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

                      CONGRESSIONAL AUTHORITY TO PROTECT
                  VOTING RIGHTS AFTER SHELBY COUNTY V. HOLDER

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

                                    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

                                   __________

                               SEPTEMBER 24, 2019

                                   __________

                               Serial No. 116-51

                                   __________

             Printed for the use of the Committee on the Judiciary

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

            			__________

           		     U.S. GOVERNMENT PUBLISHING OFFICE

    39-700       	             WASHINGTON : 2020

                           COMMITTEE ON THE JUDICIARY

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

                SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
                              AND CIVIL LIBERTIES

                         STEVE COHEN, Tennessee, Chair
    JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana,
    ERIC SWALWELL, California              Ranking Member
    MARY GAY SCANLON, Pennsylvania       LOUIE GOHMERT, Texas
    MADELEINE DEAN, Pennsylvania         JIM JORDAN, Ohio
    SYLVIA R. GARCIA, Texas              GUY RESCHENTHALER, Pennsylvania
    VERONICA ESCOBAR, Texas              BEN CLINE, Virginia
    SHEILA JACKSON LEE, Texas            KELLY ARMSTRONG, North Dakota
                           James Park, Chief Counsel
                         Paul Taylor, Minority Counsel
                                C O N T E N T S

                                  ----------

                               SEPTEMBER 24, 2019
                               OPENING STATEMENTS

                                                                       Page
    The Honorable Jamie Raskin, 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

                                    WITNESS

    Justin Levitt, Associate Dean for Research, Professor of Law and
      Gerald T. McLaughlin Fellow, Loyola Law School, Los Angeles
        Oral Testimony...............................................     6
        Prepared Testimony...........................................     9
    Franita Tolson, Vice Dean for Faculty and Academic Affairs and
      Professor of Law, University of Southern California Gould
      School of Law
        Oral Testimony...............................................    41
        Prepared Testimony...........................................    44
    Debo P. Adegbile
        Oral Testimony...............................................    56
        Prepared Testimony...........................................    58
    Michael T. Morley, Assistant Professor, Florida State University
      College of Law
        Oral Testimony...............................................    86
        Prepared Testimony...........................................    88
    Joe Rich, Former Chief, Voting Section, Civil Rights Division,
      U.S. Department of Justice
        Oral Testimony...............................................   116
        Prepared Testimony...........................................   118
    Kira Romero-Craft, Managing Attorney, Latino Justice, PRLDEF
        Oral Testimony...............................................   128
        Prepared Testimony...........................................   130

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Item for the record submitted by The Honorable Sheila Jackson
      Lee, Subcommittee on the Constitution, Civil Rights, and Civil
      Liberties......................................................   149

                                    APPENDIX

    Items submitted for the record by Michael T. Morley, Assistant
      Professor, Florida State University College of Law.............   159
    Responses to questions for the Record submitted by Justin Levitt,
      Associate Dean for Research, Professor of Law and Gerald T.
      McLaughlin Fellow, Loyola Law School, Los Angeles..............   160
    Responses to questions for the Record submitted by Franita
      Tolson, Vice Dean for Faculty and Academic Affairs and
      Professor of Law, University of Southern California Gould
      School of Law..................................................   170

