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

                        LEGISLATIVE PROPOSALS TO STRENGTHEN
                              THE VOTING RIGHTS ACT

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

                                    HEARING

                                   BEFORE THE

                        SUBCOMMITTEE ON THE CONSTITUTION, CIVIL
                                RIGHTS, AND CIVIL JUSTICE

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                           Thursday, October 17, 2019

                                   __________

                               Serial No. 116-57

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                                  __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    44-449 PDF                  WASHINGTON : 2021

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

                           COMMITTEE ON THE JUDICIARY

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

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

                           JAMES PARK, Chief Counsel
                         PAUL TAYLOR, Minority Counsel

                               C O N T E N T S

                                  ----------

                                October 17, 2019

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Steve Cohen, Subcommittee on the Constitution,
      Civil Rights, and Civil Liberties..............................     3
    The Honorable Mike Johnson, Ranking Member, Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties................     5
    The Honorable Jerrold Nadler, Chairman, Committee on the
      Judiciary......................................................     7

                                    WITNESS

    The Honorable Terri A. Sewell, Member of Congress................    12
      Oral Testimony.................................................    12
      Prepared Testimony.............................................    14
    J.M. (Morgan) Kousser, Professor of History and Social Science,
      California Institute of Technology.............................    17
      Oral Testimony.................................................    17
      Prepared Testimony.............................................    20
    Thomas A. Saenz, President & General Counsel, Mexican American
      Legal Defense and Educational Fund.............................    46
      Oral Testimony.................................................    46
      Prepared Testimony.............................................    47
    Bryan P. Tyson, Partner, Taylor English Duma LLP.................    50
      Oral Testimony.................................................    50
      Prepared Testimony.............................................    52
    Bryan Sells, Former Senior Staff Attorney, American Civil
      Liberties Union Voting Rights Project..........................    60
      Oral Testimony.................................................    60
      Prepared Testimony.............................................    62
    John Eastman, Henry Salvatori Professor of Law and Community
      Service, Chapman University Dale E. Fowler School of Law.......    76
      Oral Testimony.................................................    76
      Prepared Testimony.............................................    78
    Arturo Vargas, Chief Executive Officer, National Association of
      Latino Elected and Appointed Officials Educational Fund........    81
      Oral Testimony.................................................    81
      Prepared Testimony.............................................    83
    John C. Yang, President and Executive Director, Asian Americans
      Advancing Justice..............................................    00
      Oral Testimony.................................................   111
      Prepared Testimony.............................................   112
    Janai Nelson, Associate Director--Counsel, NAACP Legal Defense
      and Educational Fund...........................................   122
      Oral Testimony.................................................   122
      Prepared Testimony.............................................   167

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Item for the record submitted by Janai Nelson, Associate
      Director--Counsel, NAACP Legal Defense and Educational Fund....   126

                                    APPENDIX

    Items submitted for the record by The Honorable Steve Cohen,
      Chairman, Subcommittee on the Constitution, Civil Rights, and
      Civil Liberties................................................   184

