NAACP, I am also here on
behalf of my three sons--Thurgood, Langston, and Frederick
Douglas--to ensure that their right to vote is protected
regardless of their gender, the language they speak, or the
color of their skin.
The history of voting rights in Georgia can best be
characterized as promises made, promises broken, promises
remade, promises broken, promises made, and now promises only
partially realized. I have come to this August Committee with a
view from rural communities like Sylvania, Statesboro, and
Sylvester and cities like Augusta, Albany, and Atlanta. And it
is clear to me I am the great beneficiary of the progress that
we have made, the great strides we have made as a country. But
there is still much to be done.
In my written testimony, I have described a history of
voting discrimination in Georgia and the positive impact the
Voting Rights Act of 1965 has had. I have outlined promises
made and promises broken. For the sake of time, I will not go
into that here. I would rather refer you to my written
submissions.
We all know 1 year ago today the United States issued the
decision in Shelby v. Holder. In Georgia, the Shelby decision
makes it much more harder for the NAACP to prevent eligible
voters from being disenfranchised. And it makes it very
difficult to win our battles against discrimination.
Prior to the Shelby decision, Section 5 prevented blatant
discriminatory attempts to alter time, place, and manner of
elections. One example would be that of the Board of Registrars
in rural Randolph County, Georgia, which tried to reassign an
Education Chair's who happened to be African American from his
voter registration district which was 70 percent African
American to a voting district that was 70 percent white. In a
unanimous vote, the all-white members of that Board of
Registrars voted for that district change. They voted to run
that African American out of office, and there are literally
hundreds of examples just like this.
Post-Shelby, in Athens, Georgia, home to the University of
Georgia, the city considered eliminating half of its polling
places, replacing them with only two early voting centers, both
of which have been located in police stations. Let this
Committee know that the police in Georgia for many, many
Georgians, even of my generation, do not represent an effort to
protect and serve. They represent an effort to intimidate. The
argument was that it would save money.
Another money-saving proposal we saw was to shorten early
voting days from 21 to 6 days. The argument was that we would
save $3,400 on average per city. Given the fact we spent
$45,000 a week keeping soldiers abroad to fight for democracy,
I think $3,400 is a small investment to pay.
African Americans are 26 times more likely to vote in early
voting, and I think those who proposed that bill knew it. The
Supreme Court gutted the preclearance formula. It did so in
areas that have a history of racial discrimination, and it gave
them the freedom to go back to disenfranchising voters.
Senator Leahy, race still matters in America, and it
certainly matters in Georgia. And to that point, Chief Justice
Roberts and other witnesses will concede ``voting
discrimination continues to exist; no one doubts that.'' As a
Nation, we have been here before. Our Nation is replete with a
track record on race that is two steps forward and one step
back.
Today we are here to test the metes and bounds of our
Nation's commitment to expand the ``we'' in ``we the people.''
Thus, I respectfully urge and request that you do all you can
to strengthen and modernize the 1965 Voting Rights Act. We need
a robust VRA to tackle head on the numerous attempts silence us
in a democratic system. It requires all voices to participate
in the search for the common good.
America must keep her promises regarding the right to vote.
It is the cornerstone of our democracy. We should be reminded
that the world is watching, and I welcome your questions.
[The prepared statement of Rev. Dr. Francys Johnson appears
as a submission for the record.]
Chairman Leahy. Thank you very much, Dr. Johnson.
And our next witness is Dr. Abigail Thernstrom. She is an
adjunct scholar at the American Enterprise Institute.
Please go ahead.
STATEMENT OF ABIGAIL THERNSTROM, PH.D., ADJUNCT SCHOLAR,
AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, DC
Ms. Thernstrom. Thank you. Thank you, Mr. Chairman and
Members of the Committee, for the opportunity to testify today.
The decision in Shelby County was absolutely right, in my
view; The Act had become a period piece. Moreover, the statute
today needs no updating. Its permanent provisions provide ample
protection against electoral discrimination.
I develop these points at length in my written testimony,
and Mike Carvin has already made this point powerfully.
But given my very limited time, I decided to concentrate on
one point that I suspect other critics of the bill will not
make. My focus is on the section that discusses ``persistent,
extremely low minority turnout'' as an element in the new
formula for Section 4 establishing Section 5 coverage.
It is hard to believe that anyone familiar with basic
demography ever reviewed this section. It assumes
simplistically that if minority participation is low, it must
be the fault of the local jurisdiction, its political process
must be discriminatory. This simplistic assumption flies in the
face of an abundance of social science knowledge about voting
behavior.
For instance, racial and ethnic groups differ in their
average age. Older people are far more likely to vote than
young ones. Since the Hispanic population today tends to be
disproportionately young, the group will have lower turnout
rates than non-Hispanics.
The bill assumes the lower turnout rates are evidence of
public officials doing something to suppress the minority vote.
The point, frankly, is absurd.
We see these same disparities when we control for
education. The highly educated vote more, and both blacks and
Latinos have less schooling on the average than non-Hispanic
whites.
Two other closely related drivers of voting behavior are
family income and homeownership. Residential turnover is also
pertinent. Newcomers to a community are much less likely to
turn out at the polls than long-settled residents.
In sum, forces far beyond the control of any local
jurisdiction result in glaring disparities in rates of
electoral participation. The framers of the bill's entire low
minority turnout section seem to have been oblivious to what
every social scientist knows.
The amended statute would extend Federal control over a
great many jurisdictions that have made every possible effort
to provide equal opportunity to elect candidates of their
choice to all of the citizens.
This section in the proposed legislation also casually
disregards the problem of how the evidence about turnout at the
local level is to be gathered. The bill blithely states that
``in each odd-numbered calendar year'' the Attorney General
will provide the required ``figures . . . using scientifically
accepted statistical methodologies.'' But the only official
figures on current turnout rates are those derived from the
American Community Survey, and those rates are available only
for whole States. We have no information about group
differences in voter turnout in the vast majority of local
jurisdictions.
For the Nation's smaller political subdivisions, accurate
numbers would require a complete and very expensive canvass of
the population. There are no ``scientifically accepted
statistical methodologies'' to obviate the need for such a
canvass.
Now, all jurisdictions could be required to include a
question about race and ethnicity as part of the voter
registration process. Voter lists would then be color-coded,
just as they were in the days of Jim Crow. But that would
provide no information about eligible voters who did not
register.
It is stunning that the drafters of this bill had little
interest in the abundant literature on demography and voter
turnout and gave little thought to the problem of assembling
the data that would be demanded by the amended statute.
A final note. Placing each registrant in a racial box will
be offensive to many who consider election day to be a civic
ritual celebrating the fact that we are one people. If it is so
vital to have information color-coded, why don't we go all the
way and list the race of each candidate on the ballot, which
would make the gathering of information pertinent to much
voting rights litigation easier.
Thank you very much.
[The prepared statement of Abigail Thernstrom appears as a
submission for the record.]
Chairman Leahy. Thank you very much.
And our next witness is Sherrilyn Ifill. She is the
president and director-counsel of the NAACP Legal Defense and
Educational Fund. Welcome, and please give us your testimony.
STATEMENT OF SHERRILYN IFILL, PRESIDENT AND DIRECTOR-COUNSEL,
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., WASHINGTON, DC
Ms. Ifill. Thank you, Chairman Leahy and Members of the
Committee. Thank you for the opportunity to testify today and
for holding this important hearing.
You are being asked by some, including two of today's
witnesses, to turn a blind eye to the urgent need to amend the
Voting Rights Act. Professor Thernstrom contends that voting
discrimination is a thing of the past. Mr. Carvin concedes that
racial discrimination in voting has not ended, but says that
other provisions of the Act are sufficient.
So the questions you face are: Do we need an amendment to
the Act? And if so, what should it contain?
Mr. Johnson and Senator Garcia have already responded to
the first question, and my written testimony outlines scores of
discriminatory voting changes, both immediately before and
after the Shelby decision.
I would note that because we no longer have the notice
provisions of Section 5, the post-Shelby changes that we
identify are only those we have been able to learn about.
You likely have not heard about many of these developments.
Certainly you have heard about redistricting, about voter ID,
about efforts to restrict early voting at the statewide level.
But political power, authority over the lives of minority
voters and communities all over this country, is exercised most
powerfully at the local level, at the town council, the school
board, the county commission, the water district. And this is
where the greatest mischief has occurred and where preclearance
makes all the difference.
You have heard about Galveston County where the seats held
by African Americans and Latinos for justice of the peace and
constable districts were eliminated. You have heard about
polling place closures in the city of Athens, Georgia. You may
not have heard about the fact that in Morgan County, Georgia, a
third of the polling places were closed, or that Baker County
considered closing four of its five polling places, requiring
voters to travel up to 25 miles to vote.
The Jacksonville, Florida, Board of Elections closed and
relocated a polling place that served large numbers of African
Americans. In fact, in 2012, more than 90 percent of those who
voted early at that precinct were African American, and the new
polling place is not accessible by public transportation.
These are just a few examples from a long list of
discriminatory voting changes demonstrating the urgent need to
close the hole in the safety net caused by the Shelby decision.
Now to turn to what we need. It is worth remind us that the
Voting Rights Act emanates from the authority given solely to
this Congress by the Framers of the 14th and 15th Amendments to
protect against discrimination in voting. As Congress
recognized when it first enacted and on four occasions
reauthorized the Act, neither Section 2 nor Section 3 are
sufficient to fulfill that obligation.
First, voters need notice. This allows voters to learn in a
timely fashion about electoral changes that may be
discriminatory. Section 4 of this proposed bill provides
notice, transparency, and information for all voters.
Second, voters need a way to stop discrimination before it
happens. Litigation after a polling place has been eliminated
and scores of voters are left without a place to vote can only
ever partially remedy the harm. You can put a worker back in a
job. You can put a tenant back in an apartment. But you cannot
place a candidate into office even after voter discrimination
has been proven. Section 3 and Section 6 address this reality.
And litigation is costly to both the parties and the
courts. In fact, this Congress made the judgment in the Voting
Rights Act to protect minority voting in a way that does not
always require litigation, just as Congress did in passing
other civil rights laws such as Title VII and the Fair Housing
Act.
Third, the burden of proving that a proposed voting change
does not discriminate should be returned to jurisdictions
rather than placed on the voter. Preclearance does that. The
current provisions of Sections 2 and 3 do not.
We take no pleasure in what has unfolded since the Shelby
County decision. The Legal Defense Fund, like many others, is
prepared to fight on behalf of voters facing these challenges.