    CONGRESSIONAL AUTHORITY TO PROTECT VOTING RIGHTS AFTER SHELBY COUNTY V.
                                     HOLDER

                                  ----------

                          TUESDAY, SEPTEMBER 24, 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 2:06 p.m., in
    Room 2237, Rayburn House Office Building, Hon. Jamie Raskin
    presiding.
        Present: Representatives Raskin, Garcia, Escobar, Jackson
    Lee, Johnson, Jordan, Reschenthaler, Cline, and Armstrong.
        Staff Present: David Greengrass, Senior Counsel; John Doty,
    Senior Advisor; Moh Sharma, Member Services and Outreach
    Advisor; James Park, Chief Counsel, Constitution, Civil Rights,
    and Civil Liberties; Keenan Keller, Senior Counsel,
    Constitution, Civil Rights, and Civil Liberties; Sophie Brill,
    Counsel, Constitution, Civil Rights, and Civil Liberties; Will
    Emmons, Professional Staff Member Constitution, Civil Rights,
    and Civil Liberties; Paul Taylor, Minority Counsel; and Andrea
    Woodard, Minority Professional Staff Member.
        Mr. Raskin. Mr. Johnson has arrived, so we can do it.
        Welcome, everybody. Sorry for the heat in the room. I
    understand we have called about getting the air conditioning
    going. We say on Capitol Hill it is not heat, it is the
    stupidity. So we will try to keep both of them down to liveable
    levels during our hearing today.
        The Judiciary Subcommittee on the Constitution, Civil
    Rights and Civil Liberties will come to order. Without
    objection, the chair is authorized to declare a recess of the
    subcommittee at any time.
        I want to welcome everybody, all of our distinguished
    witnesses and everybody in the crowd, to today's hearing on
    congressional authority to protect voting rights after Shelby
    County v. Holder. I am, let's see, going to recognize myself
    first for an opening statement and then turn it over to Mr.
    Johnson, we will swear in the witnesses, and then we will get
    going.
        So today's hearing is part of a series that the House
    Judiciary Subcommittee on the Constitution and Civil Rights is
    holding to assess ways that we can reinvigorate the
    preclearance requirement of Section 5 of the Voting Rights Act
    which was so badly damaged by the Supreme Court in Shelby
    County v. Holder.
        While voting rights are a central part of our national
    narrative and self-understanding, continuing efforts to deny
    the vote and block suffrage rights for excluded groups has been
    as much a part of our history as the proud exercise of the
    franchise by those who enjoy it.
        Congress passed the landmark Voting Rights Act in 1965, but
    it was won by the blood, sweat, tears, and martyrdom of
    countless brave Americans in the civil rights movement, like
    Mickey Schwerner, James Chaney, Andrew Goodman, Viola Liuzzo,
    and Medgar Evers, people who gave their lives struggling for
    the universal right to vote and strong democracy everywhere in
    our country.
        The act mobilized Federal power to protect the fundamental
    right to vote against political White supremacy, focusing on
    jurisdictions that used a literacy test or a character examine
    and where a majority of African Americans or other minorities
    were disenfranchised.
        The key innovation was the Section 5 preclearance
    requirement. The basic problem with laws against
    disenfranchisement is that even if you are able to prove the
    disenfranchisement and punish the offenders, the election is
    long since over, and so the damage to democracy and to
    disenfranchised communities has already been done.
        So the architects of the Voting Rights Act required covered
    jurisdictions, those with the most sordid records of racial
    disenfranchised and oppression, to obtain approval of any
    changes of their voting laws or procedures from the Department
    of Justice or the United States District Court for the District
    of Columbia in advance.
        The preclearance requirement ensured that proven racist
    jurisdictions would bear the burden of proving that any changes
    to their voting laws were not discriminatory before they were
    allowed to take effect. It thus provided a mechanism to ensure
    that any new voting rules and practices in jurisdictions with a
    history of discrimination would actually be fair changes.
        In this way, preclearance proved to be a significant means
    of protecting the rights of minority voters, and it empowered
    millions of African Americans, Latinos, Native Americans, and
    other Americans to register and actually vote.
        This is why Congress had repeatedly reauthorized the
    preclearance provision on an overwhelmingly bipartisan basis,
    most recently in 2006 when the House passed reauthorization by
    a vote of 390 to 33 and the Senate by a vote of 98 to 0.
        But in 2013, the Roberts Supreme Court effectively gutted
    Section 5 and destroyed the preclearance mechanism when it
    struck down the coverage formula that determined which
    jurisdictions would be subject to the preclearance requirement.
    It held that the decades-old preclearance requirement was now
    an unjustified intrusion into State sovereignty because the
    coverage formula failed to reflect current conditions. It
    essentially held that the coverage formula now violated equal
    protection, not equal protection of the people but of the
    States, a fairly remarkable turn of events.
        In any case, the preclearance provision is dormant and
    useless unless and until we adopt a new coverage formula to
    replace the one that was invalidated by the Court. Although the
    Court struck down the coverage formula in Shelby County, it
    noted that it issued no holding on the preclearance provision
    itself. The Court indicated that Congress could draft another
    formula based on current conditions.
        As we have seen in the five hearings we have held so far on
    the problem, the Shelby decision opened a new era for formerly
    covered jurisdictions implementing a broad array of
    discriminatory new voting tactics and devices.
        North Carolina, for example, passed a strict voter ID law
    that a Federal appeals court ultimately struck down as
    unconstitutional, finding that it intentionally targeted
    African Americans for disenfranchisement with almost surgical
    precision. Yet, as the litigation wound its way upwards,
    elections took place for officeholders at the Federal, State,
    and local level. In other words, judicial nullification of the
    preclearance provision paved the way for precisely the kind of
    voter disenfranchisement that Congress had intended to prevent
    when it adopted the Voting Rights Act.
        We have learned of other profoundly troubling recent State
    efforts to turn the clock backwards, including by widespread
    polling place closures and relocations, the practice of purging
    voters from the rolls in a way that targets racial and ethnic
    minorities, and the imposition of aggressive restrictions on
    ex-felon voting.
        With the current new generation of voter suppression
    tactics in the wake of Shelby County v. Holder, America is
    being served some of the same nasty old wine in some new
    bottles. And in some cases, even the bottles themselves are
    recycled.
        Congress must act, and we have the power do so. The
    considered opinion of many constitutional scholars, including
    many here today, several here today, is that our authority to
    stop race discrimination in voting remains expansive even
    within the terms of the Shelby County ruling. The 14th and 15th
    Amendments, of course, gave Congress explicit legislative power
    to enforce voting rights and equal protection against
    deliberate race discrimination. These amendments formed the
    basis of our authority to pass the Voting Rights Act in the
    first place, including the preclearance requirement.
        When the Voting Rights Act was first challenged the year
    after passage, the Supreme Court in South Carolina v.
    Katzenbach upheld the preclearance provision and its coverage
    formula, holding that congressional authority to enforce the
    15th Amendment is broad and comprehensive and that implementing
    legislation must pass only a test of minimum rationality, does
    it reasonably advance a legitimate State interest.
        I also note that the Elections Clause, which confers
    authority on Congress to regulate Federal elections, could
    further bolster and does further bolster the act's
    constitutionality.
        The Court in Shelby County hardly addressed these
    foundational sources of congressional authority. But even on
    its own terms, the Shelby County decision left precedent
    standing that recognizes our authority to act to protect the
    voting rights of the people. So this is why we have invited the
    panel to gather today to come and advise us on this process.
        I thank our witnesses and our members for being here today,
    and I look forward to a lively and substantive discussion.
        It is now my great pleasure to recognize the distinguished
    ranking member of the subcommittee, the gentleman from
    Louisiana, Mr. Johnson, for his opening statement.
        Mr. Johnson. Thank you, Mr. Chairman.
        Thank you all for being here.
        It is an important issue. This is our fifth hearing, as was
    mentioned. And as I said at our last one, we all agree, I mean,
    I think every Member of Congress would agree openly that
    discriminatory treatment in voting based on race or sex is
    abhorrent. It is, of course, prohibited by the Constitution, as
    it should be, and it is prohibited by Federal statute, as it
    should be.
        But too often complaints of discrimination in voting have
    nothing to do with discriminatory treatment. Instead, rules
    entirely neutral on their face are sometimes claimed to be
    discriminatory simply because they have a disparate impact on
    one group or another. But we make the point so often that
    disparate impacts are not proof of discrimination. Indeed, they
    are statistically inevitable.
        Yet the bill we will be discussing today, H.R. 4, would
    prevent States from enforcing their neutral voting rights laws
    if they aren't approved by the Justice Department, and that is
    an entity with a history of politicizing that power in the
    past. And it would do so based on claims of disparate impact,
    which are statistically inevitable and not evidence of any
    racially discriminatory treatment per se.
        Take the example of the Department of Justice's letter
    declining to preclear South Carolina's voter ID law under the
    Voting Rights Act as it existed in 2011. The Department claimed
    in the letter that, quote, ``minority registered voters were
    nearly 20 percent more likely to be effectively
    disenfranchised,'' unquote, by the law because they lacked a
    driver's license.
        But the difference between White and African American
    holders of a driver's license was only 1.6 percent. The Justice
    Department used the 20 percent figure because, while the
    State's data showed that 8.4 percent of White registered voters
    lacked any form of DMV-issued ID as compared to 10 percent of
    non-White registered voters, the number 10 is 20 percent larger
    than the number 8.4.
        So it is true mathematically that 10 is 20 percent larger
    than 8.4--actually, it is 19 percent larger, but the Justice
    Department rounded up--but it clearly distorts the reported
    difference in driver's license rates and it was used to falsely
    declare the South Carolina law discriminatory.
        What other factors might then explain differences in
    outcome among demographic groups. Well, to give just one
    example, data shows that younger people among both African
    Americans and Whites tend to be the least likely to have
    driver's licenses. Consequently, if African Americans have
    proportionately more young people in their demographic group
    there will be a disproportion number of African Americans
    without driver's licenses, however slight, as is indeed the
    case. That is not discrimination. That is just math. It is
    demographics.
        The disparate impact approach to civil rights and the
    assumption that different outcomes are the result of
    discrimination is fundamentally unsound for the same reason
    social scientists are trained that correlation does not imply
    causation. In other words, there can be all sorts of
    correlations between one event and another, and that doesn't
    answer the question as to why the correlation exists.
        Regarding discriminatory treatment in voting that is based
    on race, Section 3 of the Voting Rights Act, which is permanent
    Federal statutory law, remains in place and in full effect. It
    allows any Federal judge, upon proof of discriminatory
    treatment in voting based on race, to subject the offending
    jurisdiction to whatever preclearance regime the Court deems
    appropriate.
        But H.R. 4 would go far beyond what is constitutionally
    permissible and it would allow a politicized Justice Department
    to veto or amend State voting laws to the political advantage
    of the party in power.
        As one of the witnesses before us today will explain,
    Congress cannot constitutionally enact legislation denying
    States and localities control over their voting rules when
    there is no evidence they have been engaging in discriminatory
    treatment in voting based on race.
        The Supreme Court's holding in City of Boerne v. Flores
    held that a law enacted pursuant to the 14th Amendment must be
    congruent and proportional to actual constitutional violations
    that can be established in an evidentiary record.
        In considering whether a law satisfies Boerne's congruence
    and proportionality standard, the Court assesses whether a
    record of actual constitution violations exist; that is,
    intentional discrimination in voting based on race. The Supreme
    Court has taken a dim view of statutes aimed primarily at
    eliminating disparate impacts that don't themselves violate the
    14th Amendment. But that is just what H.R. 4 does.
        This committee and other organizations have claimed to have
    compiled evidence to demonstrate the need to amend the Voting
    Rights Act. But the list of examples overwhelmingly includes
    DOJ objections to State and local voting rules changes under
    Section 5 of the old Voting Rights Act, Section 2 cases, and
    cases in which a jurisdiction may have stopped defending the
    case after the district court level.
        The Department of Justice Section 5 objections are just
    that, and not official determinations by a court of ultimate
    jurisdiction that a State or locality actually engaged in
    disparate treatment in voting based on race.
        Section 2 cases can continue to be brought today, just as
    other civil rights case are brought, so such cases don't
    demonstrate the need to amendment the Voting Rights Act. And
    cases in which a jurisdiction may have stopped defending the
    case or settled the case after the district court level may
    simply indicate the jurisdiction couldn't afford to continue
    appealing the case up to a higher court where the jurisdiction
    may ultimately have won if it could have afforded to.
        Lots said there, lots more to discuss. And with that, I
    look forward to hearing from all of our witnesses today. We do
    appreciate your time.
        And I yield back.
        Mr. Raskin. All right. Thank you very much, Mr. Johnson,
    for your opening.
        We welcome all our witnesses. And I want to thank you for
    participating in today's hearing. Please note that your written
    statement will be submitted to the record in its entirety, and
    we ask that you summarize your thoughts in 5 cogent minutes, if
    you would.
        There is a timing light on the table. When the light goes
    from green to yellow, that indicates you have got a minute to
    go. When the light turns red, it signals that your 5 minutes
    have expired. So all you law professors take note, and I am
    speaking as a law professor here.
        Before proceeding, I hereby remind each witness that all of
    your written and oral statements made to the subcommittee in
    connection with this hearing are subject to penalties of
    perjury pursuant to 18 U.S.C. 1001, which may result in the
    imposition of a fine or imprisonment of up to 5 years or both.
        Our first witness is Justin Levitt, an associate dean for
    research, a professor of law at the Loyola School of Law in
    L.A. he was previously the deputy assistant AG in the Civil
    Rights Division of Justice. He has published many excellent
    pieces in the Yale Law and Policy Review, the Harvard Law
    Review, and so on, and I have learned a lot from his work over
    the years.
        And Professor Levitt, you are recognized now for 5 minutes.

       STATEMENTS OF JUSTIN LEVITT, ASSOCIATE DEAN FOR RESEARCH,
     PROFESSOR OF LAW AND GERALD T. MCLAUGHLIN FELLOW, LOYOLA LAW
    SCHOOL, LOS ANGELES; FRANITA TOLSON, VICE DEAN FOR FACULTY AND
     ACADEMIC AFFAIRS AND PROFESSOR OF LAW, UNIVERSITY OF SOUTHERN
    CALIFORNIA GOULD SCHOOL OF LAW; DEBO P. ADEGBILE, ESQ.; MICHAEL
       T. MORLEY, ASSISTANT PROFESSOR, FLORIDA STATE UNIVERSITY
     COLLEGE OF LAW; JOE RICH, FORMER CHIEF, VOTING SECTION, CIVIL
     RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE; AND KIRA ROMERO-
            CRAFT, MANAGING ATTORNEY, LATINO JUSTICE, PRLDEF