           LEGISLATIVE PROPOSALS TO STRENGTHEN THE VOTING RIGHTS ACT

                           Thursday, October 17, 2019

                            House of Representatives

      Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to call, at 10:06 a.m., in
    Room 2141, Rayburn House Office Building, Hon. Steve Cohen
    [chairman of the subcommittee] presiding.
        Present: Representatives Cohen, Nadler, Raskin, Scanlon,
    Dean, Garcia, Jackson Lee, Collins, Johnson of Louisiana, and
    Cline.
        Staff Present: David Greengrass, Senior Counsel; John Doty,
    Senior Adviser; Madeline Strasser, Chief Clerk; Moh Sharma,
    Member Services and Outreach Adviser; Julian Gerson, Staff
    Assistant; James Park, Chief Counsel; Keenan Keller, Senior
    Counsel; Will Emmons; Professional Staff Member; and Matt
    Morgan, Counsel.
        Mr. Cohen. The Committee Subcommittee on the Constitution,
    Voting Rights, Civil Rights, Civil Liberties, et cetera, will
    come to order.
        Without objection, the chair, in its infinite wisdom, is
    authorized to declare recesses of the Subcommittee at any time.
        Before we get started with this hearing, I want to say what
    is probably on everybody's mind and hearts is that we are
    saddened greatly by the loss of a great American, great
    congressperson, but a great American and human being in Elijah
    Cummings, who passed away this morning.
        Elijah Cummings was a defender of the Constitution, man of
    great knowledge and wisdom and grace and exhibited that in all
    his work in Congress, particularly as chairman of the Oversight
    Committee, where in a position that become and did become
    somewhat adversarial, he did not allow it to go beyond what was
    the maximum allowance for differing perspectives and views and
    worked with the Republicans. I think he had the respect of Mark
    Meadows and others on that committee.
        So, I would suggest that we take a moment of silence and in
    our own ways reflect on our own time that we are given and the
    wonderful opportunity we had to share our lives with
    Congressman Cummings, and send the best to his family. So, with
    that, we will take a moment of silence.
        [Moment of silence.]
        Mr. Cohen. I would now like to recognize for comments
    concerning our departed colleague the Ranking Member, Mr.
    Johnson.
        Mr. Johnson of Louisiana. Thank you for that, Mr. Chairman.
        It is certainly appropriate here in the Subcommittee on the
    Constitution, Civil Rights, and Civil Liberties for us to honor
    the memory of this great man. We were all stunned this morning,
    as you said, to hear of the sudden passing of our colleague
    Elijah Cummings. A group of our conservative leaders happened
    to be meeting for breakfast this morning, and I want you to
    know we prayed for him and our family and our country. It is a
    really sad day for all of us.
        While he and I rarely agreed on matters of public policy, I
    just want to tell you I always found him to personally be a man
    of great sincerity and decency and integrity, and I really
    enjoyed talking with him about his life experiences. We could
    all learn from one another. We did more of that.
        We all deeply respected Chairman Cummings, and I just want
    to say I think on behalf of all my Republican colleagues, I
    know that he will be deeply and sorely missed on Capitol Hill.
    So, thanks for that opportunity.
        Mr. Cohen. You are welcome, Mr. Johnson.
        I would now like to recognize Chairman of the full
    committee, who knew Mr. Cummings for many, many years, for his
    thoughts.
        Chairman Nadler. I thank you very much, Mr. Chairman.
        I join Chairman and the Ranking Member in mourning the loss
    of my great friend and colleague Elijah Cummings. He was a man
    of integrity and intellect. He served his constituents, his
    country, and the causes he believed in with passion and with
    grace.
        It is fitting that we are considering voting rights today
    as Elijah was a champion of equality and civil rights on behalf
    of all those in society who have been left behind. He was also
    a leader in Government oversight and defending the rights of
    Congress to hold the executive, any executive accountable. He
    was a true partner in these efforts. His passing is a great
    loss for our institution and a great loss for his constituents
    and a great loss for our country.
        Elijah's presence, passion, and moral clarity will be
    missed. My heart goes out to his family, his constituents, and
    to all of us who will miss him so very, very deeply.
        I yield back. Thank you, Mr. Chairman.
        Mr. Cohen. Mr. Collins, you are recognized.
        Mr. Collins. Thank you, Mr. Chairman.
        I want to, before we get started today, just echo what has
    already been said in the kind words of Chairman and also
    Chairman of the full committee. When I first got to Washington,
    DC, I didn't realize it at the time was the privilege of
    serving on OGR. I had three committees--Foreign Affairs, OGR,
    and then this committee. Mr. Cummings was the Ranking Member,
    and it was during a very contentious time, and many times I can
    remember seeing him, as we would travel back and forth on the
    train back and forth between the Capitol and the hearings and
    the long hearings.
        The thing that amazed me always was that even when we could
    have the most sharpest disagreements--this was during the time
    of him and Mr. Issa going at it a great deal--it was always we
    would get on that train, and it was, ``How is your family?'' It
    was always about, what is going on in your world?
        We actually bound on an issue of pharmacy. He had worked in
    a pharmacy when he was younger, and we were talking about PBMs.
    He joined me in my dislike and great dislike of pharmacy
    benefit managers. To see that humanity, and I can see you
    shaking your head, there is a great equalizer here. We are all
    passionate about what we do, and that is what we are sitting
    here for.
        At the end of the day, there is a commonality of death and
    loss that remind us, one, of our own mortality, but also of the
    process. I saw something this morning on the TV screen as I was
    running because it happened and announced right after I got up,
    and it had the date of his birth and the date of his death.
    Those will be brought out again, but it was that middle bash
    that is what Elijah Cummings will be known for. It is why he
    will be a picture on the wall in OGR.
        There will many things discussed. He personally meant to me
    a great competitor, a great fighter for what he believed in and
    the people he fought for, but also would be one that also could
    reach across the aisle. He and I had a bill together that
    continued our criminal justice reform. It is sitting in the
    Senate today, and I will actually challenge the Senate, today
    or tomorrow will be a great day to honor him and pass that bill
    as we go forward.
        So, again, thank you, Mr. Chairman, for allowing me to do
    that. I will have an opening statement later, but I wanted to
    yield back.
        Mr. Cohen. So, I welcome everyone to today's hearing on
    ``Legislative Proposals to Strengthen the Voting Rights Act,''
    and I will recognize myself for an opening statement.
        Today's hearing on ``Legislative Proposals to Strengthen
    the Voting Rights Act'' is part of a series of hearings that
    the House Judiciary Subcommittee on the Constitution, Civil
    Rights, and Civil Liberties is holding this Congress to assess
    ways we can once again give effect to the preclearance
    requirement of section 5 of the Voting Rights Act of 1965.
        The Supreme Court effectively gutted that requirement in
    Shelby County v. Holder, when it struck down the coverage
    formula to determine which jurisdictions would be subject to
    preclearance. As a result, the preclearance provision remains
    dormant unless and until Congress adopts a new coverage
    formula. Our focus of today's hearing is on proposals that
    would create a new coverage formula, as the Supreme Court
    invited Congress to do so in the Shelby decision. It would also
    strengthen the Voting Rights Act in other ways.
        H.R. 4, introduced by Representative Sewell, Terri Sewell
    of Alabama, would, among other things, establish a coverage
    formula that would cover States where 15 or more voting rights
    violations have occurred over the previous 25 years or where 10
    or more violations occurred if at least one of those violations
    was committed by the State itself.
        A political subdivision would be covered if it committed 3
    or more violations within the previous 25 years. A jurisdiction
    would be covered for a maximum of 20 years.
        Similarly, H.R. 1799, introduced by Representative
    Sensenbrenner of Wisconsin, would, among other things,
    established a coverage formula, although this bill proposes a
    shorter, 15-year lookback period in covered jurisdictions with
    fewer violations over that shorter lookback period.
        The right to vote is the right that guarantees all other
    rights in our democracy. Unfortunately, the right of African
    Americans and other Members of racial and language minorities
    to vote has been threatened and undermined throughout our
    Nation's history. The Voting Rights Act with an effective
    preclearance provision went a long way towards righting that
    wrong.
        Sadly, since the effective neutering of the preclearance
    provisions, voting rights for minorities once again is under
    sustained assault in many parts of this country. We have
    gathered substantial evidence over the course of six prior
    hearings before this subcommittee, as well as in one hearing
    before the full House Judiciary Committee, and hearings before
    other committees that has resulted in a detailed record of
    voter suppression efforts by States and localities in the
    effective absence of preclearance since the Shelby County
    decision.
        North Carolina, for example, passed a sweeping voter
    suppression law that a Federal appeals court ultimately held to
    be unconstitutional, finding that it intentionally ``targeted
    African Americans with almost surgical precision.''
        We also heard about recent measures to make it difficult or
    impossible for minority voters to exercise their right to vote.
    These measures include polling place closures and relocations,
    the purging of voter rolls that disproportionately target
    racial and ethnic minority voters, discriminatory photo ID
    laws, and restrictions on ex-felon voting, all of which are
    designed to make it harder for African Americans and other
    racial and ethnic minorities to vote.
        The extent that these measures have historically been used
    to suppress the voting rights of racial and ethnic minorities
    is worth considering whether Congress should adopt a practice-
    based preclearance regime in addition to a geographic coverage
    formula. Last month, in Memphis, we learned about Tenessee's
    third-party registration law that would impose draconian
    penalties on groups like the League of Women Voters, who work
    to register new voters, for minor errors and omissions in
    registration forms. This law was the subject of a successful
    legal challenge.
        Back in May, we learned about a similar law in Texas and
    about many other examples of voter discrimination in that
    State, and we have seen States engage in racial gerrymandering
    designed to dilute the strength of minority voters.
        The Voting Rights Act preclearance provision requires
    certain jurisdictions with a history of voting discrimination
    against racial and language minority groups--those
    predominantly, though not exclusively, in the Deep South--to
    obtain approval of any changes to their voting laws or
    procedures with the Department of Justice or the U.S. District
    Court for the District of Columbia before that change could
    take effect.
        This mechanism ensured that new voting rules and practices
    in jurisdictions with a history of discrimination were fair to
    all voters. It rightly prevented potentially discriminatory
    voting practices from taking effect before they could harm
    minority voters, and in this way, preclearance proved to be a
    significant means of protection of minority voting rights.
        Therefore Congress had repeatedly reauthorized the
    preclearance provision on an overwhelmingly bipartisan basis,
    most recently in 2006, when the House passed the Voting Rights
    Act reauthorization by a vote of 390 to 33 and the Senate by a
    98 to 0 vote. A result due in no small part to the substantial
    efforts of then House Judiciary Committee Chairman James
    Sensenbrenner.
        In the absence of an effective preclearance regime, it is
    unsurprising that discriminatory measures have and will
    continue to undermine the voting rights of racial and language
    minority voters and erode our democracy. While section 2 of the
    Voting Rights Act, which prohibits discrimination in voting,
    remains in effect, it is, by itself, a less effective,
    significantly more cumbersome, and often prohibitively
    expensive way to enforce the act.
        Most importantly, plaintiffs cannot invoke section 2 until
    after an alleged harm has taken place. Requiring discrimination
    victims to rely solely on such a remedy effectively neuters the
    act. The onus, therefore, is on Congress to create a new
    coverage formula to restore the act's most important
    enforcement mechanism, its preclearance requirement. Moreover,
    Congress should consider other ways to strengthen enforcement
    of the act, including provisions to extend bail-in
    preclearance, use of election observers, and notice and
    transparency requirements, as well as ways to facilitate the
    enforcement litigation by private parties.
        With preclearance, you stop the harm before it exists.
    Without preclearance, the harm exists, and then later, you can
    do something to nullify the law, but the harm has been done,
    closing the barn door after the horse is out.
        I thank our witnesses and our Members for being here today,
    and particularly Congressman Sewell for her sponsorship and her
    long work on this effort, and I look forward to a lively and
    substantive discussion.
        Now I recognize Mr. Johnson for his opening statement.
        Mr. Johnson of Louisiana. Thank you, Mr. Chairman.
        As I have said at previous hearings of this subcommittee,
    we all agree that discriminatory treatment in voting based on
    race or sex is abhorrent. It is prohibited by the Constitution,
    as it should be, and it is prohibited by Federal statute, as it
    should be. We all agree on that.
        We have come a long, long way in the history of this
    country, and at hearings like this, we hear a lot about the
    most shameful chapters of our history, and we have to
    acknowledge that. I mean, it is important to note that some of
    the worst political violence of the Reconstruction era
    following the Civil War occurred in my own home State of
    Louisiana, where African-American Republicans, by the way, died
    defending the integrity of the ballot box.
        In 1873, for example, William Kellogg was the Republican
    running for Governor in Louisiana, and he won with the support
    of African-American Republicans. The biographer of Ulysses S.
    Grant, Ron Chernow, writes about some of the episodes of that
    time period. It was violent. It was bloody.
        Many Democrats refused to accept the results of that
    election, and when William Ward, an African-American
    Republican, ran against Christopher Nash, a White Democrat in
    Grant Parish, Louisiana, on Easter Sunday in that year so long
    ago, as the biographer describes, Mr. Nash led a mob of several
    hundred whites to set the Colfax courthouse ablaze, and dozens
    of African Americans were killed in that fire, despite
    surrendering. This was perhaps one of the worst injustices
    perpetuated against African Americans during Reconstruction.
        As terrible as that era was, less than 20 years later, in
    1890, Frederick Douglass was still able to give a speech in
    Washington, DC, here, in which he said, ``I have seen the
    darkness gradually disappearing and the light gradually
    increasing. One by one, I have seen obstacles removed, errors
    corrected, prejudices softened, proscriptions relinquished, and
    my people advancing in all the elements that make up the sum of
    the general welcome.''
        Fortunately, and by God's grace, America has continued to
    grow in innumerable ways since Mr. Douglass' moving speech all
    those years ago. Over the last several decades, in a reversal
    of prior history trends, we are delighted to say African
    Americans have been moving to and not from Southern States,
    which now offer more economic opportunities for everyone.
        In fact, statistics show that Southern States are actually
    the most popular destinations for African Americans and
    Hispanic Americans who are moving to better opportunities.
    According to the Center for Opportunity and Urbanism, among
    cities ranked by the African-American home ownership rate,
    median household income, and the share of total self-
    employment, almost all of the best cities today are in the
    South. We are proud of that. The employment rate among African
    Americans without a college degree is highest in the South.
        Too often, complaints of discrimination in voting really
    have nothing to do with discriminatory treatment. Instead,
    rules entirely neutral on their face are sometimes claimed to
    be discriminatory simply because they have disparate impact on
    one group or another. Disparate impacts are not proof of
    discrimination. Indeed, they are statistically inevitable.
        To speak on the bill, we will be discussing today, H.R. 4
    would prevent States from enforcing their neutral voting laws
    if they aren't approved by the Justice Department, which, as we
    all have to acknowledge here, is an entity with a history of
    politicizing its power in the past. It would do so based on
    claims of disparate impact, which are statistically inevitable
    and not evidence of any discriminatory treatment, as I said.
        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, but that doesn't
    answer the question as to why that correlation exists.
        Sometimes we give a simple example. The price of a loaf of
    bread may be $2.50. It may be that it is statistically more
    difficult for the average member of one group or another to
    afford that loaf of bread, but that doesn't mean the price of a
    loaf of bread is discriminatory on its face.
        Regarding discriminatory treatment in voting that is
    actually based on race, we have section 3 of the Voting Rights
    Act, which is permanent Federal statutory law, remains in place
    and in full effect, and it is really important because 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.
        Our fear is that H.R. 4 would go far beyond what is
    constitutionally permissible and allow a politicized Justice
    Department to veto or amend State voting laws to the political
    advantage of the party in power, whichever party that may be.
    As one of the witnesses before us today will explain, Congress
    can't 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 Fourteenth 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 constitutional 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 Fourteenth Amendment. That is just what
    H.R. 4 does. This Committee and other organizations claim 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 Rule changes
    under section 5 of the old Voting Rights Act section 2 cases,
    in cases in which a discrimination may be stopped--a
    jurisdiction may have stopped defending the case after the
    district court level.
        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
    cases are brought. So, such cases don't demonstrate the need to
    amend the Voting Rights Act.
        In cases in which a jurisdiction may have stopped defending
    the case or settled the case after the district court level, it
    may simply indicate the jurisdiction simply 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
    its own defense.
        With all that said, I look forward to hearing from all our
    witnesses today. We always have an open ear. It is an important
    discussion.
        I yield back. Thank you.
        Mr. Cohen. Thank you, Mr. Johnson.
        It is now my pleasure to recognize Chairman of the full
    Judiciary Committee, the gentleman from New York and a longtime
    supporter of voting rights, Mr. Nadler, for his opening
    statement.
        Chairman Nadler. Thank you, Mr. Chairman.
        Over the past several months, this Subcommittee under
    Chairman Cohen has held a series of hearings examining the
    State of voting rights in America. In 2006, Mr. Chabot chaired
    the same hearings, and I was the Ranking Member on the
    subcommittee, and we held many hearings preparatory--to
    establish the record preparatory to the renewal of the Voting
    Rights Act in 2006.
        The hearings that have been held over the past several
    months have documented a disturbing set of challenges,
    particularly in light of the Supreme Court's decision in Shelby
    County v. Holder, which effectively gutted the Voting Rights
    Act section 5 preclearance requirement by striking down the
    formula for determining which jurisdictions are subject to
    preclearance.
        Today, we turn our attention to legislative proposals that
    would reinvigorate section 5, including H.R. 4, the Voting
    Rights Advancement Act, introduced by Representative Terri
    Sewell, and H.R. 1799, the Voting Rights amendment Act,
    introduced by Representative James Sensenbrenner. While these
    bills differ in their particulars, both propose new coverage
    formulas that, if enacted, would once again give effect to
    section 5 and would add other enhancements to the act.
        I applause both Members for their longtime leadership and
    bipartisan congressional efforts on this issue. I also
    especially thank Mr. Sensenbrenner for his leadership in
    shepherding the 2006 reauthorization of the Voting Rights Act,
    including its section 5 preclearance requirement, to enactment
    with overwhelming bipartisan support when he served as chairman
    of the full committee.
        When Congress passed the Voting Rights Act in 1965, it
    aimed to deliver on what had long been an empty promise to
    African Americans and other people of color--the right to
    participate in our democracy as equal citizens. The Act not
    only prohibited States from denying the right to vote based on
    race, but it also required certain States and other local
    jurisdictions that had practiced the most severe forms of
    discrimination to get approval from the Justice Department or
    from a Federal district court before making any changes to
    their voting laws.
        Congress enacted this preclearance requirement to address
    what the Supreme Court called an ``unremitting and ingenious
    defiance of the Constitution'' by States determined to suppress
    the vote. States would enact laws designed to disenfranchise
    Black voters, like literacy tests, and when those laws were
    struck down by the courts after years of litigation, the States
    would simply switch to some other method of voter suppression,
    like poll taxes.
        This meant that Black voters could be shut out of the
    polling place even if they succeeded in every lawsuit against a
    discriminatory voting law practice because a new one would
    already be in place to keep them from the ballot box.
    Preclearance helped to curtail sharply this relentless game of
    whack-a-mole and helped to ensure full and equal voting rights
    for the first time for all Americans.
        Six years ago, however, the Supreme Court effectively
    gutted the section 5 preclearance provision in its disastrous
    decision in Shelby County v. Holder. Despite the fact that this
    subcommittee, of which I was the Ranking Member at the time,
    heard from dozens of witnesses and assembled thousands of pages
    of evidence of ongoing discrimination when it last reauthorized
    the act, the Supreme Court decided to substitute its judgment
    as to the facts for that of Congress.
        By a 5 to 4 vote, the Court essentially held that the law
    was a victim of its own success. In the Court's view, because
    things had improved in the jurisdictions subject to
    preclearance, Congress could no longer justify imposing
    preclearance on those jurisdictions.
        Justice Ruth Bader Ginsburg put it this way in her dissent.
    ``Throwing out preclearance when it has worked and is
    continuing to work to stop discriminatory changes is like
    throwing away your umbrella in a rainstorm because you are not
    getting wet.''
        She was right. The Shelby County decision unleashed an
    almost immediate deluge of voter suppression laws across the
    Nation, including in many States and other jurisdictions that
    had been subject to preclearance before Shelby County. Within
    24 hours of the decision, Texas and North Carolina moved to
    reinstitute draconian voter ID laws, both of which were later
    held in Federal courts to be intentionally racially
    discriminatory, but they were in effect for several years and
    suppressed the vote.
        We have heard substantial evidence about these and other
    ongoing voter suppression laws in six hearings before this
    Subcommittee so far this year. Another troubling aspect of the
    Court's reasoning in Shelby County was its emphasis on the
    supposed ``equal sovereignty'' of the States and on States'
    authorities to administer elections, even when they had abused
    that authority by denying the right to vote.
        The Court's reasoning barely acknowledged that the
    constitutional amendments enacted after the Civil War during
    Reconstruction were intended fundamentally to reorder Congress'
    relationship to the States and to give Congress the power to
    supersede State sovereignty when needed to enforce the mandates
    of those amendments.
        Indeed, before the Civil War, before those amendments, the
    United States was generally described in the plural, ``The
    United States have done this'' or ``are considering that.''
    After the Civil War, it was replaced by the singular to show
    where the sovereignty really resided.
        The Fourteenth amendment guarantees equal protection under
    the law, and the Fifteenth amendment prohibits any State from
    denying the right to vote on the basis of race. Crucially, both
    amendments give Congress the power to enforce these rights by
    ``appropriate legislation.'' The Supreme Court has held that
    this authority under the Fifteenth amendment means Congress
    ``may use any rational means'' to make laws against racial
    discrimination in voting.
        Notwithstanding the Shelby County decision, the Court has
    thus far left this highly deferential rationality test in
    place. In short, Congress has the power, indeed the obligation,
    to reverse this tide of voter suppression laws. The Fourteenth
    and Fifteenth Amendments expressly empower us to enact laws
    protecting the right to vote and guaranteeing the equal
    protection of all citizens.
        Although the Supreme Court's decision in Shelby County did
    great damage, the Court made clear that it was not striking
    down preclearance altogether. In fact, the Court expressly said
    that Congress could ``draft another formula based on current
    conditions.''
        So that is what we have set out to do. We have already held
    a series of hearings this year documenting an ongoing and
    pervasive threat to voting rights in various parts of the
    country. If we can target a coverage formula to those
    jurisdictions that have been the worst offenders in recent
    years, as well as towards those voting practices that are known
    to have a history of being used in a racially discriminatory
    manner, including racial gerrymandering, annexations to dilute
    minority voting power, shifts from single member to at-large or
    multi-member districts, imposition of strict voter ID laws, and
    the removal of polling places from minority voting areas, then
    there is every reason to believe that under current law,
    Congress has the full authority to act.
        We can no longer afford to wait. The right to vote lies at
    the very core of our democracy and is the foundational--and is
    foundational to the Rule of law and is under assault in many
    places across this country.
        I look forward to hearing from today's witnesses and to
    forging a path ahead to protect the sacred right to vote for
    all Americans.
        I thank you, Mr. Chairman. I yield back.
        Mr. Cohen. Thank you, Chairman Nadler.
        It is now my pleasure to recognize the Ranking Member of
    the full committee, the gentleman from Georgia, Mr. Collins.
        Mr. Collins. Thank you, Mr. Chairman. I appreciate that.
        The right to vote is of paramount importance in a
    democracy, and its protection from discriminatory barriers has
    been grounded in Federal law since the Civil War and more
    recently through the Voting Rights Act of 1965. A Supreme Court
    decision called Shelby County will be mentioned many times
    today, but it is important to remember that in that decision,
    the Supreme Court only struck down one outdated provision of
    the Voting Rights Act, namely an outdated formula based on
    decades-old data that doesn't hold true anymore describing
    which jurisdictions had to get approval from the Department of
    Justice before their voting rules went into effect.
        It is important to point out the very important provisions
    of the Voting Rights Act remain in place, including Sections 2
    and Sections 3. Section 2 applies nationwide and prohibits
    voting practices or procedures that discriminate based on race,
    color, or the ability to speak English. Section 2 is enforced
    through Federal lawsuits, just like other Federal civil rights
    laws, and the United States and civil rights organizations have
    brought many cases to enforce the guarantees of section 2 in
    court, and they may do so in the future.
        Section 3 of the Voting Rights Act also remains in place.
    Section 3 authorizes Federal courts to impose preclearance
    requirements on States and political subdivisions that have
    enacted voting procedures that treat people differently based
    on race in violation of the Fourteenth and Fifteenth
    Amendments.
        If a State or political subdivision is found by the Federal
    court to have treated people differently based on race, then
    the court has the discretion to retain supervisory jurisdiction
    and impose preclearance requirements on the State or political
    subdivision as the court sees fit until a future date at the
    court's discretion.
        This means that such State or political subdivision would
    have to submit all future voting Rule changes for approval to
    either the court itself or to the Department of Justice before
    such Rule changes would go into effect. As set out in the Code
    of Federal Regulations under section 3(c) of the Voting Rights
    Act, a court in voting rights litigation can order as relief
    that a jurisdiction not subject to the preclearance requirement
    of section 5 preclear its voting changes by submitting them
    either to the court or to the Attorney General.
        Again, section 3's procedures remain available today to
    those challenging voting rules as discriminatory. Just a couple
    of years ago, for example, U.S. District Judge Lee Rosenthal
    issued an opinion in a redistricting case that required the
    City of Pasadena, Texas, to be monitored by the Justice
    Department because it had intentionally changed its city
    council districts to decrease Hispanic influence.
        The city, which the court had ruled had a long history of
    discrimination against minorities, was required to have their
    future voting rules changes precleared by the Department of
    Justice for the next 6 years, during which time the Federal
    judge retains jurisdiction to review before enforcement any
    change to the election map or plan that was in effect in
    Pasadena on December 1, 2013.
        A change to the city election plan can be enforced without
    review by the judge only if it has been submitted to the U.S.
    Attorney General and the Justice Department and has not
    objected within 60 days.
        Voting rights are protected in this country, including my
    own State of Georgia, where Latino and African-American voter
    turnout has soared. Between 2014 and 2018, voter turnout
    increased by double digits for both men and women in both
    communities. I would like to invite my friends on this dais,
    and especially the ones from the State of Georgia, to consider
    the data, which shows that our State is diverse and politically
    engaged and growing in that political involvement all the time.
        Despite the claims that we have heard in this Committee
    from Stacey Abrams and others that she won election--in fact,
    she lost--and that voter suppression is endemic in Georgia, the
    facts disagree. So do the values of Georgians and Americans. We
    are committed to ensuring the ballot box is open to all
    eligible voters. We are committed to making sure constitutional
    means are used to accomplish that. We are committed to
    protecting the value of every American's voice by securing our
    elections from fraud.
        These are our priorities. These are our principles. I look
    forward to hearing those today as we put this in proper context
    to look forward on how best to move forward.
        With that, I yield back.
        Mr. Cohen. Thank you, Mr. Collins.
        We welcome our witnesses and thank them for participating
    in today's hearing. There is a 5-minute rule. I ask you to stay
    within the 5 minutes. When your light switches from green to
    yellow, it means you have got a minute to go. When it turns to
    red, it means you should be finished.
        Before proceeding with testimony, I remind each witness
    that there is a statute, 18 U.S.C. 1001, that says if you say
    anything here in your written or oral statements that is false
    that you can be subject to penalty of fine or imprisonment up
    to 5 years or both. So just tell us the truth, easy enough to
    do.
        Our first panel today is Representative Terri A. Sewell.
    Congressman Sewell represents Alabama's Seventh Congressional
    District. She is currently serving her fifth term in Congress.
    She is the first African-American woman to represent Alabama in
    Congress.
        She sits on the House Ways and Means Committee, where she
    serves as vice chair; serves on the House Permanent Select
    Committee on Intelligence, where she is chairwoman of the
    Subcommittee on Defense, Intelligence, and Warfighter Support.
    She has also served in a number of House leadership roles,
    including currently as the chief deputy whip and as a member of
    the Democratic Steering and Policy Committee.
        She is a member of the Congressional Black Caucus, where
    she is co-chair of the Voting Rights Task Force, and co-chair
    of the Congressional Voting Rights Caucus.
        Congressman Sewell was the first Black valedictorian of
    Selma High School and is an honors graduate of Princeton
    University and Oxford University in England. She received her
    law degree from Harvard Law School.
        Congressman Sewell in her 5 minutes, I am sure, will tell
    you why the Voting Rights Act is important, why preclearance is
    important, and why if it doesn't hurt, why not deal with it?
        Congressman Sewell, you are recognized.