But even we cannot keep up with the pace of voting changes
taking place. This means that voters are left on their own to
protect their most sacred right as citizens.
More importantly, we reject the notion that the right to
vote should be premised on a voter's ability to find a lawyer
and file a lawsuit. This is America, and we can and must do
better. Our clients, the plaintiffs in the Shelby County,
Alabama case, are here in this room today precisely because of
their strong and unwavering belief in the democratic principles
of this country. This bill is a measured effort to address
voting discrimination based on current data and reflects
current needs as the Court in Shelby advised. And I urge this
Committee and Congress to promptly pass this voting rights
amendment.
Thank you.
[The prepared statement of Sherrilyn Ifill appears as a
submission for the record.]
Chairman Leahy. Well, thank you very much. I find this
testimony interesting, especially coming from a State that
works very hard at making early voting available, making voting
accessible and easy for everybody in all sections of our State.
The idea of closing voting booths and moving them 25 miles is
something that I just--well, we would not understand it in our
State. Perhaps it is understandable in others.
Reverend Johnson, in Shelby County, the Supreme Court
elevated the novel concept of equal sovereignty of the States
over the rights of American to vote free from racial
discrimination. Do you believe that that principle of equal
sovereignty trumps the principle that every American is
entitled to exercise their right to vote free from racial
discrimination?
Reverend Johnson. I believe that the right to vote in this
country is the cornerstone of our democracy. It is the well
from which we search for the common good, that we sort in the
public marketplace for that which we want for our communities.
And I believe that we have litigated this through war and
through Reconstruction and through a civil rights movement, and
we are engaged in rethinking about this now. And there is
serious, compelling interest for continued Federal protection
through the Voting Rights Act and through the extraordinary
remedies it provides as well as the prophylactic measures that
prevent discriminatory impacts from taking place in the first
place.
Chairman Leahy. How do you respond to those who say it is
unfair to the State of Georgia for its voting changes to be
subject to greater Federal scrutiny?
Reverend Johnson. Well, I respond like this: Between 2000
and 2013, there were 148 Section 5 objections, violations that
were recorded not just in Georgia and Texas but in 29 States.
But Georgia and Texas lead the pack with the worst record.
I want to be clear that this is a problem not with just
racism and sexism and xenophobism and all the other ``isms.''
They are constructed legally. They are socially maintained.
There are economic benefits, and it is politically expedient.
But this is not a Southern problem. This is not a Southern
problem.
Now, Vermont and Iowa certainly did not have any violations
during that period. But this is a problem of power. Racism is
not about hate. That is a byproduct of it. Racism is about
power, who gets what, when, where and how. And in many of these
places, like Randolph County, Georgia, Section 2 would have
been ineffective. We would have never known about that change.
It was in a closed-door meeting, and it was a unanimous vote of
that Board of Elections, and Section 2 would have done nothing
about that at all.
Chairman Leahy. Let me go to Senator Garcia for a moment.
In LULAC v. Perry, Justice Kennedy described the Texas
Legislature's treatment of Latino voters in the post-2000
census redistricting by observing, and I am quoting Justice
Kennedy now: ``The State took away the Latinos' electoral
opportunity because Latinos were about to exercise it. This
bears the mark of intentional discrimination that could give
rise to an equal protection violation.''
Now, is that kind of voting discrimination which the
Supreme Court condemned as recently as 2006 still prevalent in
your State of Texas? And if so, do we need the Voting Rights
Act Amendment to protect against it?
Ms. Garcia. Mr. Chairman, as I said in my remarks, I mean,
the classic case is the Galveston--I mean the city of Pasadena
case. This is a case where the mayor appointed the committee.
The committee said no to a charter change. The public hearings
said no. But he proceeded, and he proceeded simply because he
saw that four of the districts had majority Latino populations.
He has seen that two veterans, Latinos, come home and decide
that they wanted to fully engage in the political process, run
for office, and get elected. This was historic for this city.
When he saw the political power was changing, he then wanted to
make the change and develop the hybrid system that he ramrodded
and changed two districts--two elections by district to two at-
large. This is exactly the classic case that Justice Kennedy is
talking about. When the official sees that the power is coming,
they want to do something to stop it.
Chairman Leahy. Thank you.
Ms. Garcia. And you cannot stop that later. You need to do
it before, so that the harm cannot occur.
Chairman Leahy. That was going to be my next question.
Thank you.
Ms. Ifill, can you tell me whether Section 2 is an adequate
remedy for contemporary voting discrimination?
Ms. Ifill. Section 2 is one piece of the safety net that
was created by the Voting Rights Act. It is not in and of
itself sufficient any more than Section 5 alone was sufficient,
any more than the ability to appoint election observers is
sufficient. All of the pieces work together to provide a safety
net.
In many ways, the perfect example is the Galveston case
that Senator Garcia just talked about. In fact, it was me 20 or
so years ago that litigated the Section 2 case that created the
district that for the first time allowed African Americans and
Latinos to serve as justices of the peace and constables in
Galveston County. And as a result of that case, we had people
in office for the first time from those communities.
But now, since the Shelby case, Galveston County has
decided to eliminate those very seats that we litigated and won
under Section 2 20 years ago. So this to me is the perfect
example of why Section 2 is not sufficient.
Chairman Leahy. Thank you. My time has expired. I would
yield to Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman. This is an
important hearing. The right to vote, as you say, Dr. Johnson,
is the cornerstone of the Republic. Every citizen is entitled
to vote and should be entitled to vote if they meet the basic
qualifications of the franchise.
I grew up in an area in the State of Alabama where there
was systematic discrimination. I remember as a teenager a march
occurred in my small town, and the signs were held by young
children that said, ``Let our fathers and mothers vote.'' I
still remember that very vividly. Richard Valeriani, CBS News,
was there. I remember seeing him on that occasion. And it is
the kind of thing that we all feel badly about, and that is why
the Voting Rights Act was passed. It had universal provisions.
It had extraordinary provisions. The extraordinary provision
was that there would be a law that required that before any
change whatsoever could occur in any voting procedure, it had
to be preapproved, precleared by the U.S. Department of
Justice. And that was based on the fact of the established
proof of the systematic discrimination at that time.
It was always perceived to be an extraordinary remedy that
would not be continued indefinitely, and the goal and the hope
was it would reach a state where that would not continue and
that provision would not have to be utilized.
I voted for the Voting Rights Act extension 8 years ago in
this Congress, but I knew then that Section 5 was problematic,
and it was difficult for me to--I wrestled with that because I
felt that the South had made extraordinary progress. The
Secretary of State in Georgia wrote a letter, just said, ``The
Voting Rights Act is still intact, and it is my duty to enforce
it. I have full faith that the State of Georgia will continue
to abide by it. The proposed legislation ignores the tremendous
progress that Georgia and the rest of the Nation has made in
the past 50 years and seeks to reinstate an outdated and
obsolete formula.'' And this is basically what the Supreme
Court held.
Now, will there arise disputes that impact in some way the
right of an individual, particularly minority individual, to
vote? Yes, there will. Some of these are deliberate, and others
may be inadvertent. But, regardless, it has that impact.
Now, Mr. Carvin, you have studied this. You have heard
Senator Garcia explain a case or two. We have heard, I believe,
Mr. Johnson talk about a school board situation where a
district was altered to eliminate the possibility of an African
American being elected. Do we need the extraordinary remedy of
Section 5? Or could those circumstances be handled effectively
under Section 2 as the normal law of America would intend and
has done normally throughout the history of the Republic?
Mr. Carvin. Yes, thank you, Senator. I actually think----
Senator Sessions. Is your speakerphone on there?
Mr. Carvin. I think the examples that have been offered up
actually confirm the effectiveness of Section 2. We were told
about a situation in Pasadena involving at-large elections. If
anyone remembers the 1982 debates about amending Section 2, the
principal purpose was to eliminate these at-large sections
throughout the South, and it was incredibly effective in doing
so.
Section 5, on the other hand, had basically nothing to do
with eliminating these at-large systems for two reasons.
One is Section 5 only gets at changes. So if you had an at-
large system, you were not going to change. You needed
something to attack, and that was Section 2, and also a
complicated issue involving retrogression.
The other example that has been offered up is Galveston,
involving justices of the peace, but as Ms. Ifill pointed out,
the reason we have a justice of the peace has nothing to do
with Section 5. It is her Section 2 lawsuit. And nobody can
tell me that a lawsuit that was perfectly viable when it was
brought is no longer for some reason viable in 2014.
So, yes, that is the basic point. Section 2 works. It
addresses all of these problems we have heard about. No one has
seen any diminution in minority turnout or participation in the
wake of various challenges to Section 5.
And the final point I will make, with no insult to your
native State, when we were in Shelby County, Alabama was held
up as the worst example, and obviously it has a very
unfortunate history in terms of race relations, but Alabama
would not be covered under the formula proposed by S. 1945. So
what they need to explain to the four States that are covered
is that they are so materially different from States like
Alabama with their unfortunate history that, while Alabama can
be trusted to be regulated under Section 2 alone, for some
reason these four States cannot be.
Chairman Leahy. Thank you----
Senator Sessions. Well, Mr. Chairman, just to say Alabama
has more--at least a few years ago, more African American
elected officials than any other State in America. And we have
made tremendous progress. We will not accept racial
discrimination and voting discrimination in our State, and the
Federal Government is also there and prepared to step in.
Chairman Leahy. You actually have more African American
elected officials in your State than we do in the State of
Vermont, but there may be different reasons.
[Laughter.]
Chairman Leahy. We are going to try to stay on--sorry. We
are going to try to stay on time, and I am going to yield now
to Senator Klobuchar, and she will take the gavel at this
point.
Senator Klobuchar [presiding]. Thank you very much. Thank
you, all of you, for being here for this important decision. I
am troubled by the Supreme Court's Shelby County decision. As
many of our witnesses testified today, there are, sadly, too
many instances where voters face intentional discrimination at
the ballot box.
Part of this is I come from a State where we pride
ourselves in one of the highest voter turnouts in every single
election with our same-day registration. We also are very proud
of the fact that we have some of the biggest refugee
populations for Somali and Hmong immigrants who have come to
our State and have been able to get involved in the political
process very easily and are now serving in the city councils
and at the State legislature. So I have seen how this can work,
and I have seen what happens when people are encouraged to vote
and how this is good for a political system.
My questions, of course, are focused on how we can get the
data that we need to update this law, and I think one of the
most important reasons that we need to update the Voting Rights
Act for the 21st century is that Section 2 truly cannot do all
of the work. You can still try to prove voting discrimination
in court, but that often happens, as has been pointed out,
after the fact. After an election is already over, that does
not do any good for the people who have already been unfairly
denied the right to vote.