                       STATEMENT OF JUSTIN LEVITT

        Mr. Levitt. Thank you very much, Mr. Chair, Mr. Ranking
    Member, distinguished members of the subcommittee, thank you
    very much for the opportunity to testify.
        Federal legislation is essential to protecting voting
    rights. The courts have done serious damage to the current
    enforcement regime. Bipartisan action should restore it.
        The members of this committee who were able to vote in 2006
    on the last reauthorization, Republican and Democrat, voted for
    the last reauthorization. And I very much hope to help the
    committee reach a similar consensus here today.
        Congress has the broad power to guard against racial
    discrimination in the franchise. I am, in fact, one of those
    scholars you mentioned, Mr. Chair.
        The 15th Amendment, as just one example, is devoted
    entirely to the topic. The Constitution has only been amended
    27 times in our history, and one explicitly prohibits
    discrimination in voting. That speaks both to the importance of
    the issue and the urgency of addressing it.
        The 15th Amendment also expressly gives Congress the power
    and responsibility to enforce that prohibition through
    appropriate legislation. This is an enumerated power. It is not
    less than the enumerated power to regulate interstate commerce.
    It is not less than the power to regulate the Armed Forces. It
    is not less than the power to appropriate spending for the
    common defense and the general welfare.
        This is a responsibility that Congress was given and one
    that I am increasingly encouraged that you are taking up,
    including with this hearing here today.
        The Supreme Court has also been quite clear that this
    enumerated power is not confined to the four corners of the
    amendment itself. It includes the power to block State
    practices that, and I quote, ``perpetuate the effects of past
    discrimination,'' and it includes the power to, and I quote
    again, ``prevent and deter discrimination on the horizon.'' And
    the structure of H.R. 4 is squarely within that power.
        Even while confining Federal authority in other areas, the
    court has repeatedly held up the Voting Rights Act as the
    exemplar of congressional authority. This is the thing that is
    most well-founded on Congress' constitutional bulwark. And
    there is only one meaningful exception to that. It is the
    Shelby County v. Holder case in 2013.
        I am not a fan of the Shelby County decision, but its legal
    rule is simple enough: Congressional action has to be
    reasonably related to current conditions. The Court thought
    that the formula for preclearing new laws reauthorized in 2006
    took its core from 1964 turnout statistics, and the Court found
    that 40-year disconnect irrational.
        Shelby County gave us more than that legal rule. It gave us
    a problem. Preclearance was an extraordinary remedy for an
    extraordinary concern: racial discrimination in voting. It is
    still sadly necessary. Indeed, after several Texas cases
    highlighted in my written testimony, preclearance is more
    necessary than ever. Shelby County neutered it.
        Most civil rights legislation--most civil rights litigation
    is responsive. If there is a legal problem, you sue, you prove
    harm. Remedies make the plaintiff whole. But enforcing voting
    rights is different.
        Discriminatory election laws skew the terrain by which
    officials hold office. When they fight tooth and nail to keep
    the skew to keep their jobs, they don't bear the costs, the
    taxpayers do. If taxpayers disapprove, they can't toss the
    offenders out because the election rules themselves are the
    problem.
        In no other arena is the incentive for officials to
    discriminate so personal and the costs so dispersed. Enforcing
    voting rights is different.
        Voting lawsuits are also complicated, the sixth most
    complicated in Federal Court. They are expensive and they are
    slow, with years to develop evidence and years, as you
    mentioned, Mr. Chair, to resolve. Voting rights are different.
        Meanwhile, also as you mentioned, Mr. Chair, elections
    infected with discrimination don't wait. We know that elections
    have consequences. Discriminatory elections have consequences,
    too.
        Discriminatory elections produce incumbents who end up
    making policy. And even if you eventually get the election
    structure right, that doesn't fix the policy of the meantime.
    There is no way to make voters whole after a discriminatory
    election. Enforcing votes rights is different.
        After Shelby County, the existing tools to defend against
    this discrimination are insufficient. But Congress can and
    should fix the damage Shelby County created well within the
    rules Shelby County handed down. The Court explicitly invited
    Congress to pass a new basis for preclearance reasonably
    related to current conditions. H.R. 4 does that. It looks for
    current patterns of recidivism and stops them in their tracks.
        The other remaining provisions of H.R. 4 are similarly all
    based on constitutional authority, which I have pointed to my
    written testimony. I look forward to discussing in Q&A. I thank
    the members for their time.
        [The statement of Mr. Levitt follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Raskin. And thank you very much, Mr. Levitt.
        Franita Tolson is the vice dean for faculty and academic
    affairs and professor of law at the University of Southern
    California Gould School of Law where she teaches in
    constitutional law and election law. She has written a wide
    range of topics in the field of election law, including
    partisan gerrymandering, campaign finance reform, the Voting
    Rights Acts of 1965, and the Reconstruction amendments.
        Her voluminous research has appeared in leading law
    reviews, including the BU Law Review, the Vanderbilt Law
    Review, the Alabama Law Review, and many others.
        And we are delighted that you came all the way out,
    Professor Tolson. And you are recognized for 5 minutes.

                      STATEMENT OF FRANITA TOLSON

        Ms. Tolson. Thank you, Mr. Chair, ranking members, and
    distinguished members of this committee. Thank you for the
    opportunity to appear and speak about the scope of
    congressional power to protect voting rights. This issue has
    been at the core of my research since I entered the legal
    academy over a decade ago.
        My brief comments will focus on how Congress has broad
    constitutional authority to enact H.R. 4, authority that
    includes the elections clause of Article I, Section 4 of the
    Constitution.
        In addition to its power to enforce the guarantees of the
    14th and 15th Amendments, which prohibit racial discrimination
    in voting and elections, the Elections Clause of Article I,
    Section 4 provides that the States shall chose, quote, ``the
    times, places, and manner of holding elections'' for
    Representatives and Senators, but subject to Congress'
    authority to, quote, ``make or alter such regulations.''
        As I have argued in my scholarship, this provision forms
    the basis of our system of Federal elections by giving States
    plenary authority to set the ground rules while Congress
    retains a veto power over State regulations.
        Congress' authority under the Elections Clause is, in the
    words of the Supreme Court, paramount. The Elections Clause has
    been overlooked as a source of authority for the Voting Rights
    Act of 1965 even though the clause provides additional
    authorization for its provisions.
        In Shelby County v. Holder, the Supreme Court held that the
    coverage formula of Section 4(b) of the Voting Rights Act was
    unconstitutional. In striking down Section 4(b), Shelby County
    accorded no significance to the fact that authority for the VRA
    rested on both the 14th and the 15th Amendments. There was also
    no consideration of the Elections Clause.
        In the post-Shelby world, this has created substantial
    confusion about the level of deference that the Court should
    accord to Congress when reviewing the legislative record of any
    Federal voting rights legislation.
        Congress can reduce the risk that the Supreme Court will
    invalidate the coverage formula of the Voting Rights Act
    Amendment Act by explicitly relying on provisions like the
    Elections Clause that bolster Federal power when coupled with
    Congress' enforcement authority under the 14th and 15th
    Amendments.
        The Elections Clause has its own set of unique values that
    place a premium on congressional sovereignty, and Congress has,
    on occasion, imposed substantive requirements that States must
    follow in structuring Federal elections.
        The overarching purpose of the clause is to ensure the
    continued existence and legitimacy of Federal elections. So the
    text empowers Congress to displace State law and commandeer
    State officials towards achieving this end.
        The Elections Clause avoids many of the traps that have
    constrained congressional power under the Reconstruction
    amendment. By depriving States of the final policymaking
    authority that is the hallmark of sovereignty, the clause is
    impervious to the federalism concerns that have constrained
    congressional action under the 14th and 15th Amendments.
        The clause is also distinct from these provisions because
    the clause does not require any evidence of discriminatory
    intent in order for Congress to intervene, providing further
    justification for a legislative record that shows that States
    acted with discriminatory effect or in ways that otherwise
    abridge or deny the right to vote.
        The Elections Clause can also indirectly affect regulations
    long considered to be in the domain of the States, voter
    qualification standards and procedural regulations that govern
    State elections.
        It is difficult to insulate these regulations from the
    reach of Federal power. Not only do voters in State and Federal
    elections have the same qualifications, but State and local
    governments use many of the same practices in Federal elections
    as they do for State and local elections. Voters register to
    vote, go to the same polling place at the same time and vote on
    the same ballot for Federal, State, and local elections in most
    places.
        As a result, a voting change affecting State and local
    elections will also affect Federal elections. If a voting
    change will have the effect of undermining the health of
    Federal elections, then the Elections Clause provides
    sufficient authority for Congress to regulate those changes.
        H.R. 4, if enacted pursuant to the Elections Clause and the
    Reconstruction amendments, would address all of the objections
    lodged against the preclearance regime by the Court in Shelby
    County v. Holder.
        The Court was concerned that preclearance for covered
    jurisdictions was determined based on outdated information
    rather than based on current voting rights violations. H.R. 4
    links preclearance to voting rights violations committed in the
    State in recent decades, the existence of which illustrates
    that the State has failed in its obligation to protect the
    right to vote such that Federal intervention is required under
    the 14th and 15th Amendments.
        H.R. 4 also addresses constitutional objections that seek
    to challenge congressional power to premise liability on
    violations of Federal voting rights laws that, unlike
    constitutional claims, do not require the plaintiff to
    establish discriminatory intent.
        The Elections Clause, when coupled with the 14th and 15th
    Amendments, provides sufficient constitutional justification
    for a regime that premises liability on both discriminatory
    intent and effect. Because there is no requirement of
    discriminatory intent under the Elections Clause, this
    decreases the amount of intentionally discriminatory behavior
    that Congress has to amass in compiling the legislative record
    for H.R. 4.
        With the authority granted by these provisions, Congress'
    constitutional authority to enact H.R. 4 is substantial.
        Thank you for the opportunity to discuss my research. I
    welcome any questions that you have.
        [The statement of Ms. Tolson follows:]

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        Mr. Raskin. Perfect. Thank you, Professor Tolson.
        Debo Adegbile is a partner at WilmerHale, a member of the
    U.S. Commission on Civil Rights. He is testifying here today in
    his personal capacity. At WilmerHale, he co-chairs the anti-
    discrimination practice. He has served up on the Hill as senior
    counsel for the Senate Judiciary Committee, advising then
    committee chair Senator Leahy on a number of issues, including
    voting rights.
        He has worked also for more than a decade for the NAACP
    Legal Defense and Educational Fund and was its chief litigator.
    He argued Shelby County v. Holder before the Supreme Court in
    February of 2013.
        We are delighted to have you, and you are recognized for 5
    minutes.