                   TESTIMONY OF HON. TERRI A. SEWELL

        Ms. Sewell. Thank you.
        To Chairman Nadler, to Ranking Member Collins, to
    Subcommittee Chair Cohen, and Ranking Member Johnson, and to
    all the distinguished Members of this committee, thank you for
    inviting me to share with you why I believe we should pass H.R.
    4, the Voting Rights Advancement Act.
        First, I want to join my colleagues in acknowledging the
    passing of Congressman Elijah Cummings. Elijah was a giant
    among us. He loved his district, and he loved this country. His
    legacy will live on in all our hearts and in all the wonderful
    works that he has done for this Nation.
        I am here today because the issue of voting rights is
    personal to me. Growing up in Selma, Alabama, I was surrounded
    from an early age by stories about the voting rights movement.
    These were not the stories told in the history books, but
    lesser-known stories of everyday people, acting with
    extraordinary bravery.
        Knowing the bravery and courage of the people of the
    community that I represent provided me with the strength, the
    resilience, and the inspiration to pursue my own dreams. Now,
    as the first Black congresswoman from Alabama, I believe I have
    a duty to protect and advance their legacy. The Voting Rights
    Act of 1965 is one of the crowning achievements of their
    legacy.
        The Supreme Court, as we have heard time and time again,
    gutted the Voting Rights Act of 1965 in its decision in Shelby
    County v. Holder, which struck to the heart of the VRA. It came
    about because of a case in Alabama, redistricting of Calera
    City Council seat in Shelby County, Alabama. That seat was
    redrawn in a way that dramatically changed the racial makeup of
    its electorate.
        The Department of Justice vowed--or voided the new map on
    the basis that it was racially discriminatory, and the Supreme
    Court ruled for the first time that section 4 was
    unconstitutional and, therefore, gutted the full protections of
    the Voting Rights Act by making section 5 null and void.
        With this powerful deterrent gone, a wave of restrictive
    voting laws came into play. Just 5 years after the ruling,
    nearly 1,000 polling stations were closed across the country.
    State legislatures, like Alabama, moved to cut access to early
    voting, purge voter rolls, and impose strict voter ID.
        In my home State, just one day after the Supreme Court's
    decision in Shelby, Alabama began to require photo
    identification to vote. The photo ID law was passed in 2011 but
    had been previously blocked by the Voting Rights Act not
    because it required an ID. An ID sounds valid. It was the type
    of ID. No longer could Alabamians present a Social Security
    card. I must tell my colleagues, it is a validly issued Federal
    ID, a Social Security card.
        Instead, under the law in Alabama, now a hunting license
    was permissible and as well as a fishing license was
    permissible. Adding insult to injury, Alabama announced in 2015
    the closure of 31 driver's license offices, one of the primary
    places that one goes to receive a photo ID. The majority of
    these DMV closures were in my county, a county that is majority
    black.
        Alabama was not alone, and you will hear testimony from all
    these witnesses that other States also installed new voter ID
    laws that were pernicious in its effect. In fact, the Brennan
    Center for Justice said that 24 States have imposed
    restrictions on voting since 2010.
        The bill that I have before you today, and I am honored to
    carry this bill, is H.R. 4, the Voting Rights Advancement Act.
    As has been said by Subcommittee Chair Cohen, it would be a
    modern-day formula. It would have a lookback year of 25 years,
    and it would allow 15 or more adjudicated violations of voting
    rights within the past 25 years to be covered in the formula.
        The Shelby decision allowed for the enforcement of creative
    new barriers. My bill, in particular, would get to known
    practices, known practices like creating districts that are
    limited from at-large--being from district only to at-large
    districts. The Voting Rights Advancement Act, my legislation,
    would also seek to advance the VRA by requiring a nationwide
    practice-based preclearance for known discriminatory practices,
    including the creation of at-large districts, inadequate
    multilingual voting materials, restrictions on polling
    stations, and annexation of nearby populations to dilute voting
    rights. These known practices have historically been associated
    with voter discrimination and voter suppression.
        In conclusion, I would like to say it is our job, as
    Members of Congress, to do what we know is right. In the face
    of known discriminatory practices in voting rights, a
    fundamental right, that one of our colleagues, John Lewis, was
    bludgeoned on a bridge in my hometown for, I want to quote the
    words of Amelia Boynton Robinson, who died at 103 and was my
    special guest at the State of the Union in 2015.
        She said because so many people would come up to her, they
    would say, ``We stand on your shoulders, Ms. Amelia. We stand
    on your shoulders.'' She would often say, ``Get off my
    shoulders. Do your own work.''
        I say to the Subcommittee and I say to this Committee do
    your own work. Make sure that the full protections of the
    Voting Rights Act are reinstated and vote for H.R. 4, the
    Voting Rights Advancement Act.
        Thank you, sir.
        [The statement of Ms. Sewell follows:]

                   STATEMENT OF HON. TERRI A. SEWELL

        Chairman Nadler, Ranking Member Collins, and distinguished
    Members of the Committee, thank you for inviting me to share
    with you why I believe we should pass the Voting Rights
    Advancement Act.
        I am here today because the issue of voting rights is
    personal for me. Growing up in Selma, I was surrounded from an
    early age by stories about the Voting Rights Movement. These
    were not the stories told in history books, but lesser-known
    stories of everyday people acting with extraordinary bravery.
    Knowing what the people of my community were capable of
    provided me the strength, resilience and inspiration to pursue
    my own dreams. Now, as the first African American Congresswoman
    from Alabama, I believe I have a duty to both protect and
    advance their legacy. The Voting Rights Act of 1965 is one of
    the crowning achievements of that legacy.
        The Supreme Court's Shelby County v. Holder case that
    struck the heart of the VRA was borne from the redistricting of
    a Calera city council seat in Shelby County, Alabama. After the
    2nd district seat was redrawn in a way that drastically changed
    the racial makeup of its electorate, the Department of Justice
    voided the new map on the basis that it was racially
    discriminatory. Shelby County filed a lawsuit against the
    Justice Department that made its way to the Supreme Court after
    several appeals. The Supreme Court found the coverage formula
    in section 4b of the VRA unconstitutional, which gutted the
    law's preclearance provision and, therefore, its ability to
    protect against modern-day barriers to the ballot box.
        With this powerful deterrent gone, a wave of restrictive
    voting laws went into place. Just five years after the ruling,
    nearly 1,000 polling places were closed across the country.
    State legislatures also moved to cut access to early voting,
    purge voter rolls and impose of strict voter ID laws. While
    these actions are not as blatant as forcing American citizens
    to guess how many jelly beans are in a jar before allowing them
    to register to vote, the effects have been equally damning.
        In my home state, just one day after the Court's Shelby
    decision, Alabama began requiring photo identification to vote.
    The photo ID law was passed in 2011 but had previously been
    blocked by the Voting Rights Act, not because it required an ID
    in the first place, but because of the restrictions placed on
    the kind of ID needed to vote. Hunting licenses are deemed
    acceptable; student IDs are not. Social Security cards are no
    longer valid to vote, but pistol permits are accepted at the
    polls.
        Adding insult to injury, Alabama announced in 2015 the
    closure of 31 driver's license offices, one of the primary
    places to get one of these required photo IDs. The majority of
    these DMV closures were in counties in my district with the
    highest percentages of Black voters in the state.
        Alabama is not alone. State legislatures across the country
    moved to make voting more difficult. In North Carolina, for
    example, the legislature enacted a far-reaching and pernicious
    voter ID bill after the Shelby decision. The North Carolina law
    instituted a strict photo ID requirement, curtailed early
    voting, eliminated same day registration, restricted pre-
    registration, and eliminated the authority of county boards of
    elections to keep polls open for an additional hour.
        As Justice Ginsburg wrote in her Shelby County dissent,
    ``Throwing out preclearance when it has worked and is
    continuing to work to stop discriminatory changes is like
    throwing away your umbrella in a rainstorm because you are not
    getting wet.'' In the face of ongoing discrimination,
    enforcement of voting rights under current laws is slow,
    inadequate, and costly.
        To restore the full protections of the VRA, I've introduced
    H.R. 4, the Voting Rights Advancement Act (VRAA). My bill would
    address the Court's concerns and update the coverage formula to
    limit the lookback period to the past 25 years. That means any
    State with 15 or more adjudicated violations of voting rights
    within the past 25 years would be required to get preclearance
    on any changes to their voting laws and election procedures.
        The Shelby decision allowed for the enactment of creative
    new barriers to voting like restrictive voter ID, inadequately
    publicized closures of polling places, and impeding
    accessibility to early voting. The VRAA would close the gaping
    hole left in voter protection by requiring preclearance from
    the Justice Department before enacting these types of changes
    to voting. Just as barriers to the ballot box are evolving, our
    laws must also evolve and change to keep up with those who
    attempt to restrict access to the polls.
        The voter suppression we saw in the 2018 midterm elections
    makes it clear just how urgent it is that we pass the Voting
    Rights Advancement Act and restore the full protections of the
    Voting Rights Act. During the 2018 elections, states from
    Georgia to North Carolina to North Dakota sought to impose new
    voting laws that resulted in a suppressive effect amongst
    mostly minority communities. Congress must Act now to stop
    discriminatory voter laws before they go into place and swing
    elections.
        The Supreme Court was clear; only Congress can ratify a new
    formula to fully restore section 4 of the VRA. My legislation
    does that, but also seeks to advance the VRA by requiring a
    nationwide, practice-based preclearance for ``known
    discriminatory practices,'' including the creation of at-large
    district, inadequate multilingual voting materials, and cuts to
    polling places. The VRAA increases transparency by requiring
    reasonable public notice for voting changes. The bill also
    allows the Attorney General authority to request federal
    observers to be present anywhere in the country where a serious
    threat to voter access and fair elections exists.
        In conclusion, the purpose of H.R. 4 is nothing less than
    fortifying the cornerstone of our democracy. Without the vote,
    Americans lose their voice in our democracy. So, I urge you to
    support the Voting Rights Advancement Act and restore the VRA
    to its full strength.