Ms. Ifill, I guess I would start with you. Why do you think
it is important that we update our standards for preclearance
of changes that impact voting rights? And what are the benefits
of updating both Section 3 and Section 4?
Ms. Ifill. Well, the Supreme Court in the Shelby case made
very clear that it expected this Congress to rely on current
data and to respond to current needs. And what this bill does
is precisely that. In fact, I would take issue with the
contention that there are certain States that are covered or
not covered. This bill is not a geographic bill. It does not
cover any one State. It sets out a provision that says that in
a 15-year period a State or a jurisdiction will be covered if
they have a certain number of violations.
Senator Klobuchar. Right. And it is five, right?
Ms. Ifill. Five in a State and----
Senator Klobuchar. And I think for anyone watching this at
home on C-SPAN, it is an opportunity to explain this. It does
not----
Ms. Ifill. Yes, so it is five violations over a 15-year
period for a State.
Senator Klobuchar. And for a city?
Ms. Ifill. And for a local jurisdiction, three violations.
And so essentially it is a rolling formula which continues over
time and continues to update itself. So a jurisdiction is not
covered unless, in fact, they have those violations over the
prior 15-year period. And what that means is that it is not
geographically set in stone. A jurisdiction is only covered if
they have violated the Voting Rights Act, violated the
Constitution in some way.
And so this updated formula actually is nationwide. It is
not targeted at the South or at any particular jurisdiction.
But, of course, we cannot wipe clean the reality of what a
jurisdiction has done over the past 15 years. And so there may
be States that fall into the formula as currently stated, but
that is different than saying that the bill is targeted at
particular States or jurisdictions.
Senator Klobuchar. All right.
Ms. Ifill. Now, Section 2 is insufficient simply because
Section 2, as you said, requires you to litigate over the
course of years, the election goes forward. That is very
different from a formula that before the discrimination
happens, stops the discrimination from happening, requires that
close look, and requires preclearance from the Federal
authority.
Senator Klobuchar. Exactly. And why don't we talk maybe
with you, Ms. Garcia. Thank you for being here. I am really
concerned that a number of States have moved to restrict access
to voting since the Shelby case. In some of the cases like in
Texas and Florida, officials have tried to move forward with
changes that courts actually previously found to be
discriminatory.
It seems to me that trying to enact changes that courts
have found to be discriminatory clearly goes against the spirit
of our democracy. We should be protecting people's rights and
making it easier to vote. Why do you think these changes have
been put in place in Texas?
Ms. Garcia. Well, I think that the Attorney General acted
very quickly, as I said in my opening remarks. I think, quite
frankly, it is--you know, congratulations. I mean, you may be
number one in voter participation, but Texas, regrettably, is
42nd in voter registration and 51st in voter turnout. So I
would submit that part of the problem is because of some of the
barriers and some of the impediments that we do have. And I
think that is why we need this modernization of the Voting
Rights Act to make sure that we can truly address today's
challenges.
Senator Klobuchar. All right. And why are people doing
this? Do you think they just think it is to their election
advantage if they do not let everyone vote? I am trying to
understand it.
Ms. Garcia. Well, I think, you know, the examples that I
have given, it is really just a shifting of the demographics, a
shifting of the power, and it goes back to what one of the
other witnesses said. It is really about power. And when you
have a mayor that can see that two Latinos have been elected
and maybe the next time it will be four and there will be a
majority, then they want to make the change. So I think it is
about the balance of power, and it is about not embracing the
demographic changes, not only in the State of Texas, but in the
country as a whole.
Senator Klobuchar. Thank you very much.
I believe Senator Grassley is going next.
Senator Grassley. Thank you, Senator Klobuchar.
I am going to ask my first question of Mr. Carvin. We have
heard testimony that ``Section 2 litigation occurs only after
the fact when the beneficiaries of an illegal voting scheme
have been elected with the advantages of incumbency.''
We have also heard that Section 5 preclearance is more
efficient and less burdensome than Section 2 litigation and
that Section 2 does not capture discrimination that is not
identified and blocked by Section 5.
So to you, are these statements accurate?
Mr. Carvin. No, Senator, they are not at all. The notion
that Section 2 cannot deal with problems prior to an election
is just a complete myth. The NAACP and a number of groups have
been involved in multiple litigation where you have tried to
either stop a redistricting plan or a voting change prior to
the election. I think Texas, Senator Garcia's native State,
might be the best example. There, the Section 2 court actually
entered a remedy and resolved the redistricting issue 8 months
before the Section 5 court in D.C. even got around to it.
So that is just one example of where Section 5 is actually
lagging well behind Section 2. But, no, you do exactly the same
thing under Section 2 that you do under Section 5. You say,
``Will moving the polling place make it more difficult to be
accessed by minority voters? Will the redistricting plan dilute
minority votes?'' It is all based on prospective statistical
projections, and no one can produce examples of where courts
have just sat around and said, ``Okay, let us let two or three
elections go before we act on this.'' There is not a
redistricting dispute in this country that was not resolved, if
timely brought, prior to the upcoming elections.
Senator Grassley. Another question for you. It has been
reported that the bill would not affect State requirements that
voters produce voter ID in order to vote. Is this a correct
reading of the bill?
Mr. Carvin. Oh, no. That is entirely incorrect. I mean,
obviously one of the principal motivations for bringing people
back underneath the Section 5 regime is to have the Justice
Department, as we have heard today, preclear these things.
Attorney General Holder has made it clear that he equates voter
ID requirements with discriminatory poll taxes, and the Justice
Department has taken the firm position that any kind of ballot
integrity effort along those lines is somehow violative of the
law.
So, no, bringing people back into the Section 5 regime will
make voter ID very much on the table, and the Justice
Department will vigorously oppose it.
Also, of course, Section 2 will be available to the Justice
Department and private litigants who are currently litigating
voter ID cases throughout the country from North Carolina to
Washington. And Section 5 is particularly difficult for
submitting jurisdictions just because of the time that is
involved. They either have to go to the Attorney General, who
is unalterably opposed to voter ID, or they have to go to
court. I believe the State of South Carolina spent $3 million
to have their voter ID law blessed by the three-judge court in
D.C. So whichever way you look at it, there will be severe
burdens on any State that thinks that voter ID is an important
effort to ensure ballot integrity and exclude unqualified
voters.
Senator Grassley. Dr. Thernstrom, I would like to ask you
about The Washington Post recently editorializing that
political polarization and partisan conflict is now so deep
that radical changes to redistricting might need to be
considered. One of their suggested changes is a return to at-
large or multi-member congressional districts, but they noted
that the Voting Rights Act presents an obstacle to that plan.
Do you think that the Voting Rights Act deepens political
polarization through its redistricting requirements? And if so,
what should we do about that?
Ms. Thernstrom. Thank you, and can I just say before
answering your question that Ms. Ifill suggested that I thought
all voting discrimination was a thing of the past. I did not
say that. I simply said the permanent provisions provide ample
protection against electoral discrimination. And that statement
acknowledges the fact that there is still electoral
discrimination.
Now, as to The Washington Post editorial, which I may or
may not have read--I am not sure--look--I am sorry. Can you
restate the question?
Senator Grassley. Yes. Do you think the Voting Rights Act
deepens political polarization through its redistricting
requirements? And if so, what should we do about that? And they
suggested that we ought to--that a possible solution would be
multi-member districts.
Ms. Thernstrom. Right. You know, once upon a time, in the
progressive era in this country, at-large voting and multi-
member districts were considered a progressive reform, good
government reform. They are legitimate ways of conducting
elections. Are they disadvantageous to minority voters who, if
they have safe majority minority districts, can be sure of
electing the candidate of their choice? Yes. And those
districts, those designer districts that reserve legislative
seats for minority candidates, yes, they have worked to elect
black and Latino candidates. So they worked as designed. And
the at-large district candidates do not have a safe
constituency, and so, sure, the at-large districts, which have
barely survived the enforcement of the Voting Rights Act, are
disadvantageous to minority voters if you think that these
race-based districts are a good thing simply because they do
assure the election of minority candidates. And you ignore the
downside of those districts which really make those black
candidates--throw them to the sidelines of American politics
because they do not have to put together biracial coalitions
which would enable them--which would enable minority office
holders in those districts to move up the political ladder and
run, for instance, statewide.
So, you know, this is a complicated issue. That is my
bottom line. But I do not happen to like those racially
gerrymandered districts in part because I think they do a
disservice to black voters and black candidates. And that race-
based districting in itself does polarize American politics.
Senator Klobuchar. Thank you. Thank you, Senator Grassley.
I know you want to respond, Dr. Johnson, and I will ask you in
the second round to respond. All right?
Reverend Johnson. Sure.
Senator Klobuchar. And I wanted to acknowledge two Members
of the House that are over here visiting, and we really
appreciate their leadership on this issue, Congressman Bobby
Scott and Congresswoman Sheila Jackson Lee, and we thank you
for being here.
Senator Franken.
Senator Franken. Thank you, Madam Chair.
I believe that the Voting Rights Act is one of the greatest
achievements of the civil rights movement. It passed with
incredible effort. And we must make sure that we fulfill
Congress' longstanding bipartisan commitment to provide equal
access to the ballot, and I share Chairman Leahy's conviction
that it is time for Congress to act to strengthen and update
the original Voting Rights Act. And I am a proud cosponsor of
the Voting Rights Amendment Act, and I am optimistic that on
this first anniversary of the Shelby County decision that we
can come together to ensure that the promise of the 15th
Amendment is made real for all Americans.
Ms. Ifill, in your testimony you discuss the preclearance
framework. In 1965, Congress enacted this requirement because
relying on litigation to enforce the right to vote just was not
working. Litigation takes a long time, and it often begins only
after a discriminatory voting practice has already been
initiated. Congress can certainly continue to believe that the
preclearance system was important because it reauthorized the
Voting Rights Act four times with broad bipartisan support with
Section 5.
Mr. Carvin states in his testimony, and I am going to
quote: ``This is not to say that racial discrimination in
voting has ended, any more than it has ceased in employment,
higher education, or housing. It is to say that Section 2,
particularly given its extremely expansive `results'
prohibition, is more than adequate to address any
unconstitutional discrimination. Just as Title VII's
prohibition against discriminatory `effects' in employment and
Title VI's prohibition against higher education discrimination
and Title VIII's prohibition against housing discrimination do
not need to be supplemented by Section 5 . . .''
It seems to me that, yes, in some cases Section 2 has
worked. There is no question about that. But my question, Ms.
