[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:]
    
    
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    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:]
    
    
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    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:]
    
    
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    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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