        Mr. Cohen. Thank you, Representative Sewell.
        Let me ask you a question. Mr. Johnson brought up some
    harrowing history in our country where Republicans who had
    African-American support were elected and threatened. These
    were in, I think, 1873?
        Ms. Sewell. Right. During Reconstruction.
        Mr. Cohen. Yes. Do you know, in your experience as a
    student at Oxford and Princeton and Harvard, of instances in
    the last 40 years where similar incidents have occurred?
        Ms. Sewell. Yes, sir. I don't have to use my educational
    background. I can use my experience growing up in Selma,
    Alabama, and my experience as a Member of Congress witnessing
    the changes that have been made in my own district.
        In my own district, people were denied the opportunity to
    get a driver's license after a restrictive law was passed by
    the State of Alabama's legislature. That restrictive law
    required certain IDs. An ID, we understand, understanding being
    able to say who you are is not a problem. It is the type of
    IDs.
        You know, my father, Coach Andrew A. Sewell, in his latter
    years had a massive stroke and was in a wheelchair. He proudly
    voted at every election. After the 2013 decision in Shelby and
    after Alabama imposed its restrictive photo law, which no
    longer allowed a validly issued Federal ID, a Social Security
    card, to be presented to show proof of who you were in order to
    get your ballot, he had a hard time getting a photo ID.
        Well, not because he was black, but because he was
    disabled. Do you know that the Dallas County courthouse doesn't
    have a ramp to get people who are disabled into the courthouse
    to get a free photo ID from the voter registrar? That is
    because it was grandfathered in the ADA law.
        So, sir, I have to tell you my own personal experience. Dad
    woke up early that morning. We were blessed to have a van that
    kneels down so his wheelchair could go in. We were blessed to
    be able to have home help to help him into that courthouse and
    to get that photo ID.
        So many of my constituents, and I would say all our
    constituents who are disabled may not have that same right.
        Mr. Cohen. Thank you, Ms. Sewell.
        Dallas County, that is where John Lewis had his march, is
    it not?
        Ms. Sewell. That is right.
        Mr. Cohen. Where he was beaten on the Pettis Bridge to try
    to get the Voting Rights Act passed.
        Ms. Sewell. That is right. Not just John Lewis, but so many
    known and unknown Americans, Black and white, from various
    religious backgrounds had the temerity--ordinary Americans--to
    really plead to this Government that we live up to the
    constitutional ideals of democracy and justice for all.
        While we live in a time where people don't have to count
    how many marbles are in a jar, I would submit to you that we
    still live in times where there are modern-day barriers to
    voting. As long as there are modern-day barriers to voting, we,
    as a Congress, should be trying to institute and reinstate a
    coverage formula in section 4.
        I would submit to you that mine in H.R. 4 is the right one.
    But I would also submit to you that all of us who see this
    injustice know that any formula that would allow preclearance
    where there is demonstrated history of voter discrimination in
    that State or subdivision would be merited.
        Mr. Cohen. Can you tell us--Mr. Collins, and Mr. Johnson
    maybe as well, mentioned section 2 and section 3. Can you tell
    us why those are not sufficient?
        Ms. Sewell. Well, in the Calera case, the case, the Shelby
    County v. Holder case, which was a case brought by an African
    American who was a city council member. He was the only Black
    city council member in Calera.
        When he was up for reelection, Calera--the City of Calera--
    voted to redistrict all the districts for elections to city
    council and to make it an at-large election. It is true that he
    could have brought a section 2 violation, but the reality is
    you can't un-ring the bell. He lost that reelection because the
    minority vote had been diluted by moving from a ward-based or
    district-based election to an at-large election.
        So, I just have to say that while on its face, even
    Alabama's efforts to close down the DMVs, I talked to my
    Republication Governor who was a good friend, and I said what
    gives? 30-one of those DMVs are in my district, and we now have
    in place in 2014 this really more restrictive photo ID law. And
    he said, oh, it wasn't because of that. It was because of
    budgetary cuts.
        Now that, on its face, is true. We, as elected officials,
    when faced with the fact that the effect of it was limiting the
    opportunity of a certain population of people to get access to
    the most popular form of photo ID, a driver's license, we have
    to do the right thing. We have to do the right thing.
        Mr. Cohen. Thank you.
        Mr. Johnson, would you like your time?
        Thank you.
        We appreciate your appearance and thank you for your
    sponsorship of the bill and your service as a colleague.
        Ms. Sewell. Thank you.
        Mr. Cohen. Our second panel of witnesses will now come
    forward, and I guess you have to find chairs or bring them
    forward or something.
        [Pause.]
        Mr. Cohen. Our Subcommittee Members have arrived, and if
    any one of them would like to make any remarks concerning Mr.
    Cummings, you are recognized at this time.
        Ms. Scanlon, you are recognized.
        Ms. Scanlon. I actually find it hard to have words. He was
    such a giant and will be sorely missed. To be in this hearing
    today, when he was such a giant with respect to this issue, is
    all the more poignant.
        Mr. Cohen. Well said, thank you.
        [Pause.]
        Mr. Cohen. Thank you, logistics.
        Our first witness today is Mr. J. Morgan Kousser. Mr.
    Kousser is professor of history and social science at Caltech,
    located in the fabulous City of Pasadena, a sister school to
    the Polytechnic school, which I attended. His research has
    focused on minority voting rights and the legal and political
    aspects of race relations in the 19th and 20th centuries. He
    has been an expert witness in 35 Federal or State voting rights
    cases and a consultant in 10 others.
        In 1981, he testified before a Subcommittee of the U.S.
    House of Representatives about the renewal of the Voting Rights
    Act and in 2008 published the first comprehensive history of
    section 5 of the Voting Rights Act.
        He received his Ph.D. and his Master's degree from Yale
    University, his A.B. from Princeton, and I am sure he has been
    to the Pine Burger.
        Professor Kousser, you are recognized for 5 minutes.

                   TESTIMONY OF J.M. (MORGAN) KOUSSER

        Mr. Kousser. Thank you, Chair Cohen, Chair Nadler, Ranking
    Member Johnson, and distinguished Members. Thank you for
    inviting me to testify.
        The vast majority of people who have testified before this
    Subcommittee in this series of hearings have been lawyers. They
    have informed you about the law and about evidence of very
    recent voting discrimination. I am a historian and social
    scientist. I seek to provide you with a historical perspective,
    and I bring you data.
        Ten years ago, in the wake of the Northwest Austin case, I
    began to create a database of all voting rights actions under
    any Federal or State statutes or constitutional provisions--
    lawsuits, settlements and consent decrees, objections, and more
    information requests under section 5 of the Voting Rights Act.
    The database, now documenting 4,090 minority victories under
    Federal law and 389 under the California Voting Rights Act from
    1957 through 2019, allows evaluations of the adequacy of past
    and potential coverage schemes if Congress wishes to replace
    section 4 of the VRA, struck down in Shelby County v. Holder.
        Further analysis of the database may assist Congress in
    evaluating the evidence to determine if there is continuing--
    whether there is a continuing need for the protection of the
    Voting Rights Act in general and for a preclearance regime in
    particular. This testimony draws on that database to make four
    principal points.
        First, the original coverage scheme of section 4, as
    amended in 1975 and 1970, fit the pattern of proven violations
    of voting rights extraordinarily well. Ninety-two percent of
    the total actions in which minorities were successful concerned
    State and local jurisdictions within the area of section 4
    coverage.
        Second, voting rights violations did not diminish over long
    periods of time. There were more than 3 times as many in the 25
    years after the 1982 renewal of the VRA than there were in the
    25 years from 1957 to 1982, and over 90 percent continued be
    concentrated in covered jurisdictions. If voting rights actions
    are the proper index, Congress was fully justified in 2006 in
    renewing section 5 and keeping the same coverage scheme.
        Third, the pattern of voting rights actions is less the
    product of the degree of discrimination than of the
    opportunities of litigation and administrative action made
    available by congressional and especially by Supreme Court
    decisions. Congress should take the responsive character of the
    pattern of lawsuits into account in evaluating whether there is
    a continuing need for preclearance in section 2.
        Fourth, the striking success of minorities in using the
    State-level California Voting Rights Act to shift from at-large
    elections to single member districts reinforces the third point
    about the pattern of voting rights actions. Discrimination in
    voting rights may have shifted and changed character, but it
    has not been obliterated. Rather, unfavorable Supreme Court
    decisions have taken away the means to see it.
        I have attempted to distill the most important information
    presented at greater length in my written testimony into a map,
    two graphs, and a few statistics. Map 1 is a particularly
    striking version of the fact that the vast majority of cases
    and other events originated in covered jurisdictions. The
    skyscrapers almost all run from Virginia to Texas.
        The pattern of the comparative incidence of cases in
    covered and noncovered jurisdictions cannot be explained by the
    fact that since section 5 only applied to covered jurisdictions
    there had to be more actions in the covered areas. If you look
    at section 2 cases or non-Section 5 cases, 82 percent of those
    came from covered jurisdictions, and they could be filed
    anywhere.
        Nor is the pattern the result of a concentration of
    minorities in covered jurisdictions. If you control for the
    minority percentage, the covered jurisdictions were 6 to 12
    times as likely to develop cases as from non-covered
    jurisdictions.
        Figure 1 shows the number of events over time. There is an
    obvious explanation for the variation. It is whether there were
    favorable or unfavorable court decisions. Favorable decisions
    by the Supreme Court meant there would be more cases brought,
    more cases decided in which minorities won. Unfavorable
    decisions like Shaw v. Reno or Shelby County meant that the
    number of cases would go down.
        Finally, look at the CVRA cases from 2007 to 2019 and
    compare them with the VRA cases. You will find that there have
    been three times as many CVRA cases as VRA cases. The amount of
    discrimination still continues. The Congress' responsibility is
    to open the lens to allow us to see again.
        Thank you.
        [The statement of Mr. Kousser follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, Professor Kousser.
        Our next witness is Mr. Thomas Saenz, President and general
    counsel of the Mexican American Legal Defense and Education
    Fund, better known as MALDEF. He has been in that position
    since 2009. Prior to that time, he served as counsel for the
    Los Angeles mayor. Prior to that, he was a litigator for MALDEF
    for 12 years and lead counsel in two court challenges to Prop
    227, California English-Only Education Initiative.
        For 8 years, he taught civil rights litigation as an
    adjunct lecturer at USC and has been widely published. He
    received his J.D. with honors from Yale, his undergraduate
    degree summa cum laude from Yale. He later served as a law
    clerk for Judge Harry Hupp of the U.S. District Court for the
    Central District of California and the Honorable Stephen
    Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.
        Yu are recognized for 5 minutes, sir.

                      TESTIMONY OF THOMAS A. SAENZ

        Mr. Saenz. Thank you, Mr. Chair and Members of the
    subcommittee.
        I am the President and general counsel of MALDEF, and I am
    very proud to report that MALDEF is the litigating organization
    that brought the lawsuit against Pasadena, Texas, mentioned by
    Mr. Collins. It did result in what we believe to be the only
    contested bail-in order requiring a jurisdiction to be subject
    to preclearance.
        It is important to note that that is the only occasion
    since Shelby County was decided in 2013 where a contested order
    of judicial bail-in was provided. It was after a lengthy and
    costly trial.
        In addition, we have the experience of more recently
    seeking a bail-in order against the State of Texas following
    not just one, but two trials on Texas redistricting following
    the 2010 Census. Despite findings by that three-judge panel of
    intentional discrimination, they declined in their discretion
    to order that the State of Texas be subject to preclearance. I
    hope this provides some illustration of how section 3 is not an
    adequate substitute for a coverage formula that would subject
    jurisdictions on a regular basis for known practices and for
    histories of discrimination to preclearance by the Department
    of Justice or the district court here in Washington, DC.
        Both the redistricting challenge in Texas and the Pasadena
    case were extremely costly to litigate. Most of those costs
    were ultimately borne or will ultimately be borne by the
    defendant jurisdictions. That is to say preclearance is
    actually, in addition to being a most effective civil rights
    provision, perhaps the earliest, one of the earliest and most
    effective alternative dispute resolution mechanisms in Federal
    law.
        Like good ADR, it provides a mechanism outside of the court
    system to adjudicate potential disputes. Like good ADR, it
    arrives at an efficient, meaning quick, as well as less costly
    decision about those potential disputes.
        Recognizing that most of those benefits, particularly the
    savings in cost, are to the benefit of the covered
    jurisdictions themselves means that we should look at expanding
    the coverage formula to apply that efficient ADR mechanism as
    broadly as possible, consistent with constitutional power to
    address potential voting rights violations.
        With that said, I want to comment on the known practices'
    coverage. It is a supplemental coverage formula in H.R. 4 to
    specifically target not jurisdictions, but all jurisdictions
    where there is sufficient racial diversity to suggest that
    these known practices with a long history of being used to
    suppress minority voting rights may be being used in those
    circumstances to suppress minority voting rights.
        The practices identified, including those already
    articulated by the chair and others, include annexing
    additional territory and population in a way to dilute a
    growing minority population, include converting in part or in
    whole from districted elections to at-large, as occurred in
    Pasadena, Texas, a change that the major himself attributed to
    possibilities created by the Shelby County decision,
    recognizing that that shift to at-large seats would not have
    been permitted under the preexisting preclearance regime.
        They include diminution in multilingual voting materials.
    They include access restrictions, such as voter ID. They
    include redistricting in a context of a growing minority
    population. It is MALDEF's experience in 51 years of promoting
    the civil rights of all Latinos living in the United States
    that these identified practices have been used repeated to
    target the Latino community and others.
        This is because the Latino community, given its growth as
    the largest minority group in the country for over a decade and
    soon to be the largest minority voting community in the Nation,
    is often perceived as a threat to those who currently are in
    power. They then take steps such as converting, as in Pasadena,
    Texas, some of the seats on a council to, at-large, to ensure
    that those who are in power can continue to remain power.
        We need to be able to use preclearance, an efficient and
    effective mechanism, to address these potential voting rights
    violations. If the Congress, as it should, is interested in
    stopping vote suppression, it should target both the serial
    vote suppressors as the main coverage formula would do, as well
    as the copycat vote suppressors as known practices coverage
    would do. It specifically targets those who use mechanisms used
    in the past by those with records of discrimination and used in
    the past and then adjudicated to violate the voting rights of
    minority groups to ensure that we can stop those changes before
    they occur and that we can stop them without the expense,
    tremendous expense of section 2 litigation that, as I
    mentioned, often ends up being borne by the taxpayers
    themselves of the covered jurisdictions.
        Thank you.
        [The statement of Mr. Saenz follows:]

     STATEMENT OF THOMAS A. SAENZGood morning. I am President and
     general counsel of MALDEF (Mexican American Legal Defense and
    Educational Fund), which has, for over 51 years now, worked to
     promote the civil rights of all Latinos living in the United
     States. MALDEF is headquartered in Los Angeles, with regional
      offices in Chicago; San Antonio, where we were founded; and
                            Washington, DC.

