    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

            HISTORY AND ENFORCEMENT OF THE VOTING RIGHTS ACT OF 1965

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

                                    HEARING

                                   BEFORE THE

                              SUBCOMMITTEE ON THE
                CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 MARCH 12, 2019

                                   __________

                                Serial No. 116-9

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

            Available: http://judiciary.house.gov or www.govinfo.gov

                                   __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    39-667 PDF                  WASHINGTON : 2020

    --------------------------------------------------------------------------------------

                           COMMITTEE ON THE JUDICIARY

                       JERROLD NADLER, New York, Chairman
    ZOE LOFGREN, California              DOUG COLLINS, Georgia,
    SHEILA JACKSON LEE, Texas              Ranking Member
    STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr.,
    HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
        Georgia                          STEVE CHABOT, Ohio
    THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
    KAREN BASS, California               JIM JORDAN, Ohio
    CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
    HAKEEM S. JEFFRIES, New York         JOHN RATCLIFFE, Texas
    DAVID N. CICILLINE, Rhode Island     MARTHA ROBY, Alabama
    ERIC SWALWELL, California            MATT GAETZ, Florida
    TED LIEU, California                 MIKE JOHNSON, Louisiana
    JAMIE RASKIN, Maryland               ANDY BIGGS, Arizona
    PRAMILA JAYAPAL, Washington          TOM McCLINTOCK, California
    VAL BUTLER DEMINGS, Florida          DEBBIE LESKO, Arizona
    J. LUIS CORREA, California           GUY RESCHENTHALER, Pennsylvania
    MARY GAY SCANLON, Pennsylvania,      BEN CLINE, Virginia
      Vice-Chair                         KELLY ARMSTRONG, North Dakota
    SYLVIA R. GARCIA, Texas              W. GREGORY STEUBE, Florida
    JOE NEGUSE, Colorado
    LUCY McBATH, Georgia
    GREG STANTON, Arizona
    MADELEINE DEAN, Pennsylvania
    DEBBIE MUCARSEL-POWELL, Florida
    VERONICA ESCOBAR, Texas

            Perry Apelbaum, Majority Staff Director & Chief Counsel
                    Brendan Belair, Minority Staff Director

                SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
                              AND CIVIL LIBERTIES

                         STEVE COHEN, Tennessee, Chair
    JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana,
    ERIC SWALWELL, California              Ranking Member
    MARY GAY SCANLON, Pennsylvania       LOUIE GOHMERT, Texas
    MADELEINE DEAN, Pennsylvania         JIM JORDAN, Ohio
    SYLVIA R. GARCIA, Texas              GUY RESCHENTHALER, Pennsylvania
    VERONICA ESCOBAR, Texas              BEN CLINE, Virginia
    SHEILA JACKSON LEE, Texas            KELLY ARMSTRONG, North Dakota

                           James Park, Chief Counsel
                         Paul Taylor, Minority Counsel

                                C O N T E N T S

                                  ----------

                                 MARCH 12, 2019

                               OPENING STATEMENTS

                                                                       Page
    The Honorable Steve Cohen, Chairman, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................     1
    The Honorable Mike Johnson, Ranking Member, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................     4
    The Honorable Jerrold Nadler, Chairman, Committee on the
      Judiciary......................................................     6
    The Honorable Doug Collins, Ranking Member, Committee on the
      Judiciary......................................................     8

                                   WITNESSES

    Catherine Lhamon, Chair, U.S. Commission on Civil Rights
        Oral Testimony...............................................    11
        Prepared Testimony...........................................    13
    Thomas Saenz, President and General Counsel, Mexican American
      Legal Defense and Educational Fund
        Oral Testimony...............................................    18
        Prepared Testimony...........................................    21
    Peyton McCrary, Professorial Lecturer in Law, George Washington
      University Law School
        Oral Testimony...............................................    27
        Prepared Testimony...........................................    30
    L. Paige Whitaker, Legislative Attorney, American Law Division,
      Congressional Research Service
        Oral Testimony...............................................    65
        Prepared Testimony...........................................    67

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Item for the record submitted by the Honorable Mike Johnson,
      Ranking Member, Subcommittee on the Constitution, Civil Rights,
      and Civil Liberties............................................    79

                                    APPENDIX

    Items for the record submitted by Peyton McCrary, Professorial
      Lecturer in Law, George Washington University Law School.......   122
    Item for the record submitted by the Honorable Steve Cohen,
      Chairman, Subcommittee on the Constitution, Civil Rights, and
      Civil Liberties................................................   138
    Statement for the record submitted by the Honorable Sheila
      Jackson Lee, Subcommittee on the Constitution, Civil Rights,
      and Civil Liberties............................................   139

            HISTORY AND ENFORCEMENT OF THE VOTING RIGHTS ACT OF 1965

                                  ----------

                            TUESDAY, MARCH 12, 2019

                            House of Representatives

                Subcommittee on the Constitution, Civil Rights,
                              and Civil Liberties

                           Committee on the Judiciary

                                Washington, DC.