Ifill, is: Has there not been a redistricting case that was not
resolved before the election? And isn't that kind of the point
here?
Ms. Ifill. Well, Senator Franken, thank you. There have
been many. I am not sure where Mr. Carvin has been litigating
Section 2 cases, but where I have been litigating Section 2
cases--and these cases take an incredible amount of time and
resources to litigate and to put together. And, in fact, very
often the litigation takes years--years--to resolve. And
without a preliminary injunction, holding the status quo, which
very rarely is granted, in fact, elections do go forward during
the course of Section 2 litigation.
It is interesting because, in fact, even jurisdictions in
many ways would rather avoid the cost of litigation than the
minimal de minimis course of amount of preclearance--that
preclearance requires.
This past year, the city of Evergreen in Alabama was
required by a Federal district judge to be bailed into
preclearance, meaning that for changes related to mayoral and
municipal elections, they will have to get approval for those
changes as a result of the findings of the district court. And
the city of Evergreen actually welcomed that order. They said
they welcomed the opportunity to engage in preclearance rather
than have the expense of litigation on the back end. And
Congress made that decision, just as they have made in Title
VII, which also has an administrative regime, just as they have
under the Fair Housing Act, which also has an administrative
regime, to create an administrative regime under the Voting
Rights Act so that all claims do not have to be litigated, all
claims do not have to be subjected to the expense and the time
and the contentiousness of litigation, and can be resolved
through the preclearance process.
Senator Franken. Thank you, and that seems to be the point
here. And the implication that we have heard is that you do not
need Section 5 here, that Section 2 just takes care of this.
And that is just not the reality. And there seems to be some
acknowledgment that there still is some discrimination left in
voting rights, but that it is not as bad as it used to be. But
what seems to be the implication is it would be okay if it was
a little worse.
I think we need Section 5. Thank you, Madam Chair.
Senator Klobuchar. Thank you very much, Senator Franken.
Senator Cornyn.
Senator Cornyn. I would say to my colleague from Minnesota,
if he thinks this provision is a good one, it should apply to
Minnesota, it should apply to Vermont, it should apply to the
entire country, because it only applies to four States under
the current formula, and----
Senator Franken. May I ask----
Senator Cornyn. You may not. You may not.
Senator Franken. Would you yield for a question?
Senator Cornyn. And----
Senator Franken. Okay.
Senator Cornyn [continuing]. it imposes a presumption of
guilt that is not borne out certainly by the evidence. And I
would say that the statement that support for the Voting Rights
Act has been bipartisan is absolutely true. It was signed into
law by a Texan, Lyndon Johnson, and it has enjoyed bipartisan
support through its history. But I would say that
bipartisanship or lack of partisanship is at risk in the way
that this legislation has been framed.
Mr. Carvin, it is still true that an act repugnant to the
Constitution is void. The Supreme Court has been pretty clear
about that.
Mr. Carvin. Yes, that is a truism.
Senator Cornyn. And do you believe that this proposal, this
bill that we are discussing today is unconstitutional?
Mr. Carvin. Yes, I do, for essentially the same reasons
that the Court in Shelby County struck down the 2006 effort to
expand Section 5.
Senator Cornyn. And I believe you said that this
legislation is not designed just to overturn legislatively the
Shelby County decision; it goes much farther. Could you explain
what you mean by that?
Mr. Carvin. Yes. Well, there are two key provisions. One is
it does not just adjust the coverage formula, as you note. The
most, I think, clearly unconstitutional provision is revising
the judicial preclearance Section 3(c), and under that
provision, if a State or political subdivision has violated any
Federal law that has a nondiscrimination component in it--the
National Voter Registration Act, for example--even if the
violation has absolutely nothing to do with discrimination, a
Federal court can keep them in preclearance essentially as long
as it wants.
So, for example, I was involved in this case in Florida
where, amazingly, the Eleventh Circuit found that the NVRA
prohibits States from excluding non-citizens from the voting
rolls, even though they were using the Department of Homeland
Security's data base, even though the accuracy of excluding
these people was uncontested. Many of them had admitted that
they were non-citizens. They, nonetheless, found that the NVRA
prohibited keeping them off the voting rolls even though the
NVRA makes it a felony for a non-citizen to register or to
vote.
So one absurd decision like that involving a statute having
nothing to do, really, with racial and ethnic discrimination
enables the Court to subject an entire State to preclearance
for the foreseeable future.
Senator Cornyn. Do you know whether the Department of
Justice requires a photo identification before you are admitted
into that building?
Mr. Carvin. Yes. You cannot get into a court or the Justice
Department absent photo ID.
Senator Cornyn. And yet this Attorney General and this
Justice Department takes the position that even a free
identification issued by the State of Texas somehow is
discriminatory. Isn't that their position?
Mr. Carvin. Yes, and that has been their consistent
position. It is their consistent position which they are now
seeking to advocate under Section 2.
Just contrary to this myth that I think has been bandied
about during this hearing, Section 5 courts take evidence,
Section 5 courts require witnesses, and it is just as
voluminous as Section 2. What you may get is what they had in
Texas, for example, where the burdens shift, where everybody
sort of threw up their hands and said, ``Well, we do not really
know if this affects minorities.'' The State would lose in
those circumstances, where they would not lose in Section 2.
Senator Cornyn. Well, essentially this bill imposes a
presumption of guilt, and the jurisdiction affected would have
to come into court and disprove this presumption. But I would
just say that in 1964 the voting rate for non-whites in the
South was 20 to 35 percentage points lower than it was in the
rest of the country, thus the need for the Civil Rights Act of
1964. Yet in 2012, blacks voted at a higher rate in the South
than for the rest of the country.
Now, in Texas, contrary to what my friend Senator Garcia
has suggested, the black voter turnout rate is substantially
higher than for people that look like me. Indeed, blacks
registered and voted at higher rates than whites in Texas in
every Federal election from 1996 to 2004.
So, you know, rather than suggesting that the States that
have come so far, thankfully, in remedying past discrimination
when it comes to voting rights, the suggestion made in this
legislation is we need to presume that four States that would
be covered by the formula are guilty until they can prove their
innocence, in spite of the fact that this law proposed is
clearly unconstitutional under the Supreme Court's precedents.
So I hope we will stay with our previous commitment to
nonpartisanship when it comes to vindicating voting rights,
that we will actually take a moment to celebrate the great
advances that have been made in this country, not to suggest,
as Dr. Johnson said, that discrimination does not still exist.
When it does, there are tools available, and we are all
committed on a bipartisan basis to use those tools whenever and
wherever we can to vindicate the right of each and every
American citizen to cast a ballot for their chosen candidate.
Senator Klobuchar. Thank you very much, Senator Cornyn.
Senator Franken, you wanted half a minute. And then we go
to Senator Coons.
Senator Franken. Yes, I will make this as short as I can.
My good friend Senator Cornyn--and he is a friend--said would I
be voting for this if Minnesota were covered by this. Every
State is covered by this. In this formula----
Senator Cornyn. Madam Chairman, that is false.
Senator Franken [continuing]. It would apply to any State
that has had five violations in the last 15 years. If you
violate the law--any State--if you violate the law five times,
you will be subject under this for preclearance, no matter
which State you are. So I am voting for a law that Minnesota
would be subject to, that Utah would be subject to, that
Illinois, Rhode Island, Delaware, Connecticut, and Hawaii would
be subject to.
Senator Cornyn. Madam Chairman?
Senator Klobuchar. Senator Cornyn.
Senator Cornyn. That is demonstrably false. The formula
would not apply to any--to 46 States. And so Section 2 is
clearly okay for those 46 States, while 4 States are presumed
to be guilty and would have to go to court or go before the
Attorney General and disprove any intent to discriminate. And
so I certainly disagree with my colleague----
Senator Klobuchar. You know what? I think, Senator Cornyn,
you two are having a dispute, and I would like to resolve this
with our experts, and I think Senator Coons is next, and maybe
he can shed some light on this in his questions. Thank you.
Senator Coons. Thank you. Thank you very much.
Ms. Ifill, I would be grateful if you would help shed some
light on this. My view is that as a cosponsor of the Voting
Rights Amendment Act, it does have a nationwide impact, and it
does take up the challenge of Shelby County in crafting an
appropriately modernized formula. Preclearance is still
necessary. I think this conclusion is demonstrated by the city
of Evergreen, Alabama, which was recently bailed into
preclearance under Section 3(c) of the VRA for just the sort of
discrimination that the Shelby County majority concluded the
Nation is largely free from today, I think incorrectly.
Why isn't Section 3(c) bail-in sufficient to identify
jurisdictions for which preclearance is appropriate? And what
is the scope and reach of the formula proposed in the Voting
Rights Amendment Act?
Ms. Ifill. Well, let me return again to the nationwide
application of this law. This is becoming something of a bait-
and-switch. The Supreme Court's decision in the Shelby case was
very much focused on the idea that you could not mark certain
States based on data that the Court thought was too old, and
the Court said that we needed current data based on current
needs and invited Congress to draft a new formula.
There is now a new formula. That formula requires the focus
on current data and current needs by creating a rolling formula
that looks at the prior 15 years. It does not look at the prior
15 years for any particular one State or another. It covers
from New York to Florida. Every State and every local
jurisdiction is covered by the same formula.
As I said earlier, we simply cannot wipe out the past. If a
State in the past 15 years has violated the law, then those
violations count toward that 15-year requirement. And if Texas
happens to be one of those States, that is because Texas
violated the law, not because the U.S. Congress is targeting
Texas.
The second thing I would say about preclearance--and you
raised the city of Evergreen, which I spoke about I think
before you came in--the current bail-in law occurs after
litigation, so it is the same issue of having to find the case,
find the resources, litigate the case, and then bail-in is a
remedy that a court can order. Bail-in is always limited to the
particular kind of challenge and the findings that the district
court made in that case and limited in time as well.
I find it disturbing, and I think that all of us should as
Americans, if we are premising the idea that the protection of
the right to vote should be based on the ability to find a
lawyer and file a lawsuit. This Congress was given the sacred
obligation under the 14th and 15th Amendments to the
Constitution to protect against voting discrimination. And
Congress in the Voting Rights Act has created a network of ways
in which that protection can happen.
One way is Section 2, which, when it occurs, can be quite
effective. But another way is Section 5, which is preclearance,
designed to avoid the difficulties of litigation and to get at
discrimination before it happens.
Senator Coons. Ms. Ifill, if I might on one other point, it
has been suggested by some today that this bill does not
reflect compromise, that it is frankly a liberal wish list that
includes everybody possible remedy that the left might be
seeking, and that it is not the result of compromise. I do not
see that as accurate, but could you help fill in some of those
details?