        Since its founding, MALDEF has focused on securing equal
    voting rights for Latinos, and promoting increased civic
    engagement and participation within the Latino community, as
    among its top priorities. MALDEF played a significant role in
    securing the full protection of the federal Voting Rights Act
    (VRA) for the Latino community through the 1975 congressional
    reauthorization of the 1965 VRA. MALDEF has over the years
    litigated numerous cases under section 2, section 5, and
    section 203 of the VRA, challenging at-large systems,
    disc1iminatory redistricting, ballot access barriers, undue
    voter registration restrictions, and failure to provide
    bilingual ballot materials. We have litigated significant cases
    challenging statewide redistiicting in Arizona, California,
    Illinois, and Texas, and we have engaged in pre-litigation
    advocacy efforts, as well as litigation related to ballot
    access and local violations, in those states, as well as in
    Colorado, Georgia, Nevada, and New Mexico. As the growth of the
    Latino population expands, our work in voting rights increases
    as well.
        Before the divided Supreme Comi decision in Shelby County
    v. Holder, MALDEF relied heavily upon the application of the
    section 5 pre-clearance requirements--particularly in Arizona,
    Texas, and portions of California--to deter violations of
    Latino voting rights and to block any discriminatory proposals
    that were submitted for pre-clearance. These beneficial effects
    of pre-clearance--and others, including even the basic tracking
    of electoral changes with potential impacts on the right to
    vote--have been absent following Shelby County because of the
    failure to enact a new coverage formula after the 2013 Court
    decision.
        This has affected MALDEF's ability to respond to the many
    challenges faced by the growing Latino voting community. For
    example, while MALDEF played a significant role in litigation
    before the Shelby County decision when the State of Texas
    sought to pre-clear its newly restrictive voter identification
    law, we decided to forego participating as counsel in the
    section 2 litigation challenging the same law after Shelby
    County. While we have great confidence in our colleagues who
    litigated that challenge, we were unable to provide our
    perspective as the longstanding legal representative of the
    Texas Latino community in voting rights issues. Our efforts
    were instead channeled to a successful, though costly,
    challenge to a change in the city council electoral system in
    Pasadena, Texas--a change linked directly by the then-mayor to
    the lifting of the pre-clearance obligation by the Shelby
    County decision.
        As both a rapidly growing population and the nation's
    largest minority population, Latinos are regularly and
    increasingly seen as a threat to those currently in political
    power. As a result of this perceived threat to incumbents, the
    Latino community regularly faces violations of the VRA in
    several election-related areas. Those in power, whether at
    State or local level, think about the perceived threat from the
    growing Latino voter pool in racial terms, even if that
    perspective is not explicitly acknowledged, and the violations
    of the VRA take conspicuously racialized forms even if
    justified in other terms--of seniority protection for incumbent
    legislators, of competitiveness, or of continuity of
    representation, for example.
        In the post-Shelby County absence of the protections of
    pre-clearance, the dual nature of the pre-clearance provision
    in section 5 of the VRA has become apparent--and much missed.
    Section 5 has accurately been characterized as perhaps the most
    effective civil rights provision ever written into federal law.
    It has prevented the implementation of many, many electoral
    changes that would have dealt significant harm to minority
    voting rights. From discriminatory precinct changes to dilutive
    redistricting, section 5 likely deterred substantially more
    proposed or conceived electoral changes than the many hundreds
    it blocked or modified through a determination made in pre-
    clearance review. The civil rights effectiveness of section 5
    is acknowledged by all, even those who wrongly believe it is no
    longer needed.
        Yet, apart from its success as a civil rights protection,
    section 5 should also be celebrated as perhaps one of the first
    and most effective alternative dispute resolution (ADR)
    provisions ever written into federal law. Like more typical ADR
    mechanisms, pre-clearance permits a faster, less costly
    resolution of disputes that would otherwise be resolved in more
    cumbersome and resource-intensive court litigation. Like other
    ADR mechanisms, pre-clearance involves streamlined review by a
    non-judicial officer who considers the contentions of both
    sides on the matter at issue. Of course, unlike mandatory ADR
    in other contexts, section 5 allows jurisdictions to opt out
    and go directly to court proceedings, in the D.C. federal
    court, with in-court expedited review that bypasses the
    intermediate appellate court.
        Like the most effective ADR, pre-clearance saved lots of
    money when it was broadly in effect, most of it for taxpayers
    in covered jurisdictions. VRA litigation generally involves fee
    awards for prevailing plaintiffs. Thus, covered jurisdictions
    under pre-clearance received quick decisions without having to
    pay their own attorneys--ordinarily outside counsel who charge
    a premium for their VRA expertise--and expert witnesses, and
    without also having to pay a prevailing plaintiffs fees and
    costs. It is no exaggeration to assert that pre-clearance saved
    taxpayers in covered jurisdictions billions of dollars through
    avoiding costly litigation.
        It is one of the unexplained ironies of modem policymaking
    that those who champion mandatory ADR in consumer and
    employment contexts are often among those who most vehemently
    oppose the revivification of section 5 of the VRA through
    enactment of a new coverage formula following the Shelby County
    decision. Nonetheless, the Nation plainly continues to need the
    protections and efficiencies of pre-clearance in voting rights,
    and so Congress must enact a vigorous, fair, and efficient
    coverage formula as a substitute for the one in section 4 that
    the Supreme Court narrowly struck down in Shelby County.
        To meet the needs of the growing Latino voting community--
    and not incidentally to continue to save State and local
    defendants from the high and rising costs of defending against
    litigation under section 2 of the VRA and under other
    provisions of federal law--the best coverage formula would
    again include rolling measures of recent historical experience
    to ensure that recent voting rights violators with significant
    voter participation differentials among racial groups are
    required to avail themselves of pre-clearance ADR before
    implementing any electoral changes.
        In addition, however, the new coverage formula must also
    address the Latino community's experience of facing tried and
    true obstacles to equal electoral participation just as the
    Latino voter population approaches critical mass to threaten
    the future prospects of those currently in power. In these
    circumstances--a fast-growing, but only recently significant,
    minority population--a history-based coverage formula alone
    would not suffice to prevent and deter, or to evaluate quickly
    and cost-effectively, changes that could seriously harm
    minority voting rights. Jurisdictions seeking to disenfranchise
    an insurgent political threat posed by a fast-growing minority
    group should also be required to pre-clear certain, but not
    all, electoral changes.
        Here, pre-clearance would focus on suspect practices and
    dangerous situations arising in the context of rapid growth of
    a minority group, rather than on the specific history of a
    single jurisdiction. ``Known practices coverage'' (KPC) would
    single out for pre-clearance specific practices in
    circumstances that pose a significant potential, demonstrated
    by broad historical experience, for violations of voting
    rights. Creation of at-large seats, annexations of suburban
    populations, reductions in multilingual voting materials,
    changes in voter qualifications, reductions in voting places,
    and redistricting completed by incumbents all raise concerns
    when they occur in a jurisdiction that has experienced recent,
    significant growth of a specific minority population. Utilizing
    pre-clearance ADR rather than costly and time-consuming
    litigation in these and other situations would save taxpayers
    from paying significant sums to defend entrenched, powerful
    incumbents.
        ``Known practices coverage'' (KPC) is a supplemental
    coverage formula incorporated in the proposed Voting Rights
    Advancement Act. It would ensure that the efficiencies of pre-
    clearance are enjoyed with respect to specific changes that
    have historically been employed to restrict the rights of
    minority voters, including Members of growing minority
    communities that have reached a size to be perceived as a
    threat by current government officials. Unlike the main
    coverage formula that it is designed to supplement, ``known
    practices coverage'' would not be limited to jurisdictions with
    troubling and consistent histories of voting rights
    suppression. In addition, KPC would not subject every
    elections-related change to pre-clearance, only the specific
    changes identified in the legislation.
        Thus, as the name suggests, KPC focuses on practices rather
    than jurisdictions. Still, KPC would not apply universally, but
    only to jurisdictions that satisfy thresholds of demographic
    diversity and growth. The thresholds ensure that pre-clearance
    would only apply where the identified change may have the
    intent or effect of suppressing minority voting rights,
    including the ability to elect well-qualified candidates of
    choice. The limitation to specific practices also means that
    the Department of Justice would rapidly regain its expertise in
    evaluating the statutorily identified electoral changes, thus
    further enhancing the efficiency of pre-clearance as an ADR
    mechanism.
        The overarching goal of pre-clearance is to efficiently and
    effectively prevent the implementation of changes that would
    result in minority vote suppression. The pre-clearance
    mechanism recognizes that once an election occurs with a change
    that suppresses minority votes, it is extremely difficult, if
    not impossible, to remedy the voting rights violation
    satisfactorily. In light of the overarching goal, the Congress
    should address both serial voting tights suppressors--those
    jurisdictions whose histories demonstrate a propensity for
    using electoral changes that result in significant suppression
    of minority voting rights--as well as copycat voting rights
    suppressors--those jurisdiction s that adopt changes used in
    the past by other jurisdictions to suppress minority voting
    rights.
        The two proposed pre-clearance coverage formulas are
    complementary; the history/geography formula reaches serial
    voting rights violators, while KPC reaches copycat voting
    rights violators. Applying pre-clearance in both contexts
    ensures that significant voting rights violations can be
    prevented before irreparable harm is done, and that resolution
    of voting rights concerns can occur in a more timely and less
    costly manner than otherwise.
        Again, the identified practices that would potentially be
    subject to pre-clearance under the proposed KPC are practices
    with a significant history of being reviewed and held to cause
    minority vote suppression. Many of the practices are widely
    recognized as troubling practices, particularly when undertaken
    in a context of significant demographic change such that a
    minority group is newly perceived as a threat to the continued
    dominance of the officeholders who are effectively elected
    solely by the long-dominant racial group in a jurisdiction.
        Because the growth of the Latino community is too often
    today--and this will surely only increase in the future--
    assumed to be a threat to those currently holding political
    power in a jurisdiction, the enactment of KPC as a part of the
    new coverage formulas for pre-clearance under section 5 of the
    Voting Rights Act is c1itical. MALDEF urges the enactment of
    H.R. 4, the Voting Rights Advancement Act, with ``known
    practices coverage'' incorporated.

        Mr. Cohen. Thank you, Mr. Saenz.
        Mr. Bryan Tyson is a partner at Taylor English Duma in
    Atlanta, Georgia. He primarily represents governments,
    candidates, and companies in election and campaign finance
    matters.
        He previously advised the Georgia General Assembly during
    its 2011 redistricting process and appointed as special
    assistant attorney general to assist in securing Federal
    approval of all three redistricting plans adopted by the
    legislature during a special session. He previously served as a
    policy aide to former Congressman Lynn Westmoreland of Georgia.
        He received his J.D. from Oak Brook College of Law.
        Mr. Tyson, you are recognized for 5 minutes.

                        TESTIMONY OF BRYAN TYSON

        Mr. Tyson. Thank you, Chairman Cohen, Ranking Member
    Johnson, Members of the committee, Chairman Nadler. I
    appreciate the opportunity to talk to you today about H.R. 4
    specifically, the Voting Rights Advancement Act.
        I have worked as an expert and litigator in the
    redistricting and voting rights field for close to 20 years and
    want to share with you today a practitioner's perspective on
    both litigating and working with a preclearance regime as it
    was in place prior to Shelby County. Although my law firm and I
    represent a number of governmental clients, I want to be clear
    that I am speaking today in my personal capacity and not on
    behalf of any client.
        I think we have all recognized and I think it is widely
    agreed that the Voting Rights Act of 1965 was one of the most
    important pieces of legislation this Congress passed to secure
    voting rights for minority citizens. In fact, it is doubtful
    that the minority voters would have had voting protections put
    in place if not for the Voting Rights Act.
        The VRAA, as we are talking about today, seeks to reimpose
    the preclearance portion of the Voting Rights Act with a new
    formula, and I have some concerns about that formula that I
    would like to share with you.
        My first concern is the makeup of the formula that allows
    counties and other political subdivisions to basically bind a
    State in terms of preclearance coverage. Georgia has 159
    counties, and as I discussed in my prepared testimony, the
    State exercises very little operational control over a number
    of voting-related decisions made by those counties.
        And under the VRAA's proposed formula, if fewer than 10
    percent of the counties in Georgia over a 25-year period had 1
    voting rights case they settled, the entire State would be
    placed under preclearance, whether the State had actually
    engaged in any problematic behavior during that time.
        The second concern I have is the VRAA's inclusion of
    consent decrees and settlements as a voting rights violation
    trigger for purposes of preclearance coverage. Many local
    jurisdictions lack the political and financial resources to
    fight a voting rights lawsuit even if they have a reasonable
    defense and often will settle those cases quickly.
        When they are sued, local officials want to know what the
    trajectory of the lawsuit, and one of my first things I advise
    them is the possibility of them paying both the attorney's fees
    and the expert fees of the plaintiffs if they are successful in
    the case. For a small county that has a lawsuit filed against
    it, even if it has very valid and reasonable defenses to a
    section 2 case, the financial burden and the risk of paying the
    other side's fees is often too great to pursue a defense, and
    they settle.
        All the election officials that I have ever worked with in
    Georgia have worked very hard to make sure they are doing the
    right thing. They are not interested, and we don't have the
    pattern of behavior we had in the 1950s and '60s and '70s of
    intentional discrimination against minority voters.
        My biggest concern with the proposed formula is that the
    broad definition of Voting Rights Act violations will lead to a
    potential partisan abuse of preclearance and the Voting Rights
    Act going forward. A lot of voting litigation today is often
    highly organized along partisan lines with a strong incentive
    of plaintiff fee recovery. There is an incentive for
    organizations to bring voting rights lawsuits.
        These types of political efforts to obtain Federal court
    and, ultimately, Federal Government oversight of State election
    processes will be heightened by the proposed formula in the
    VRAA. The incentives will no longer be aligned to really
    address problems. Political parties or other interested groups
    could strategically file litigation to bring entire States back
    under preclearance. States and counties are less likely to
    settle even meritorious voting rights cases if it is going to
    be considered a strike against them in terms of preclearance
    coverage going forward.
        Many times, in the election litigation space, the narrative
    can get ahead of the data. Georgia, for example, was accused of
    massive voter suppression in the 2018 elections, but the data
    show a dramatically different picture.
        In 2018, Georgia had a record number of registered voters.
    Our voter turnout for the midterm elections was 3.9 million
    voters, almost exactly matching our turnout in the Presidential
    election of 2016. Our voting eligible population turnout rate
    was 55 percent, significantly higher than prior midterms.
    African-American, Latino, and Asian-American voter turnout
    increased dramatically over prior midterm elections in the 2018
    election.
        Georgia offers automated voter registration, no excuse
    absentee voting, and at least 3 weeks of in-person advance
    voting, and all those practices were in place for both 2016 and
    2018. Far from moving backwards since Shelby County, the data
    shows that Georgia has continued to move forward in expanding
    opportunities for all individuals to register to vote and
    making it easier for all eligible individuals to vote.
        Thank you for the opportunity today. I refer to my prepared
    testimony, and I am ready to answer your questions.
        Thank you.
        [The statement of Mr. Tyson follows:]

                        STATEMENT OF BRYAN TYSON

                              Introduction

        Chairman Cohen, Ranking Member Johnson, and Members of the
    Committee, thank you for inviting me to testify today about
    H.R. 4, the Voting Rights Advancement Act of 2019 (VRAA), one
    of the legislative proposals to update the Voting Rights Act
    being considered by the Subcommittee. My name is Bryan Tyson. I
    am a partner at Taylor English Duma LLP and have worked as an
    expert and litigator in redistricting and Voting Rights Act
    litigation for nearly twenty years. My goal today is to share a
    practitioner's perspective on the proposed VRAA and identify
    several issues for your consideration.
        Although my law firm and I represent a number of
    governmental clients in Voting Rights Act and election
    litigation, I am speaking today in my individual, personal
    capacity based on my own perspective and experience. I am not
    speaking on behalf of the State of Georgia or any other client.