        The subcommittee met, pursuant to call, at 10:05 a.m., in
    Room 2141, Rayburn House Office Building, Hon. Steve Cohen
    [chairman of the subcommittee] presiding.
        Present: Representatives Cohen, Nadler, Raskin, Scanlon,
    Dean, Garcia, Escobar, Jackson Lee, Johnson of Louisiana,
    Collins, Gohmert, Jordan, Reschenthaler, Cline, and Armstrong.
        Staff Present: James Park, Chief Counsel; Keenan Keller,
    Senior Counsel; David Greengrass, Senior Counsel; Madeline
    Strasser, Chief Clerk; Will Emmons, Professional Staff Member;
    Paul Taylor, Minority Counsel, and Andrea Woodard, Minority
    Professional Staff Member.
        Mr. Cohen. Good morning, everyone. The Committee on the
    Judiciary Subcommittee on the Constitution, Civil Rights, and
    Civil Liberties will come to order.
        Without objection, the chair is authorized to declare
    recesses of the subcommittee at any time.
        I welcome each and every one of you, panelists and
    visitors, to today's hearing on the history and enforcement of
    the Voting Rights Act of 1965. I will now recognize myself for
    an opening statement.
        The right to vote is the most fundamental right of
    citizenship in our democracy. Everything rests upon the voter
    and the constituent. Yet for most of our Nation's history, too
    many of our citizens, and particularly African Americans, were
    denied this most basic right, especially in my home district of
    the Deep South.
        In large measure, it took an historic march and before
    that, an attempted march thwarted by the Alabama State
    Troopers, led by our own John Lewis, later joined by Dr. Martin
    Luther King, from Selma to Montgomery, to bring the Nation's
    attention to the horrific conditions faced in Alabama and
    throughout the South in denying people the right to vote and
    even to protest, to march. This protest really led to our
    Congress passing the Voting Rights Act.
        On August 6, 1965, our Nation took that momentous step
    toward correcting the injustice when President Johnson signed
    into law the Voting Rights Act. John Lewis was there to witness
    that historic occasion.
        One hundred years after the Civil War, 100 years after the
    Civil War, it took America to pass a Voting Rights Act to see
    to it that African Americans were not discriminated against.
    How many coins could be put in a bottle of water? Unless you
    could tell exactly how many coins might have been in a bottle
    of water, you couldn't vote in Alabama, Mississippi, other
    States in the South for 100 years.
        It is because of the recent developments that we have seen
    in our country with our Supreme Court having ruled a Voting
    Rights Act unconstitutional and the failure to be able to pass
    an act in the most recent Congress to renew it, that this
    subcommittee will dedicate itself this Congress to, among other
    things, restoring those protections by reinvigorating
    enforcement of the Voting Rights Act, including through the
    revitalization of its most important enforcement mechanism,
    Section 5 preclearance provisions.
        It is astonishing to me, as someone who witnessed, as a
    young person, the signing of the Voting Rights Act and the
    historic significance that that had in our country, the Civil
    Rights Act of '64 and the Voting Rights Act of '65, that here
    we are nearly 50 years later, over 50 years later, and we are
    dealing with it still.
        This hearing is the first in a series of hearings on the
    Voting Rights Act before this subcommittee. Our focus today is
    on the history and enforcement of the act. We must understand
    how we arrived at this point in history so we can discern our
    best path forward.
        Before the Voting Rights Act, the state of voting rights in
    the Deep South was, I have described, abysmal. That is probably
    the high point. In the mid '50s, more than 80 years after
    adoption of the Fifteenth Amendment, which prohibits States
    from denying citizens the right to vote on account of race,
    color, or previous condition of servitude and gives Congress
    the power to enforce this prohibition, only one in four
    eligible African-American voters in the South was registered.
    That was 80 years after the passage of that constitutional
    amendment.
        This low number was the result of decades of backlash
    against political participation by African Americans, beginning
    after the Civil War and given a booster shot by Jim Crow and
    the awful 1876 presidential compromise. This backlash included
    political violence by the Klan and others who kept black voters
    away from the polls with guns, whips, lynching, and
    intimidation at all points.
        After Reconstruction, short lived, Southern States enacted
    numerous measures to disenfranchise African-American voters as
    part what came to be known as ``Jim Crow.'' These measures
    included poll taxes, literacy tests, the disqualification of
    convicts from voting, and many other measures designed to block
    African Americans from voting.
        And I should mention also the construction of many statues
    venerating Confederate heroes as a symbol in many town squares
    and public areas to say to blacks, ``Don't you even think about
    asserting your rights because we are still in charge.'' That is
    what those statues meant.
        As a practical matter, these tactics, combined with
    Congress' inaction, denied African Americans the right to vote,
    notwithstanding the Fifteenth Amendment's guarantee of equal
    voting rights. After almost a century, with the substantial
    efforts of the civil rights movement, Congress finally asserted
    its Fifteenth Amendment authority, passed the Voting Rights Act
    with Lyndon Johnson as President.
        One of the key features was the Section 5 preclearance
    requirement. Under this requirement, certain jurisdictions,
    predominantly in the Deep South, that had a history of
    discriminatory voting measures were required to obtain the
    approval of the Justice Department or a three-judge panel
    before any proposed changes to voting practices or procedures
    could take effect.
        The preclearance requirement was crucial to vigorous and
    effective enforcement of the act's guarantee of equal voting
    rights. It prevented widespread harm to minority voters and
    avoided expensive and cumbersome litigation by rightly settling
    as the default outcome the prevention of potentially
    discriminatory voting practices from going into effect. The
    preclearance requirement instead appropriately placed the
    burden of proof on the covered jurisdictions to show that
    changes to those voting practices would not be racially
    discriminatory.
        Those States that had preclearance requirements were
    predominately in the Old South and those States that had white
    and colored drinking fountains, days for ``coloreds'' to go to
    public libraries and zoos and all of the other activities that
    were so opprobrious that were prevalent during that era.
        With this robust preclearance requirement, the act had a
    dramatically positive effect on black voter registration in the
    South, which increased to 62 percent just 3 years after the act
    became law.
        Six years ago, however, in Shelby County v. Holder, the
    Supreme Court effectively gutted the act's Section 5
    preclearance requirement by striking down the coverage formula
    in Section 4 to determine which jurisdictions would be subject
    to preclearance. The Court's majority claimed that there was no
    evidence to support Congress' finding of continuing
    discrimination in voting in these States, notwithstanding the
    thousands of pages of recorded evidence compiled by this
    subcommittee in 2006 demonstrating the continuing need for this
    coverage formula.
        And despite Congress voting on an overwhelmingly bipartisan
    basis to reauthorize these provisions. It was like 390 to 30 or
    something like that because it was American as apple pie. And
    it is still American as apple pie.
        Tellingly, in response to the Court's decision, States that
    had been subject to the act's preclearance requirement wasted
    no time in pursuing voting restrictions that once again
    undermined minority voting rights. The measures included strict
    voter identification requirements, restriction or elimination
    of early voting or same-day registration, and bans on ex-
    offenders from voting, all of which make it disproportionately
    harder for racial and ethnic minorities to vote. In short, this
    was the ``Jim Crow era Part 2.''
        In the absence of the preclearance requirement, it would be
    extremely difficult at best to challenge all of these new
    voting restrictions under what is left of the Voting Rights
    Act. As many of our witnesses will explain today, the remaining
    enforcement-related provisions of the act that are still in
    effect, while valuable, are much more limited in their impact
    and much more difficult and costly to pursue. And it means they
    go into effect, and people are affected by that election until
    some court declares them unconstitutional later on.
        Moreover, in contrast to Section 5 preclearance, some of
    the voting rights amendments for many provisions allowed only
    for after-the-fact relief, meaning, as I said, that minority
    voters would first have to be harmed before any relief could be
    provided. And then you have got people in office that would
    possibly pass acts harmful to that minority population.
        The results of all these factors will be the many practices
    and restrictions that undermine equal voting rights simply go
    unchallenged. The Supreme Court was wrong, in my opinion, to
    undermine the Voting Rights Act. Mr. Sensenbrenner and others
    had voluminous evidence of reason why the States were in the
    preclearance category.
        Congress must now respond. It is imperative that Congress
    restore the Voting Rights Act preclearance requirement so as to
    stay true to the act's purpose of ensuring equal voting rights
    for all. It would be a crime if this Congress did not pass
    another Voting Rights Act not only because it is really as
    American as apple pie, but because it is going back and
    providing a remedy for what was 100 years of intolerance,
    discrimination, and Jim Crow segregation in most of these
    preclearance States.
        We need to correct that, and we need to do it while John
    Lewis is still with us as a United States congressman, and he
    can be there when this is signed into law once again.
        It is not enough to go to Selma with John Lewis. You need
    to vote with John Lewis, and you need to respect his opinion,
    his work, his life's work, and pass the Voting Rights Act.
        I thank our witnesses for being here, and I look forward to
    their testimony.
        And I now take great pleasure in recognizing the ranking
    member of our subcommittee, the gentleman from Louisiana, Mr.
    Mike Johnson, for his opening statement.
        Mr. Johnson of Louisiana. Thank you, Mr. Chairman.
        And thank you to the witnesses for your time and your
    expertise today. It is very helpful to us.
        I and my colleagues look forward to these hearings on
    protecting the fundamental right to vote in America because we
    believe th`` an honor and a critical duty of the Congress.
        In 2013, as you know, the Supreme Court struck down just
    one part of the Voting Rights Act in Shelby County v. Holder by
    outlining the constitutional weaknesses in Section 4 of the
    VRA. And I wanted to read just a portion of that opinion into
    the record as we start here because I think it is so relevant
    to what we are doing today.
        I start by quoting this. ``The Framers of the Constitution
    intended the States to keep for themselves, as provided in the
    Tenth Amendment, the power to regulate elections. Not only do
    States retain sovereignty under the Constitution, there is also
    a fundamental principle of equal sovereignty among the States.
    Indeed, the constitutional equality of the States is essential
    to the harmonious operation of the scheme upon which this
    republic was organized.
        ``Section 4 of the Voting Rights Act sharply departs from
    these basic principles. It suspends all changes to State
    election law, however innocuous, until they have been
    precleared by Federal authorities in Washington, D.C. In 1966,
    we found these departures from the basic features of our system
    of government justified. At the time, the coverage formula, the
    means of linking the exercise of the unprecedented authority
    with the problem that warranted it, made sense. Nearly 50 years
    later, however, things have changed dramatically.
        ``In the covered jurisdictions, voter turnout and
    registration rates now approach parity. Blatantly
    discriminatory evasions of Federal decrees are rare, and
    minority candidates hold office at unprecedented levels. The
    test and devices that blocked access to the ballot have been
    forbidden nationwide for more than 40 years.''
        The Court continued, ``The Fifteenth Amendment commands
    that the right to vote shall not be denied or abridged on
    account of race, and it gives Congress the power to enforce
    that command. The amendment is not designed to punish for the
    past. Its purpose is to ensure a better future.
        ``To serve that purpose, Congress, if it is to divide the
    States, must identify those jurisdictions to be singled out on
    a basis that makes sense in light of current conditions. It
    cannot simply rely on the past.''
        The Court continued, ``Regardless of how to look at the
    record, however, no one can fairly say that it shows anything
    approaching the pervasive, flagrant, widespread, and rampant
    discrimination that Congress faced in 1965 and that clearly
    distinguished the covered jurisdictions from the rest of the
    Nation at the time. Our country has changed, and while any
    racial discrimination in voting is too much, Congress must
    ensure that the legislation it passes to remedy that problem
    speaks to current conditions.''
        That was the words of the Court, and of course, they were
    right. Indeed, over the past several decades, in a reversal of
    prior historical trends, African Americans have been moving to
    and not from Southern States. We are proud of that. And that
    now tends to offer greater opportunities in the South, and
    people recognize it.
        In a recent Brookings article, William Frey outlined
    deteriorating working conditions that were the result of Jim
    Crow laws between 1910 and 1970, but the article then explains
    that the 2010 Census revealed that from the late 1980s to 2010,
    new generations of African Americans, including professional
    and college graduates, favored economically rising Southern
    States.
        This brings us to the question again of Section 4 of the
    VRA and its problems. The data reveals that the South has been
    gaining on net hundreds of thousands more African-American
    residents over the last several decades, whereas other regions
    of the country are losing African-American residents as they
    move elsewhere.
        The Southern cities in particular are the most popular
    destinations for African Americans and Hispanic Americans who
    are moving for greater opportunities. You look at Atlanta and
    Augusta, Georgia; El Paso and San Antonio, Texas; Columbia,
    South Carolina; Richmond, Virginia; Jackson, Mississippi;
    Durham, North Carolina; Memphis, Tennessee; and yes--in
    Memphis--and yes, New Orleans, Louisiana. We are all covered.
        We should be forever vigilant----
        Mr. Cohen. ``N'awlins.''
        Mr. Johnson of Louisiana. ``N'awlins.'' I love how
    everybody tries to be Cajun when it is useful.
        We should be forever vigilant to oppose attempts to treat
    people differently on the basis of race, of course. We all
    agree on that when it comes to voting or anything else, and we
    should take comfort when there is evidence such discriminatory
    treatment is increasingly becoming a thing of the past.
        We look forward to hearing from all our witnesses here
    today, and again, we thank you for the time.
        I yield back.
        Mr. Cohen. Thank you, sir.
        I now recognize the chairman of the full committee, the
    distinguished gentleman from New York, Mr. Nadler.
        Chairman Nadler. I thank you, Chairman.
        Mr. Chairman, the Voting Rights Act is widely recognized as
    the crown jewel of our Nation's civil rights laws. Many
    Members, past and present, accord the act an almost sacred
    stature. Some, like our colleague John Lewis, shed their blood
    in support of its passage. Others owe their careers as
    legislators to its vigorous enforcement.
        Today's hearing will provide an important opportunity for
    the subcommittee to explore the history, the impact, and the
    need for restoration of the full vitality of the Voting Rights
    Act. After the VRA was enacted in 1965, its effect was almost
    immediate, with registration of African-American voters more
    than doubling in the South within 4 years of enactment.
        Similarly, African-American voters' turnout rose from only
    6 percent to 59 percent in just 4 years in Mississippi, and it
    soared to 92 percent in Tennessee, 78 percent in Arkansas, and
    73 percent in Texas during the same period.
        The net impact of VRA enforcement also resulted in the
    election of minority candidates of choice throughout the
    Nation. The number of African Americans holding elected office
    jumped significantly from barely 100 prior to the VRA to more
    than 7,200 today, with 4,800 holding elected office in the
    South.
        In national offices, the number of African Americans in
    Congress doubled from 5 to 10 almost immediately after passage,
    and today, 56 African-American members serve in the House and
    Senate. And of course, in 2008, this country elected its first
    African-American President.
        Without question, the VRA has been an unqualified success.
    It helped to reduce discriminatory barriers to voting and
    expanded electoral opportunities for people of color to
    Federal, State, and local offices, thereby opening the
    political process to every American.
        Despite decades of evidence of the VRA's success, however,
    and the record spanning many thousands of pages, compiled
    primarily in this subcommittee documenting the continued need
    for the VRA, the Supreme Court in the disastrous and shameful
    Shelby County v. Holder decision in 2013 substituted its own
    judgment for that of Congress and effectively gutted the heart
    of the act, its preclearance provision.
        Before the Voting Rights Act, States and localities passed
    a host of voter suppression laws, secure in the knowledge that
    it could take many years before the Justice Department could
    successfully challenge them in court, if at all. As soon as one
    law was overturned as discriminatory in the courts, another
    would be enacted, essentially setting up a discriminatory game
    of whack-a-mole.
        Section 5 of the Voting Rights Act mandating preclearance
    broke this legal logjam by requiring States and localities with
    a history of discrimination against racial and ethnic minority
    voters to submit changes to their voting laws to the Justice
    Department or to a Federal court for approval prior to taking
    effect.
        In Shelby County, the Supreme Court struck down the formula
    for determining which States and localities are subject to
    preclearance, which had the effect of striking down the
    preclearance provision itself, as there is no longer a basis
    for subjecting jurisdictions to its requirements, although the
    Court did very specifically say that Congress could enact a new
    formula for determining which States and localities are subject
    to preclearance, which is precisely what we should do.
        As John Lewis eloquently stated, this decision plunged a
    dagger into the heart of the civil rights movement. Unless and
    until Congress acts, this decision has removed the single most
    effective tool in our voting rights arsenal and has permitted
    previously covered jurisdictions to immediately enforce
    racially biased election laws, some of which had already been
    deemed to have a discriminatory impact on minority voters
    without prior review.
        In the absence of preclearance, predictably, the game of
    whack-a-mole has returned. Within 24 hours of the Shelby County
    decision, both Texas attorney general and North Carolina's
    General Assembly announced that they would reinstitute
    draconian and discriminatory voter ID laws.
        Both of these States' laws were later held in Federal
    courts to be intentionally racially discriminatory, but during
    the years between their enactment and the court's final
    decision, many elections were conducted within the restrictions
    of those laws. In addition to Texas and North Carolina, at
    least 21 other States have enacted newly restrictive statewide
    voter laws since the Shelby County decision.
        The loss of Section 5 preclearance cuts deep into the
    Federal protection of the right to vote. In 2006, Congress
    found that a majority of Southern States--2006, not 1965. In
    2006, after extensive hearings in this subcommittee, Congress
    found that a majority of Southern States were still engaged in
    ongoing discrimination, as evidenced by some localities
    engaging in racially selective schemes to relocate polling
    places for African-American voters and some other localities
    annexing certain wards simply to satisfy white suburban voters
    who sought to circumvent the ability of African Americans to
    run for elective office in their respective cities.
        In the wake of the Shelby County decision, we have also
    seen the rise of voter suppression measures. Burdensome proof
    of citizenship laws, significant scalebacks to early voting
    periods, restrictions on absentee ballots, and laws that make
    it harder to restore the voting rights of formerly incarcerated
    individuals are just a small sample of recent voting changes
    that have a disproportionate impact on minority voters.
        While such actions may violate other provisions of the
    Voting Rights Act, time and experience have proven that it
    takes far longer and is far more expensive to pursue after-the-
    fact legal remedies. And once a vote has been denied, it cannot
    be recast. The damage to our democracy is permanent, and the
    game of whack-a-mole has resumed.
        That is why I hope the Members on both sides of the aisle
    and in both chambers of Congress will come together and pass
    legislation to restore the full vitality of the Voting Rights
    Act. Today's hearing will provide an important opportunity to
    renew our understanding of the importance of the Voting Rights
    Act and to set the stage for additional oversight hearings on
    the issues presented by the current legal regime.
        We must use this opportunity to promptly craft a
    legislative solution that enables the Justice Department to
    effectively enforce the rights of minority voters within the
    contours of the Constitution. While this is not an easy
    challenge, given the gravity of the issues involved and our
    long history of bipartisan cooperation in this endeavor, it is
    one that I believe our committee will and must meet with
    success.
        I yield back the balance of my time.
        Mr. Cohen. Thank you, Mr. Nadler. Appreciate you working
    this area over the past when you were chairman of this
    subcommittee and as a Member of Congress.
        It is now my pleasure to recognize the ranking member of
    the full committee, the gentleman from Georgia, Mr. Collins,
    for his opening statement.
        Mr. Collins. Thank you, Mr. Chairman. I do appreciate it.
    And I appreciate the words of not only both you and Mr.
    Johnson, but also the full committee chair as well.
        This is the first of many of these hearings, and we are
    looking forward to going forward.
        The right to vote is what makes democracy a democracy.
    America's Federal law has protected this right from
    discriminatory barrier since the Civil War and, more recently,
    through the Voting Rights Act of 1965. Americans oppose racial
    discrimination as incompatible with democracy, and our current
    laws reflect that conviction.
        In 2013, the Supreme Court struck down a single part of the
    Voting Rights Act, Section 4. That provision automatically put
    certain States and political subdivisions under the act's
    Section 5 preclearance requirements. Those preclearance
    requirements presented--prevented voting rules changes covering
    jurisdictions from going into effect until the new rules have
    been reviewed and approved, either following a Federal lawsuit
    or, more often, by the Department of Justice.
        When the Voting Rights Act was enacted, Section 4
    identified the jurisdictions automatically subject to those
    special preclearance requirements by formula. The first part of
    the formula provided that a State or political subdivision
    would be covered if maintained on November 1, 1964, a test or
    device restricting the opportunity to register and vote.
        The second part--piece provided that a State or political
    subdivision would also be covered if the Director of the Census
    determined that less than 50 percent of persons of a voting age
    were registered to vote on November 1, 1964, or less than 50
    percent of the persons of voting age participated or voted in
    the presidential election of November 1964.
        In its Shelby County decision, the Supreme Court struck
    down the automatic preclearance provision because the original
    coverage formula was ``based on decades-old data and eradicated
    practices.'' In 1965, the States could be divided into two
    groups, those with a recent history of voting test and low
    voter registration and turnout and those without those
    characteristics. Congress based its coverage formula on that
    distinction.
        Today, the Nation is no longer divided along those lines.
    Yet the Voting Rights Act continued to treat it as if it were.
    The courts further criticize Section 4's formula as relying on
    decades-old data relevant to decades-old problems rather than
    current data reflecting current needs.
        In Shelby County, the Supreme Court only struck down that
    single outdated provision of the Voting Rights Act.
    Significantly, the other very important provisions of the
    Voting Rights Act remain in place, including Sections 2 and
    Sections 3.
        Section 2 applies nationwide and prohibits voting practices
    or procedures that discriminate on the basis of race, color, or
    the ability to speak English. Like other Federal civil rights
    laws, Section 2 is enforced through Federal lawsuits, and the
    United States and civil rights organizations have brought cases
    under Section 2 to the court, and they may do so in the future.
        Section 3 of the Voting Rights Act also remains in place,
    authorizing Federal courts to impose preclearance requirements
    on States and political subdivisions that have enacted voting
    procedures that treat people differently based on race in
    violation of the Fourteenth and Fifteenth Amendments. If the
    Federal court finds a State or political subdivision to have
    treated people differently based on race, then the court has
    the discretion to retain supervisory jurisdiction and impose
    preclearance requirements until a future date at the court's
    discretion.
        This means that such State or political subdivision would
    have to submit all future voting rule changes for approval to
    either the court itself or to the Department of Justice before
    enacting those changes. Per the Code of Federal Regulations,
    under Section 3(c) of the Voting Rights Act, a court in voting
    rights litigation can order as relief that a jurisdiction not
    subject to preclearance requirements of Section 5 preclear its
    voting changes by submitting them either to the court or to the
    Attorney General.
        Again, Section 3's procedures remain available today so
    people can challenge voting rules as discriminatory. In 2017,
    for example, U.S. District Judge Lee Rosenthal issued an
    opinion in requiring the Justice Department to monitor the City
    of Pasadena, Texas, because it had intentionally changed its
    city council districts to decrease Hispanic influence.
        The city, which the court ruled had a long history of
    discrimination against minorities, was required to have their
    future voting rules changes precleared for the next 6 years,
    during which time the Federal judge retains jurisdiction to
    review both before enforcement any change to the election map
    or plan that was in effect in Pasadena on December 1, 2013.
        A change to the city's election plan can be enforced
    without review by the judge only if it has been submitted to
    the U.S. Attorney General and the Justice Department has not
    objected within 60 days. This is the basis of this hearing, and
    I am glad that we are having it. And I look forward to the
    witnesses and the questions that will come.
        And with that, I yield back.
        Mr. Cohen. Thank you, Mr. Collins.
        We welcome our witnesses, our panel, and thank them for
    participating in today's hearing. I will now introduce the
    witnesses. But the way I do it, I don't introduce all the
    witnesses at first. I introduce the witness before the witness
    speaks. So it is a little different.
        So I will soon introduce is it Ms. Lhamon? Lhamon. And then
    you give your oral testimony. Your written statement will be
    entered into the record in its entirety.
        I ask you to summarize your testimony in 5 minutes. You
    have got a little light in front of you. Green means go. Yellow
    means you are in the 1-minute, about to enter the penalty zone,
    and red is you are in the penalty zone. You have got to stop.
    When the light turns red, get it done.
        Before proceeding with your testimony, I remind each
    witness that all of your written and oral statements made to
    the subcommittee in connection with this hearing are subject to
    penalty of perjury, pursuant to 18 U.S.C. 1001, which could
    result in the imposition of fine or imprisonment up to 7
    years--5 years or both.
        Our first witness is Catherine Lhamon, who is chair of the
    U.S. Commission on Civil Rights. President Obama appointed her
    to a 6-year term on the Commission in December 15, 2016, and
    the Commission unanimously confirmed the President's
    designation on December 28.
        She also has served--she serves in the cabinet of
    California Governor Gavin Newsom, where she has been legal
    affairs secretary since January 2019. Ms. Lhamon previously
    served as Assistant Secretary for Civil Rights at U.S.
    Department of Education from June 2013 until January 2017.
    Prior to that, she practiced with the ACLU of Southern
    California as public counsel.
        She received her J.D. from Yale University. She was
    Outstanding Woman Law Graduate and graduated summa cum laude
    from Amherst. She clerked for the Honorable William A. Norris,
    United States Court of Appeals for the Ninth Circuit, recipient
    of numerous professional honors. We are privileged to have her
    here, and we recognize you for 5 minutes.