Ms. Ifill. Well, in fact, that is true. There was reference
earlier to voter ID laws. This bill, frankly, assiduously walks
around voter ID laws. It does not count denials of preclearance
of voter ID laws. It does not count findings under Section 2, a
Section 2 violation of voter ID laws as a violation that can
count toward the five or the three for preclearance.
What that means is that only findings that a voter ID law
was created with the intention of discriminating against
minority voters can count toward a jurisdiction's violation,
and I would hope that everyone in this room and in this country
would be deeply concerned about a finding by a Federal court
that a voter ID law had been created with the intention of
discriminating against minority voters.
Senator Coons. A last question, if might, to Reverend Dr.
Johnson. We are meeting today in a Senate building named for
Everett Dirksen, a Senator of Illinois. I think anyone who
knows their history knows that he played an absolutely central
role in the enactment of the 1964 Civil Rights Act. In fact, I
think one of the things of which the Republican Party has long
justifiably been proud is the central role that Republican
legislators played in the enactment of landmark civil rights
legislation in the last century. Yet today we seem to see a
partisan divide on this Voting Rights Amendment Act when
previous VRAs had been broadly bipartisan in their support.
Why do you think that this has become a partisan issue?
Reverend Johnson. Very good question, especially
considering the fact that every reauthorization of this
important Act has been by a Republican President. This should
not be a partisan issue, the right to vote, and it is sacred,
as Ms. Ifill suggested. It was paid for with the blood, sweat,
and tears of so many. But there is a larger historical point
that needs to be made. If the Voting Rights Act is not
modernized, then you are effectively ending the Second
Reconstruction of this United States. And there is a reason in
Georgia why we have to put an asterisk beside the names of
elected Representatives. We say they are ``since
Reconstruction.'' We have been here before. After
Reconstruction, across the South over 625 persons were elected
to Congress, including Jefferson Long from Macon, who was the
first African American to speak in this Congress as a
Representative.
And so how do you get from 625 after the Civil War during
that period of Reconstruction? You get there through Federal
protection. When that Federal protection was withdrawn, then
those elected Representatives disappeared because of the
persistent nature of race as a problem in this country.
And so we are seeing extraordinary success under the Voting
Rights Act. I am here today to say let us not take away what
has worked so well. Let us keep it in place so that we do not
repeat the mistakes of history and go down a pathway that I
think is quite dangerous.
Senator Coons. Well, thank you. The day that we announced
the introduction of this bill, I was proud to be joined by
Republicans from the House. I continue to hope and pray that we
will be joined by Republicans in the Senate in what I think is
the result of compromise, responsible and reasonable, but
absolutely essential response to this difficult case of the
decision in Shelby County. And I think modernizing,
strengthening, implementing, and updating the Voting Rights Act
is absolutely essential for our Nation. Thank you for your
testimony.
Thank you, Madam Chair.
Senator Klobuchar. Thank you very much, Senator Coons.
Senator Lee.
Senator Lee. Thank you, Madam Chair.
Mr. Carvin, I would like to start with you, if that is
okay. In your written testimony, you explained, citing the
Supreme Court's opinion in Shelby County, that an updated
formula like the one in Senate bill 1945 is only ``an initial
prerequisite to a determination that exceptional conditions
still exist justifying'' such a formula, an ``extraordinary
departure from the traditional course of relations between the
States and the Federal Government.''
Can you help us understand, help explain why it is the case
that the proposed coverage formula alone is insufficient to
determine that exceptional circumstances still exist?
Mr. Carvin. The exceptional circumstances, Senator,
obviously being the need for Section 5 preclearance on top of
Section 2. We have had a lot of debate this morning about
whether Section 2 is adequate, but the precise question the
Supreme Court was asking was: Well, if Section 2 is adequate in
all these other States, why does it somehow become inadequate
here? Has Congress identified the kind of intransigent
resistance to Section 2 that justifies Section 5 in these
jurisdictions?
Now, when you look at the coverage formula in S. 1945, it
does not even attempt to do that. In other words, it bases its
triggering formula on whether or not you have been found guilty
of a Section 2 violation. Well, if you have been found guilty
of a Section 2 violation five times in 15 years, then it is a
little hard to say Section 2 is not working in your State.
They also throw in Section 5. Both Section 5 and Section 2
do not relate to constitutional discrimination, which is
intentional discrimination. They have a much more demanding
standard. You cannot do anything with the statistical
discriminatory effect or result. So you are not even looking at
places where there has been any constitutional violations.
As I said in my testimony, it is quite possible that a
State or a political subdivision that has never been found
guilty of violating the Constitution would nonetheless be
designated as a flagrant constitutional violator, which does
not make sense.
Moreover, of course, they count the Attorney General
objections. Well, the Attorney General, particularly in recent
years, has had an unblemished track record of objecting to
every change, regardless of whether or not it in any way was
seriously discriminatory. I would not view that as a reliable
guide to people who are seeking to disenfranchise minority
voters. I think that it much more reflects the fact that
Section 5 has this demanding effect standard which has been
exploited by this Justice Department to eliminate very sensible
ballot integrity measures, or at least that is sufficiently
debatable that you could not designate somebody who Attorney
General Holder disagrees with as somehow a constitutional
violator.
Senator Lee. So when you use the word ``exploited'' here, I
assume you are referring to the fact that the more power we put
in the hands of the few, perhaps, of the Attorney General of
the United States or a small handful of officials at the U.S.
Department of Justice, especially as you are giving them
broader standards to apply, there is a greater risk of
manipulation, a greater risk that one person might just decide
I think this is--I do not like this, I am going to stop this,
and that could impermissibly intrude on the State's authority
to do something, even when the State is not actually doing
something in violation of the Constitution.
Mr. Carvin. The proponents here have been arguing that
Section 5 is fast, faster than Section 2. Well, it is only fast
if the Attorney General decides something without the basic due
process safeguards that every State presumably is entitled to,
an ability to present some evidence to a neutral magistrate. It
is the classic Star Chamber proceeding. So while you do capture
efficiency, you also, as you point out, Senator, invest this
extraordinary power in a single unelected official to
invalidate State laws without any opportunity for judicial
review.
Senator Lee. By the way, why would it ever be appropriate
for Federal officials to suggest to State or local government
officials that they could not exclude from the voting rolls
those who are not citizens?
Mr. Carvin. There is no Federal law that requires that.
There was a decision by two judges appointed by President Obama
that rewrote the National Voting Registration Act to produce
that genuinely absurd result.
Senator Lee. Okay. Finally, since you testified earlier--
after you testified earlier as to the adequacy of Section 2
remedies, there are those who have suggested in their testimony
and in response to questions by Members of this Committee that
those are, in fact, inadequate, that they are not enough. Would
you care to respond to that?
Mr. Carvin. Yes. I have given the specific examples of why
Section 2 is entirely adequate for those, and then I think
there are two points that the proponents of this Act need to
answer, which is why, if preclearance is required in the four
States currently covered, or whatever States subsequently get
sucked into it, why aren't they required in the other 46
States? And the next question is: If Section 2 even with this
extraordinarily broad results standard is somehow inadequate to
protect against voting discrimination, then why isn't every
civil rights law passed by this body also inadequate to prevent
discrimination in employment and housing and education, which
are certainly very important aspects of American life, but we
are nonetheless content to have the Title VII's of the world
exist without being supplemented with a Section 5-type
preclearance standard? Why does it work in all of these other
areas and not work in voting?
Senator Lee. I see my time has expired. Thank you, Mr.
Carvin. Thank you, Madam Chair.
Senator Klobuchar. Thank you very much, Senator Lee.
Senator Blumenthal.
Senator Blumenthal. Thank you, Madam Chairman.
Mr. Carvin, I appreciate your very thoughtful testimony
here, and we disagree. I happen to support the legislation. But
you make the point that if the remedy under Section 2 is
inadequate for voting rights, then all of these other remedies
in vindicating other rights, whether employment, housing, et
cetera, would be inadequate as well.
Can't Congress decide that, for whatever reason, if it is a
constitutional reason, that voting rights is a right that has
to be vindicated more promptly, that the litigation process
that might be satisfactory to vindicate those other rights
takes more time and expense for voting rights, and decide that
Section 5 ought to be adopted for that reason?
Mr. Carvin. I am not saying that the Senate or the House
could not make distinctions among different kinds of problems
and fine tune it. For the reasons I will not repeat, I do not
think any such record has been compiled in the voting context.
I would also point out that while voting is obviously a
very important right that helps all other participation in
democracy, I would be loathe if the Congress was to rank order
particular areas of American life and say voting is more
important, for example, than employment or housing. While at a
certain level that is true, I suppose somebody who is
unemployed or homeless would not agree that discrimination in
housing and employment is less important than discrimination in
voting.
Senator Blumenthal. And I am not suggesting that the
Congress would be ranking in importance those rights, but
simply the method to vindicate them might be unsatisfactory for
voting rights as compared to those other rights.
Mr. Carvin. And, again, Senator, yes, that is the kind of
empirically based justification the Senate could come out with.
I have not seen in any of the commentary either surround this
or the 2006 amendments which suggests that voting
discrimination is uniquely difficult to prove. And if you think
about it from a commonsense perspective, particularly in
private employment, private housing, private education, all of
the discriminatory policies and decisions are made in private,
confidential sessions. But in voting they are made public. They
have to be made public because you need to tell people where to
vote and how you will count their vote. So actually it is the
most transparent of all of these various areas we have been
discussing and, therefore, the easiest to get at.
Senator Blumenthal. Well, I think there is some empirical
data to contradict that argument. As you probably know, in
2013, the Brennan Center for Justice found that between 1999
and 2005 States initiated 262 potentially discriminatory policy
changes that were withdrawn or suspended by altered submissions
in response to the Department of Justice's request for more
information, the first step in the preclearance procedures. It
is hard to believe, hard for me to believe anyway, that if the
Department of Justice had to go to court to challenge every one
of those 262 policy changes, they would have been successful in
preventing--and I stress and underscore the word
``preventing''--discriminatory voting practices as they have
been using Section 5 procedures. So I think there is something
about those challenges, including the request for information,
as an enforcement mechanism that has a very profoundly
important effect.
Again, comparing rights here, I have no desire or intention
to rank one as against the other. But as a matter of resources,
in extraordinarily complex and massively challenging, resource-
intensive cases as voting rights cases often are, couldn't you
see a compelling argument for the preclearance procedure?