                     STATEMENT OF DEBO P. ADEGBILE

        Mr. Adegbile. Thank you, Mr. Chair, Ranking Member, and
    members of the committee. It is good to be with you here today.
    As you have heard, I am here today as a voting rights
    litigator, a citizen, and somebody who is concerned about the
    future of voting rights in America, and in my personal capacity
    and not in any other.
        Today I would like to talk to you about and focus my
    testimony on two broad points. The first is the impact the
    Court's decision in Shelby County has had on our democracy,
    what we lost as a result of that decision.
        The preclearance protections of the Voting Rights Act of
    1965 brought profound benefits to American democracy. In many
    ways, it was the VRA that helped the Nation realize the promise
    of our democracy for the first time in our history.
        Of course, much work remains to be done to improve and
    guard our democracy. No single law or policy has been more
    effective than preclearance in guarding equal voting rights and
    blocking and deterring the scourge of racial discrimination in
    elections.
        We know this because this Congress has passed a number of
    other statutes previously that did not get the job done. In a
    sense, the preclearance process served as a sort of democracy
    checkpoint, keeping the road to the ballot box ahead safe by
    preventing discrimination from risking serious harm.
        Both cars stopped at checkpoints are, of course, not
    violating any law, and there is an incidental burden imposed on
    those on the road. But checkpoints stop some cars that are very
    dangerous. We are glad they do. And knowledge of checkpoints
    may deter reckless driving.
        But our democracy checkpoint is gone, and Shelby County is,
    unfortunately, regarded by some as a green light to impose
    discriminatory voting measures. The adverse effects are felt
    inside and, I would argue, outside of the covered
    jurisdictions.
        Inside the formally covered jurisdictions, measures that
    would have otherwise been blocked, in some cases that had been
    blocked, went into effect in the absence of preimplementation
    protection. More broadly, outside the covered jurisdictions,
    Shelby County has had a signaling effect that the Federal
    Government was in retreat regarding minority voting
    protections.
        We have lost a law that prevented scores of discriminatory
    laws from going into effect. We have lost a law that gave us
    transparency and accountability that comes from having a system
    where election changes are scrutinized before they take effect.
    We lost the deterrent effects of preclearance, and we lost the
    signal that preclearance sent that our national government
    remains what Charles Sumner called the ``custodian of freedom''
    and stands willing and able to stop local governments from
    subordinating minority groups in the political process.
        There is another important aspect of voting discrimination
    to keep foremost in mind. Voting discrimination usually occurs
    through laws and practices that affect large numbers of voters,
    as we have heard today. A single discriminatory polling place
    change or redistricting map can adversely affect thousands or
    tens of thousands of voters. And once the benefits of
    incumbency vest, in many cases it is difficult for litigation
    to undo or rectify the harm.
        Second, I want to address some potential constitutional
    questions. When Congress reauthorized the VRA in 2006, it
    legislated against a backdrop of an unbroken line of Supreme
    Court authority holding in case after case that the VRA's
    preclearance protections were constitutional. Indeed, when the
    Civil War ended, the Reconstruction amendments provided
    Congress with substantial affirmative power to finally enforce
    the founding principle of equality.
        Those amendments provided new and specific authority for
    this body to act to ensure that voting rights are protected,
    stating that Congress ``shall have the power to enforce this
    article by appropriate legislation.'' The Elections Clause, as
    we have heard, is another source of congressional authority.
        Those powers remain undiminished by the Shelby County
    decision, and this body holds the power constitutionally vested
    in it expressly to continue the fight to protect voters through
    prophylactic measures.
        The Supreme Court decision in Shelby changes none of that,
    and I argue that the coverage contemplated in the VRAA is
    responsive to the current conditions guidance that the Court
    gave us in Shelby. The Supreme Court invited a new measure, a
    new coverage formula, and that is what this body intends to do
    with the VRAA.
        Importantly, Section 3 lays out a new coverage standard
    that replaces the old one. The basic rule is that if there are
    contemporary and persistent voting rights violations, that a
    State or county meets a threshold, then you will be subject to
    preclearance, but if you improve, you can change your status
    and get out of preclearance.
        I close with a larger thought about how we should look at
    all of this. As Congress approaches this legislation, it does
    so with the knowledge that we are decades away from 1965 and in
    the tumultuous wake of Shelby. As is the case with the Shelby
    County opinion, we are too often told that things in America
    have changed. Thankfully, that is true in many significant
    ways. But the success of the Voting Rights Act is best
    understood not as an end point but as a beginning on the road
    to minority inclusion.
        Thank you.
        [The statement of Mr. Adegbile follows:]

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        Mr. Raskin. Thank you, Mr. Adegbile.
        Professor Michael Morley teaches at Florida State
    University College of Law. He also works in the areas of
    election law, constitutional law remedies in Federal courts.
    Received his J.D. from Yale Law School in 2003.
        And we are delighted to have you with us, Professor Morley.
    You are recognized for 5 minutes.

                     STATEMENT OF MICHAEL T. MORLEY

        Mr. Morley. Mr. Chairman, Ranking Member Johnson, and
    members of the committee, thank you very much for inviting me
    here today to testify. It is an honor to have the opportunity
    to offer thoughts about Congress' authority to protect voting
    rights in the wake of Shelby County.
        The Voting Rights Act is one of the most important strata
    in the firmament of election law. For decades it has been
    called a super statute, part of the institutional backdrop
    against which others law are enacted. Ensuring its continued
    vitality is a continued priority.
        Over recent years, and particularly following the
    appointments of Justices Gorsuch and Kavanaugh, a majority on
    the U.S. Supreme Court has placed greater emphasis on enforcing
    a textualist, originalist, and structuralist approach to
    constitutional interpretation.
        Among other things, this has led the conservative majority
    on the Court to enforce greater restraints on the scope of the
    Federal Government's authority, enforcing federalism-based
    protections for State sovereignty, and limiting the judiciary's
    ability to enforce its own conception of fairness in the
    electoral process.
        The Court's ruling in City of Boerne v. Flores curtailing
    the scope of Congress' authority under Section 5 of the 14th
    Amendment was a first warning sign that the majority on the
    Court would require that laws enacted under that provision be
    tailored to the protection and enforcement of constitutional
    rights and that Congress' power to enact prophylactic measures
    is limited.
        The Court sounded an even louder and more urgent warning in
    Northwestern Austin Municipal Utility District No. 1 v. Holder
    in which the Court voiced concerns about the VRA's formula for
    identifying covered jurisdictions.
        Finally, in Shelby County, the Court invalidated Section
    4(b) of the Voting Rights Act, holding that the list of covered
    jurisdictions, which was up to a half-century old, was too
    outdated to support the imposition of the strong medicine of
    preclearance.
        As many other witnesses have pointed out, the Shelby County
    opinion invited a dialogue with Congress on these critical
    issues, and the Voting Rights Advancement Act of 2019, H.R. 4,
    reflects an important step toward accepting the Court's
    invitation. I urge this committee to reflect on the Court's
    recent precedents, particularly the limitations that the
    current conservative majority on the court is likely to
    enforce.
        This committee has held hearings across the Nation, heard
    from scores of witnesses, compiled a voluminous record of tens
    of thousands of pages, and devoted countless hours to crafting
    a response to Shelby County. Millions of people's rights hang
    in the balance. Enacting a law that the current conservative
    majority is likely to invalidate would be a pyrrhic victory and
    a setback in the cause for voting rights.
        Boerne and its progeny identify a range of factors that the
    Court takes into account in deciding whether or not a law falls
    within the scope of Congress' power under Section 5, or put
    another way, whether a law is congruent and proportional to
    preventing violations of constitutional rights.
        Among the factors that the Court has placed the greatest
    weight on is whether the law prohibits a wide range of State
    action that doesn't itself actually violate the Constitution,
    whether the law targets and prohibits State action that has a
    disparate impact on members of certain groups, the breadth of
    the law, whether the law itself prohibits State action that
    doesn't intentionally violate constitutional rights, and
    finally, whether the law is of national applicability.
        The more of these factors that apply in a particular case
    and to a particular statute, the greater the likelihood that it
    would be invalidated by the current Court under Boerne.
        I would point out four main aspects of H.R. 4 that I would
    urge the committee to consider.
        First, H.R. 4's definition of voting rights violations may
    be too overbroad to satisfy Boerne's congruence and
    proportionality test, and I am happy to talk about that in the
    Q&A.
        Second, I believe the committee should reconsider the
    bill's treatment of political subdivisions. As currently
    drafted, an entire State, including every county and
    municipality within that State, could become subject to
    preclearance based on the acts of a handful of other
    jurisdictions over the quarter of a century, acts in which most
    of that State's towns and counties, of course, had no
    involvement and had no power to stop.
        Third, the concept of practice-based preclearance, while a
    creative attempt to address Shelby County, is at risk of being
    invalidated under Boerne.
        And finally, Section 6(e) of the bill, prohibiting changes
    to State election laws from occurring unless certain
    disclosures are made, raises questions that the provision
    should be amended to address.
        Thank you very much for your time.
        [The statement of Mr. Morley follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Raskin. Thank you very much for your testimony.
        Joe Rich retired in 2018 from the Lawyers Community for
    Civil Rights Under Law, where he served as co-director of its
    Fair Housing and Community Development Project.
        From 1968 until 2005 he was an attorney in the Civil Rights
    Division of DOJ, acting in various roles, ultimately rising to
    the position of chief of the Voting Section between 1999 and
    2005.
        Mr. Rich, welcome, and you are recognized for 5 minutes.