    STATEMENTS OF CATHERINE LHAMON, CHAIR, U.S. COMMISSION ON CIVIL
     RIGHTS; THOMAS SAENZ, PRESIDENT AND GENERAL COUNSEL, MALDEF;
    PEYTON MCCRARY, PROFESSORIAL LECTURER IN LAW, GEORGE WASHINGTON
        UNIVERSITY LAW SCHOOL; AND PAIGE WHITAKER, LEGISLATIVE
                ATTORNEY, CONGRESSIONAL RESEARCH SERVICE

                     STATEMENT OF CATHERINE LHAMON

        Ms. Lhamon. Thank you. Chair Nadler, Chair Cohen, Ranking
    Member Johnson, Ranking Member Collins, members of the
    subcommittee, thank you very much for inviting me to testify.
        As mentioned, I chair the United States Commission on Civil
    Rights, and I come before you today to speak about our report
    released last September, titled ``An Assessment of Minority
    Voting Rights Access in the United States,'' which I ask to be
    submitted for the record alongside my testimony today.
        With this report, the Commission returned to a topic that
    was a core basis for Congress' creation of our Commission now
    62 years ago, advising the U.S. Congress, the President, and
    the American people about voting rights--and civil rights more
    generally--and making recommendations for improved policy. Over
    the years, the Commission's work has supported the basis for
    the 1965 Voting Rights Act, provided evidence on which the
    United States Supreme Court relied to uphold the
    constitutionality of the Voting Rights Act, and issued 20
    previous reports over 62 years specifically focused on voting
    rights.
        This most recent report offers an independent,
    comprehensive, detailed analysis of the current status of
    voting discrimination in the United States and voter access in
    the United States and of the efficacy of United States
    Department of Justice enforcement of the Voting Rights Act
    since Congress' 2006 reauthorization and, in particular, since
    the Supreme Court's June 2013 decision in Shelby County v.
    Holder.
        Drawing from Commission research and investigations and
    memoranda from 13 of the Commission's State advisory committees
    who analyzed voting discrimination in Alabama, Alaska, Arizona,
    California, Illinois, Indiana, Kansas, Louisiana, Maine, New
    Hampshire, Ohio, Rhode Island, and Texas, this report documents
    current conditions evidencing ongoing discrimination in voting.
        On every measure the Commission evaluated, which includes
    litigation success, data regarding discrimination incidents,
    investigations from State advisory committees, and Commission
    testimony from 23 bipartisan voting rights experts and
    advocates, as well as in-person and written public comment, the
    information the Commission received underscores that
    discrimination in voting persists now.
        Our report found that at least 23 States have enacted newly
    restrictive statewide voter laws since the Shelby County
    decision in 2013. These statewide voter laws range from strict
    voter identification laws; voter registration barriers such as
    requiring documentary proof of citizenship, allowing challenges
    of voters on the rolls, and unfairly purging voters from rolls;
    cuts to early voting; to moving or eliminating polling places.
        The conclusions the report draws are bleak, leading to
    unanimously voted Commission findings, including that during
    the time period we studied, race discrimination in voting has
    been pernicious and endures today. Likewise, voter access
    issues and discrimination continue today for voters with
    disabilities and limited English-proficient voters. The right
    to vote, which is a bedrock of American democracy, has proven
    fragile and to need robust statutory protection in addition to
    constitutional protection.
        Following the Supreme Court's decision in Shelby County, in
    the absence of preclearance protections of Section 5 of the
    Voting Rights Act, voters in jurisdictions with long histories
    of voting discrimination faced discriminatory voting measures
    that could not be stopped prior to elections because of the
    cost, complexity, and time limitations of the remaining
    statutory tools. The Shelby County decision had the practical
    effect of signaling a loss of Federal supervision in voting
    rights enforcement to States and to local jurisdictions.
        The number of successful lawsuits brought pursuant to the
    Voting Rights Act to the nationwide prohibition in the Voting
    Rights Act of any voting practices and procedures that
    discriminate on the basis of race or membership in a language
    minority group has quadrupled in the 5 years following Shelby
    County, as compared to the 5 years that preceded. These Federal
    court findings of discrimination followed extensive evidence
    and rigorous litigation.
        As a result, the Commission recommends that Congress should
    amend the Voting Rights Act to restore and/or expand
    protections against voting discrimination that are more
    streamlined and efficient than the provisions of the act. The
    new coverage provisions should take account of the reality that
    voting discrimination tends to recur in certain parts of the
    country, and the voting discrimination may arise in
    jurisdictions that do not have extensive histories of
    discrimination.
        I see that my time has expired. I will reserve and look
    forward to questions.
        [The statement of Ms. Lhamon follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you. Thank you so much.
        Mr. Thomas Saenz is the president and general counsel of
    the Mexican American Legal Defense and Educational Fund, a
    position he has held since 2009. Prior to that, he served as
    counsel for the mayor of Los Angeles.
        Prior to that, he was a litigator for 12 years with the
    group acronym MALDEF, which is the Mexican American Legal
    Defense and Educational Fund. He was lead counsel, a successful
    challenge to California's anti-immigrant Proposition 187, and
    he led numerous civil rights cases in the area of immigration,
    immigrants' rights, education, employment, and voting rights.
        He served as lead counsel in the 2001 challenge for the
    congressional redistricting in California. He served as
    MALDEF's lead counsel in two court challenges to Proposition
    227, a California English-only education initiative, lead
    drafter of amicus brief on behalf of Latino organizations
    supporting affirmative action in the Supreme Court case of
    Grutter v. Bollinger.
        He received a J.D. also from Yale, his undergraduate degree
    summa cum laude from Yale. But he was not named the top woman
    graduate of Yale. [Laughter.]
        Mr. Cohen. He later served as law clerk for the Honorable
    Harry L. Hupp of the United States District Court for the
    Central District of California, to the Honorable Stephen
    Reinhardt of the United States Court of Appeals to the Ninth
    Circuit.
        For 8 years, he taught civil rights litigation as an
    adjunct lecturer at the University of Southern California Law
    School and has been widely published.
        You are now recognized, sir, for 5 minutes.

                       STATEMENT OF THOMAS SAENZ

        Mr. Saenz. Thank you. Good morning, Honorable Chair and
    members of the subcommittee.
        I am Thomas Saenz, president and general counsel of MALDEF.
    MALDEF is currently commemorating 50 years of promoting the
    civil rights of all Latinos living in the United States. And
    through that half century of service, we have focused on
    specific issues. Most prominent among these is voting rights.
        We have focused from the beginning on securing the right to
    vote for members of the Latino community, initially through the
    courts under the Constitution and then after, working in
    Congress to have the 1975 amendments of the Voting Rights Act
    extend its protections to the Latino community. We have
    litigated in court under Section 2, the central protection
    against minority vote dilution, under Section 203 governing the
    provision of bilingual ballot materials, and under Section 5
    prior to its ignominious dismantling by the Shelby County
    decision.
        Specifically, we litigated under Section 5 because, most
    importantly, the entire State of Arizona, the entire State of
    Texas, and significant counties in California were covered
    jurisdictions prior to the Supreme Court decision. We have
    challenged at-large systems. We have challenged discriminatory
    redistricting. We have challenged new barriers to voter
    registration. We have challenged new barriers to ballot access,
    and we have challenged the failure to provide bilingual ballot
    materials where they are required.
        The Voting Rights Act has been an important tool to secure
    the civil rights of the Latino community for at least two
    reasons in two circumstances. First, in the Southwest and
    isolated communities around the country, there is a long, long
    history of a significant Latino population and significant
    representation in the voter pool, and those communities have
    seen for decades significant histories of efforts to prevent
    the full participation of Latino voters in elections.
        There have been practices followed in those communities
    that very much parallel the circumstances in the Deep South
    described by the chair for the African-American community. But
    separate, there are new communities across the country in
    virtually every region of the country where there are now
    prominent Latino populations. And as those populations reach a
    position of power, political power, there are often efforts by
    those in charge to prevent them from taking significant
    political power.
        In attempting to prevent newly growing Latino communities
    from achieving voting power, these communities often adopt the
    same strategies and practices that we have seen over the
    decades in the Deep South and in the Southwest particularly
    faced by the Latino community. It is safe to say that MALDEF,
    since 1975 amendments applied the protections of the Voting
    Rights Act to the Latino community, MALDEF has been the most
    prolific enforcer of Latino voting rights in the country.
        However, that term ``prolific'' largely overstates what we
    have been able to do, and that is simply because of the burden
    and expense of enforcing the Voting Rights Act. Section 2 and
    its operative test of assessing the totality of the
    circumstances means that it is difficult for MALDEF or any of
    the many other organizations that enforce through private
    actions the Voting Rights Act to fully pursue what needs to be
    pursued to preserve the right to vote for minority communities.
    I will provide one example.
        After the last redistricting in California, MALDEF
    identified nine counties throughout the State of California
    where the Board of Supervisors should have drawn an additional
    Latino majority supervisorial district warranted by the growth
    of the Latino community, its concentration, therefore the
    ability to draw a district, and evident manners of racially
    polarized votings, all nine of those counties should have drawn
    different redistricting maps than they drew. All of them were
    subject to a potential Section 2 challenge.
        Recognizing, however, that the totality of the
    circumstances test meant that we would be unable to challenge
    all nine jurisdictions, we sought to change State law in
    California unsuccessfully to streamline the ability to
    challenge those discriminatory redistrictings, and we were left
    with challenging only one of the nine counties successfully.
    Kern County was ordered last year to change its redistricting
    maps and to create a second Latino majority district.
        But that means essentially that eight counties in
    California this decade gambled, understood they might be
    violating Section 2, but gambled they would not be targeted
    because of the expense of Section 2 litigation, and so far,
    they have basically succeeded in that gamble. That's a result
    of the loss of the preclearance mechanism through the Shelby
    County decision.
        Preclearance is not only a most effective civil rights
    device. It is efficient and effective. It is, in essence, one
    of the first alternative dispute resolution mechanisms in
    Federal law that saves literally millions of dollars primarily
    for the defendant jurisdictions that would otherwise have to
    pay the cost of their own and those of their opponents.
        MALDEF is proud to have been the litigator in the Pasadena,
    Texas, case mentioned by Mr. Collins, the only contested
    order--judicial order requiring a jurisdiction to be subject to
    preclearance. However, that came after an arduous and expensive
    trial, including the gathering of evidence of experts and
    nonexperts alike over many, many months.
        The circumstances of that case indicate what we are unable
    to challenge as effectively. In Pasadena, Texas, the mayor,
    after the Shelby County decision, citing that decision,
    recognizing that the change would not be subject to
    preclearance, changed or sought to change and successfully
    obtained a change in the composition of the city council from
    eight districted members to six districted members and two at-
    large.
        The purpose of that change was to stem the growth in the
    power of the Latino vote. That is what the judge decided and
    subjected that small jurisdiction to preclearance. It is the
    only jurisdiction thus far subjected to a contested order of
    preclearance. That is an indication of what we face without the
    strong, strong measure, an effective and efficient measure of
    preclearance.
        Thank you.
        [The statement of Mr. Saenz follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, sir.
        Our next witness is Mr. Peyton McCrary. He is a
    professional lecturer in law at George--professorial lecturer
    in law at George Washington University here in Washington. From
    1990 until 2016, he was an historian in the Voting Section of
    the Civil Rights Division of the United States Department of
    Justice.
        From '68 to '89, he taught history at the University of
    South Alabama, the University of Minnesota, and not Yale and
    not Harvard, but at the Harvard of the South, Vanderbilt
    University. Before joining the Government in 1990, he testified
    as an expert witness in 14 voting rights cases, beginning in
    1981 with Bolden v. City of Mobile on remand from the Supreme
    Court.
        In '98 and '99, he took leave from the Government to serve
    as the Eugene Lang Visiting Professor at Swarthmore, where he
    taught courses in voting rights law and civil rights policy in
    the Department of Political Science.
        In 2011, he was honored by receiving the Maceo Hubbard
    Award for sustained commitment to the work of the Civil Rights
    Commission. He received his Ph.D. from Princeton, his B.A. and
    M.A. from the University of Virginia, and he is recognized for
    5 minutes and welcomed.