                    I. The Voting Rights Act of 1965

        The Voting Rights Act of 1965 (VRA) is one of the most
    significant pieces of legislation enacted by Congress to secure
    the voting rights of minorities across the country. Without the
    VRA, our Nation might not have ever effectively protected the
    right to vote--our most foundational right--for minority
    voters.
        From 1965 through the Supreme Court's Shelby County\1\
    decision in 2013, section 5 required covered jurisdictions to
    submit any changes in election practices to either the Attorney
    General or the U.S. District Court for the District of Columbia
    for preclearance prior to their implementation.\2\ Covered
    jurisdictions under the VRA included all or part of 16 states.
    Preclearance was necessary for decades following the enactment
    of the VRA because of the intentional racial discrimination in
    which governments of covered jurisdictions were engaging. That
    intentional conduct was the foundation for a dramatic statute
    requiring advance federal approval of a state's actions,\3\
    especially in light of the Constitution's Elections Clause that
    gives primary responsibility for elections to the states.\4\
    ---------------------------------------------------------------------------
        \1\ Shelby County v. Holder, 570 U.S. 529, 133 S.Ct. 2612 (2013).
        \2\ 52 U.S.C. 10304.
        \3\ See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 334, 86
    S. Ct. 803, 822 (1966) (``exceptional conditions'' justified VRA);
    Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 211,
    129 S. Ct. 2504, 2516 (2009) (recognizing ``extraordinary'' nature of
    preclearance).
        \4\ U.S. Const., art. I, Sec.  4, cl. 1.
    ---------------------------------------------------------------------------
        Even after Shelby County, the VRA retains significant
    force. Jurisdictions that engage in intentional racial
    discrimination can be bailed in under section 3.\5\
    Jurisdictions that dilute minority voting strength in violation
    of section 2 face litigation with a strong incentive for
    plaintiffs: The full recovery of attorney and expert fees.\6\
    ---------------------------------------------------------------------------
        \5\ 52 U.S.C. 10302(c).
        \6\ 52 U.S.C. 10301; 10310(e).
    ---------------------------------------------------------------------------
        Given this history, the question for this Committee
    regarding the VRAA is whether the burdens it seeks to impose
    will benefit minority voting rights and whether the proposed
    coverage formula will not be over- or under-inclusive given the
    types of triggering events contained in it. Answering those
    questions requires weighing a number of considerations that
    involve looking back and looking forward.

                       A. Burden of Preclearance

        I'll begin with the nature of preclearance submissions.
    Contrary to what some may believe, preclearance submissions are
    not simple documents. They are complicated and difficult to
    prepare. The Department of Justice required the following
    information for each submission:
        1. A copy of the document embodying the proposed change
    affecting voting.
        2. A copy of the document showing the State of the law,
    regulation, or practice prior to the proposed change.
        3. A statement of the difference between existing law and
    the proposed change.
        4. The contact information for the individual making the
    submission.
        5. The name of the jurisdiction responsible for the change.
        6. The identification of the body or person responsible for
    the change.
        7. The statutory or other authority that allows the
    jurisdiction to decide to undertake the change, along with a
    description of the procedures required.
        8. The date of the adoption of the change.
        9. The date the change is to take effect.
        10. An affirmation that the change has not yet been
    enforced or administered.
        11. An explanation of the scope of the change.
        12. A statement of the reasons for the change.
        13. A statement of the anticipated effect of the change on
    minority groups.
        14. A statement of any past or pending litigation involving
    the change.
        15. A statement that the prior practice has been precleared
    or explaining why it is not subject to preclearance.
        16. Any other information required by the Attorney
    General.\7\
    ---------------------------------------------------------------------------
        \7\ 28 C.F.R. 51.27.
    ---------------------------------------------------------------------------
        The Department of Justice also includes a list of suggested
    supplemental information that jurisdictions would be wise to
    submit with preclearance submissions:
        1. Demographic information, including:
          a. Total and voting-age population of the affected area.
          b. Registered voters for the affected area by race and
    language group.
          c. Estimates of population by race and language group
    made in connection with the change.
        2. Maps showing:
          a. The prior and new boundaries of the voting unit or
    units.
          b. The prior and new boundaries of voting precincts.
          c. The location of racial and language minority groups.
          d. Any natural boundaries or geographical features that
    influenced the selection of boundaries of the prior or new
    units.
          e. The location of prior and new polling places.
          f. The location of prior and new voter registration
    sites.
        3. Election returns showing:
          a. The name of each candidate.
          b. The race or language group of each candidate, if
    known.
          c. The position sought by each candidate.
          d. The number of votes received by each candidate, by
    voting precinct.
          e. The outcome of each contest.
          f. The number of registered voters for the last 10 years,
    by race and language group, for each voting precinct for which
    election returns are furnished.
        4. Public notices that show the public had an opportunity
    to participate including:
          a. Copies of newspaper articles discussing the proposed
    change.
          b. Copies of public notices that describe the proposed
    change and invite public comment or participation in hearings
    and statements regarding where such public notices appeared
    (e.g., newspaper, radio, or television, posted in public
    buildings, sent to identified individuals or groups).
          c. Minutes or accounts of public hearings concerning the
    proposed change.
          d. Statements, speeches, and other public communications
    concerning the proposed change.
          e. Copies of comments from the general public.
          f. Excerpts from legislative journals containing
    discussion of a submitted enactment, or other materials
    revealing its legislative purpose.
        5. For annexations:
          a. The present and expected future use of the annexed
    land (e.g., garden apartments, industrial park).
          b. An estimate of the expected population, by race and
    language group, when anticipated development, if any, is
    completed.
          c. A statement that all prior annexations subject to the
    preclearance requirement have been submitted for review, or a
    statement that identifies all annexations subject to the
    preclearance requirement that have not been submitted for
    review.\8\
    ---------------------------------------------------------------------------
        \8\ 28 C.F.R. 51.28.
    ---------------------------------------------------------------------------
        And all of the required and suggested information is just
    for a single preclearance submission--which included every
    change in a ``voting practice,'' meaning everything from moving
    a polling location from one public building to another public
    building nearby to statewide redistricting plans.
        As an example of these challenges, one county in Georgia
    had used a school building as a polling place for years. The
    school was undergoing renovations over the summer, but school
    officials had assured the election officials that the
    renovations would be complete in time for the next election.
    But shortly before the election, the school officials notified
    the election staff that the school would not be ready in time.
    We prepared an emergency preclearance submission to move the
    polling place from the school undergoing renovations to another
    school that was right next door and had to include all of the
    above information.
        Failing to obtain preclearance ahead of the election would
    have meant the jurisdiction was subject to an enforcement
    action (including payment of the plaintiffs' attorney fees) \9\
    and was ineligible for bailout because it enforced a voting
    change that had not been precleared.\10\
    ---------------------------------------------------------------------------
        \9\ 52 U.S.C. 10303.
        \10\ 52 U.S.C. 10303(a)(1)(D).
    ---------------------------------------------------------------------------
        The burden on jurisdictions is significant because not only
    must the jurisdiction provide all of this information, it must
    do so to prove a negative. Each submission had to show that the
    change would not cause a retrogression in the position of
    minority voters in order to receive preclearance. Failure to
    submit sufficient information would lead to a ``More
    Information Request'' or a rejection of the request for
    preclearance. This burden was necessary for a State or a
    political subdivision to obtain advance federal approval of a
    proposed voting change adopted by local policymakers.

           B. Past Concerns Regarding Partisan Administration

        While necessary in the 1960s and through the 1980s,
    concerns about partisan Administration of the Voting Rights Act
    in Georgia began to grow in the 1990s. Georgia Democrats in the
    1990s were concerned about the ``Bush Justice Department'' and
    its rejection of Democratic maps. Georgia Republicans in the
    2011 cycle were equally concerned about the ``Obama Justice
    Department.''
        The men and women of the Voting section are professionals
    who are deeply committed to their work. But concerns about
    partisan Administration influenced how jurisdictions approached
    preclearance in 2011 cycle. For example, Georgia sought
    preclearance of its 2011 redistricting maps on both statutory
    tracks simultaneously: Filing a declaratory judgment action
    seeking preclearance in the D.C. District Court and filing for
    administrative preclearance with the Attorney General.\11\ The
    lawsuit included an alternative claim: If preclearance was not
    granted, then the formula imposing preclearance on Georgia was
    unconstitutional.\12\ Texas used a similar strategy when
    seeking preclearance of its photo identification requirement
    for voting.\13\
    ---------------------------------------------------------------------------
        \11\ Georgia v. Holder, Case No. 1:11-CV-01788 (D. D.C.).
        \12\ Id., Complaint at pp. 19-25 (October 6, 2011) available at
    http://redistricting.lls.edu/files/
    GA%20preclear%2020111006%20complaint.pdf.
        \13\ Texas v. Holder, 888 F. Supp. 2d 113, 117 (D.D.C. 2012)
    vacated 570 U.S. 928 (2013).
    ---------------------------------------------------------------------------

                          II. H.R. 4 Overview

        The Committee is considering the VRAA, which would create a
    new formula to determine preclearance coverage, replacing the
    formula that was struck down in Shelby County. The proposed
    formula would cover any State (entirely) in which:

         L15 or more voting rights violations occurred in
    the State during the previous 25 calendar years; or
         L10 or more voting rights violations occurred in
    the State during the previous 25 calendar years, at least one
    of which was committed by the State itself (as opposed to a
    political subdivision within the State).\14\
    ---------------------------------------------------------------------------
        \14\ VRAA, Sec. 3(b)(1)(A).

        The formula likewise covers any political subdivision where
    three or more ``voting rights violations'' occur in a 25-year
    period.\15\
    ---------------------------------------------------------------------------
        \15\RAA, Sec. 3(b)(1)(B).
    ---------------------------------------------------------------------------
        The VRAA's definition of ``voting rights violation''
    includes five distinct types of events:
        1. A final judgment by a court determining that there has
    been ``a denial or abridgement of the right of any citizen of
    the United States to vote on account of race, color, or
    Membership in a language minority group, in violation of the
    14th or 15th Amendment'' anywhere within the State or one of
    its subdivisions.
        2. A final judgment by a court determining that ``a voting
    qualification or prerequisite to voting or standard, practice,
    or procedure with respect to voting was imposed or applied or
    would have been imposed or applied anywhere within the State or
    subdivision in a manner that resulted or would have resulted in
    a denial or abridgement of the right of any citizen of the
    United States to vote on account of race, color, or Membership
    in a language minority group, in violation of subsection (e) or
    (f), or section 2 or 203'' of the Act.
        3. A final judgment of a court denying a request for
    preclearance of a voting change in the State or any political
    subdivision.
        4. An objection by the Attorney General to any voting
    change within the State or any political subdivision.
        5. A consent decree or settlement that resulted in the
    alternation or abandonment of a voting practice that was
    challenged as a denial or abridgment of the right to vote on
    account of race, color, or Membership in a language minority
    group anywhere in the State.
        My testimony will focus primarily on the coverage formula
    proposed in the VRAA and its likely unintended consequences
    from the standpoint of someone who has prepared preclearance
    submissions and litigated voting cases. There are significant
    constitutional and practical problems with the provisions of
    Sec. 4A of the VRAA that would apply preclearance to all States
    and political subdivisions for designated categories of voting
    changes, but those problems are not the focus of my testimony
    today.

         III. Concerns About Formula To Determine Preclearance

        The proposed formula raises several immediate concerns for
    me as a litigator involving its application, especially because
    the proposed formula opens the door to partisan Administration
    of the VRA. The Subcommittee should ensure that any version of
    the VRAA does not create opportunities for the political abuse
    of the VRA to the detriment of its protections for minority
    voters.

      A. Georgia Lacks Control Over Counties and Other Political
                              Subdivisions

        The first concern with the proposed formula is the ability
    of counties and political subdivisions in a State to force the
    State into preclearance coverage without any affirmative action
    on the State's part. Georgia has 159 counties. The proposed
    formula would make the State of Georgia accountable for the
    actions of all of its counties--in fact, if fewer than 10% of
    counties in the State of Georgia settled a single voting-rights
    case over 25 years, the entire State would be covered even if
    the State itself had no ``voting rights violations'' at all
    during the period in question.
        While the Georgia Secretary of State is identified as the
    chief elections official for purposes of the Help America Vote
    Act (HAVA), his responsibilities do not encompass the entire
    Administration of elections. O.C.G.A. Sec. 21-2-50 enumerates
    the statutory authority of the Secretary, and none of the 15
    enumerated duties gives the Secretary control over counties and
    election superintendents. The Secretary must provide training
    to county elections officials (O.C.G.A. Sec. 21-2-50(11)), but
    he does not watch them process voter registration applications,
    count ballots, administer provisional ballots, or control how
    local officials undertake those activities. The Secretary must
    maintain the official list of registered voters (O.C.G.A.
    Sec. 21-2-50(a)(14)), but he does not enter information into
    the voter registration system; local voter registrars do.
    Similarly, the State Election Board's statutory duties are set
    forth in O.C.G.A. Sec. 21-2-31, which also does not give it
    control over county officials. The Georgia Election Code is
    equally clear that the duties of administering and conducting
    elections fall onto local superintendents who ``instruct poll
    officers and others in their duties'' and ``select and equip
    polling places.'' O.C.G.A. Sec. 21-2-70.
        As a result of the current State of Georgia law, the
    Secretary of State and State Election Board do not control and
    cannot directly prevent a local official(s) from (1) closing
    polling places; (2) not distributing provisional ballots; (3)
    not allocating sufficient resources to polling places; (4)
    processing absentee ballots; or (5) improperly entering
    information for voter registration. All of these are county
    functions as a matter of law--not the responsibility of the
    State. O.C.G.A. Sec. Sec. 21-2-31, 21-250.
        But despite these statutory limitations, under the proposed
    VRAA formula, Georgia counties and political subdivisions can
    engage in behaviors that may garner objections from the
    Attorney General or result in litigation that will later bind
    the entire State, even if the State has absolutely nothing to
    do with a problematic voting practice. This is a far cry from
    the intentional discrimination that triggered the preclearance
    concept in 1965. Stated differently, the State could be
    punished for the bad behavior of one or more of its counties
    and political subdivisions over which the State has no control.
        The lack of control over jurisdictions also eliminates the
    effectiveness of the bailout provisions of section 4 of the VRA
    \16\ as a check on the coverage formula. To be entitled to
    bailout, a jurisdiction must demonstrate that ``all
    governmental units within its territory'' have perfectly
    complied with the preclearance requirements during the previous
    ten years.\17\ Given the lack of operational control, that is a
    nearly impossible standard to meet.
    ---------------------------------------------------------------------------
        \16\ 52 U.S.C. 10303(a).
        \17\ Id. at (a)(1)(D).
    ---------------------------------------------------------------------------
        Prior to Shelby County, a small county with little minority
    population asked our firm about seeking a bailout from
    preclearance under section 4. Like the relationship of the
    State and counties, counties in Georgia do not control the
    cities within their boundaries. The county had several cities
    within it and we served open-records requests on the cities for
    their last ten years of preclearance records to attempt to meet
    the statutory requirements. The struggle to obtain those
    records and affirmatively demonstrate that every voting change
    had been precleared ultimately led the county to abandon its
    efforts to seek bailout.
        Similar problems will remain with the new proposed formula.
    A jurisdiction seeking bailout because it was improperly
    covered by the proposed coverage formula has to make an
    affirmative showing of compliance that will be nearly
    impossible if it does not control the ``governmental units
    within its territory.'' The proposed formula should not pull
    entire states under preclearance due to the actions of
    jurisdictions over whom they exercise no control.