Mr. Carvin. There is no question if you strip the States of
their due process rights and presume them guilty that that
empowers the Justice Department to be much more effective and
efficient at getting at things that the Justice Department
wants to accomplish. But as I indicated to Senator Lee, the
question is not what does the Justice Department want to
accomplish; it is whether or not these States have engaged in
unconstitutional discrimination. Since the Nation's founding,
we have presumed the legitimacy of State enactments. We would
presume under this legislation the legitimacy of State
enactments in 46 States. So the question then becomes: Why is
it necessary to presumptively suspend all of these laws in
these designated areas and not afford them the traditional
justifications that are afforded to all other defendants in
civil litigation?
Senator Blumenthal. My time has expired, but I thank you
for those thoughtful answers. I have no intention or desire to
suspend the rights--as sovereigns, the rights of States to
contest or in any way protect their rights. And I happen to
believe that this law is one of general applicability, just as
criminal laws are. And to suggest otherwise is to say that
criminal laws do not apply to all Americans simply because all
Americans do not break the criminal laws. They apply where the
law is broken, and I think they are laws of general
applicability. But I very much appreciate your very helpful and
forthright responses. Thank you.
Mr. Carvin. Thank you.
Senator Klobuchar. Thank you, Senator Blumenthal.
Senator Hirono.
Senator Hirono. Thank you, Madam Chair.
All the members of the panel agree that voting
discrimination still exists, and we do disagree on how to
address the problem. And the Supreme Court invited Congress to
address the problem by updating the coverage formula, and the
Supreme Court, I note, maintained the principle of
preclearance. They did not strike that down. They struck down
the coverage formula and invited Congress to change the
coverage formula, which is what this bill does. And to say that
the formula in this bill is unconstitutional I would say is
definitely premature.
We do have Members of the House of Representatives who are
here, and I note that the companion bill in the House is
supported in a bipartisan way, and I am hopeful that as we
proceed with this discussion on this bill that we will be able
to come up with a compromise, a version or a bill that will do
what we need to do to maintain our Voting Rights Act and get
bipartisan support in that regard.
And I also want to note--and thank you, Ms. Ifill, for
being very clear that this bill does not punish States for
historic discrimination in any kind of, you know, we are going
to designate a particular State for this treatment, because no
county or State is singled out. And, in fact, the requirement
that is in this bill that requires five violations or three
violations of Section 2, that seems to me a pretty high
standard before the preclearance requirements kick in. Would
you agree with that, Ms. Ifill?
Ms. Ifill. Indeed I would. I would think that a
jurisdiction that is able to meet that number actually is on
the high side in terms of egregious conduct. I think actually
this Congress has been quite conservative in trying to create a
formula that frankly leaves quite a bit of leeway there for
States and for local jurisdictions. In fact, you know, one of
those five for a State has to be a statewide violation. So
there are lots of ways in which I think the drafters of this
bill have tried to be as deferential to Congress as possible,
but I would also point out again that, with regard to the
sovereignty of the States, it is the Constitution of the United
States and the 14th and 15th Amendments that gives this
Congress the authority and the obligation to protect against
voting discrimination. And those two amendments are
specifically targeted at the States. They are telling this
Congress what to do to protect and, frankly, historically, to
protect against voting discrimination that happens in the
States.
Senator Hirono. Well, I note in your testimony, Ms. Ifill,
that Section 5 blocked dozens of discriminatory voting changes
over the decades that this law has been in place. Can you just
describe to us what some of these discriminatory voting changes
were that were struck down under Section 5, and whether, in
fact, post-Shelby the same kinds of voting changes are being
put in place throughout our country in many States?
Ms. Ifill. Well, you have heard some of them this morning,
Senator. You have heard about polling place changes. You have
heard about shifting elections and reducing election--reducing
the seats, the districts in particular elections. You have
heard about redistricting, of course, taking populations and
annexing populations from adjoining jurisdictions to try and
create majority white district.
Senator Hirono. Are these--excuse me. Are these the same
kinds of restrictions that were struck down pre-Shelby?
Ms. Ifill. I think that is what we find most disappointing,
Senator, that a lot of what we are seeing is precisely the
kinds of electoral changes that Section 5 protected against and
that the Voting Rights Act was meant to protect against. We are
seeing jurisdictions return to the same kinds of tactics that
were used in the past to hold on to, as Mr. Johnson says,
power, political power.
Senator Hirono. Reverend Johnson, we have heard testimony
that this current Attorney General is particularly diligent in
enforcing the Voting Rights Act. Now, in the decades that this
law has been in place, hasn't Section 5 been used by both
Democratic and Republican Attorneys General to enforce the
Voting Rights Act?
Reverend Johnson. Absolutely. In 2006, the Congressional
Record overwhelmingly demonstrated the need for continued
Federal protections: 750 Section 5 objections by the Justice
Department over that time period of this law being in effect;
800 potentially discriminatory voting changes; 105 successful
actions to require covered jurisdictions to comply with Section
5; 25 denials of Section 5 preclearance by Federal courts; high
degrees of racial polarization in these jurisdictions--all
mandated that the Attorney General of whatever party, of
whatever President was elected, to enforce this law.
Senator Hirono. Thank you. My time is up.
Senator Klobuchar. Thank you very much, Senator Hirono.
Senator Dick Durbin.
Senator Durbin. Thank you very much, Madam Chair.
Madam Chair, Mr. Carvin challenged us: ``Why just four
States?'' he says. Because in the past 15 years, those four
States--Georgia, Texas, Mississippi, and Louisiana--have had
five or more violations in the last 15 years. Could it be 14
States within the next 15 years? Possibly.
The way this is written is that, as we, I think made
adequately clear, I hope adequately clear to most, it could
apply to my State, yours, or any other. And that to me is a
fair standard. It is not singling out States because of past
conduct. It is looking prospectively at preserving the right to
vote.
Which goes to your second question. If preclearance is such
a good idea, why don't you use it in employment discrimination,
housing discrimination, education discrimination? That was your
question. And the answer is I think one you already know. This
is about the right to vote. And the Supreme Court has said and
the Chief Justice in the course of his hearing before this
Committee said that is the right that is preservative of all
rights. It really goes way beyond--way beyond--important rights
related to employment, housing, and education. The preclearance
has had a profound impact on this country in terms of minority
registration, and five different times with overwhelming
bipartisan votes, Congress has reauthorized preclearance for
voting. We think it is that important.
Now we are challenged by the Supreme Court to update it,
and I would like to note that I think we need to be vigilant,
every generation needs to be vigilant to protect this right to
vote.
There was a Republican primary yesterday in Mississippi,
and the word got out a week or so ago that incumbent Senator
Thad Cochran was going to appeal to African American voters who
did not historically vote in Republican primary to come vote
with him. And his opponent announced he was sending poll
watchers into those minority precincts. I think there is a
message there, isn't there, that goes beyond voting, that goes
beyond I think the obvious? And that is, there are still some
questions that need to be asked and raised about whether people
are being treated fairly in the polling place.
I have a Subcommittee, the Subcommittee on the
Constitution, Human Rights, and Civil Rights, and we decided to
hold some hearings after a group know as ALEC, the American
Legislative--Exchange Council? Whatever. They are a big group,
some 300 corporations fund them. And they are writing laws all
over America, model laws all over America. And many of their
laws are aimed at voter suppression, as I see it, reducing the
number of voters. That is their goal. Voter IDs, limiting early
voting, they just want fewer people to turn up and vote.
So I went to two States where they have been successful. I
went to Florida and I went to Ohio, and I brought in voting
officials from both parties, Republicans and Democrats. I put
them under oath, and I asked them all the same question: What
was it that happened in Ohio and Florida that led you to
believe that you needed to change the voting laws when it came
to voter IDs and such? How many cases of voter fraud were
prosecuted in your State? None.
Oh, well, then how many instances of voter fraud were there
that may not have been prosecuted but reported? Almost none.
If that is the case, if these laws are not being written to
militate against voter fraud, they are clearly being written
for another purpose. They are being written for voter
suppression--and, sadly, voter suppression among minority
voters in America. That is the reality of the 21st century in
America. I wish to God we were beyond the reach of racism, but
we still deal with discrimination and racism on a regular
basis.
Ms. Ifill, I want to get down to one particular point
because, as enraged as I am over the ALEC agenda and what it is
doing, what you have said clearly is we have to prove intent,
not effect. Expound on that for a second and put it in the
context of the voter ID laws.
Ms. Ifill. Well, in order to for, Senator Durbin, a voter
ID violation to count as a violation that would count toward
preclearance of either a State or local jurisdiction, that
voter ID law must have been proven to be intentionally
discriminatory. In other words, it could not have been the
subject even of a finding under Section 2 that it violates
Section 2. It could not have been the subject of a denial of
preclearance by the Attorney General. It is held to the
standard of having violated the Constitution based on intent.
And it seems to me that is a pretty egregious violation.
Senator Durbin. And it is a high standard.
Ms. Ifill. A very high standard.
Senator Durbin. Beyond effect, we go to actually proof of
intent.
Ms. Ifill. Yes.
Senator Durbin. So this insidious ALEC agenda of voter
suppression, which has no basis in fact other than to reduce
certain turnouts in certain populations, really may not even
qualify under the standard of this law if you cannot prove
intent, a very, very difficult standard. Is that correct?
Ms. Ifill. Absolutely. As you know, Senator Durbin, to
prove intentional discrimination in 2014 is very difficult, not
because it does not exist but because one of the successes,
frankly, of the civil rights movement is that racism is no
longer socially acceptable. People do not say in most instances
the things that they said before and know that they should not
reveal their discriminatory animus. And so to prove intentional
discrimination is incredibly difficult, and we prove it by
circumstantial evidence. But it is an incredibly high standard.
Senator Durbin. I just want to close with one point. I am
in the midst of reading a book entitled, ``An Idea Whose Time
Has Come,'' by Todd Purdum. I recommend it. It is the story of
the 1964 Civil Rights Act. And if there is one thing, one
political fact that needs to be stated on the record over and
over again, the critical role played by Republicans in Congress
in the passage of the Civil Rights Act and the Voting Rights
Act. This was truly a bipartisan effort, and much of the
resistance to those laws came from my party, certain Members of
my own party. And I want to be very open about that. I want to
commend Congressman Sensenbrenner for making this a bipartisan
issue with Senator Leahy. I hope it is bipartisan all the way
until we enact this new law to deal with the Shelby County
decision.
Thank you.
Ms. Ifill. Thank you.
Senator Klobuchar. Thank you very much, Senator Durbin.
Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman. I just wanted to
close this hearing with a point. We are here because of the
Shelby County v. Holder decision of the U.S. Supreme Court,
which was a 5-4 decision on partisan lines, driven by the
Republican judges that, in the view of many, opened the door to
voter suppression efforts in States that had a legacy of
discriminatory voter suppression efforts. And I think that was
a very unfortunate decision, but I have to point out that it
stands in the context of an array of similar decisions which
have that--a couple of common elements. One is that they are
decided 5-4 along partisan lines. The Republican judges do not
wait to try to find consensus. They line up the five of them,
and they shove what they want through. So Shelby County was one
example.
Another example was Citizens United, again, 5-4, again, I
think an unwise and unfair decision in that case, opening up
our elections to unlimited spending on pretty flagrantly
factually wrong, so-called findings of fact, which the Supreme
Court is not supposed to do anyway, let alone get them so badly
wrong.
And then there was a few years previously Vieth v.
Jubelirer, which was a Supreme Court decision again 5-4--it was
a 4-1-5 because it was a concurrence, but it was again driven
by the Republican judges, that basically said that partisan
gerrymander was okay, that there was nothing the Supreme Court
was going to do about it, and they gave license to unlimited
partisan gerrymander, believe it or not on the grounds that it
was too difficult to come up with a standard for when partisan
gerrymanders had gone too far.
The result is we have a House of Representatives that is
dominated by the Republican Party after an election in which
the Democratic Party got 1.4 million congressional votes more
than the Republicans. And if you look at individual States, you
see that Pennsylvania went for Bob Casey and President Obama in
the 2012 elections and sent a 13-5 Republican delegation to
Congress. Wisconsin went for President Obama and Senator
Baldwin in 2012 and sent a 5-3 Republican delegation to
Congress. Ohio went for Obama and Senator Brown, and yet sent a
12-4 delegation to Congress.
So what I see is a pattern of 5-4 decisions where the Court
intrudes itself into political matters, and in each case, three
for three, the practical political effect of what they have
done is to advantage the Republican Party. They have advantaged
the Republican Party and its use of partisan gerrymander in
Vieth v. Jubelirer. They have advantaged the Republican Party
by opening up the floodgates to these special interest dollars
that have flowed in, and you can measure that in the early
years particularly, Republicans outspent Democrats through
these super PACs and through dark money by spectacular amounts.
And now in Shelby County I think it is hard to deny that the
Court's decision has had the practical effect, even if it was
not the Court's intent, of advantaging the Republican Party.
So I think that the reason that we are here is a signal of
a cause for concern at the Court, and it is not something that
I am alone in describing. Jeffrey Toobin has described the
politicization of the Court. Norm Ornstein has described the
politicization of the Court. And just recently, Linda
Greenhouse, who has spent a lot of time looking at the Court
and who has held back and held back and held back at making the
conclusion that they have become politicized, has written
recently an article that, more in sorrow than in anger, says
that the Court has basically lent itself to the Republican
agenda. And I think that is very unfortunate, but I think it
would be a shame if we closed this hearing without putting it
in that larger context, because we are here because of one of
those decisions, which is Shelby County v. Holder. And I see
the one elected official on the panel, Senator Garcia, nodding
energetically.
My time has expired, and I am sorry to spend it all on
talking and not on questioning, but I did not want to have that
topic be missed when it is the elephant in the room behind what
is going on here.
Senator Klobuchar. Thank you very much, Senator Whitehouse.
Senator Cruz.
Senator Cruz. Thank you, Madam Chairman.
Thank you to each of the distinguished members of the panel
for being here today.
I want to start, Dr. Thernstrom, with asking you a
question, which is am I correct that the Voting Rights Act and,
in particular, Section 2, remains on the books as strong
protection against discrimination in voting.
Ms. Thernstrom. Of course you are right, absolutely. I
mean, the counter-argument is close to incomprehensible to me.
Senator Cruz. Well, I want to make sure that everyone
observing this hearing understands what the focus is. The focus
is one particular portion of the Voting Rights Act, Section 5,
which subjected a handful of States to unique scrutiny.
I would like to ask, Mr. Carvin, a question of you. Under
Section 5, elected state legislatures in the states that were
singled out, before they could enact any laws concerning
voting, had to receive the prior approval of unelected Federal
bureaucrats in Washington. The Supreme Court has called that
system extraordinary.
But my question is, is there any other area of law where
elected officials in states have to come to the Federal
Government to ask an unelected bureaucrats their permission
before carrying out their duties in the legislature?
Mr. Carvin. No, there is not, and the Court in 1965 in
Katzenbach and all the other cases has recognized that this is
not only a reversal of the traditional Anglo-American
jurisprudence presumption of innocence, but you are literally
suspending the states' rights to legislate in a particular
area.
The Federal sovereign is telling them, no, you cannot do it
until you come on bended knee and an unelected official says,
okay, we will allow you to do it. There has been a lot of
conversation today about the bipartisan support and the
importance of the Voting Rights Act, and yet the basic premise
of Section 5 pre-clearance is that elected representatives are
incompetent minors who are literally incapable of arranging
electoral systems even though, as you know, the Constitution
left the question of voter qualifications and most important
aspects of running elections to the states quite consciously.
So it is not only unprecedented, it certainly pushes the
outermost boundaries of our Federalist system and was only
justified in the 1960s as an acknowledged temporary exception
to the normal rules because of the extraordinary situation that
existed in the Jim Crow south.
Senator Cruz. I would note, Mr. Carvin, you and I have a
long history together, we practiced law together, and indeed we
both were involved in litigating the last prior redistricting
case in the State of Texas, where I was representing the State
and you were litigating, as well, that went to the Supreme
Court and ultimately prevailed in the Supreme Court.
I want to understand and I want people here to understand
how those unelected bureaucrats in the Department of Justice
have used this authority.
Is it not the case that the Department of Justice has taken
the position that Section 5 and indeed Section 2, as well,
protects the ability to elect Democrats? And, indeed, in Texas
they took the position that Henry Bonilla, a Hispanic who was
elected, was not protected; however, Lloyd Doggett, an Anglo
Democrat, was protected, and the difference between the two was
that one was a Republican and, therefore, that Hispanic elected
official was not in the ambit, but the other, a Democrat, was.
Is that correct?
Mr. Carvin. Yes. That is exactly what happened in Texas.
And I think it is important to focus on the fact that under the
new ability to elect standard enacted for the first time in
2006 to overrule Georgia v. Ashcroft, the Justice Department
and certain courts have taken the position that any effort to
diminish minorities' ability to elect white Democrats is
nonetheless violative of Section 5.
So you literally have a Federal law that says you cannot
hurt the ability to elect white Democrats no matter how
compelling the demographic or other justifications are.
Senator Cruz. Thank you. Thank you, Mr. Carvin.
I would like to ask a final question of Senator Garcia. I
find it interesting you and I are both at this hearing. We are
both elected officials in the State of Texas. We are both
Hispanic. And, indeed, Texas has a record of electing
substantially more Hispanics and African-Americans statewide
than almost any other state.
Yet, what this bill would do--and it is interesting to see
a number of Democratic politicians, many from the northeast,
suggesting that Texas needs some sort of special scrutiny,
although the record in Texas of minorities being elected is
better than most other states and, indeed, the turnout numbers
in both the African-American community and the Hispanic
community is better than many other states.
In your experience as an elected official in Texas serving
in the legislature, do you believe that elected officials in
Texas are somehow substantially more deficient than elected
officials in other states across the country?
Ms. Garcia. Well, I do not think--we in Texas think that we
are the best no matter what it is.
Senator Cruz. I agree with you in that regard.
Ms. Garcia. Thank you. The Senate Hispanic Caucus has
wrestled with some of these issues and I can tell you that for
us it is just distressing, and I will repeat the numbers. In
2010, we were 42nd in registration as a state. We were 51st in
voter turnout. Those numbers are just not anything to brag
about, although we would like to brag about many things.
If you look historically at our record, we have had 107
Section 5 violations between 1982 and 2005. Again, that is
nothing to brag about.
So you look at the immediate history and then if you just--
my written testimony goes through all the history dating back
to the 1800s. There has been historic discrimination in the
State of Texas. Regrettably, it is still there.
Senator Cruz. But, Senator Garcia, if I may briefly, and my
time has expired, so if I just may briefly ask one final
question.
If you look at the data, for example, for the 2012
election, in 2012, African-American voter turnout in Texas was
10 percentage points higher than white turnout in Texas.
In fact, if you look at the states in 2012, where turnout
was worse, where there was a greater differential, the
following states have substantially worse numbers than Texas.
Texas has among the best numbers in the country. But you have
Washington State, Colorado, Kansas, Arizona, Minnesota,
Massachusetts, Delaware, Arkansas, Minnesota, Florida,
Kentucky, Connecticut, Virginia, those are all the states where
white turnout was higher than African-American turnout.
In Washington State, it was 18.5 percent higher. Now,
Washington State is not covered. Texas, on the other hand,
African-American turnout not only was not lower than white
turnout, it was 10 points higher and with that record--and I
would note, among Hispanics, the Hispanic record is also
markedly better than many other states across the country.
What justifies singling out Texas and a couple of other
states for some sort of special treatment when the record is
markedly better in Texas than in many other states?
Ms. Garcia. Again, I think it is because of the history and
it is about some of the things that have been going on in our
state. I think when you look--I will give you a perfect
example. I filed the bill so that when anybody turns in the
voter application, if it gets rejected by the voter registrar,
that the person be simply told by letter your application was
rejected because you forgot to put your date of birth or you
forgot to put your full address.
That was rejected. So once it is rejected in terms of a
bill which we cannot put in place to protect the voter so they
will know why they were rejected so they get registered to vote
and make sure they gain access to that ballot, that is just not
good for us.
We need to be doing everything we can to improve access to
the ballots and make it convenient and to make it easy so that
we can have full participation. If we have increased, that is
great, but I know our state is great. We can even do better.
Senator Cruz. Thank you very much.
Ms. Garcia. Thank you.
Senator Klobuchar. Thank you very much, Senator Cruz.
Let us start here with you, Ms. Ifill, to get at some of
the arguments that Senator Cruz was making. He talked about the
fact that certain states in the past have had to come before
the Nation, before Federal Government to get signed off on
their voting systems.
Could you explain why that has happened? What is the
constitutional and legal reason that that has happened?
Ms. Ifill. Yes, Senator Klobuchar. When I hear this
argument, I think that the quarrel is more with the
Constitution than with the attorney general. It is the
Constitution that gives Congress this authority under the 14th
and 15th Amendments to protect against voting discrimination,
and Congress then creates a scheme, as it did under the Voting
Rights Act and has reauthorized it over four times, to deal
with voting discrimination and they have provided various
means.