                      STATEMENT OF PEYTON MCCRARY

        Mr. McCrary. Thank you, Mr. Chairman.
        Mr. Chairman, Mr. Vice Chairman, distinguished members of
    the subcommittee, thank you for inviting me to testify before
    you today. It is an honor to have this opportunity to speak
    briefly about the history of the Voting Rights Act.
        When the Shelby County decision came down from the Supreme
    Court in 2013, the majority opinion was focused almost entirely
    on the coverage formula set out in Section 4, which it found
    unconstitutional. The only part of the voluminous record before
    Congress in 2005-2006 on which the majority focused was the
    participation rates, which were the focus of the formula as
    adopted in 1965, and the majority took the view that because
    participation rates in the covered jurisdictions were
    substantially approaching white voter registration and turnout
    levels and were not particularly different from jurisdictions
    that were not covered in the rest of the country, that the
    formula no longer met the needs of current protection of
    minority voting rights.
        The four dissenters have an entirely different view of the
    record before Congress in 2006. To the dissenters, the question
    before the Court was whether problems with racial
    discrimination in voting continued to exist within the
    previously covered jurisdictions. And that was also the focus
    of the voluminous record before Congress in 2006, which some of
    the members of this committee well recall.
        Now the elimination of preclearance review leaves minority
    plaintiffs with only one option, filing lawsuits under Section
    2 of the act. There is no geographic coverage formula for
    Section 2. Its coverage is nationwide. Yet Section 2 litigation
    is time-consuming and expensive, and I can testify to that
    through my long years of involvement in voting rights cases
    under Section 2. And of course, minority voters have more
    limited financial resources than white.
        The reason why the abysmal racial disparities in voter
    registration at the time the Voting Rights Act was adopted have
    largely been eliminated is, of course, the operation of the
    Voting Rights Act itself, initially suspending the literacy
    test and other discriminatory devices, sending Federal
    examiners down to plantation counties to register voters when
    recalcitrant registrars would not meet their responsibilities
    under the act, sending Federal observers to monitor elections
    where problems were anticipated based on preliminary
    investigations.
        And of course, successful court orders and successful
    objections to voting changes through the administrative review
    of the Department of Justice or by the Federal courts in the
    District of Columbia. Thus, the fact that there is essential
    parity between minority and majority voters in some areas of
    the covered jurisdictions is due to the successful
    implementation of the Voting Rights Act.
        In 1969, the Supreme Court evaluated the coverage formula
    of Section 5 and how it should be applied. Adding to
    protections against vote denial, which was the focus of the
    formula itself, all other voting changes, the express language
    of Section 5 says that any voting changes are subject to
    preclearance responsibilities.
        In the 1970s, the primary focus of many objections, both by
    the Department of Justice and by the Section 5 courts in the
    District of Columbia, was vote dilution problems. That is the
    kinds of laws adopted by Southern jurisdictions after 1965, as
    they had before 1965, that diluted minority voting strength
    once African Americans began to register and vote in larger
    numbers in the late 1960s.
        Vote dilution is a major part of the record before Congress
    in 2005 and 2006, and the problem with the elimination of
    Section 5 review by the Shelby County decision is that it
    leaves the problem of vote dilution to be solved only through
    the rigorous court proceedings under Section 2 of the Voting
    Rights Act.
        Since the--since the decision by the Supreme Court, of
    course, another major kind of voter discrimination has been
    tried under Section 2, problems of voter abridgement through
    the adoption of photo ID requirements, changes in early voting
    procedures, and other ways of abridging the right of minority
    voters to cast their ballots. Those take even more complicated
    paths in the litigation process, requiring expert testimony,
    using complex database methodology matching techniques to
    investigate statewide voter registration and driver's license
    databases and Federal databases and other data that are
    extremely complicated to carry out.
        But in some of those cases, the plaintiffs have been
    successful. They have been successful most dramatically in the
    North Carolina case, to which there was reference earlier,
    where the Fourth Circuit Court of Appeals found that the
    requirements set out by the North Carolina law adopted just
    after the Voting Rights Act was changed by Shelby County had
    been adopted with racially discriminatory purposes.
        I have no advice to the Congress about how to change the
    coverage formula. The coverage formula is one that I am sure
    the committee will be addressing in serious terms. I can only
    tell you how the Voting Rights Act operated over the years
    since its adoption in 1965.
        Thank you.
        [The statement of Mr. McCrary follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, Professor.
        We now recognize Ms. L. Paige Whitaker, legislative
    attorney in the American Law Division of the Congressional
    Research Service, author of a number of publicly available CRS
    products covering topics from campaign finance laws to
    congressional redistricting and the Voting Rights Act.
        She received her J.D. from Catholic University of America
    Columbus School of Law and her B.A. from the University of
    Maryland.
        Ms. Whitaker, thank you, and thank you for all your work
    with the Congressional Research Service, and you are
    recognized.

                      STATEMENT OF PAIGE WHITAKER

        Ms. Whitaker. Thank you, Chairman Cohen, Chairman Nadler,
    Ranking Member Johnson.
        My name is Paige Whitaker, and I am a legislative attorney
    with the American Law Division of the Congressional Research
    Service. Thank you for inviting me to testify today regarding
    the Voting Rights Act of 1965.
        CRS is available to serve all Members of Congress on an
    objective, nonpartisan basis. With these brief remarks, as
    requested, I will summarize a few key points from my written
    testimony regarding Sections 2, 4 and 5, and 3(c) of the Voting
    Rights Act.
        The Voting Rights Act was first enacted in 1965 under
    Congress' authority to enforce the Fifteenth Amendment. Since
    then, Congress has amended the act in 1970, '75, '82, '92, and
    most recently in 2006. Section 2, a key provision of the law,
    applies nationwide. It authorizes the Federal Government and
    private citizens to challenge discriminatory voting practices
    or procedures, including minority vote dilution, which is the
    diminishing or weakening of minority voting power.
        Section 2 prohibits any State or political subdivision from
    enacting a voting law that results in the denial or abridgement
    of the right to vote based on race, color, or membership in a
    language minority. A violation is established if, based on the
    totality of the circumstances, a minority group has less
    opportunity than other members of the electorate to elect
    representatives of choice.
        Courts have most frequently applied Section 2 in the
    context of challenges to redistricting plans. However, in the
    past few years, litigants have also invoked Section 2 to
    challenge certain State voting and election administration
    laws.
        Next, Sections 4 and 5 worked in tandem. Section 4, known
    as the coverage formula, prescribed which States and political
    subdivisions with a history of discrimination were required to
    obtain preclearance before implementing a voting law. It
    covered any jurisdiction that used literacy tests and had low
    voter registration and turnout in the late 1960s and early
    '70s. For the 1972 date, the law covered any jurisdiction that
    provided election information in English only where members of
    a single-language minority constituted more than 5 percent of
    the voting age citizens.
        As originally enacted, Section 4(b) was scheduled to
    expire, but in a series of amendments, the law was reauthorized
    and, most recently, in 2006 was extended for 25 years.
        Then Section 5, known as the preclearance requirement,
    required prior approval, or preclearance, of a proposed change
    to any voting law and applied to those States and political
    subdivisions covered under Section 4(b). In order to be granted
    preclearance, the covered jurisdiction had the burden of
    proving that the proposed voting change neither had the purpose
    nor would have the effect of denying or abridging the right to
    vote or diminishing the ability to elect preferred candidates
    of choice on account of race, color, or membership in the
    language minority.
        In 2013, in the case of Shelby County v. Holder, the
    Supreme Court invalidated the coverage formula in Section 4(b),
    thereby rendering the preclearance requirement in Section 5
    inoperable. In Shelby County, the Court held that applying the
    coverage formula to certain States and jurisdictions departed
    from the fundamental principle of equal sovereignty among the
    States that was not justified in light of current conditions.
        The Court ruled that in order for Congress to divide the
    country so as only to subject only certain States to
    preclearance, it must do so by showing that the statute's
    disparate geographic coverage is sufficiently related to the
    problem that it targets based on current conditions.
        As a result of the Court's decision, nine States and
    jurisdictions within six additional States were previously
    covered under the formula are no longer subject to the Voting
    Rights Act's preclearance requirement.
        And then, finally, Section 3(c), which is known as the
    bail-in provision of the VRA, provides that if a court
    determines that violations of the Fourteenth or Fifteenth
    Amendment to the U.S. Constitution, which justify equitable
    relief, have occurred in a State or political subdivision, the
    court shall retain jurisdiction for a period of time that it
    deems appropriate. During that period, the State or political
    subdivision cannot make an electoral change until the court
    determines, or the Department of Justice, that the change
    neither has the purpose nor will it have the effect of denying
    or abridging the right to vote on race, color, or membership in
    a language minority.
        This concludes my brief remarks. Thank you for the
    opportunity to testify today, and I would be pleased to answer
    any questions.
        [The statement of Ms. Whitaker follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you for your testimony.
        Before we proceed to our questions, I want to recognize the
    Shelby County of Tennessee, not Alabama as in Holder, Tennessee
    Chapter of Delta Sigma Theta Sorority. And Ms. Johnnie Turner
    and your crowd, welcome. Honored that you are here today. And
    if you would stand and be recognized.
        Thank you for your attendance.
        [Applause.]
        Mr. Cohen. And for all your good work that you do in
    Memphis and Shelby County.
        Firstly, Ms. Lhamon, you mentioned there were 23
    jurisdictions that had passed statewide laws that diluted the
    vote since the Shelby decision. What did those 23 States have
    in common, if anything? Were they particularly a political
    party controlled the General Assembly? Were they of any
    particular section of the country? Can you give us a little
    definition or----
        Ms. Lhamon. Well, the main commonality among those 23
    States is their willingness to make voting more restrictive and
    to make it more challenging for their citizens. And that, that,
    in itself, is a concern.
        The reality is that these 23 jurisdictions are across the
    country, and are not defined by particular party control. The--
    --
        Mr. Cohen. So there were some States that had Democratic
    Party control in the House and Senate both that passed these
    restrictions?
        Ms. Lhamon. I believe so. We can go back and give you that
    information with specificity. But the main concern is the
    electorate's decision in those States to make voting more
    restrictive for those States, and that is a serious concern,
    given the status of voting rights in this country, as we
    documented it in this report, and given that the history of
    this country and the degree to which those much more
    restrictive laws passed in a very, very short time period.
        So that is a new turn for us as a country, and it is fairly
    sweeping.
        Mr. Cohen. And the fact that we have gone from the more
    opprobrious pre-1965 how many seeds are there in a bottle or
    whatever to more invidious types of discrimination, does that
    in any way diminish the need for Section 5 preclearance in the
    jurisdictions that have those type of voting limitations?
        Ms. Lhamon. Absolutely not, Chair. I am astonished by what
    we saw around the country in the choices to denigrate voters'
    access and ability to vote on the basis of race, on the basis
    of disability status, on the basis of language access. There
    are an astonishing variety of ways that our electorates have
    chosen to make it more difficult for some among us to vote.
        Mr. Cohen. Mr. Saenz, let me ask you this. In California,
    you now have redistricting of the State legislatures, not of
    the county governing bodies, and those are the ones you
    specifically, I think, referenced in your testimony. Are they
    also mandated to take into consideration racial minority
    districts to try to create those in their redistricting when
    they are done by court order?
        Mr. Saenz. They are all covered by Section 2, which, of
    course, means if they have a pattern of racially polarized
    voting and the rest of the Senate factors the totality of the
    circumstances indicate that there is vote dilution occurring,
    then they are mandated to create a Latino majority district in
    the context of racially polarized voting and the geographic
    concentration of Latino voters such that you can create a
    district that is compact, contiguous, meets all the usual
    criteria.
        And I can assure you that every one of those counties has
    legal advice about specifically the issues under Section 2 of
    the Voting Rights Act. I think in many cases, they are, in
    essence, gambling, assuming that because of the expense and the
    time involved in a Section 2 challenge, they won't be the
    jurisdiction that is challenged.
        And as I indicated, in the course of this decade, eight of
    those nine counties that we identified as potentially violating
    Section 2, essentially their gamble has paid off so far because
    they have not been targeted for litigation. Now Kern County,
    which was challenged by MALDEF, after very lengthy litigation
    and trial, it did result in liability finding against them, at
    great cost.
        And that, I think, is something that is not often remarked
    about. The cost to the defendant jurisdictions under Section 2
    litigation is substantial. If they were subject to Section 5
    preclearance, their costs would be minimal in comparison. The
    Kern County Board of Supervisors ended up paying--it is a
    public number because it is a part of our settlement--$3
    million to the plaintiffs for their attorneys' fees and expert
    costs.
        You can assume that they have equivalent and probably even
    higher costs of their own. They had to hire outside counsel,
    employ their own experts----
        Mr. Cohen. Let me ask you this. Do you think Section 5 is
    the most important section for enforcement?
        Mr. Saenz. Absolutely. And it permits efficient and
    effective----
        Mr. Cohen. Ms. Lhamon, do you agree with that?
        Ms. Lhamon. I do. Its loss is very significant.
        Mr. Cohen. Mr. McCrary, can you tell us why Section 5 is so
    important and necessary, and while Section 2 exists for the
    country, Section 5 is the most essential part of the Civil
    Rights Act--Voting Rights Act, excuse me.
        Mr. McCrary. With the way Section 5 operated before Shelby
    County, it gave quick decisions for jurisdictions about voting
    changes they were intending to make, and most of them were
    precleared and most of them within the 60-day clock that
    governs the operation of the preclearance review. It cost them
    practically nothing.
        Moreover, it served an educational function that the
    Congress recognized in 2005 and 2006 when it was building that
    voluminous record. There were some States covered by Section 5
    that actually supported the extension of the preclearance
    process in 2005 and 2006, and that is part of the record before
    Congress.
        The reason was that it gave those States an opportunity to
    consider seriously the needs of minority voters, the views
    expressed by minority voters in the preclearance review, as
    well as the local jurisdictions' views and to make better
    decisions about how to change the electoral process in those
    jurisdictions. But where jurisdictions were not so well
    intentioned, it was possible to object to those changes, and
    oftentimes, when Federal courts were asked to address this
    question, they reached the same conclusions as the Department
    of Justice.
        It was efficient. It was educational. It stopped things in
    their tracks that were going to be problematic, but for the
    most part, it did not interfere with the electoral process in
    those jurisdictions that were covered by Section 5.
        Mr. Cohen. Thank you, sir.
        And I now recognize the ranking member for 5 minutes, Mr.
    Johnson.
        Mr. Johnson of Louisiana. Thank you, Mr. Chairman.
        Mr. McCrary, Chris Coates is a former Chief of the Voting
    Section of the Department of Justice, and he testified before
    the U.S. Commission on Civil Rights about opposition within the
    Department of Justice to bringing a case under the Voting
    Rights Act because the victims of the discrimination happened
    to be white.
        According to the Washington Post, ``Coates has a pedigree
    different from that of many conservatives. He was hired at
    Justice during the Clinton administration in '96 and had worked
    for the American Civil Liberties Union.'' Sheldon Bradshaw, a
    high-level Civil Rights Division official in the Bush
    administration, said Coates is ``nonpartisan in how he enforces
    voting rights laws.''
        Mr. Coates, in his testimony before the Commission said,
    and I quote, ``Opposition within the Voting Section was
    widespread to taking actions under the Voting Rights Act on
    behalf of white voters in Noxubee County, Mississippi, the
    jurisdiction in which Ike Brown is and was the chairman of the
    local Democratic Executive Committee. What I observed on
    election coverage in Noxubee County was some of the most
    outrageous and blatantly racially discriminatory behavior at
    the polls committed by Ike Brown and his allies that I have
    seen or had reported to me in my 33 years-plus as a voting
    rights litigator.''
        A description of this wrongdoing is well summarized in
    Judge Tom Lee's opinion in that case and in the Fifth Circuit
    Court of Appeals opinion affirming the lower court judgment and
    the injunctive relief against Mr. Brown and the local
    Democratic Executive Committee.
        I am continuing to quote him, ``Of course, there is nothing
    in the statutory language of the Voting Rights Act that
    indicates that DOJ lawyers can decide not to enforce the race
    neutral prohibitions in Section 2 of the act against racial
    discrimination.'' Here is the relevant quote. ``One of the
    social scientists who worked in the Voting Section and whose
    responsibility it was to do past and present research into a
    local jurisdiction's history flatly refused to participate in
    the investigation.''
        The question is, are you the social scientist to whom Mr.
    Coates was referring?
        Mr. McCrary. The answer to that question, Representative
    Johnson, is yes. His testimony was, in fact, erroneous, as the
    Inspector General's report noted in the footnote. I, in fact,
    worked on that case. I was at trial in the case, and I will
    note that Chris Coates and I became friends beginning in 1980.
    I worked with him on voting rights cases as an expert witness.
        I encouraged the Voting Section to hire Mr. Coates in the
    mid 1990s. I worked closely with him on all manner of cases,
    including the case in Noxubee County, which, in fact, reveals
    egregious behavior by the political leaders of the black
    community in that county. So, you know, the answer to the
    question is I was the person to whom you referred, but his
    information was false.
        Mr. Johnson of Louisiana. Fair enough. Mr. Chairman, in a
    recent paper, the U.S. Commission on Civil Rights Commissioner
    Gail Heriot in Footnote 40 puts in context some of the examples
    used by the chair of that Commission, Catherine Lhamon,
    claiming to show instances in which a right to vote was denied.
        I would ask unanimous consent that the paper be submitted
    for the record since Ms. Lhamon's report has been submitted
    also.
        Mr. Cohen. Without objection.
        [The information follows:]