    B. Local Jurisdictions Tend To Be More Likely to Settle Voting
            Cases Than Fight Them Due To Budget Constraints

        The VRAA's inclusion of consent decrees and settlements as
    a ``voting rights violation'' will also create significant
    problems. Many local jurisdictions lack the political will and
    financial resources to fight a voting-rights lawsuit, even if
    they have a reasonable defense. We are far from the days of
    Mississippi Governor Ross Barnett, who could triumphantly
    proclaim his resistance to integrating Ole Miss and garner a
    political benefit from that stand. Today, a jurisdiction being
    sued for voting discrimination is viewed as a very negative
    event.
        When they are sued, local-government officials want to know
    the trajectory of the lawsuit and their potential exposure. As
    a practitioner, I have to immediately advise them of the
    potential attorney and expert fees they will have to pay if
    unsuccessful in their defense of the lawsuit. For a small
    county (even if they have a strong argument against the
    allegations in the lawsuit), the risk of paying the other
    side's fees is often too great to pursue a defense. That is
    especially true when voting cases could take several years to
    reach a favorable result for a jurisdiction.
        Local governments tend to be on one of two extremes when it
    comes to voting litigation. First, many local governments will
    quickly settle voting lawsuits because of the potential cost
    and the negative publicity. For example, in 2006, the U.S.
    Department of Justice sued Long County, Georgia over challenges
    to Latino citizens' right to vote.\18\ Two days later, the
    parties agreed to a consent decree that would govern Long
    County's practices related to voters whose eligibility was
    challenged.\19\ The quick agreement is a dramatic contrast to
    the sustained resistance of local officials that led to the
    adoption of the original preclearance provisions in 1965. An
    immediate settlement within two days of a Voting Rights Act
    lawsuit in 2006 demonstrates a readiness to comply with the
    law, not resistance to it. Despite this fact and the
    cooperation of local officials, the Long County settlement
    would be considered a ``voting rights violation'' counted
    against the State of Georgia until the year 2031, 66 years
    after the VRA was first adopted.
    ---------------------------------------------------------------------------
        \18\ Complaint, U.S. v. Long County, Ga., Case No. 2:06-cv-00040-
    AAA (S.D. Ga. February 8, 2006) available at https://www.justice.gov/
    sites/default/files/crt/legacy/2010/12/15/long_ comp.pdf.
        \19\ Consent Decree, U.S. v. Long County, Ga., Case No. 2:06-cv-
    00040-AAA (S.D. Ga. February 10, 2006) available at https://
    www.justice.gov/sites/default/files/crt/legacy/2010/12/15/long_cd.pdf.
    ---------------------------------------------------------------------------
        Second, local governments with a budget to advance
    reasonable defenses against Voting Rights Act lawsuits may
    fight the lawsuit but ultimately still find the costs to be too
    much. For example, Fayette County (a relatively wealthy county
    close to the City of Atlanta) was sued in 2011 regarding its
    long-time at-large system of electing county commissioners.\20\
    The key question of that case involved the interaction of the
    constitutional limitations against racial gerrymandering versus
    the requirements of section 2 of the Voting Rights Act to
    create new majority-minority districts because of African-
    American population growth.\21\ That suit dragged on for more
    than five years (including a trip to the Eleventh Circuit) \22\
    before finally settling with the payment to the plaintiffs of
    hundreds of thousands of dollars in attorney fees.\23\ The
    settlement ultimately left one at-large district in place but--
    despite the carefully negotiated solution agreeable to all
    sides--would still be considered by the VRAA as a ``voting
    rights violation'' attributable to the State of Georgia for
    purposes of preclearance coverage.
    ---------------------------------------------------------------------------
        \20\ Complaint, Ga. State Conf. of the NAACP v. Fayette County Bd.
    of Commissioners, Case No. 3:11-cv-123-TCB (N.D. Ga. August 9, 2011).
        \21\ See discussion in preliminary-injunction order, Ga. State
    Conference of the NAACP v. Fayette Cty. Bd. of Comm'rs, 950 F. Supp. 2d
    1294, 1304-1308 (N.D. Ga. 2013).
        \22\ Ga. State Conf. of the NAACP v. Fayette Cty. Bd. of Comm'rs,
    775 F.3d 1336 (11th Cir. 2015).
        \23\ Consent Order (Doc. 289), Ga. State Conf. of the NAACP v.
    Fayette Cty. Bd. of Comm'rs, Case No. 3:11-cv-123-TCB (N.D. Ga. January
    28, 2016) (settling Board of Education claims); Consent Motion (Doc.
    305), Ga. State Conf. of the NAACP v. Fayette Cty. Bd. of Comm'rs, Case
    No. 3:11-cv-123-TCB (N.D. Ga. September 2, 2016) (settling Board of
    Commissioner claims).
    ---------------------------------------------------------------------------
        In both examples, local officials were trying their best to
    do what was right. Current voting cases are nothing like the
    resistance encountered by federal officials seeking to enforce
    voting rights in the 1960s and 1970s. It is a rare case today
    where officials systematically work to injure minority voting
    rights. All local election officials with whom I have worked
    are motivated to run elections properly and in accordance with
    the law. They take extremely personally any allegation that
    they are working to disenfranchise any voter.
        There will be further unintended effects of making
    settlements a trigger for preclearance coverage. Groups
    interested in voting access issues are incentivized to sue
    rather than work with local officials to correct what they see
    as problems, because they now have a method to force
    jurisdictions under preclearance. Making settlements a trigger
    for coverage also removes incentives for local officials to
    settle meritorious litigation involving voting because of the
    long-term effect of those settlements. And the fact that those
    settlements may bind the State for the next 25 years creates
    additional incentives for states to step in to defend local
    governments, potentially creating a significant burden on the
    courts with continued litigation of cases that could otherwise
    be easily settled.
        I would urge the Subcommittee to remove the language about
    settlements from the VRAA, or at the very least, modify the
    language to take into account the nature and extent of the
    settlement versus the fact of the settlement itself.

        C. The Coverage Formula in the VRAA Raises the Distinct
         Possibility of Politicized Enforcement of Preclearance

        The prior preclearance regime focused on the evil still
    used in section 3(c)'s bail-in provisions: Intentional
    discrimination. The targeted efforts of election officials to
    stop minorities from registering and voting, driven by racial
    animus, was the basis for the ``extraordinary circumstances''
    that made the preclearance process constitutionally valid for
    decades.
        That focus on intentional discrimination is completely
    upended by the VRAA. The revised bail-in provisions would give
    federal courts the authority to bring a jurisdiction under
    preclearance under any violation of section 2's vote dilution
    provisions, which can often be unintentional or the result of
    changing population demographics.\24\ That is adramatic change
    in federal law and significantly raises the stake for every
    jurisdiction litigating a section 2 case.
    ---------------------------------------------------------------------------
        \24\ VRAA, Sec. 2(a)-(b).
    ---------------------------------------------------------------------------
        Moreover, because the VRAA defines a ``voting rights
    violation'' as an unsuccessful application for preclearance to
    the Attorney General or a federal court,\25\ jurisdictions that
    simply do not provide sufficient data can find themselves on
    the hook for preclearance.
    ---------------------------------------------------------------------------
        \25\ VRAA, Sec. 4(b)(3)(C)-(D).
    ---------------------------------------------------------------------------
        Because jurisdictions must prove the lack of discrimination
    in their preclearance submission, allowing a rejection for any
    reason to constitute a voting rights violation grants
    significant latitude to the Attorney General to force
    jurisdictions under preclearance by rejecting applications for
    preclearance. At the very least, the VRAA should only include
    objections by the Attorney General for grounds other than a
    lack of information as a triggering event.
        But the inclusion of settlements as a ``voting rights
    violation'' is the most dangerous provision that opens the door
    to political application of the VRA. Plaintiff groups or an
    Attorney General can strategically file lawsuits against small
    political subdivisions to force settlements that count against
    a jurisdiction for purposes of preclearance, especially as the
    25-year window is approaching. As discussed above, the
    pressures on elected officials to settle VRA cases is often
    significant and groups can target particular political
    subdivisions within states, sue them, and force settlements
    that then could place jurisdictions under preclearance for the
    next 25 years. If the Subcommittee is going to proceed with the
    VRAA, it should at the very least require a finding of
    intentional discrimination or other changes that would avoid
    the high likelihood that politics could become a key driver in
    litigation under the VRAA.

     D. The Continued Politicization of Voting Litigation Adds to
              Concerns About the Political Use of the VRAA

        The broad definition of ``voting rights violations'' also
    raises significant concerns about future political abuse of the
    VRA because of the current partisan use of litigation and
    arguments about voting practices. Ignoring the oft-quoted
    saying, ``the plural of anecdote is not data,'' today's voting
    litigation is often highly organized along partisan lines,
    frequently combining a variety of scattered events in an
    attempt to utilize the federal courts to control elections in
    states. These types of political efforts to obtain federal-
    court (and Federal Government) oversight of State election
    processes will be heightened by the VRAA. Because settlements
    of any case involving voting are included as ``voting rights
    violations,'' political parties or other interested groups can
    strategically use litigation--such as the litigation filed in
    Georgia following the 2018 elections--to bring entire states
    back under preclearance.
        Many election cases are often settled before reaching the
    merits stage of the litigation. The settlement then becomes the
    basis for further partisan attacks on the electoral system of a
    State as ``voter suppression'' that makes a compelling
    political story regardless of whether the facts are true.
    Unlike the crisis situation across the covered states in 1965,
    complaints about election Administration today tend to involve
    the collection of scattered stories woven into a partisan
    narrative that is contrary to the data on the election as a
    whole.
        Georgia was accused of massive voter suppression during the
    2018 elections. Claims alleged that Georgia election officials
    held up over 50,000 voter registration applications, closed
    polling places, and targeted minority voters with overly
    restrictive database-matching processes. But the data show a
    dramatically different picture. In 2018:

         LGeorgia had a record number of registered
    voters.\26\
    ---------------------------------------------------------------------------
        \26\ See http://sos.ga.gov/index.php/Elections/
    current_and_past_3elections_results (last visited October 14, 2019).
    ---------------------------------------------------------------------------
         LGeorgia had record voter turnout for a midterm
    election with 3.9 million voters in 2018 that almost matched
    the total number of voters who voted in the 2016 presidential
    election (4 million). The last midterm election in 2014 had
    approximately 2.5 million voters.\27\
    ---------------------------------------------------------------------------
        \27\ Id.
    ---------------------------------------------------------------------------
         LThe voting eligible population turnout rate for
    2018 was 55%, significantly higher than the 2014 midterm
    (38.6%) and the 2010 midterm (40.6%).\28\
    ---------------------------------------------------------------------------
        \28\ See http://www.electproject.org/2018g (last visited October
    14, 2019).
    ---------------------------------------------------------------------------
         LIn 2018, African-American voter turnout increased
    32.5% compared to the 2014 midterm.\29\
    ---------------------------------------------------------------------------
        \29\ See http://sos.ga.gov/index.php/Elections/
    voter_turn_out_by_demographics (last visited October 14, 2019).
    ---------------------------------------------------------------------------
         LHispanic voter turnout increased 97.7% over the
    2014 midterm.\30\
    ---------------------------------------------------------------------------
        \30\ Id.
    ---------------------------------------------------------------------------
         LAsian-American voter turnout increased 98.2% over
    the 2014 midterm.\31\