                         STATEMENT OF JOE RICH

        Mr. Rich. Thank you, Mr. Chairman. Thank you for the
    opportunity to testify today.
        As you noted, I worked at the Department of Justice for 37
    years; 1999 to 2005 I was chief of the Voting Section. I am
    testifying today in my individual capacity, not on behalf of
    the Lawyers Committee or the Department of Justice, and it is
    based on my long career enforcing civil rights laws that has
    informed my perspective of the Voting Rights Act and the
    continuing need for restoring the full protections of the act
    which were lost as a result of the Shelby case.
        The voting Rights Act of 1965 is the most important and
    successful civil rights law ever passed, but the Shelby County
    decision gutted the preclearance provisions which are the heart
    of the act, provisions which have been crucial in stopping
    discriminatory voting changes and laws before they ever took
    effect in States with a long history of discrimination.
        The most devastating impact of this decision, in my
    judgment, has been the loss of the deterrent effect of Section
    5 that it had on the adoption of discriminatory voting laws in
    those jurisdictions that were covered by Section 5.
        This has been particularly true in the context of
    redistricting legislation in which racially gerrymandered and
    discriminatory districting has been created by legislators and
    their consultants without public participation. For example,
    the day after the Shelby decision, Texas reinstated a
    redistricting plan previously objected to by the Department
    under Section 5.
        Another example is set forth in a recent study by the
    Leadership Conference on Human and Civil Rights which found
    that some 1,688 polling sites had been closed in the wake of
    the Shelby County decision, many without notice or input from
    the communities impacted by these changes. The majority of
    these changes took place in jurisdictions formerly covered by
    Section 5, including Texas, Georgia, and Arizona, and many were
    in majority-minority areas, resulting in a discriminatory
    impact on voters of color.
        Had preclearance provisions been in place, it would very
    likely have prevented a significant number of these
    discriminatory closures.
        The gutting of Section 5 has also resulted in a loss of
    transparency. When Section 5 was in effect, the Department of
    Justice provided on its website valuable information about
    voting change submissions and the status of Section 5 reviews
    for the public. Now voters and advocates in the formerly
    covered States and local jurisdictions are often in the dark
    about discriminatory voting changes.
        The loss of the preclearance provisions has also severely
    curtailed the ability of the Department of Justice to deploy
    Federal observers to monitor elections. This was an important
    provision of the Voting Rights Act that permitted observations
    of elections by specially trained personnel from OPM inside
    polling places and where the votes were being counted.
        Before Shelby County, jurisdictions that were covered by
    Section 5 could be certified by the Attorney General for
    Federal observers in situations where there was evidence of
    possible racial discrimination. Without Section 5, this
    authority has been lost.
        The proposed legislation will reinstate the Attorney
    General's authority. Importantly, it will also provide new
    authority to send Federal observers to Section 203
    jurisdictions to ensure that language assistance required by
    203 is provided to limited English proficient citizens in a
    fair manner.
        In conclusion, it is now time to enact legislation to
    restore the important protections that minority voters have
    lost as a result of the Shelby decision. Reinstatement of a
    preclearance requirement for jurisdictions found to have had
    numerous recent voting rights violations will deter and stop
    discriminatory voting changes before they go into effect.
    Reinstating the Attorney General's authority to certify Federal
    observers will help ensure elections free from racial
    discrimination and provide language minority voters an equal
    opportunity to vote.
        Thank you.
        [The statement of Mr. Rich follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Raskin. Perfect, with 2 seconds to go. You have done
    this before clearly.
        Ms. Kira Romero-Craft is managing attorney for the
    Southeast Office for the Latino Justice Puerto Rican Legal
    Defense and Education Fund. In that role she provides direct
    representation for clients in civil rights cases, including
    those with voting rights claims.
        Beyond her litigation work, she organizes outside
    coalitions regarding immigrant rights, voting rights, and
    criminal justice reform policy and works to educate the public
    and policymakers about these issues.
        Ms. Romero-Craft, welcome. You are recognized for 5
    minutes.