                           MR. JOHNSON (LA) FOR THE
                                OFFICIAL RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Louisiana. Thank you.
        Ms. Whitaker, can you walk us through how a generic case
    would be brought under Section 2 of the Voting Rights Act, and
    then what steps that would proceed?
        Ms. Whitaker. Yes, thank you, Ranking Member Johnson, for
    that question.
        Section 2, as I said in my remarks, applies nationwide. It
    authorizes both the Federal Government and private citizens to
    challenge discriminatory voting practices. It specifically
    prohibits any State, as well as political subdivisions, from
    applying or imposing a voting qualification practice, standard,
    or procedure that results in the denial or the abridgment of
    the right to vote based on race, color, or membership in a
    language minority.
        Furthermore, the statute provides that a violation will be
    established if based on the totality of the circumstances,
    electoral processes are not equally open to members of a racial
    or language minority group in that those members of that group
    do not have equal opportunity to elect--as compared to other
    members of the electorate to elect representatives of choice.
        And as I mentioned, the vast majority of the case law with
    regard to Section 2 has been determined in the context of
    redistricting. But in recent years, we have some developing
    jurisprudence challenging other types of election laws.
        Mr. Johnson of Louisiana. I have time for one more question
    for you. Why does the Supreme Court require Congress to create
    a substantial record of the need for any sort of Federal
    preclearance process before it upholds a Federal statute that
    requires States and localities to get permission from the
    Federal Government before their voting rule changes can go into
    effect? Why is that so important?
        Ms. Whitaker. Thank you, Ranking Member Johnson.
        The key case here for Congress going forward is what the
    Court said in Shelby County v. Holder in 2013. In that case,
    the Court identified the principle of equal sovereignty among
    the States, and the Court said that to comply with that
    standard requires a showing that a statute's disparate
    geographic coverage has to be sufficiently related to the
    problem it targets.
        According to the Court, as I mentioned earlier, it
    criticized the data, the outdated nature of the data that
    Congress had relied on in reauthorizing the coverage formula,
    criticizing it for stemming from the late 1960s and early
    1970s.
        Mr. Johnson of Louisiana. Thank you. I yield back.
        Mr. Cohen. I now recognize the ranking member for the--the
    chairman of the committee for 5 minutes, Mr. Nadler.
        Chairman Nadler. Thank you.
        Ms. Whitaker, my recollection is that when we held hearings
    back in 2006, we established a record that of the need for
    Section 5 of the disparate impact as of that--as of then, not
    going back to 1994. How did the Court disregard those findings?
        Ms. Whitaker. Thank you, Chairman Nadler.
        The Court acknowledged the extensive record that Congress
    created. However, the Court focused on the fact that the
    coverage formula had not been substantively updated since
    Congress had last updated in 1975 and, again, that it focused
    on those statistics regarding literacy tests and low voter
    turnout and low voter registration rates from the late 1960s
    and early 1970s.
        Chairman Nadler. Thank you.
        Ms. Lhamon, first of all, let me ask you a quick question,
    and then what I wanted to get to. Would you tell us what
    Footnote 40 referred to and why it was wrong?
        Ms. Lhamon. The footnote is part of Commissioner Heriot's
    statement, and it suggests that there may not be ongoing
    concerns about race discrimination, among other discrimination,
    in the States. The facts are what they are.
        For example, one of the examples that I highlight in my
    statement is an example in New York State where 30 Chinese-
    American students were almost prevented from being able to vote
    on the basis of national origin because someone challenged
    their Americanness and challenged their ability to vote.
        They ultimately were able to vote, but it was humiliating
    for them. There was testimony received from one of the students
    who said it was his first time attempting to vote, and he felt
    like he wasn't an American because someone suggested that he
    had no right to vote.
        Chairman Nadler. Okay. Now you, Mr. McCrary, you have
    written that the majority opinion in Shelby inappropriately
    focused on the evidence of voter participation that approached
    parity between whites and African Americans. Why is focusing
    exclusively on that statistic misleading? In other words, what
    does this statistic fail to capture that is relevant?
        Mr. McCrary. Are you asking about the data in the record
    before Congress or about the general focus on participation?
        Chairman Nadler. The general focus. You said that
    inappropriately--you said that the majority opinion
    inappropriately focused on that data, as opposed to more
    general data.
        Mr. McCrary. Well, as I said, a primary focus of the voting
    changes to which the Federal courts and the Department of
    Justice objected over the decades was to vote dilution. And to
    ignore that fact seems to me an important lapse in the Court's
    consideration of the record.
        Chairman Nadler. Okay, thank you.
        Ms. Lhamon, I have two questions which I will ask as one
    question. We know the basic problem before the Voting Rights
    Act and the basic problem with the Voting Rights Act after
    Shelby County is that Section 2 is difficult to use. You can
    lose your voting rights and play a game of whack-a-mole.
        Ms. Lhamon. That is right.
        Chairman Nadler. We have finally proven after three
    elections have gone by that this is discriminatory, and they
    enact something else that becomes the same thing. Two
    questions.
        Number one, why not amend Section 2 to enable a court to
    give--to enjoin, to temporarily enjoin a practice if there is
    any evidence that it might be discriminatory while the
    proceeding goes on so you can't have two elections go by under
    discriminatory practice and then find it unconstitutional? So
    you stop the game of whack-a-mole.
        And second of all, why not get around all of this and apply
    Section 5 nationwide?
        Ms. Lhamon. Well, taking the questions in order, it is the
    Commission's very strong recommendation that Congress amend the
    Voting Rights Act to be more proactive and to find ways to make
    sure that voters rights are protected ex ante. So your
    suggestion is consistent with the Commission's recommendation
    and would be helpful.
        It is my own view that that fix would be an important fix,
    and it is also important to give life to the Section 5
    protections, which already were designed to be those kinds of
    ex ante----
        Chairman Nadler. Why not make Section 5 nationwide under
    congressional power to regulate the Federal elections or any
    elections as the courts have found that affect Federal
    elections?
        Ms. Lhamon. Chairman, it is--it is very clear from the
    evidence that we gathered that there is support for a need for
    that kind of protection nationwide. The United States Supreme
    Court gave clear guidance to Congress that it needs to have
    current basis for the kinds of harm, and we found that basis in
    our investigation of----
        Chairman Nadler. The Supreme Court said that we have to
    have current basis for discriminatory among different--for
    discriminating among different sovereignties. If we didn't
    discriminate among any sovereignties, we said everybody is
    subjected to Section 5, what is the argument against--is that a
    good idea?
        Ms. Lhamon. Well, Congress certainly has the authority to
    enact the law that it chooses to enact. And it would be--it
    would be evenhanded in its protection in that sense, consistent
    also with a different sentence in the 2013 decision from the
    United States Supreme Court.
        It is--it is my view that a belt-and-suspenders approach is
    appropriate, and there is an absolutely----
        Chairman Nadler. What do you mean by a ``belt-and-
    suspenders approach?'' I am sorry.
        Ms. Lhamon. That it is important to shore up the basis for
    congressional action and----
        Chairman Nadler. So you think that would be a good idea?
        Ms. Lhamon. I think it would be a good idea to shore up the
    basis for congressional action. And there is no question that
    there is strong evidence across the country of contemporary
    discrimination with respect to access to voting.
        Chairman Nadler. Okay, my time has expired. I yield back.
        Thank you.
        Mr. Cohen. Thank you, sir.
        I now recognize Mr. Jordan from Ohio.
        Mr. Jordan. Thank you, Mr. Chairman.
        Ms. Lhamon, do you believe that noncitizens should be able
    to vote in Federal elections?
        Ms. Lhamon. I think that is up to the electorate to decide.
        Mr. Jordan. But I am asking you, as the head of the--the
    chair of the U.S. Commission on Civil Rights here testifying on
    the Voting Rights Act, what do you believe?
        Ms. Lhamon. Well, Member Jordan, I couldn't answer that as
    the chair. My personal belief is that I enjoy voting today in a
    community where noncitizens are able to vote. But that is
    unrelated to what the Commission would vote on----
        Mr. Jordan. My question is real specific. What do you--do
    you believe noncitizens should be able to vote in Federal
    elections?
        Ms. Lhamon. It is not a question that I have given a lot of
    thought to. They are not able to vote now. Congress hasn't
    given them that authority.
        Mr. Jordan. I understand that. But you said you are in a
    community where they can vote in local elections. Is that
    right?
        Ms. Lhamon. Yes, I am.
        Mr. Jordan. And you support that?
        Ms. Lhamon. I enjoy my right to vote, and I don't question
    what my fellow voters have decided.
        Mr. Jordan. Mr. Saenz, same question. Do you believe
    noncitizens should be able to vote in Federal elections?
        Mr. Saenz. No. I don't believe noncitizens should be able
    to vote in Federal elections. I do believe that in local
    elections, particularly in school board elections where
    noncitizens' children may be the most heavily affected by
    decisions by those who are elected, that it is appropriate to
    consider providing the vote to noncitizens.
        Mr. Jordan. And why don't you think it is appropriate? I
    just wonder what you are thinking because it sounds like Ms.
    Lhamon may think it is appropriate for noncitizens to vote in
    Federal elections. You were clear and said you don't think that
    should happen. Why don't you think that should happen?
        Mr. Saenz. Because I think that we should encourage folks
    to naturalize and become citizens so they have the full scope
    of rights that are involved in citizenship. Voting is one of
    them, but not the only one. So I am in favor of streamlining
    our naturalization process and ensuring that everyone who is
    eligible has the ability to apply for and receive citizenship,
    regardless of their financial circumstances, for example.
        Mr. Jordan. Do you think allowing noncitizens to vote in a
    Federal election would devalue the vote of citizens?
        Mr. Saenz. No, I don't think it would. But I think it would
    devalue the process of becoming a citizen for those who were
    not born here.
        Mr. Jordan. Do you think it would dilute and devalue the
    vote of citizens?
        Mr. Saenz. I don't.
        Mr. Jordan. Well, it seems dislogical that if----
        Mr. Saenz. You and I disagree----
        Mr. Jordan [continuing]. Only citizens--if only citizens
    are allowed to vote----
        Mr. Saenz. For me to accept----
        Mr. Jordan [continuing]. And noncitizens voted, that would
    devalue the vote of the citizen.
        Mr. Saenz. I don't see it that way, Mr. Jordan. I think
    that would depend upon how those noncitizens vote in comparison
    to citizens. I simply have no information about that. So I
    can't accept your premise that it devalues someone else's vote
    that another person voted.
        That is a very dangerous proposition. It would suggest, as
    we allow more and more people to vote that somehow they are
    devaluing the votes of those who voted previously.
        Mr. Jordan. I am all for more people voting, as long as
    they are citizens.
        Mr. McCrary, do you think--do you believe that noncitizens
    should be able to participate and vote in Federal elections?
        Mr. McCrary. No. But I would note from the historical
    record that restrictions--the restriction of the right to vote
    to citizens dates from roughly the turn of the 20th century,
    throughout the 18th and 19th centuries----
        Mr. Jordan. I understand when it happened. I am asking
    today.
        Mr. McCrary [continuing]. Noncitizens were freely
    encouraged to vote. But in the----
        Mr. Jordan. It was a little different country in the 1800s.
        Mr. McCrary. I am sorry?
        Mr. Jordan. It was a little different country in the 1800s,
    Mr. McCrary. I know the law. I am just asking you what you
    believe should be the law today.
        Mr. McCrary. Representative Jordan, I answered the question
    to begin with. The answer is no.
        Mr. Jordan. Do you believe it devalues--if noncitizens
    would vote, do you think that would devalue the vote of the
    citizens?
        Mr. McCrary. As an abstract theoretical matter, you are
    correct that there would be a devaluation.
        Mr. Jordan. Of course.
        Mr. McCrary. But it is not likely to be a significant and
    empirical problem.
        Mr. Jordan. Yeah. Okay. So if it would devalue, you think
    only citizens should be able to vote, and if noncitizens did
    vote, it would devalue the vote of the citizen. Are you in
    favor of some kind of identification and proof that the voter
    has to present when they vote to demonstrate that they are
    actually a citizen?
        Mr. McCrary. Only at the registration level, Representative
    Jordan. When you require extra identification processes for in-
    person voting, it can serve as a restrictive procedure. It
    slows down the process. It makes people nervous about all the
    documents that they have to bring----
        Mr. Jordan. So you are against a photo ID? You are opposed
    to a photo ID?
        Mr. McCrary. I am sorry?
        Mr. Jordan. You are opposed to any type of photo ID
    presented at the polling station when an individual goes to
    vote?
        Mr. McCrary. Yes. The record before the courts that have
    addressed this question is universally that there is no problem
    with in-person voter fraud in this country. And the use of a
    photo ID requirement actually has been demonstrated to have a
    discriminatory effect upon minority voters in every case where
    it has been addressed.
        Mr. Jordan. Okay. I got 15 seconds. I want to give Ms.
    Whitaker a chance to answer the same question.
        Ms. Whitaker, do you believe noncitizens should be able to
    participate in Federal elections?
        Ms. Whitaker. Thank you for that question, Congressman
    Jordan.
        CRS does not make policy recommendations, and noncitizen
    voting is outside of the scope of the testimony that we were
    asked to prepare. But we would be happy to research that for
    you and get back to you.
        Mr. Jordan. Okay. Thank you.
        Ms. Whitaker. Thank you.
        Mr. Cohen. Thank you, Mr. Jordan.
        Professor Raskin is recognized for 5 minutes.
        Mr. Raskin. Mr. Chairman, thank you very much.
        Thanks to all of the witnesses for your great testimony.
        Ms. Lhamon, let me ask you. A United States District Court
    in Texas struck down a draconian voter ID law that Texas had
    imposed on the people of Texas. But in the meantime, elections
    took place where there was a U.S. Senator elected, 36 Members
    of this body were elected, the governor, the lieutenant
    governor, the attorney general, and what is the remedy for
    that?
        This election took place under conditions where lots of
    people were deterred from participating. Their right to vote