One means is Section 2, which allows individuals to
litigate. There is the possibility of Federal observers at
elections. There is the Section 5 regime.
What I have heard today, this discussion about the attorney
general and pre-clearance, I have heard it described as a star
chamber, this is almost kind of an astonishing description of a
process that has been utilized by Republicans and Democrats in
the Administration and that is well recognized across party
lines as a procedure that is efficient, that is not costly,
that provides input, allows for input not only from community
groups and voters, but allows input from the jurisdiction.
It is an ongoing conversation, not a star chamber, a
conversation between the attorney general and between the
jurisdiction about the likely effect of a voting change.
Senator Klobuchar. Senator Cruz also focused on the fact
that this is somehow to protect Democrats. And could you give
us a little more sense of that history about how Republican
attorney generals have enforced this law, about how
traditionally with, of course, even currently with
Representative Sensenbrenner, a Republican sponsoring this law
in the House, but how in the past this has been a bipartisan
effort?
Ms. Ifill. Always. The Voting Rights Act from its initial
enactment and every reauthorization has been overwhelming
bipartisan and signed into law by Republican Presidents.
The Voting Rights Act is focused on the protection of
minority voters. It is not focused on the protection of one
party's voters versus another party's voters.
I did want to say something about the turnout issue that
Senator Cruz raised.
Senator Klobuchar. This is about the Texas numbers.
Ms. Ifill. Yes. I want to point out that actually the
figures that he cited should inspire this Congress to pass this
bill, because what those turnout figures show is the
determination of minority voters to come out and participate in
the political process despite the obstacles, despite the
discriminatory redistricting, despite the polling place
changes.
We all saw in this country in 2012 minority voters standing
on lines in places like Florida for 6 hours to vote. We should
credit their determination to participate in the political
process, not use the fact that they were so determined and cast
their ballots as evidence that this Voting Rights Act is not
needed.
Senator Klobuchar. Very well said. Thank you.
Ms. Garcia, one of our jobs here, Senator Garcia, is to get
evidence, because if and when we do pass this bill, I somehow
believe it might be challenged as it has in the past and then
the Supreme Court is going to look at what the evidence is.
You have all submitted thorough testimony on this, but
perhaps, Senator Garcia, you could give to me what you think
will be shown as some examples of discrimination coming out of
the lawsuit in Texas.
Ms. Garcia. Well, I think the examples that I have already
given with regard to, first, Pasadena, where we see the
shifting of the demographics and the growing Latino population.
In Galveston it was the minority population. It seems to me
that we will just be seeing more and more because the Latino
population has grown.
I think someone earlier said that it was a young
population. Well, it is young, but it is already beginning to
be at the age of registering to vote and getting very active.
The two council members in Pasadena that got elected are
probably all of 30 and 32. They are young veterans. They went
to Iraq, they went to Afghanistan, they came home, they believe
in what they fought for and they wanted to participate.
So I think we are getting a younger population that is
voting. We are getting a younger group of leaders in the Latino
community.
I know in my role as the immediate past president of NALEO,
which is the National Association of Latino Elected Officials,
it was just really heartwarming to me to travel across the
country and just see the new crop of young Latino leaders who
are truly committed to public service, committed to making sure
that people have the right to vote, and committed to making
sure that we can make change in our communities, and, frankly,
that is really what it is all about.
It is making sure that we protect the right to vote, that
we make it as accessible as possible, as easy as possible so
that people can be part of the fabric of our country.
Senator Klobuchar. Dr. Johnson, I know way early on in this
hearing you had wanted to respond to something that Dr.
Thernstrom had said. You could do that, if you would like, but
also to give me some examples from Georgia of what you have
seen.
Then, also, Ms. Ifill answered in terms of the
constitutional and legal reasons which are key here for why we
have the Voting Rights Act, if you could also give us a sense
of the moral reasons from your perspective.
So three questions really. One, if you want to reply to Dr.
Thernstrom; two, the discriminatory examples that you see in
Georgia; and then, three, if you want to give us the moral
basis for doing this.
Reverend Johnson. Professor Thernstrom and I have been
engaged in a side discussion.
Senator Klobuchar. I have noticed this and I was very
interested. I was thinking I would love to hear it.
Reverend Johnson. Right. But I think what Senator Cruz
spoke to earlier underscores why there is a moral imperative to
modernize the Voting Rights Act.
His attempt to go to an old southern strategy play of
pitting the south versus the north, of pitting blacks against
Hispanics, as we have seen in Texas, whites against--this is
not about that issue and I think we need to look at higher
ground here.
The reason why I am asking that Georgia be covered is
because after the Federal protections ended after
reconstruction before, Georgia quickly disenfranchised its
citizens who look like me. They passed laws, like Jim Crow
laws, they passed literacy tests, poll taxes, moral character
tests, grandfather clauses, all in an attempt to do what they
felt they had a right to do as state legislators.
The Federal Government said no, that the rights of citizens
of these United States shall not be abridged or denied and that
is why we have the Voting Rights Act and that is why we
continue to need it, because this legislature in Georgia
sitting quickly moved to do the same thing, to roll back early
voting days from 21 to 6 days, to introduce all kinds of laws
to disenfranchise African-Americans, Hispanics, Asians, others,
to discourage them, to confuse them.
At one point, there were going to be three different
standards for voting if you were in a city, town or
consolidated government, and that is simply wrong in America.
And so I would say this finally. When you look at the issue of
race in this country, we are not there yet. It is not lost to
me that I am probably the only member of this panel born after
the passage of this act. This is a different America, but we
are not there yet.
My baby boy that I referenced earlier is twice as likely as
a white to die during his first year of life, three times as
likely as a white baby to be born of a mother who had no
prenatal care. His father is still twice as likely to be
unemployed. And even with a good education and a good
foundation for opportunity this country has provided for me, I
can only expect to make 72 percent of what white similarly
situated folks in my shoes will make.
That is because we are not there yet. In Georgia the median
income for a white similarly situated family is $51,000. The
median income for a black family is $31,000. That has nothing
to do with the pigment of my skin. That has to do with
discrimination. It has to do with the fact that it still
exists.
So the moral imperative is there for my generation and for
Langston's generation. If we are going to make this a more
perfect Union, keep what is working in place. You referenced,
Professor Thernstrom, in conclusion, in your written remarks,
that America sort of needed a jumpstart, but no one, after
getting a dead battery back to working, allows the jumper
cables to be attached. Well, you do not throw them away either.
You generally take prophylactic measures to keep your battery
in good health and then you put a set of jumper cables in your
trunk. And I say let us move America forward.
Ms. Thernstrom. The jumpstart, of course, in my written
testimony referred to my agreement that these racially driven
districts, racially carefully designed districts to be safe for
black candidates and Latino candidates were necessary to give a
jumpstart to greater black political involvement.
So I am distancing myself from conservatives who say that
those districts never did any good, in fact, they did nothing
but harm. I think they worked as they were intended to in
helping elected--in helping to elect the many black Members of
Congress.
Reverend Johnson. And white Members of Congress, too. John
Barrow----
Ms. Thernstrom. And white Members.
Senator Klobuchar. I am glad we are seeing the side
discussion.
Reverend Johnson. Absolutely. We will continue that.
Senator Klobuchar. So you guys should have lunch and
continue that discussion.
Ms. Thernstrom. Well, I had a lot more to say, but that is
all right.
Senator Klobuchar. I know you did and I think this has been
a very good hearing, and, of course, you will have that
opportunity with the record and I am sure many of the Senators
will have questions for the record.
I was thinking of what you said, Dr. Johnson, and it
reminded me a little bit of Justice Ginsberg's dissent about
when she talked about getting rid of Section 4 of the Voting
Rights Act was, quote, ``like throwing away your umbrella in a
rain storm because you are not getting wet.''
So I think that is a sentiment of many people up here and I
know there are going to be discussions about how to do this the
best way. I think the simplistic description, which I really
appreciated, that Ms. Ifill gave in terms of this new formula
and how it works I think was a good one and I hope everyone
thinks about it in terms of what this means going forward and
how it would apply to all states.
I would just end with this. I had the privilege last year
to go to Alabama with Congressman John Lewis, which many people
up here have done. He, as you know, is one of the 13 original
Freedom Riders and on March 17, he and 600 peaceful marchers
were brutally attacked on the Edmund Pettus Bridge in Selma. We
got to walk over that bridge again and learn a lot, but it was
that weekend 48 years later when the Montgomery police chief, a
white police chief, took off his badge and handed it to
Congressman Lewis and 48 years later apologized for not
protecting them on that bridge.
Well, we have our job now and that is to protect the rights
of the people who want to go to that voting booth. And I have
appreciated the civil nature of this discussion, including of
my colleagues. I hope that guides us going forward on this
important issue.
I want to thank all of you for what you have done and that
you have come forward and testified. I think this was a good
example of how democracy can work, from my perspective. I now
want to get this bill through.
Thank you. The hearing will remain open for a week. I have
a statement from Senator Feinstein that I am going to include
in the record.
[The prepared statement of Senator Feinstein appears as a
submission for the record.]
Senator Klobuchar. Thank you and have a good day. The
hearing is adjourned.
[Whereupon, at 12:26 p.m., the hearing was concluded.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Additional Submissions for the Record
A list of material and links can be found below for Submissions for the
Record not printed due to voluminous nature, previously printed by an
agency of the Federal Government, or other criteria determined by the
Committee:
Asian Americans Advancing Justice/AAJC, July 1, 2014, letter:
http://mobile.advancingjustice-aajc.org/sites/aajc/files/
Advancing%20 Justice-
AAJC%20Testimony%20for%206.25.14%20Senate%20 Judiciary%20
Hearing%20on%20VRAA.pdf.
Lawyers' Committee for Civil Rights Under Law, statement:
http://vrafortoday.org/wp-content/uploads/2014/07/Lawyers-
Committee-VRAA- Senate-Judiciary-hearing.pdf.
Leadership Conference on Civil and Human Rights, The, report:
http://www.civilrights.org/press/2014/Racial-Discrimination-in-
Voting-Whitepaper.pdf.
Mexican American Legal Defense and Educational Fund (MALDEF),
National
Association of Latino Elected and Appointed Officials (NALEO), and
National
Hispanic Leadership Agenda (NHLA), ``Latinos and the VRA: A Modern
Fix for
Modern-Day Discrimination,'' report:
http://www.maldef.org/assets/pdf/VRA_comp.pdf.
[all]