                     STATEMENT OF KIRA ROMERO-CRAFT

        Ms. Romero-Craft. Thank you, Chairman Raskin,
        Ranking Member Johnson, members of the committee. I am here
    in my capacity to represent LatinoJustice PRLDEF. We have led
    the way in ushering bilingual voting systems to the benefit of
    millions of language minority voters. Today we use litigation
    and advocacy to protect those rights, to stop discriminatory
    purges of eligible voters, and to stem the dilution of Latino
    voting strength.
        I thank you for the opportunity to testify before you about
    the ongoing discrimination and challenges faced by language
    minority voters in Florida when they attempt to exercise their
    fundamental right to vote and why reinstatement and expansion
    of the Federal observer certification by the Attorney General
    to Section 203-covered jurisdictions as proposed in H.R. 4 is
    of critical importance to ensure that language minority voters
    enjoy the full protection of the Voting Rights Act.
        I began working with the nonpartisan Election Protection
    Coalition when I joined LatinoJustice's managing attorney in
    2017. As a result, I have fielded many complaints about
    discrimination suffered by voters of color and language
    minority voters during elections in Florida and have witnessed
    firsthand the resistance of election officials to fully comply
    with the language assistance requirements of the Voting Rights
    Act.
        There is a saying in Spanish [Speaking foreign language].
    That translated to English means it is better to ask for
    forgiveness than to seek permission. That is essentially what
    the abolishment of the preclearance requirement has done to the
    voting rights of citizens no longer protected by Section 5 of
    the VRA.
        I am here today to testify specifically about how after the
    Shelby County decision the U.S. Department of Justice took the
    position that the Attorney General could no longer certify
    jurisdictions for the assignment of Federal observers, thereby
    preventing DOJ from using this important tool to combat
    discrimination against language minority voters inside of
    polling places.
        An example of a recent case where Federal observers at the
    polls may have made a difference in Florida involved the
    failure of the State and numerous Florida counties to provide
    language assistance to Puerto Rican voters after Hurricane
    Maria where our State had welcomed an influx of refugees with
    limited English proficiency in 2018 as required by Section 4(e)
    of the VRA. And to be clear, Section 4(e) applies across the
    country.
        Our calls to election officials to address their
    obligations to provide Spanish language assistance under
    Section 4(e) went substantively unanswered. Our organization,
    LatinoJustice, and Demos filed a lawsuit against the Florida
    secretary of state and 32 Florida counties that would have
    forced Spanish speaking voters to vote in English, a language
    that many of them do not understand.
        Because of our election protection activities, we also
    learned that polling places and counties named in the lawsuit
    were failing to provide materials and assistance as per the
    court orders.
        Had Federal observers been stationed in these polling
    locations, they may have ensured compliance and deterred the
    continuing violations of law. Federal observers would have had
    the authority to investigate and report out on these
    violations.
        The court granted our motion to stay the case pending a
    rulemaking process for statewide Spanish language ballots as
    initiated by the Governor as a result of our litigation. Yet
    despite the court order and the Governor's mandate, we are
    still met with resistance in order for the supervisor of
    elections to obey the law.
        Comments made during the May 21, 2009, rulemaking workshop
    held at the Supervisor of Elections' conference included these:
    ``It is not in the Spanish culture for Latinos to do this type
    of work. Now my grandmother was 100 percent Cuban. It is my
    culture. We don't volunteer for these things. I tried to hire
    people that didn't even have to go to poll worker training.
    They just had to sit and translate. I paid them. They wouldn't
    do it.'' This was met to clapping. ``And yet your proposed rule
    is likely to inflict a lot of financial damage and a lot of
    inconvenience and a lot of wasted time.''
        These and many other comments were made by the Supervisor
    of Elections, and we, as a nonprofit organization, are unable
    to be inside of the polling station, so we are unable to
    monitor how these discriminatory acts are taking place.
        The H.R. 4 provisions reinstating the ability of the
    Attorney General to certify jurisdictions for Federal observers
    and the ability to certify Section 203 jurisdictions for the
    assignment of observers would undoubtedly help deter and
    prevent discrimination against language minority voters and
    ensure that they receive the mandatory language assistance as
    observers may be stationed inside of the polls to monitor the
    assistance the voters are entitled to receive under the law.
        We lose the trust of voters by not passing this law to
    reinstitute the preclearance requirements for the States
    showing a history of violation of voting law. Seeking
    forgiveness once the harm is done rarely results in an adequate
    remedy once it comes to voting rights violations, as the
    professor from Loyola discussed.
        In closing, we support passage of H.R. 4 with the goal of
    improving language access services to language minority voters
    by supporting coverage under Section 203 and Section 4(e) of
    the Voting Rights Act.
        Thank you very much.
        [The statement of Ms. Romero-Craft follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Raskin. And thank you very much for your testimony.
        We will proceed now under the infamous 5-minute rule for
    questions that each of our members will have.
        I am picking up a drift that most of the members of the
    panel are skeptics of the Supreme Court's decision in Shelby
    County v. Holder, and I think it was abominable, myself.
    However, is there anybody who thinks that the Supreme Court,
    the current Supreme Court, is in any mood to reverse itself and
    to get rid of the Shelby County holding?
        It doesn't look like it. Okay. So we have to work, then,
    within the structure created by the Court in Shelby County.
    There is something of a straitjacket that was imposed upon us,
    although one of the multiple flaws of the decision is that it
    was rather vague and inarticulate about what exactly the
    standard was for defining the legitimacy of congressional
    action under the 14th and 15th Amendments here.
        Let me pose this question. Does everybody agree that City
    of Boerne v. Flores is the controlling regulatory standard that
    we need to meet this congruence and proportionality test?
        I see, Mr. Adegbile, you are shaking your head.
        Mr. Adegbile. No. So, as I read in Shelby County, the Court
    spent a lot of time analyzing Katzenbach and the rationality
    standard, and the standard it articulated is much more
    consistent with Katzenbach than it is with Boerne.
        There was not an extended discussion of Boerne and its
    progeny. In fact, I know--because I submitted the briefs--that
    in the underlying briefs, both in Northwest Austin and in
    Shelby County, there were extensive discussions of the
    standard, but the Court in both Northwest Austin and in Shelby
    County did not take up and frame the standard in those terms.
        Mr. Raskin. All right. So you don't think that the majority
    on the Court today would bring a congruence and proportionality
    prism to interpreting the constitutionality of whatever we
    enact in Congress?
        Mr. Adegbile. As the chairman knows, predicting exactly
    what a new Supreme Court will do--it has different personnel
    now than it did at the time--is a very difficult exercise.
    However, when these issues have been put to the Court in the
    context of the last reauthorization, the Court did not
    expressly adopt the Boerne standard, and it had many
    opportunities to do so.
        Mr. Raskin. All right. But we want something that is going
    to hold up. I mean, is it better for us to err on the side of
    caution in terms of thinking about this?
        Professor Levitt.
        Mr. Levitt. So I just want to--``yes'' is the short answer,
    but I think H.R. 4 amply does that.
        I will also say, there is some sense to the distinction----
        Mr. Raskin. Could you just take us quickly through H.R. 4,
    through a congruence and proportionality analysis?
        Mr. Levitt. Sure. And in this area, they are related. What
    the Court is concerned with is that Congress is trying to
    redefine--the Court doesn't want to let Congress redefine the
    substantive violations of a constitutional amendment. But I
    don't think that H.R. 4 comes anywhere near doing that. It
    takes steps that are tailored to current conditions in a way
    that is designed to either remedy the present effects of past
    intentional discrimination or to prevent and deter, in the
    present tense, intentional discrimination immediately on the
    horizon.
        And I think each of the provisions of H.R. 4--the coverage
    provision for preclearance, notice requirements, the
    requirement to adjust equitable relief standards--each of those
    are tailored, in fact. Even though I agree with Mr. Adegbile, I
    don't think they have to be under Boerne, I think each of those
    are actually tailored to Congress's enforcement authority, not
    just under the 15th Amendment but under the 14th Amendment and,
    as my colleague has said, under the Elections Clause.
        Mr. Raskin. Okay.
        The opponents of the Voting Rights Act say that Section 2
    lacks constitutional authority under the 14th Amendment because
    the amendment requires a showing of purpose but Section 2
    applies to both deliberate and effective discrimination. And
    so, in turn, they say that a new preclearance formula cannot be
    based on the existence of Section 2 violations.
        Justice Thomas seems to believe that the Voting Rights Act
    does not protect against discriminatory vote dilution based on
    race or ethnicity, and he said as much in Cooper v. Harris.
        So, Professor Tolson, let me come to you. Is there any
    reading of Shelby County that casts doubt on the
    constitutionality of Section 2? And what is your response to
    the issue of whether Section 2 violations should form the basis
    for activating the Section 5 coverage formula?
        Ms. Tolson. I don't think Shelby County stands for the
    proposition that Congress doesn't have the authority to
    legislate based on discriminatory effects. I think that the
    Court is looking for a legislative record that is a mix of
    both.
        One thing I want to point out that I think is quite
    pertinent here is the fact that we are focusing a lot on the
    15th Amendment--right?--this focus on race. There is also a
    branch of equal protection jurisprudence that deals with the
    right to vote as a fundamental right that does not focus on or
    require a showing of intentional racial discrimination.
        So if there is evidence that States are abridging or
    denying the right to vote and the legislative record reflects
    that, Congress can legislate based on that authority.
        Mr. Raskin. Okay.
        Finally, let me close on this question to you, which is: Do
    you think we have reason to worry that we will jump through all
    of these hoops to create a better coverage formula and then the
    next sweeping attack on the Voting Rights Act will be to
    dismantle Section 5, saying the preclearance requirement itself
    is unconstitutional?
        Ms. Tolson. All you can do is your job.
        Mr. Raskin. Yeah. But is there a way that we can prepare
    for that?
        Ms. Tolson. I think that H.R. 4, as it stands, is
    consistent with current understanding of the Constitution. We
    can't predict what a Justice Kavanaugh or a Justice Gorsuch
    might do, and I don't think that----
        Mr. Raskin. Do we need to thicken up the legislative record
    about Section 5 to say that it is still needed, that the
    preclearance----
        Ms. Tolson. Right. And I also think that Congress needs to
    be clear about the sources of authority pursuant to which it is
    acting. Force the Court to articulate if it is exceeding the
    scope of congressional authority under the Elections Clause,
    under the 14th and 15th Amendments. Not just race, though.
    Right? It is also about voting.
        Mr. Raskin. Thank you very much.
        I am over my time, and I am happy to recognize the ranking
    member for his questioning.
        Mr. Johnson of Louisiana. Thank you.
        And, Professor Tolson, I tell him to do his job all the
    time, okay?
        I have a few questions for Professor Morley.
        What are some of the features about a Federal law that
    makes the Supreme Court more likely to strike it down as
    exceeding the scope of Congress's power under Section 5 of the
    14th Amendment?
        Mr. Morley. So if you look at the Supreme Court's
    precedents after City of Boerne v. Flores in which it
    considered some very well-known laws as they applied to State
    governments, laws such as the Age Discrimination in Employment
    Act, laws such as the Americans with Disability Act, Family and
    Medical Leave Act, the types of features that the Court took
    into account in determining congruence and proportionality
    included comparing the scope of the law, how much State action,
    how many State laws, how many State acts the Federal law
    prohibited, comparing that to the subset of actually
    unconstitutional State action.
        So, basically, the broader the law went, the broader the
    range of its prophylactic protection, the more State action
    that wasn't actually unconstitutional the Federal law covered.
    That weighed more heavily against it, and that required a
    proportionally greater showing by Congress that such sweeping
    prophylactic relief is necessary.
        And if you look at some of the reasons why those other laws
    were deemed to be overbroad under the congruence and
    proportionality standard, it was because, in part, they applied
    to all State conduct, not only intentionally discriminatory
    conduct but State actions that had a disparate impact against
    members of certain groups. It applied to all State actions, not
    just intentional discrimination or not just intentional
    violations of constitutional rights but also negligent or
    inadvertent State actions.
        And the Court also looked to the applicability of the law,
    that if the law was made nationally applicable, if there wasn't
    an attempt to try to cabin it to places where there actually
    was evidence of constitutional violations, that also tended to
    weigh against the validity of the law under Section 5.
        Mr. Johnson of Louisiana. Specifically, are there any
    constitutional concerns with the Voting Rights Advancement
    Act's proposed definition of a voting rights violation? And
    what are the consequences of designating something a voting
    rights violation under the act?
        Mr. Morley. So if political subdivisions of a State or the
    State itself engages in voting rights violations, enough of
    those over specified periods of time--and the bill has
    different criteria depending on whether the State itself was