    was chilled. What was the remedy under Section 2?
        Ms. Lhamon. There is no remedy. There is no way to restore
    voting rights to people who now live with elected officials.
        Mr. Raskin. Well, isn't that the decisive argument against
    neutralizing Section 5 of the Voting Rights Act? Section 5 is
    all about preclearance, making the jurisdictions send the plans
    in advance to the Department of Justice or to the U.S. District
    Court in D.C., right?
        And if a State is permitted to get away with violating the
    Voting Rights Act, and elections take place under it, there is
    no remedy, right?
        Ms. Lhamon. That is right.
        Mr. Raskin. Okay. Let me ask this question. Should Section
    5 be amended to allow private parties to challenge the findings
    of the Department of Justice? The Supreme Court held that DOJ
    couldn't do that--or rather, that States couldn't object.
    Should States have the power to do that?
        Mr. Saenz, what do you think about that?
        Mr. Saenz. I think it is something worth considering simply
    because it then takes the benefits of Section 5 preclearance in
    a more efficient and effective way of reaching a timely
    conclusion and adds the additional element. Right now, under
    previous preclearance regime, you would have to follow up with
    a Section 2 case. It would be much more efficient to have a
    Section 5-related cause of action.
        Mr. Raskin. Okay. And what is your response to Chairman
    Nadler's question about whether it makes sense at this point
    just to amend Section 5 to say we are not going to try to
    figure out which State bears the most guilt at this point under
    the Supreme Court's unbelievable outburst of judicial activism,
    where they declared basically an equal protection act between
    the States which didn't exist.
        But in any event, now that is the straitjacket we are
    laboring under, why not just say all of the States have to
    preclear voting changes with the DOJ first? What do you think
    of that?
        Mr. Saenz. I am in favor of a hybrid of both. I think there
    are certain practices, for example, reverting from district
    elections to at-large elections that are, on their face,
    questionable and have been used in the past to restrict voting
    rights. And those kinds of changes should be subject to the
    very effective and efficient preclearance mechanism nationwide.
        On the other hand, there are clearly jurisdictions that
    have an ongoing history of discrimination in voting and
    attempts to restrict the right to vote with respect to
    particular minority groups, and those jurisdictions, despite
    the second-guessing by the Supreme Court Justices of this
    body's conclusions, those jurisdictions should be subject to
    preclearance more broadly.
        Mr. Raskin. Well, the Civil Rights Act or the Pregnancy
    Discrimination Act or other civil rights statutes apply
    nationally, even though we don't necessarily have a factual
    predicate to prove that there was a problem in a particular
    State. Why not just make it nationwide and then avoid another
    outburst of judicial activism on the part of the Roberts court?
        Mr. Saenz. So my only concern there is subjecting
    everything to preclearance nationwide would present a
    bureaucratic snaggle that could prevent getting an efficient
    and quick response where necessary. So that is why I am in
    favor of a hybrid particular practice against a nationwide
    preclearance, specific jurisdictions subject to broader
    preclearance on all electoral changes.
        Mr. Raskin. Okay, very good. Now my friend Mr. Jordan has
    left the room, but is there anything in any of the legislative
    proposals you have seen to overcome the Supreme Court's
    decision in Shelby County v. Holder which would give
    noncitizens the right to vote in Federal elections?
        Mr. Saenz. Not aware of anything ever been suggested----
        Mr. Raskin. Is anyone on the panel aware of anything in any
    of the suggested proposals that would give noncitizens the
    right to vote in Federal elections?
        Ms. Lhamon. I am not.
        Mr. Raskin. Okay. Well, let me ask this question. Are you
    in favor, let us start with you, Mr. Saenz, of the Federal
    Congress striking down local laws across the country that may
    allow noncitizens to participate in local elections like school
    board elections?
        Mr. Saenz. No. I think that is a decision that should be
    made at the local level.
        Mr. Raskin. In other words, if you respect federalism, you
    would say that has got to be up to the States and localities to
    figure it out, right?
        Mr. Saenz. Absolutely. This body has control over the
    Federal elections quite clearly----
        Mr. Raskin. Yes.
        Mr. Saenz [continuing]. And limited control over other
    elections, but that is a decision should be left at the local
    level.
        Mr. Raskin. Okay. And one must charitably assume Mr.
    Jordan's ignorance of the fact that noncitizens could vote in
    local and State elections for the vast majority of American
    history, and it was his party, the Republican Party, which was
    the great champion of that. And Abraham Lincoln actually was
    accused of winning election in 1860 based on the strength of
    the noncitizen vote.
        So all of that seems to be a great red herring, and I would
    urge Mr. Jordan to study the history of his own party because
    this became an issue in the Civil War, and it was the
    Republican Party which stood up for the right of noncitizens to
    vote.
        I happily yield back, Mr. Chairman.
        Mr. Cohen. Thank you, Mr. Raskin.
        Mr. Cline is here. I don't think he has a question at the
    present time, but I want to commend him for being here to
    listen. That is an admirable and unusual quality for a
    congressman. [Laughter.]
        Mr. Cohen. Ms. Scanlon, you are recognized.
        Ms. Scanlon. Thank you very much.
        Mr. McCrary, I think you just fielded a question from the
    gentleman from Ohio about whether it would devalue the vote of
    citizens to allow noncitizens to vote. I would like to flip
    that a little bit. Does it devalue citizenship if citizens
    aren't allowed to vote for representation in Congress?
        Mr. McCrary. I am sorry. Could you repeat the question? I
    am not sure I understood it.
        Ms. Scanlon. Sure. We had some questions about whether it
    devalues citizenship if noncitizens are allowed to vote. But I
    would like to focus for a minute on the fact that citizens of
    D.C. and Puerto Rico and the territories are actually U.S.
    citizens, but that citizenship does not allow them to vote in
    congressional--or have representation, I am sorry, voting
    representation in Congress. Does that impact the value of their
    citizenship?
        Mr. McCrary. The only part of that question on which I have
    done any serious research is the fact that Puerto Ricans, when
    they come to the United States, are automatically able to vote
    because they are citizens, and they immediately assume a role
    as participants in the electoral process.
        Ms. Scanlon. Okay. Thank you.
        Just with respect to voting rights, I represent
    Pennsylvania. So not a Section 5 State, but we do have our own
    challenges. And I would like to focus for a minute on one that
    has been particularly prevalent in the districts I represented.
        Back in 2010, we had an issue involving Lincoln University,
    which is an historic black college and university located in a
    predominantly white township, and our local election officials
    moved the polling place from the HBCU to a less convenient
    place, and that impacted the ability of the African-American
    population close to the university to vote. Is that the kind of
    thing that the Voting Rights Act was designed to address, Ms.
    Lhamon?
        Ms. Lhamon. It absolutely is, and it is the kind of thing
    that we see very serious concern about all over the country
    still today.
        Ms. Scanlon. Okay. In fact, just this year, we had an issue
    involving Haverford University, also in my district, where the
    university had a substantially younger, more diverse population
    than the surrounding area, and we had a lot of difficulty
    getting a polling place there. Can you make any recommendations
    as to what we could do with the Voting Rights Act to address
    those issues?
        Ms. Lhamon. Yes. It is very important for Congress to
    ensure that the Voting Rights Act is amended to allow for ex
    ante resolution of those kinds of issues just to make sure that
    voters are able to vote in upcoming elections, don't lose their
    right to vote because of decisions to move a polling place, to
    close down polling places. It has very, very significant
    impacts.
        We saw, for example, testimony from the Alaska State
    Advisory Committee about an Alaska Native elder who had to walk
    2 miles to be able to get to a voting place that was open.
        Ms. Scanlon. Okay. Thank you.
        And just with respect to the bill in general, in my prior
    life, I participated with the Lawyers Committee for Civil
    Rights, and the National Commission on Voting Rights on
    building the extensive record about the continuing issues that
    the Voting Rights Act was designed to address. So I am very,
    very interested in seeing us amend the Voting Rights Act,
    reauthorize the Voting Rights Act to continue.
        So thank you.
        Ms. Lhamon. Thank you.
        Mr. Cohen. Mr. Armstrong is here as well. Would you like to
    question?
        Mr. Armstrong. Thank you, Mr. Chairman.
        Mr. Cohen. You are recognized for 5 minutes. Mr. Armstrong
    from North Dakota.
        Mr. Armstrong. Talking about preclearance and how we are
    doing that in theory, there is a theoretical application, and
    then there is an on-the-ground application, particularly in
    rural States. North Dakota is unique. It is the only State in
    the country without voter registration. It is also incredibly
    rural. We have entirely vote by mail counties and different
    issues.
        So my question, and probably for Ms. Whitaker, is what kind
    of evidence has the Supreme Court used in the past to require
    preclearance on voting rules?
        Ms. Whitaker. Thank you, Congressman.
        Under Section 5, the preclearance requirement in the Voting
    Rights Act that was in effect prior to Shelby County, the
    covered jurisdiction had the burden of proving that the
    proposed change to the voting law or standard would neither--
    was neither enacted with a discriminatory intent and that it
    would not have a discriminatory effect if it were to be imposed
    or enacted.
        Mr. Armstrong. And has Section 3--and particularly, I think
    I can ask it for both Hispanics and Native Americans.
    Obviously, in North Dakota, Native Americans are more prevalent
    than Hispanics, but has it been used to protect voting rights
    of Native Americans in the past?
        Ms. Whitaker. Section 3(c) has been used--CRS has not
    independently verified this research, but roughly, according to
    the legal scholarship in this area, 20 jurisdictions have been
    bailed in under Section 3(c). I am not in a position to verify
    specifically whether Native American--a case involving Native
    Americans was involved, but I would be happy to do so and get
    back to you.
        Mr. Armstrong. Well, and since I have three other people,
    if any of them are aware of it, I would take that answer as
    well.
        Ms. Lhamon. It has. And also I just want to take the
    opportunity to mention that the North Dakota State Advisory
    Committee to the U.S. Commission on Civil Rights issued a
    statement in October raising very serious concerns on this
    front about North Dakota Native American voting rights access.
    It in pertinent part says the North Dakota Advisory Committee
    is troubled that this restrictive voter ID law targets Native
    Americans, the largest minority group in the State,
    constituting 5.5 percent of the population.
        The committee's primary concern is that the law may deny
    eligible voters access to the ballot, and it goes on from
    there, raising very significant concern about Native Americans'
    rights in North Dakota.
        Mr. Armstrong. And actually, that was due to a court
    decision that was--without voter registration, there has been
    significant voter ID laws and different issues that go on. You
    will be happy to know that the turnout on the Native American
    reservations in North Dakota in the 2018 election was the
    highest it has ever been, presidential or nonpresidential. And
    so, hopefully----
        Ms. Lhamon. I am happy to know that.
        Mr. Armstrong [continuing]. Hopefully, we can continue to
    work that forward as well.
        Ms. Lhamon. I am happy to know that, and I also know from
    the North Dakota State Advisory Committee's work on this issue
    that it followed very serious organizing among the Native
    American communities, which puts a set of pressure on those
    communities that we would hope the Federal law wouldn't
    require.
        Mr. Armstrong. I yield back the rest of my time.
        Mr. Cohen. Thank you, Mr. Armstrong.
        Ms. Dean, you are recognized for 5 minutes.
        Ms. Dean. Thank you, Mr. Chairman.
        I am Madeleine Dean. I come from Pennsylvania, and I think
    about Pennsylvania, and we are the poster State for some good
    things surrounding voters rights and some very bad things.
        Two weeks ago, I had the pleasure, the extraordinary
    historic pleasure of traveling with Representative John Lewis
    to the Edmund Pettus Bridge, to Selma, and as we came back down
    the bridge, my husband stood at a plaque, you know, a bronze
    plaque memorializing the Voting Rights Act. And right across
    from it, right next to it was a canvas that said ``Lift our
    vote, 2020, voting rights under fire.'' It was a jarring
    comparison, and it is a reminder of our history, that our
    history is not so long ago. And as you point out, the history
    is actually continuing in terms of voter discrimination.
        When I was first elected to the Pennsylvania House in
    2012--so this is pre-Shelby, but we are also not a Section 5
    State--you might remember that the Pennsylvania House in March
    of 2012 with Governor Corbett signing it, passed a voter ID
    law. I was a brand-new representative in May, came in in a
    special election. We spent the next year and a half going to
    old age homes trying to help people get qualifying
    identification.
        Sitting with women, men, who were 85, 90 years old who
    said, ``I have voted for the last 60 years. I can't believe--I
    don't have a birth certificate. I don't have this.''
        So the chaos and confusion which ensued from that piece of
    legislation until it was overturned as unconstitutional in, I
    think, January 2 years later was costly to people. So I wanted
    to ask you in kind of plain language, for those who haven't
    read Shelby, don't understand what Section 2 does versus
    Section 5, what is at stake? You have pointed out that voting
    rights are at stake.
        What is at stake, and what should we, this committee, in
    terms of crafting new legislation to fully, robustly support
    our voting rights, what should the American people know about
    what is at stake in terms of voting rights?
        Ms. Lhamon. Congresswoman Dean, what is at stake is our
    very American self-concept. We believe in a country that is
    based on full participation and responsive government to its
    citizens. If we can't all vote, if we can't all fully
    participate, then we are not a true democracy. That is what is
    at stake.
        Ms. Dean. Thank you.
        Mr. Saenz. It is the right to vote, as you have described
    it, from the new voter, very eager, just getting out of school,
    wants to participate in democracy, who may face barriers,
    untoward barriers to that right to vote. To the longstanding
    voter who has voted for decades without any problem, but who,
    because of new attempts to create barriers to voting, may not
    have the ID that is now required to vote, may not know where
    the polling place that they voted for decades has moved. May
    not understand the new requirements to participate in the
    ballot.
        It is the right to vote that every citizen enjoys and
    should enjoy in a democracy.
        Ms. Dean. Professor.
