[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

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        Available: http://judiciary.house.gov or www.govinfo.gov
        
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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                       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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