    involved in a violation--but, basically, enough voting rights
    violations, and the State or a political subdivision will be
    subject to preclearance requirements under the bill.
        And so the definition of voting rights violations under the
    bill includes violations of Section 2 of the Voting Rights Act,
    including violations that arise under a disparate impact theory
    of liability. So Section 2 of the VRA, insofar as it applies to
    disparate impact, is already a prophylactic protection.
    Preclearance is another prophylactic protection. And so
    imposing preclearance requirements based on disparate impact
    violations of Section 2 of the VRA is stacking prophylaxis upon
    prophylaxis.
        That was one of the main reasons in Coleman v. the Maryland
    Court of Appeals the Supreme Court held Congress had exceeded
    its Section 5 powers. And it was, in fact, drawing from
    campaign finance law. That concept of prophylaxis upon
    prophylaxis led the Supreme Court to strike down aggregate
    contribution limits.
        So the more prophylactic protections you are stacking on
    top of each other, the further you are away from that core of
    an actual constitutional violation.
        Another main concern about the definition of voting rights
    violations is the fact that it is triggered by a consent decree
    or a settlement or an agreement in any case where the
    plaintiffs alleged in complaint that the jurisdiction had
    violated the Constitution or had violated the VRA.
        So even if the parties settle without an admission of
    liability, even if a court never finds that the Constitution
    was violated, simply by entering into a settlement agreement,
    that counts as a Voting Rights Act violation--excuse me--as a
    voting rights violation.
        So, from a policy matter, you are going to be incentivizing
    jurisdictions to continue fighting cases they would otherwise
    be willing to settle. You are incentivizing potentially
    frivolous litigation simply because even a settlement would be
    enough to count as a strike against the State. And particularly
    because States and political subdivisions are often litigating
    under the threat of being hit with attorneys' fees, they will
    often be willing to settle even if they believe that what they
    did wasn't actually unconstitutional or didn't actually violate
    the VRA.
        Mr. Johnson of Louisiana. And I am out of time,
    unfortunately. Thank you. I yield back.
        Mr. Raskin. Very good.
        The gentlelady from Texas, Representative Sheila Jackson
    Lee, is recognized for her 5 minutes.
        Ms. Jackson Lee. Mr. Chairman, thank you.
        And thank you to all of the witnesses that are here before
    us today.
        Let me ask about your response to Professor Morley. And
    here is my question. Is it layered upon layer? Do you feel
    States would be so generous that if you just gave them less of
    a layering they would respond generously, as has been noted?
        And then let me ask the question, as we know, Section 2 is
    the hit-and-run. You have already been hit, the car has already
    escaped, and you are laying on that side of the highway,
    bleeding, and maybe an ambulance will come and rescue you. How
    do you perceive this analysis as it relates to where we are
    today?
        Mr. Adegbile. Thank you for the question.
        I would say in the first instance that the bill
    contemplates a range of conduct, all of which can lead to a
    finding that a jurisdiction needs oversight.
        Much of the conduct could be intentional. There are voting
    rights violations that can be determined through the use of an
    effects standard under Section 2.
        But when you look at what you need to do to prevail in a
    Section 2 case, the indicia and the proof in the underlying
    statute is essentially like intent-light, in some ways. There
    are many specific things that are indicative of an intentional
    conduct, or conduct certainly that has impact, that is framed
    in the context of specific behavior.
        Ms. Jackson Lee. You are already harmed. You are already
    harmed.
        Mr. Adegbile. And, of course, there is an impact and a
    minority voting harm.
        So this is not a statute that leans entirely on one side or
    the other. As we said earlier, the prophylactic power of
    Congress to enforce the underlying right is very substantial.
    And in the Boerne cases that my colleague cites, repeatedly,
    all of those cases pointed to Section 5 of the VRA as being the
    iconic statute, the statute that was----
        Ms. Jackson Lee. The gold standard.
        Mr. Adegbile [continuing]. The statute, right?
        So to take the idea that the Boerne cases somehow disable a
    statute designed to protect voters against discrimination in a
    preclearance way is inconsistent with the jurisprudence, no
    matter how you slice it.
        As to your point about Section 2, Section 2 is very
    important, but it is a post-implementation remedy. And both
    Professor Levitt and I spoke about the difficulty of that
    timing difference. When you have a Section 2 case, they are
    very expensive; they take a long time. Very often, the benefits
    of incumbency have vested, and you can't unring the bell.
        That is what has been lost with the preclearance
    protection. In jurisdictions that have patterns over time of
    discriminatory voting conduct, you need a different measure.
    And, in fact, the history has been that those two measures work
    together.
        Ms. Jackson Lee. That is the point I was making when I said
    the hit-and-run and you are waiting for an ambulance, which is
    you have already been harmed under Section 2. So you bifurcated
    the answer and then responded to my Section 2 question, and I
    appreciate your response.
        Professor Tolson, I am impressed with your work suggesting
    our broad authority in the 14th and 15th Amendments and our
    ability to regulate elections.
        Do you think that we could have had a different decision if
    the Court had included your analysis as part of their
    assessment on the Shelby case?
        Ms. Tolson. Yes, ma'am. I do think that--I did file a brief
    with a group of law professors arguing that the Elections
    Clause provided additional authority for the predecessor to H.
    R. 4, but the Court didn't discuss the Elections Clause. And I
    just think the Court was kind of committed to striking down the
    preclearance regime. So, yeah, I do think that we could have
    had a different outcome.
        Can I make one other point, ma'am----
        Ms. Jackson Lee. Go right ahead.
        Ms. Tolson [continuing]. With respect to your other
    question?
        I just want to point out that a lot of courts don't find
    intent because they don't have to, but that doesn't necessarily
    mean that intent is not present. So if you look at the Texas
    voter ID case, the lower courts found that intent was present
    even though a panel of Fifth Circuit later just relied on the
    Section 2 analysis.
        And so I think that the question of relying on Section 2,
    whether or not it is constitutional, is actually quite complex,
    because a lot of courts, because Section 2 does not require it,
    they do not use an intent analysis. And so I think that the
    current bill takes that into consideration.
        Ms. Jackson Lee. Thank you so very much.
        Mr. Levitt, let me pose again Mr. Morley's long discussion.
    The chilling effect that H. R. 4 would provide, it quashed the
    generosity of jurisdictions. How do you respond to that?
        Mr. Levitt. Well, I think it only chills discrimination.
    And so I am not against the chilling effect on discrimination.
        The preclearance regime is designed to see whether a
    provision is discriminatory or not. It is a simple check before
    the provision has the opportunity to do damage in the real
    world, to execute the hit-and-run, as you suggest.
        It is the sort of grappling with Federal Government
    authority that is baked into the 14th Amendment, that is baked
    into the 15th Amendment, that is baked into the Election
    Clause, which all give Congress the not only authority but
    responsibility to make sure that local jurisdictions
    administering elections aren't discriminating.
        And with respect to the prophylaxis, really, all of these
    patterns, as Professor Tolson said, as Mr. Adegbile said, are
    looking for patterns of discrimination, warning signs that more
    is on the way, that intentional discrimination is on the way.
    You are not looking for exact ``gotcha'' moments so much as an
    overall pattern that leaves deep concern. That is the reason
    for the deterrence; that is the reason for the prophylaxis. And
    I think it is amply within congressional power, as Mr. Adegbile
    pointed out.
        Ms. Jackson Lee. Thank you.
        Thank you, Mr. Chairman. I yield back.
        Mr. Raskin. Thank you very much.
        Let's see. We are recognizing now Mr. Cline.
        Mr. Cline. Thank you, Mr. Chairman. I am happy to yield my
    time to the ranking member, Mr. Johnson.
        Mr. Johnson of Louisiana. I thank Mr. Cline for yielding.
        I am going back to Professor Morley again.
        You gave such great answers earlier, we will keep going.
        Why would you say--this whole argument is framed about
    Congress's power under Section 5 of the 14th Amendment being
    the main issue here. And I am wondering why Congress can't
    simply enact the Voting Rights Advancement Act under its other
    constitutional powers, like the Elections Clause or Section 2
    of the 15th Amendment.
        Mr. Morley. So the City of Boerne narrowed the scope of
    Congress's power under Section 5 of the 14th amendment. The
    Court has never revisited its rulings about Section 2 of the
    15th Amendment. I believe the Court is likely to construe
    Section 2 of the 15th Amendment the same way as it interpreted
    Section 5 of the 14th Amendment in Boerne for a few reasons.
        Those two provisions, Section 5 of the 14th Amendment and
    Section 2 of the 15th Amendment, they have materially the same
    language. They are structured the same way. They were adopted
    roughly contemporaneously with each other as part of the
    Reconstruction amendments.
        The purposes, the original intent underlying these
    amendments about empowering Congress to enforce the guarantees
    provided by the substantive constitutional amendments
    themselves were the same.
        Historically, Section 5 and Section 2 were read in pari
    materia with each other. So during the first round of cases in
    which the Court upheld the Voting Rights Act, the Court
    analogized both Section 5 and Section 2 to the Necessary and
    Proper Clause--right?--``let the ends be legitimate,'' as it
    construed both of those provisions as giving Congress virtually
    plenary authority over the area.
        And so, particularly given their virtually identical
    language, structure, history, as well as history of
    interpretation, I think it is overwhelmingly likely the Court
    would apply that Boerne analysis to Section 2 of the 15th
    Amendment.
        With regard to the Elections Clause, yes, Congress has far
    greater power over Federal elections than it has over State and
    local elections. The congruence and proportionality analysis of
    Boerne is relevant insofar as Congress is trying to target
    State and local elections rather than just Federal elections.
    So, certainly, were Congress only regulating Federal elections,
    as it has under many other laws, like the National Voter
    Registration Act, it would have much greater flexibility.
        And I will also note that, historically, States have
    generally chosen to apply Federal laws that regulate just
    Federal elections to State and local elections as well, even
    though they weren't required to, simply because they don't want
    to run two separate sets of election systems in parallel to
    each other.
        Mr. Johnson of Louisiana. So if Congress doesn't adopt a
    new statutory formula for preclearance, what other mechanisms
    exist to ensure that States and localities don't violate voting
    rights?
        Mr. Morley. So one option, which several other witnesses
    mentioned, is the notion of ex post facto litigation, where a
    locality enacts a statute and then either affected voters,
    civil rights groups, other plaintiffs go to court and obtain a
    restraining order, obtain a preliminary injunction. Obviously,
    the Department of Justice is also in a position to do that.
        The other main option, though, and one which has been very
    heavily underutilized is, under current law, Section 3 of the
    Voting Rights Act allows for bail-in. And this is an option
    that some courts have been reluctant to utilize. This is an
    option where, if a court finds that a jurisdiction has engaged
    in an intentional discrimination, it can bail-in that
    jurisdiction to preclearance. And so you have an actual
    constitutional violation, and you would be then subjecting that
    offender, that jurisdiction, to preclearance.
        As I mentioned, courts have been reluctant to do this. This
    committee could consider the option of strengthening Section 3
    of the VRA to either a presumption of bail-in or even mandatory
    bail-in when a court finds intentional discrimination.
        Mr. Johnson of Louisiana. And the amendment to that
    language would be a pretty simple statute, wouldn't it? It
    would just be a couple of lines, right?
        Mr. Morley. Yes.
        Mr. Johnson of Louisiana. You are just changing a couple of
    terms.
        Mr. Morley. Yes.
        Mr. Johnson of Louisiana. I will yield back, Mr. Chairman.
        Mr. Raskin. Thank you very much.
        Ms. Escobar, you are recognized for 5 minutes.
        Ms. Escobar. Thank you, Mr. Chairman.
        And thanks so much to all of our panelists.
        Mr. Adegbile, since you argued the Shelby County case for
    the respondents, for the average American, can you please
    describe in layman's terms what the Supreme Court held?
        Mr. Adegbile. In layperson's terms, the Supreme Court did
    not like the standard that Congress had adopted and
    reauthorized to subject certain places in the country to
    preimplementation review of their voting changes.
        That is to say, States and localities everywhere pass
    voting laws and change voting practices somewhat regularly.
    Some places in the country have histories of lots of
    discrimination in voting. And so the Section 5 preclearance
    system was designed to focus on those places, because filing
    individual cases was not enough. Why? Because after people won
    those cases, the jurisdiction would find another way to
    discriminate against the targeted population.
        And so Section 5 changed the game, because it said, rather
    than presume that you get to implement these things, we are
    going to look at them first, we are going to kick the tires, to
    make sure that you are not visiting discrimination on the
    communities that have long suffered under this system, and we
    are going to make you come forward and show that you don't
    discriminate intentionally or it doesn't have a discriminatory
    effect.
        The Supreme Court didn't like the way that Congress
    identified those places that would be subjected to this system.
    And that is why, today, we are talking about the new way in
    which Congress is intending to have a more current system of
    identifying the places that could be subjected to this. And,
    frankly, this bill makes everybody eligible to be under the