        Mr. McCrary. The problem you refer to is one that we
    encountered routinely in the cases challenging the use of a
    photo ID requirement for voting, in-person voting. And you
    illustrate through your anecdote based on your personal
    experience why the photo ID is so difficult for some American
    citizens.
        Specifically, birth certificates are not universally
    available. Many people of an older generation were born not in
    the hospital, but at home or under the care of a midwife. They
    never got a birth certificate. Moreover, people who have birth
    certificates but have moved to a different State sometimes have
    difficulty in getting a copy of their birth certificate if it
    has been misplaced or lost.
        There are all sorts of reasons why a photo ID requirement
    is a restriction on the voting process for some 10 percent,
    depending on which State you are in, of the voting age
    population that is registered.
        Ms. Dean. I appreciate that. And if you remember, this was
    2012. So the corrosive underbelly of what spirited that
    legislation was revealed very openly by then-leader Turzai, now
    Speaker of the House Turzai, who famously said, ``Voter ID,
    which is going to allow Mitt Romney to win the State of
    Pennsylvania, done.'' You saw that over and over again, that
    that was obviously the spirit of that legislation.
        In the litigation, you remember it was stipulated that they
    could not come up with a single case of voter fraud through
    false ID or acting as though they were someone else. So the
    political underpinnings of it.
        I guess as we go and move forward to craft legislation,
    what can we do to not only protect the Section 5 States, but
    States like mine?
        Mr. Saenz. I think there are two things. First, we should
    all recognize that Section 5, when it was in effect, did help
    noncovered jurisdictions, et al., because there was an
    indication of what the Department of Justice concluded was
    problematic, and the noncovered jurisdictions learned from
    that.
        But I also believe that Congress should seriously consider
    a hybrid coverage formula that would include coverage of
    certain changes that have a history that is suspect being
    precleared all across the country.
        Ms. Dean. That is really helpful. Thank you.
        Thank you, Mr. Chairman.
        Mr. Cohen. Thank you, Ms. Dean.
        And Ms. Garcia, I think you are next, from Texas.
        Ms. Garcia. Thank you, Mr. Chairman, and thank you to all
    the witnesses.
        And it has been sort of an interesting period for me
    listening to you because it brings back a lot of bad memories
    because, quite frankly, while some say they are the poster
    child for what happens good in elections, unfortunately, I am
    from Texas. And as you know, some of the leading cases on the
    barriers, the bad stuff that happens in this arena do come from
    Texas. And while we like to brag about a lot of things,
    obviously, this is not one that I like to brag about.
        And I want to start with you, Mr. Saenz, because I know you
    and I have worked together on a number of cases, and I still
    remember calling MALDEF about the Pasadena case because we
    needed your help. Because, frankly, my district and my area is
    sort of ground zero for some of the litigation that has spurred
    in Texas, not only the Pasadena case, but you remember the Lake
    City case, the San Jacinto College case, Pasadena School Board
    case, the Galveston case. It is all happening there.
        And I guess my question is this. It seems to me that all
    this has done is do what a lot of conservatives always argue we
    don't want to do is litigate, that we are just giving work to
    the lawyers, that we are all about litigation. And, but that is
    all that has resulted, hasn't it?
        Because if you look at what is going on now without the
    Section 5 preclearance requirement, there is no other way to do
    it. But why should we have to do it? It would be better to do
    the preclearance in the hybrid form, as you suggest, or going
    back the way it was because then we would avoid all that. I
    mean, the costs incurred, how much do you think it has cost us,
    just ballpark figure, in terms of resources and lawyers and
    litigation, and not to mention what the litigants have to go
    through, the petitioners?
        Mr. Saenz. I would--it is hard to estimate, but I would say
    we are talking in the tens or hundreds of millions of dollars
    that have been expended on litigation that could have been
    avoided if we had preclearance in place. Pasadena, Texas, is
    Exhibit A because that is a case that was precisely created
    through a change that the mayor knew he could obtain without
    preclearance but understood had preclearance applied, it would
    never be approved.
        So we could have avoided that litigation had preclearance
    still been in place, and that litigation was very costly to the
    City of Pasadena, Texas, and its taxpayers. Because they not
    only in the end had to pay their own attorneys' fees and expert
    costs and other costs of defending, they had to pay the
    plaintiff's fees and costs of litigating the case. So you are
    doubling the cost of expensive litigation that could be
    avoided, which is why I characterize preclearance as one of the
    most effective alternative dispute resolution mechanisms that
    this Congress has ever put in place.
        Ms. Garcia. Right. So tell me, the other thing that I have
    noticed about all of this litigation, that it just seems like
    the burden is just so much harder to prove the intentional
    discrimination factor. It really puts such a high burden on the
    petitioner.
        Whereas under Section 5, you could file a complaint, and
    again, Texas was probably number one in the number of
    complaints. And you know, what--is there anything that we can
    do in terms of a change in law to help with the burden of
    proof, to help with the litigation, to make sure that at least
    it doesn't take as long?
        Mr. Saenz. The totality of the circumstances test, and that
    is how the Supreme Court has described it under Section 2, is a
    wonderfully contextualized test. It enables you to look at all
    of the different factors occurring in the community. But the
    flip side of that is that it is very expensive. And if you then
    have to prove intentional discrimination in order to obtain a
    bail-in order or requirement that the jurisdiction be subject
    to preclearance, as we did in Pasadena, Texas, as you have
    indicated, the cost goes up even more. The burden for the
    plaintiff goes up even more.
        So anything that can be done to identify the prevailing
    patterns and somehow streamline the ability to get in and
    change those prevailing patterns, and preclearance is the best
    mechanism for that. It is available to us if the Congress will
    respond to the second-guessing by the Supreme Court majority
    and enact a new coverage formula.
        Ms. Garcia. Thank you.
        And now, Ms. Lhamon, something you said caught my ear. You
    said in the response to one of the questions that there was no
    question there is discrimination in access to voting. Now is
    that an official finding of the Commission or is that just your
    opinion, or if it is true, then why are we having all these
    debates, if there is no question?
        Ms. Lhamon. It is official as a finding of the Commission,
    and we voted unanimously to support those findings.
        Ms. Garcia. And when was that, ma'am? I am sorry. I don't--
    --
        Ms. Lhamon. We issued the report in September 2018.
        Ms. Garcia. Okay.
        Ms. Lhamon. And the very comprehensive investigation of the
    Commission includes documenting places all over the country
    where people with disabilities are impeded in their ability to
    vote, where people of color are impeded in their ability to
    vote, where people with language access challenge are impeded
    with their ability to vote.
        The access to the vote is very much under siege in this
    country now, and that is the conclusion of the U.S. Commission
    on Civil Rights.
        Ms. Garcia. You looked at voting, not the registration, not
    any of the other--just the actual voting, access to the ballot
    the day of the election?
        Ms. Lhamon. Yes, we did. So we took in testimony about
    people who physically couldn't access their polling place
    because the polling place wasn't accessible to people with
    disabilities. We took in information about people who tried to
    vote on the day of and were turned away.
        For example, the Kansas State Advisory Committee took in
    testimony from Native American voters who brought a Native
    American ID and were turned away at the polling place because
    although State law allows voting with a Native American ID,
    poll workers at the polling place didn't understand that and so
    turned a voter away.
        Ms. Garcia. Right.
        Ms. Lhamon. There were serious access issues that we
    documented around the country.
        Ms. Garcia. Well, I suggest you send a copy of the report
    to the White House.
        Thank you.
        Mr. Cohen. Thank you, Ms. Garcia.
        And Ms. Escobar from El Paso, Texas.
        Ms. Escobar. Thank you so much, Chairman. And Chairman,
    thank you for your references in your opening remarks about
    Congressman John Lewis. I had the incredible privilege of being
    with Congressman Lewis and other Members of Congress recently
    as we marched across the Edmund Pettus Bridge in Selma,
    Alabama. And at the very top of the bridge, Congressman Lewis
    recalled to us in painful and excruciating detail the journey
    that he has been on and the journey that led to Bloody Sunday,
    all to fight for the vote. All to fight for the vote.
        And so that opening was really poignant, and I am very
    grateful for it. And I am grateful to all of you for being here
    today and sharing your expertise and the work that you have
    done in your careers, especially Mr. Saenz, thank you. As a
    Latina, I am so grateful to you for the work that you have
    done, the work that MALDEF has done. But thanks to all of you
    for sharing your time here today.
        This past September, the U.S. Commission on Civil Rights
    released a report analyzing minority voting rights in the
    United States, following the Shelby County decision. The report
    found that our home State of Texas has the unfortunate
    distinction of having ``the highest number of recent VRA
    violations in the Nation.''
        Further, the report details that Texas implemented one of
    the strictest voter ID laws in the Nation after Shelby County
    was decided, the very same law that a Federal court deemed
    retrogressive just a year earlier. In fact, Governor Greg
    Abbott, who was Texas attorney general at the time, tweeted 2
    hours after the Shelby County decision that the voter ID law
    would be reenacted.
        Mr. Saenz, can you please give us some examples of new
    voter suppression mechanisms that would have been prevented by
    preclearance?
        Mr. Saenz. Absolutely. You know in your State, we are
    currently going through Voting Rights Act litigation. Indeed,
    yesterday MALDEF lawyers were in court related to the voter
    purges that have been threatened for almost 100,000 registered
    voters in the State of Texas. Why? Simply because they are
    naturalized voters. They are naturalized citizens who then
    registered to vote, but prior to naturalizing, they submitted
    to the Motor Vehicles an indication that they were not yet
    citizens.
        But those are nearly 100,000 voters who were threatened
    with the prospect of being removed from the rolls. And even if
    no action is ultimately taken, as we believe will be the case,
    the litigation so far has been successful, that is a
    discouragement, a deterrence to so many in the State of Texas,
    naturalized or not from participating in voting. And I think
    that was the intent behind a huge announcement knowing that the
    data was faulty by the secretary of state joined by and
    repeatedly re-enforced by the attorney general.
        We also have the example of Pasadena, Texas. You would
    think after a victory against Pasadena, where the city reverted
    from districted city council seats to a combination of
    districted and at-large seats that we would see the end of
    that. But we currently face an issue in Odessa, Texas, where
    there is a similar proposal moving forward, this time by
    residents of the town, not the city council itself, that we
    have to grapple with.
        So there are really weekly, daily challenges to voting. One
    of your colleagues mentioned polling place relocations and
    consolidations. And you know in the State of Texas,
    particularly with the number of counties that you have, that is
    a major problem with every election. And under Section 5, when
    those changes had to be precleared, we at least became aware of
    what consolidations and relocations were being proposed.
        Now we don't even have that opportunity to know until the
    election is approaching where a relocation may prevent Latino
    and other minority voters from participating at the same level
    as they have before, and that is just a single measure of what
    we have lost as a result of the Shelby County decision.
        Ms. Escobar. Thank you.
        Ms. Lhamon, what can Congress learn from Texas? Are there
    any characteristics that are risk indicators for voting
    discrimination?
        Ms. Lhamon. Loyola law professor Justin Levitt testified to
    the U.S. Commission on Civil Rights about Texas that Texas is
    ``unrepentant recidivist with respect to voting rights.'' And I
    think that is what this body can learn from Texas, that there
    is repetition. And over and over again, around the country, in
    Texas, among other States, in the goal and the attempt to deny
    some of us our right to vote, that is a history that extends
    all the way to the present. That includes intentional
    discrimination as found by Federal courts in Texas.
        That lets us know that we cannot turn away and assume that
    our voting rights will be protected just because we promised.
    We have to believe and know and act accordingly, expecting that
    some among us, as Texas has shown it will do, will try to deny
    the vote to some people.
        Ms. Escobar. And it is what Chairman Nadler described as
    this endless game of whack-a-mole.
        Ms. Lhamon. That is right.
        Ms. Escobar. That as soon as you feel as though you have
    advanced just a little bit and done what Congressman Lewis has
    said or described as open it up, open it up to everyone. Let
    everyone have the vote. Let them have their right to vote.
        That as soon as it is denied, sure enough, before you turn
    around, we are fighting it again.
        Ms. Lhamon. That is exactly right. And my only amendment to
    that would be that it is not a game to have access to
    participation in democracy, to be fully recognized as a citizen
    and a full participant in this country. That is something that
    is core to who we are, and we ought to protect it with that
    vigilance.
        Ms. Escobar. And in Latino communities especially and
    communities that are largely immigrant communities, it is
    intended also to send a message, a very strong message.
        Mr. Saenz, you are nodding your head. What do you think
    that message is?
        Mr. Saenz. It is intended to prevent people from
    participating. It is intended to prevent people from taking the
    right that they have and the duty that they have and exercising
    it. It is intended to send a message of deterrence.
        So even if you successfully stop something in the courts,
    it has already had that effect of sending a message from the
    highest levels in the State of Texas that your participation is
    not wanted.
        Ms. Escobar. Thank you all very much. I yield.
        Mr. Cohen. Thank you very much.
        I would just like to ask one question of the panel, and
    maybe Mr. McCrary, as an historian, or Ms. Lhamon. In the
    preclearance States that we had I think in '65, Alaska was
    included, and maybe was there another--Alaska and Arizona were
    two States outside the South, but the other States went kind of
    like the Old Confederacy. It was Texas, Alabama, Mississippi,
    Louisiana, Georgia, South Carolina, and then Virginia.
        Has there been more of a history over the years and up to