    preclearance regime but also has a clear path to get out. And
    it is sort of dynamic and renewing.
        Ms. Escobar. Excellent. Thank you so much.
        And Ms. Romero-Craft, I hail from the great State of Texas,
    where we have legislators and a--we have leadership that has
    chosen to make voting much more difficult for minority
    communities and minority groups. And I was really taken by your
    description of what you witnessed in Florida and the impact
    that this has had on voters, specifically voters who are recent
    immigrants and whose rights really have been violated.
        And so I would like to give you the remainder of this time.
    I think it is so important, through these hearings, for the
    American public to understand the impact, the human impact, of
    changes in law or changes in policy. So can you describe for
    the American public more of what you have seen in Florida as a
    result of what the Supreme Court upheld?
        Ms. Romero-Craft. Sure. Thank you. And thank you for the
    time.
        So we are actually out in the field a lot. Thanks to the
    coalition members, we are able to run election protection
    activities to the extent our resources allow. But what we find
    is the current climate--specifically for the Latino community,
    there is a lot of fear about exercising rights.
        Even for folks that are citizens. Take, for example, Puerto
    Rican citizens. It is not just relegated to Florida. We travel
    to other southern States. And so what we find is that folks are
    hesitant to ask for assistance. Even if they raise an issue
    that could be and that in some cases is specifically a
    violation of voting rights law, they are hesitant to bring
    anything forward.
        So all of this has a chilling effect. And if individuals
    think that they are not going to be protected or heard--we have
    had folks even at the registration phase, where they are trying
    to register to vote, where they are met with folks that are
    unable or unwilling to provide them the language assistance
    that they require and is mandated under law. They won't
    register to vote.
        So all of this is to say that it is very difficult even to
    create this relationship when you are looking for folks that
    have issues so that they trust you and that they trust that you
    are doing the best under what the law provides and that the
    folks that are elected officials also should be mandated to do
    their work. It is a very difficult position to find yourself in
    a room full of elected officials who are resisting to make
    changes that are required under the law.
        And something I think that folks should understand, as
    well, is that, you know, Section 4(e) applies throughout the
    country. So any voter who was educated in Puerto Rico in
    Spanish has the right to ask for language assistance to all of
    the materials related to the election in Spanish.
        So I think that is very important to know, and as well as
    the Section-203-covered jurisdictions. We still see violations,
    even though a lot of those jurisdictions are constantly
    reminded of their continuing obligation to language-minority
    voters.
        Ms. Escobar. Thank you so much.
        My time has expired. I yield back.
        Mr. Raskin. The gentlelady's time has expired.
        Thank you very much.
        And I now recognize Mr. Armstrong from North Dakota.
        Mr. Armstrong. Thank you, Mr. Chairman.
        First of all, Professor Tolson, I am stealing ``all you can
    do is your job.'' I think I would have liked taking your class
    in law school. I am a big fan of Teddy Roosevelt and the arena,
    but it is a little verbose. And that is fantastic.
        And, along those lines, when we are talking about current
    makeup of the Court, I am reminded of what an old trial lawyer
    told me when I started, and that was, ``Win the jury trial, and
    then you don't have to worry about the appeal.'' Unfortunately,
    in these cases, we don't have it.
        But I want to go back to something Mr. Morley said, in that
    we always think of these cases in wins and losses, and we don't
    always account for settlements. And so, when we are talking
    about, like, the definitions in 3(a)(1)--I come from the only
    State without voter registration. We have complete vote-by-mail
    counties in some areas. I always use the line, ``There is no
    such thing as a Federal election. There are just local
    elections that elect Federal officers.''
        But when you are talking about DOJ and, I mean, the
    opportunity for mischief--and I am going to bring in the
    private right of action, because you actually write in your
    testimony to strengthen that.
        But my concern is, I mean, just on a resource and discovery
    and paper and all of those types of issues, primarily, when you
    take a State as big as North Dakota and deal with one issue, I
    mean, you could very easily see a small rural county settling
    the case immediately just because they simply do not have the
    resources to deal with the issue. And so that one county in
    north-central North Dakota could essentially trigger an opt-in
    for the whole State.
        Am I reading this right?
        Mr. Morley. Yes, depending on how many other voting rights
    violations have occurred from other political subdivisions in
    the State. Yes, that would count as a strike then. That would
    apply not just to that political subdivision but then to others
    as well within the State.
        Mr. Armstrong. And the settlement--I mean, settlement would
    be a part of that conversation, right? This isn't all just wins
    and losses in those areas.
        Mr. Morley. Right. Under the proposed language in H. R. 4,
    if a jurisdiction enters into a consent decree, a settlement,
    or any other agreement, even if there is no admission of
    liability, as long as that initial complaint had an allegation
    that there was a constitutional violation or a Voting Rights
    Act violation, that settlement would count as a strike, it
    would count as a voting rights violation.
        Mr. Armstrong. So, then, would even a decision to, like,
    amend the voting practice, that could do it as well, right?
        Mr. Morley. If that were part of the settlement agreement
    or part of the consent decree, absolutely.
        Mr. Armstrong. Okay.
        And, now, how does the private right of action work? Or how
    do you envision it working? Because, I mean, far be it for me,
    but, I mean, having--because you strengthen it in your
    testimony. I mean, you give some great things. I am not worried
    about when it works well; I am worried about when, potentially,
    people are interested in creating mischief.
        Mr. Morley. So one of the provisions of H. R. 4 allows
    current provisions of certain Federal voting rights laws that
    currently are only enforceable by the Attorney General to be
    enforced by private litigants as well. And the way H. R. 4 is
    currently drafted, only voting rights laws that are aimed at
    preventing discrimination on the basis of race or color would
    be subject to private enforcement.
        My suggestion for the committee to consider is, in allowing
    private enforcement of voting rights laws, essentially extend
    this private right of action not just to voting rights laws
    aimed at racial discrimination but at all voting rights laws,
    precisely because, on the one hand, you would still have
    Article III standing limitations on who is allowed to sue. So
    you couldn't have a random person just walk in off the street
    and start suing jurisdictions. It would have to be someone who
    suffered an injury in fact. So an adversely affected candidate,
    an adversely affected voter, potentially a political party.
        And by allowing private enforcement of voting rights laws,
    you ensure that the rules of the road, the fundamental rules
    governing the election, will be enforced and that enforcement
    isn't hung up and cases aren't thrown out of court on
    technical, non-merits-related grounds, such as what happened in
    2008 in a case brought about maintenance of Ohio's voter
    registration lists, Ohio Republican Party v. Brunner, where the
    Court says: There is no cause of action, so we are not even
    going to bother looking at whether election officials are
    violating Federal law or not.
        Mr. Armstrong. But I am assuming that a private course of
    action--same thing, right? There are not just wins and losses;
    there can be settlements. And they would qualify in the same
    way as if it is brought in any other way, correct?
        Mr. Morley. Absolutely. Under H.R. 4, if there is a
    settlement and if one of the allegations in the original cause
    of action involved racial discrimination in violation of the
    Constitution or in violation of Federal voting rights laws,
    then any attempt to settle that case would--or a successful
    settlement, I should say, would count as a strike, would count
    as a voting rights violation.
        Mr. Armstrong. Thank you.
        And then I am going to just ask Mr. Rich to comment on
    that, just about, I mean, how can we assure this is narrowly
    tailored enough that it does what we want it to do without
    having this area where--I mean, I can't have rural districts
    settling just because they have to settle type of thing. I
    mean, I am not even sure I disagree with the private action. I
    just want to make sure that we are thinking about not only the
    ways in which it is used properly but the ways in which it is
    used improperly.
        Mr. Rich. Well, I----
        Mr. Armstrong. You have done this for decades.
        Mr. Rich. I am of the opinion that there is a private right
    of action to enforce most of the Voting Rights Act, and it has
    worked over the years. There are all sorts of protections in
    the courts for private rights of actions brought against
    jurisdictions. Indeed, I think the jurisdictions have more
    resources, usually, than the private plaintiff does. So I don't
    see that as a major problem.
        Mr. Armstrong. And thank you. My time is up. I agree with
    that in most jurisdictions, just probably not most
    jurisdictions in my district.
        Ms. Jackson Lee [presiding]. The gentleman's time has
    expired.
        Mr. Rich, before we conclude and before I express
    appreciation for all the witnesses that are here and thank the
    ranking member for his presence and his thoughtful questions,
    let me editorialize and say that I think the Shelby case is one
    of the most significant moments in history that really makes
    lifeless some of the promises of the Constitution and
    particularly some of the amendments in the Bill of Rights. So I
    think it is important for this Congress, in a nonpartisan and
    bipartisan manner, be able to give the tools back to not only
    individual voters but to governmental entities.
        One of those points was a comment that Attorney General
    Lynch made regarding the DOJ's ability to send observers. And
    let me be very clear. I am in a voting rights district. I have
    never had a district that has been drawn without either court
    approval or instruction. And that means, every election, I am
    asking for observers, because my constituents are calling ahead
    of time about the fear of being suppressed.
        So her point was that Federal observers have been severely
    curtailed as a result of the Shelby decision, impacting
    elections from November 2016 onward.
        What has been the role and importance of Federal observers
    in protecting minority voting rights? And how has the loss of
    most of the Federal observers impacted elections on the ground
    in States like Florida and Texas?
        And might I say, they give you an 800-number or I am
    calling ahead of time, and I truly feel the impact in the
    smaller number of observers who are able to be out in the
    field.
        Mr. Rich.
        Mr. Rich. There is no question that the Federal-observer
    provision is one of the important parts of the Voting Rights
    Act. If you go back to when the Voting Rights Act was passed,
    the importance of having Federal observers at those elections
    was crucial. And you are still seeing it in your district. You
    need them, because there are racial tensions at these
    elections.
        Shelby County reduced the number of observers that could be
    certified by the Attorney General considerably. The only way
    you can get Federal observers now is if there is a court order
    authorizing the Attorney General to certify them. Because under
    the interpretation that the Department of Justice has given to
    the observer provision in the 1965 act is because there are no
    longer any Section 5 jurisdictions, which were always the
    jurisdictions that could be certified for Federal observers,
    that is gone, and, therefore, there is no way to certify
    Federal observers for formerly Section 5 jurisdictions.
        I just think losing that is not as important as
    preclearance, in my judgment, but pretty close. And over the
    history of the voting rights enforcement by the Federal
    Government, the Federal observer program has been one of the
    most important that we have. And the procedures and efforts
    that have gone into it have been considerable. OPM trains
    observers to be neutral. They are able to be in voting places
    and where votes are counted to be sure there is no fraud or
    discrimination. And so I fully agree with what former Attorney
    General Lynch said, that losing this has been a real step
    backward.
        Ms. Jackson Lee. Well, let me thank each and every
    witness--thank you, Mr. Rich, for your answer. I think the
    other telling point is that, in 2020, Section 5 districts will
    be going into redistricting without that protection. And let's
    hope we will have some protection before then.
        Again, let me thank each and every one of the witnesses for
    what I think has been an insightful--and not inciting, but
    insightful contribution to the task that Congress has, which is
    to set the record.
        Before I close, Mr. Ranking Member, I want to--without
    objection, the opening statement of the chairman of the full
    committee will be entered into the record, Mr. Jerry Nadler.
        Without objection.
        [The statement of Chairman Nadler follows:]

                    MS. JACKSON LEE FOR THE OFFICIAL RECORD

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

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        Ms. Jackson Lee. This concludes today's hearing.
        I want to thank all of our witnesses for appearing today.
        Without objection, all members will have 5 legislative days
    to submit additional written questions for the witnesses or
    additional materials for the record.
        Ms. Jackson Lee. With great thanks, this hearing is
    adjourned.
        [Whereupon, at 3:29 p.m., the subcommittee was adjourned.]

                                    APPENDIX

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

        Michael T. Morley, ``Prophylactic Redistricting? Congress's
    Section 5 Power and the New Equal Protection Right to Vote,''
    William & Mary Law Review, Vol. 95:2053:https://docs.house.gov/
    meetings/JU/JU10/20190924/HHRG-116-JU10-20190924-SD001.pdf
        Michael T. Morley, ``Remedial Equilibration and the Right
    to Vote under Section 2 of the Fourteenth Amendment,''
    University of Chicago Legal Forum, Vol. 2015, Article 10:https/
    /docs.house.gov/meetings/JU/JU10/20190924/109995/HHRG-116-JU10-
    20190924-SDOO2.pdf

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