    today of laws that discriminated against minorities in Southern
    States than in other States. Mr. McCrary.
        Mr. McCrary. Yes, but I thought you were asking me about
    the bailout provisions that got Alaska and other States out of
    coverage almost immediately after the 1965 act was adopted.
    Certainly there is a record that is much greater for covered
    jurisdictions back in the day before 2013. I actually did a
    declaration in the Shelby County case in which I looked all of
    the consent decrees that were settled in Section 2 lawsuits
    that were reflected in the court records under the Pacer
    system, and there was a marked disparity in the number of
    lawsuits brought under Section 2 that were settled by consent
    decree in the covered jurisdictions.
        My recollection is it was two, three times as many as in
    the rest of the United States, the three-quarters of the
    population that lived in noncovered jurisdictions. But of
    course, the record of Section 2 lawsuits in reported cases also
    reflects a disparity between the covered and noncovered
    jurisdictions so that the answer was even if you are restricted
    to reporting decisions, reported decisions, you would find that
    discrimination in voting is--was greater in the covered States,
    covered jurisdictions than in noncovered jurisdictions.
        Mr. Cohen. And Ms. Lhamon, is that what you found, too?
        Ms. Lhamon. Without question, the history that you describe
    does track to Southern States, but your reference to Alaska is
    apt in that Alaska is one of the States that we document in the
    report has repeat violations of voting rights and is well
    outside the South.
        We also took in testimony and information about very
    serious concerns about States that are not Southern States with
    very current issues with respect to voting. Just to highlight
    or lowlight a particularly salient example, very recently in
    Maine, the then-chair--he is no longer the chair. But the then-
    chair of the Republican Party complained about dozens and
    dozens of black people coming into Maine to vote as a way of
    saying that there must have been fraud in Maine.
        This is well outside the South, but obvious racialized
    charge about voting access issues in the State. So I have been
    enormously distressed in the Commission's work to investigate
    the status of voting rights about the repeat concerns in
    Southern States, but equally distressed about current present
    concerns well outside the South across the country, denigrating
    the right to vote.
        Mr. Cohen. And I understand and I concur in that concern.
    But what I was concerned about in Shelby v. Holder is what the
    Court was basically saying is that because there are problems
    in other parts of the country, which there are, most of which
    are localized, not statewide and more limited, that they threw
    out the preclearance for the Southern States that have shown a
    great history going back as far as history goes in our country
    of discrimination, and they gave them a free pass because of
    concentrating on a small part.
        And as I learned as a child at a donut shop, keep your eye
    on the donut and not on the hole. [Laughter.]
        Mr. Cohen. And that is where they messed up.
        Ms. Lhamon. Very sage advice.
        Mr. Cohen. I think there are probably some significance
    that the anthem ``Dixie,'' which was so prevalent and popular
    in the South says ``Old times there are not forgotten,'' and
    they are not forgotten with voting rights.
        Ms. Lhamon. There are some other lines I like less in that
    song, but that is a good one.
        Mr. Cohen. They are not forgotten with voting rights.
        Mr. McCrary, will you tell me about the bailout provision?
    Because that is news to me.
        Mr. McCrary. The bailout provision or the bail-in
    provision?
        Mr. Cohen. Whatever you said you thought I was going to ask
    you. [Laughter.]
        Mr. McCrary. Oh, bailout. It was a small point that in the
    initial phases of enforcing the Voting Rights Act, several
    States were able to bail out of coverage because the formula
    had picked them up, but there was no evidence on the record
    that they had a history of racial discrimination affecting
    voting.
        Of course, subsequent to that, there have been lawsuits in
    several of those States, and in fact, I think at least one
    State was added back into coverage not too long after the 1970
    act was revised. So, but that is a small point I thought you
    were leading up to that confused me.
        But as to the bail-in provision set out in Section 3(c) of
    the Voting Rights Act, one thing that is important for the
    committee to remember is that it requires proof of intentional
    discrimination and a judicial finding about that intentional
    discrimination. And even where courts have found intentional
    discrimination, such as in the North Carolina case to which I
    referred, the court did not, in fact, impose a Section 3(c)
    remedy. One way of dealing with the problems the committee has
    expressed concerns about might be to think about revising the
    Section 3(c) provision of the Voting Rights Act.
        Mr. Cohen. Thank you, sir.
        Mr. Saenz, you want to say something?
        Mr. Saenz. Yes, I just wanted to say bailout is critically
    important, and the Supreme Court majority in Shelby County
    failed to accord the bailout provision sufficient attention. It
    means that while history is predictive--so the history in the
    South is predictive of what is going to happen. We have seen it
    post Shelby County.
        That is where the activity is, is in previously covered
    jurisdictions. So history is predictive. Recidivism is real in
    the context of the voting rights violations.
        But where a jurisdiction, whether a State or a smaller
    jurisdiction, can demonstrate that they are not following their
    history, they are turning their backs on a history of violating
    voting rights and ensuring that everyone can participate, the
    bailout mechanism permitted them to seek relief from
    preclearance in the future.
        And I think that is critically important. It means that
    while history is a very strong predictor, if you can
    demonstrate you are not following that history, you get the
    opportunity to no longer be subject.
        Mr. Cohen. And which States and at which time did that
    ever--has that occurred?
        Mr. Saenz. So as Mr. McCrary indicated early on, there were
    States that bailed out. Later on--Mr. McCrary would know the
    States.
        Mr. Cohen. Which States bailed out?
        Mr. McCrary. Alaska, I think Arizona. I can't recall any of
    the other States----
        Mr. Cohen. So it left it with the Dixie whatever, the
    South.
        Mr. Saenz. Now remember, there were also smaller
    jurisdictions around the country, and some of those smaller
    jurisdictions bailed out.
        Mr. Cohen. Yes, but no States. No States. But no States. So
    the only States that were left in were those in the South. Is
    that correct, Mr. McCrary?
        Mr. McCrary. Yes, until later revisions of the act in which
    some areas of New York were covered and a few other----
        Mr. Cohen. Areas, but not a State.
        Mr. McCrary. Pardon?
        Mr. Cohen. Not a State, only areas?
        Mr. McCrary. Not a State.
        Mr. Cohen. Right. Let me have one last question. And you
    talked about, Mr. Saenz, about the idea of having a two-pronged
    test, and one is the old preclearance and the other would be
    mechanisms. Congressmen have to determine what procedures or
    processes would fit into that class. Does it not concern you,
    as it concerns me, that we might not be looking at the hole and
    not the donut again, and we give the Supreme Court another
    reason to possibly throw out our law because we haven't done to
    their satisfaction a sufficient test to define those areas or
    to limit them to the ones that are most germane and maybe even
    throw out Section 5 entirely?
        Mr. Saenz. I think there are strong indications with
    respect to certain practices that there have been voting rights
    violations so inherent in some of those practices that a record
    could be created. Indeed, I think we have got the record for
    particular practices. It is a limited number. The one example--
    --
        Mr. Cohen. What are those practices?
        Mr. Saenz. The one example that I gave was a jurisdiction
    that chooses to revert from districted to at-large. Ordinarily,
    that is done to prevent a minority group from controlling the
    majority of the body, for example. That is what we saw in
    Pasadena. We are seeing it in Odessa. We are seeing it in many
    jurisdictions across the country.
        Usually it doesn't go that direction back to at-large. Now
    there could be a reason why that would be precleared. Maybe the
    jurisdiction is reverting to at-large because it shrunk so
    much, it is a much, much smaller city than it used to be. But
    that, I presume, would be precleared.
        But I think that there are a small number of practices
    where a record exists to support subjecting them to
    preclearance, an efficient and effective way of evaluating
    their potential for violating voting rights across the country.
    I don't think it is a huge list of practices. I do think that
    it is a way of ensuring that we are using this powerful
    alternative dispute resolution mechanism as effectively as
    possible.
        As I have said in public speeches, when you talk about vote
    suppressors, you want to target the serial vote suppressors.
    That is the Deep South. But you also want to target the copy
    cat vote suppressors who adopt the tactics of those for their
    own needs.
        Mr. Cohen. Thank you, sir. And with that, we will conclude
    our hearing. I want to thank all the----
        Mr. Gohmert. Mr. Chairman, I would like to ask----
        Mr. Cohen. Sure, Mr. Gohmert. I didn't see you there. Mr.
    Gohmert from Texas is recognized for 5 minutes.
        Mr. Gohmert. Thank you. Thank you.
        It is interesting to hear all the talk about
    discrimination. As I recall when we had the Voting Rights Act
    reauthorized, it was clear to me it was going to be
    unconstitutional. I talked to deans from some very liberal law
    school, constitutional law professors now said this is not
    going to stand up because you can't keep punishing States for
    activity 50, 60 years--50 years or so before.
        And the amendment I was trying to get passed that a
    majority voted down said let us apply Section 5 anywhere
    discrimination is found. But the majority said, no, we want to
    keep punishing areas that have been found to have violated
    civil rights 40, 50 years ago. We want to keep punishing them,
    and we had data that showed that there were areas around the
    country, not whole States, but there were areas--I think there
    was an area in Wisconsin, California, in New England--where
    there was great disparity in the voting records indicating
    strong indication of racial discrimination.
        And yet people that were Members of the House from those
    States absolutely were adamant you cannot open up Section 5 to
    States that are not part of the traditional South because we
    don't want to be included. There was no way that was going to
    stand up.
        I brought it to the attention of a Republican ranking
    person at the time, Jim Sensenbrenner. He didn't want to hear
    it. He didn't want it included. Of course, he was from
    Wisconsin.
        John Conyers, as chairman of the committee, was much more
    open to talking about it. Said let me talk to our experts. And
    anyway, he came back and said, yes, they tell me there is a
    chance it could very well be struck down. But we will go ahead
    and run that risk. Well, it got struck down.
        Mr. McCrary--I am sorry, Ms. Whitaker, in your research,
    and I know we heard mention of Section 3(c), Section 3, in your
    research, has Section 3 ever been used by Federal court to
    require jurisdiction to preclear their voting rule changes?
        Ms. Whitaker. Thank you, Congressman Gohmert.
        Yes, our research has indicated there have been instances
    where the bail-in provision in Section 3(c) of the Voting
    Rights Act has been used to subject a jurisdiction to a type of
    preclearance.
        Mr. Gohmert. And I notice at the Democratic National
    Conventions where voting is so important, you know, last was it
    going to be Bernie Sanders, was it going to be Hillary Clinton?
    There were complaints, you know, of cheating to keep Bernie
    Sanders from being the candidate, all these kind of issues.
        But I noticed around, and we have photographs around the
    convention site. There were huge barriers, fences, and I know
    going back to at least 2008 when candidate Senator Obama won,
    that no one was allowed in the convention without proper
    identification. And because that was so strict at these prior
    Democratic National Conventions requiring photo ID, proper
    identification, Ms. Whitaker, in your research, have you found
    any lawsuits against the Democratic National Convention for
    requiring such stringent voting ID requirements and photo ID
    requirements to get in to be able to vote at the convention?
        Ms. Whitaker. Thank you, Congressman.
        We have not conducted that research, but if you would like
    us to, we would be pleased to do so.
        Mr. Gohmert. Yes, I would love that because I have not been
    able to find any lawsuits, and it is just interesting why that
    would not be discriminatory to get into the national--
    Democratic National Convention. I know when I tried to get into
    the Department of Justice when Eric Holder was the AG,
    incredibly rigorous, and I would have thought, as a Member of
    Congress, that was a right.
        But in any event, we talk about discrimination in voting,
    and it shouldn't be allowed. Whatever needs to be done should
    be done to prevent any type of discrimination. On the other
    hand, we also should be just as adamant about preventing
    dilution of the vote.
        I heard mention, gee, we ought to give everybody a chance
    to vote, just let everybody vote. Well, that is a huge dilution
    of the people that are United States citizens who are the
    people that are supposed to be able to vote. And at some point,
    unless we totally lose the group mind of this country, at some
    point, some court--hopefully, the highest court--will recognize
    the damage that is done when votes are diluted by people that
    are not allowed to vote, that vote more than once, that get on
    buses and go to different areas, and that where in college
    towns, college students are told use your college ID to get to
    vote here, and then don't use your driver's license. That way,
    you can use your driver's license back where you live when you
    are not in college.
        Those are forms of dilution of the vote, and I am hoping
    that what solution we come to will deal with all types of vote
    dilution and discrimination so that the vote will come back to
    mean what it should mean, being one person, one vote. And being
    one person should be allowed to vote, but let us make sure
    there is not more than one person voting on the same.
        Mr. Cohen. Thank you, Mr. Gohmert.
        Mr. Gohmert. Thank you. I yield back.
        Mr. Cohen. I think we have come to the conclusion of our
    hearing. I do want to recognize once more Ms. Johnnie Turner,
    and I think it is particular--there are many Deltas here. But
    Ms. Turner was the head of the NAACP in Memphis for years. She
    was a State representative. Her husband was a State
    representative. And she has a long history of fighting for
    voting rights and civil rights, and it is appropriate that you
    are here today. And you should be recognized for your work and
    your husband's work.
        Thank you.
        [Applause.]
        Mr. Cohen. And that concludes our hearing. All Members will
    have 5 days to submit questions.
        [The information follows:]
        Mr. Cohen. I thank all of our witnesses for appearing
    today.
        Five legislative days to submit additional questions for
    witnesses.
        The hearing is adjourned.
        [Whereupon, at 12:12 p.m., the subcommittee was adjourned.]

                                    APPENDIX

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