        \31\ Id.
    ---------------------------------------------------------------------------
        Georgia offers automated voter registration, no-excuse
    absentee voting, and at least three weeks of in-person advance
    voting-and all of those practices were in place for the 2016
    and 2018 elections.\32\ The Brennan Center for Justice
    identified Georgia's automated voter registration program as
    the most successful in the country, almost doubling the rate of
    voter registration.\33\
    ---------------------------------------------------------------------------
        \32\ See History of AVR & Implementation Dates. Brennan Center for
    Justice. https://www.brennancenter.org/analysis/history-avr-
    implementation-dates (last visited October 14, 2019). See also State
    Laws Governing Early Voting, National Conference of State Legislatures,
    http://www.ncsl.org/research/elections-and-campaigns/early-voting-in-
    state-elections.aspx (last visited October 14, 2019) and Absentee and
    Early Voting, National Conference of State Legislatures, http://
    www.ncsl.org/research/elections-and-campaigns/absentee-and-early-
    voting.aspx (last visited October 14, 2019).
        \33\ Morris, Kevin and Peter Dunphy, AVR Impact on State Voter
    Registration, Brennan Center for Justice (April 2019), https://
    www.brennancenter.org/sites/default/files/2019-08/Report
    _AVR_Impact_State_Voter_Registration.pdf (last visited October 14,
    2019).
    ---------------------------------------------------------------------------
        According to the Election Administration and Voting Survey
    2018 Comprehensive Report (the ``EAVS Report''), Georgia is the
    top State in the country for voter registration through its
    driver services department and the sixth in overall voter
    registration.\34\ In 2018, significantly fewer absentee ballots
    were rejected than in previous years (7,512 in 2018 vs. 18,266
    and 13,677 in 2016 and 2014, respectively).\35\ Further,
    comparing the number of rejected absentee ballots to the
    overall ballots cast, the measure preferred by the
    Massachusetts Institute for Technology Election Lab, Georgia's
    absentee ballot rejection rate decreased by 40% from 2016 to
    2018, from 0.33% to 0.199%.\36\
    ---------------------------------------------------------------------------
        \34\ U.S. Election Assistance Commission, Election Administration
    and Voting Survey 2018 Comprehensive Report at 56, 64 (June 2019)
    available at https://www.eac.gov/assets/1/6/2018_EAVS_Report.pdf. These
    findings are also consistent with an analysis by FiveThirtyEight, which
    found Georgia registered and updated more voters than any other State
    using automated voter registration. Nathaniel Rakich, What Happened
    When 2.2 Million People Were Automatically Registered to Vote,
    FiveThirtyEight.com (October 10, 2019), https://fivethirtyeight.com/
    features/what-happened-when-2-2-million-people-were-automatically-
    registered-to-vote/.
        \35\ See the 2018, 2016, and 2014 EAVS reports.
        \36\ See 2018 EAVS Report. See also MIT Election Lab Election
    Performance Index, https://elections.mit.edu/#state-GA (last visited on
    October 14, 2019).
    ---------------------------------------------------------------------------
        The EAVS report also showed that, in 2018, Georgia counted
    a higher percentage of provisional ballots compared to previous
    elections: 55% of provisional ballots were ultimately counted,
    compared with 45% in the 2016 election.\37\ Voters cast more
    provisional ballots in 2018 than in 2016 (21,600 total
    provisional ballots cast in 2018 vs. 16,739 in 2016),\38\ but
    almost all of the increase in provisional ballots (4,793 of the
    4,861 increase from 2016) was due to registered voters voting
    in the wrong precinct in their county.\39\
    ---------------------------------------------------------------------------
        \37\ 2018 EAVS Report at 33; 2016 EAVS Report.
        \38\ Id.
        \39\ Id.
    ---------------------------------------------------------------------------
        While some organizations claim a dramatic contraction of
    voting rights in Georgia after Shelby County, Georgia has
    actually expanded early in-person voting after that decision.
    Most Georgia counties provide Sunday voting and add additional
    weekend voting days beyond what is required by statute.
        Georgia has continued to innovate and expand its election
    laws as recently as earlier this year. During an update of
    election laws passed in the 2019 legislative session, Georgia
    took its existing, precleared HAVA database-matching process
    for new voters and ensured that all voters would be immediately
    placed into ``active'' status even if they do not match the
    database check so long as they produce one of the forms of
    identification required by HAVA for first-time registrants.\40\
    Georgia's precleared voter-list maintenance process that
    previously allowed voters to be removed from the voting rolls
    after six years was changed to a more expansive law, not
    allowing removal until almost 10 years--matching the renewal
    period for State driver's licenses to ensure that updates would
    be included in the automated- voter-registration process.\41\
    Georgia also restricted counties from changing polling places
    within 30-60 days prior to an election.\42\
    ---------------------------------------------------------------------------
        \40\ O.C.G.A. Sec. 21-2-220.1 as amended by 2019 Ga. Laws Act 24
    (H.B. 316); O.C.G.A. Sec. 21-12-417(c).
        \41\ O.C.G.A. Sec. 21-2-234 as amended by 2019 Ga. Laws Act 24
    (H.B. 316).
        \42\ O.C.G.A. Sec. 21-2-265(f) as amended by 2019 Ga. Laws Act 24
    (H.B. 316).
    ---------------------------------------------------------------------------
        The data tell a different story from the political
    narrative. To avoid the partisan usage of the VRA, the
    Subcommittee should recognize government officials' willingness
    and urgency to settle cases involving voting rights so that it
    can make changes. The decisions regarding enforcement of the
    VRA should be driven by data, not by partisan considerations.

                             IV. Conclusion

        Protecting voting rights is critically important. But the
    VRAA will ultimately undermine the purposes of the VRA. It
    includes a number of provisions that will adversely affect the
    ability of states and local jurisdiction to effectively operate
    elections and opens the door to the partisan use of legislation
    designed to protect voting rights.
        The Subcommittee should strongly consider amending the
    legislation to address intentional discrimination, but at the
    very least remove settlements as a triggering event,
    recognizing that extraordinary circumstances must be required
    to justify the massive federal intervention of preclearance.

        Mr. Cohen. Thank you, sir. Appreciate your testimony.
        Mr. Bryan Sells is a civil rights lawyer from Atlanta,
    Georgia. He specializes in voting rights, election law, and
    redistricting. He previously served as special litigation
    counsel in the Voting section of the Civil Rights Division of
    the Department of Justice from 2010 to 2015.
        As part of the Voting Section's management team, he led
    teams of trial laws, analysts, and social scientists
    investigating and prosecuting violations of Federal voting
    statutes, including the Voting Rights Act.
        Prior to that time, he served as a senior staff attorney in
    the Voting Rights Project of the American Civil Liberties Union
    in Atlanta.
        He received his law degree from Columbia and his
    undergraduate degree from Harvard. He served as law clerk to
    the Honorable Myron Thompson of the U.S. District Court for the
    Middle District of Alabama.
        Mr. Sells, you are recognized for 5 minutes.

                        TESTIMONY OF BRYAN SELLS

        Mr. Sells. Chairman Cohen, Ranking Member Johnson, and
    Members of the subcommittee, thank you for the opportunity to
    testify at this important hearing.
        The Subcommittee heard in priori hearings from two of my
    fellow Members of the Native American Voting Rights Coalition,
    Dr. James Tucker and Natalie Landreth, who testified that
    first-generation voting barriers remain a problem in Indian
    country. First-generation barriers are those that limit a
    voter's access to registration opportunities, to casting a
    ballot, and to having that ballot counted.
        The Supreme Court's opinion in Shelby County suggested that
    first-generation barriers are largely a thing of the past. That
    hasn't been my experience as a litigator in Indian country, and
    I will give one example.
        In September 2008, officials in sparsely populated Mellette
    County, South Dakota, voted to close all but one of the
    county's four polling places. Mellette County lies within the
    historical boundaries of the Rosebud Indian Reservation, and
    Native Americans make up about half of the county's population.
        The move was touted as a cost-saving measure designed to
    save about $1,000, but it meant that some voters would have to
    drive as many as 40 miles each way to cast a vote at the polls.
    To make matters worse, South Dakota had one of the restrictive
    absentee ballot laws in the country, requiring voters to have
    their absentee ballot applications notarized or witnessed by
    county officials.
        When I analyzed the impact of the closures on Native
    Americans, I found that a higher percentage of Indians than
    non-Indians would have to travel significant distances to vote
    or to cast an absentee ballot. Native Americans were also much
    less likely than whites to have access to a vehicle or the
    money to pay for gas.
        To add insult to injury, the all-white county commission
    moved the county's only remaining polling place next door to
    the sheriff's office, a place that would further deter Indians
    from voting because of a history of friction between Native
    Americans and law enforcement in the county.
        Thankfully, the county reversed course when my colleagues
    and I raised the possibility of a lawsuit. I think this matter
    illustrates the continued need to protect Indian voters against
    first-generation barriers, and I applaud the Subcommittee for
    including first-generation practices like poll closures in the
    known practice preclearance provisions of H.R. 4.
        Most of my litigation in Indian country, however, has
    focused on second-generation barriers, electoral mechanisms
    that affect the weight of minority votes like at-large
    elections and redistricting. Second-generation barriers are a
    major issue in Indian country because the voting rights
    revolution that swept through the South in the 1970s and '80s
    largely bypassed Indian country, but that is no longer the
    case.
        In the 7 years between 1999 and 2006, for example, there
    were eight second-generation voting rights cases brought by or
    on behalf of Native Americans in South Dakota alone. I will
    give one quick example.
        The case is Blackmoon v. Charles Mix County. Charles Mix
    has historically been a county divided. Members of the Yankton
    Sioux Tribe, who make up approximately 30 percent of the
    county's population, live mainly in the southern part of the
    county, and the non-Indian population is concentrated in the
    northern and eastern parts of the county.
        There is a plaque in the main hall of the county courthouse
    recognizing county residents who served in the Vietnam War, and
    it lists not a single Indian name, even though many served. The
    county is governed by a three-member county commission with
    each commissioner elected from a single member district. No
    Native American had ever been elected to the commission.
        Despite a State law requiring the county to redraw its
    districts in February 2002, the county commission decided to
    leave its existing districts intact. Four tribal Members then
    sued the county, alleging that the districts were
    malapportioned and had the purpose and effect of diluting
    Indian voting strength. Eventually, the district court ruled in
    the plaintiffs' favor on their malapportionment claim and
    ordered the defendants to redraw the districts.
        The county commission then tried to push through a
    redistricting plan that would have continued to dilute Native
    American voting strength, but it changed course after Indian
    voters got wind of the commission's plan and strongly opposed
    it in public hearings. The county then capitulated and adopted
    a plan with one majority Indian district that the Yankton Sioux
    Tribe had proposed before the litigation even began.
        The story does not end there because soon after the county
    adopted that plan, White residents circulated two initiative
    petitions. One petition to have the northern part of the county
    secede from the southern part, and a second petition to
    increase the size of the commission from three to five Members.
        The first petition fizzled, but the second petition passed
    with strong White support. Not long thereafter, we negotiated a
    consent decree that, among other things, activated the pocket
    trigger in section 3(c) of the Voting Rights Act, and it
    requires the county to preclear its voting changes until 2024.
    The county subsequently submitted its plan to increase the size
    of the county commission to the Department of Justice, which
    objected to the change on the ground that the county had not
    met its burden of proving that the increase lacked a
    discriminatory purpose.
        Mr. Cohen. Wrap up.
        Mr. Sells. Yes, Chairman. As a result, the new three-member
    plan remained in place, and Sharon Drapeau was elected to be
    the first woman and the first Native American to serve on the
    commission.
        I will end there. Thank you.
        [The statement of Mr. Sells follows:]

                     STATEMENT OF BRYAN L. SELLS\1\
    ---------------------------------------------------------------------------

        \1\ J.D., Columbia University; A.B., magna cum laude, Harvard
    University. Attorney and managing member at The Law Office of Bryan L.
    Sells, LLC. Adjunct professor of law, Georgia State University.
    ---------------------------------------------------------------------------
        Chairman Nadler, Chairman Cohen, Ranking Member Johnson,
    and Members of the Subcommittee, I thank you for your
    invitation to testify at this hearing on legislative proposals
    to strengthen the Voting Rights Act. My testimony this morning
    will focus on the need for additional protection for the right
    to vote in Indian Country.
        I am a civil rights lawyer currently in private practice in
    Atlanta. Over the course of my more than 20-year legal career,
    I have litigated voting-rights cases on behalf of tribal
    Members in Montana, South Dakota, and Wyoming. I was the lead
    attorney in Quiver v. Nelson, one of the largest voting-rights
    cases in history, and in Bone Shirt v. Hazeltine, a landmark
    case challenging South Dakota's statewide redistricting plan on
    behalf of Native American\2\ voters. I also serve as an adjunct
    professor of law at Georgia State University College of Law,
    where I teach election law, and I am a member of the Native
    American Voting Rights Coalition, an association of national
    and regional grassroots organizations, academics, and attorneys
    advocating for the equal access of Native Americans to the
    political process.\3\
    ---------------------------------------------------------------------------
        \2\ I use the terms ``Native American,'' ``Indian,'' and ``American
    Indian'' interchangeably throughout this testimony because there is no
    consensus in the law or culture on a single term to describe the
    indigenous peoples of the United States. I recognize, however, that
    there are often very significant differences between tribal groups.
        \3\ For more information about the Native American Voting Rights
    Coalition, see Native American Rights Fund, About the Native American
    Voting Rights Coalition, available at https://www.narf.org/native-
    american-voting-rights-coalition/.
    ---------------------------------------------------------------------------
        I will begin with a brief historical overview of the Native
    vote from our nation's founding to the present day. I will then
    describe some of the voting cases and controversies in Indian
    Country on which I have been involved over the course of my
    career as a litigator. Those cases, and the volumes of evidence
    they generated, offer a compelling demonstration of the need
    for a strengthened Voting Rights Act.

    A Brief History of Native-American Enfranchisement From 1789 to
                              the Present

        Throughout the American West, Native Americans have faced
    voting discrimination ranging in form from outright vote denial
    to more subtle restrictions on political participation similar
    to those used to disenfranchise African Americans in the
    American South.\4\ The original Constitution excluded ``Indians
    not taxed'' from the population basis for apportioning
    congressional seats among the states,\5\ and Indians generally
    had neither the rights of citizenship nor of suffrage in the
    early days of the republic.
    ---------------------------------------------------------------------------
        \4\ See generally Jeanette Wolfley, Jim Crow, Indian Style: The
    Disenfranchisement of Native Americans, 16 Am. Indian L. Rev. 167
    (1990); Orlan Svingen, Jim Crow, Indian Style, 11 Am. Indian Quarterly
    275 (1987); Daniel McCool, Indian Voting, in American Indian Policy in
    the Twentieth Century (Vine Deloria, Jr. ed. 1985).
        \5\ U.S. Const. art. I, Sec. 2, cl. 3.
    ---------------------------------------------------------------------------
        In 1866, when Congress adopted the Fourteenth amendment
    after the Civil War, it granted citizenship to ``[a]ll persons
    born or naturalized in the United States'' except those not
    ``subject to the jurisdiction thereof''--a provision
    specifically intended to exclude Native Americans from the
    franchise.\6\ During debate on the amendment, Senators
    expressed dual concerns that Indians were an inferior race and
    therefore not worthy of citizenship and that, if granted
    citizenship and the right to vote, their numbers could
    overwhelm the votes of White citizens in the western
    territories.\7\ For example, Senator Jacob Howard of Michigan
    declared: ``I am not yet prepared to pass a sweeping Act of
    naturalization by which all the Indian savages, wild or tame,
    belonging to a tribal relation, are to become my fellow-
    citizens and go to the polls and vote with me . . . '' \8\
    ---------------------------------------------------------------------------
        \6\ U.S. Const. amend. XIV, Sec. 1.
        \7\ See Daniel McCool, Susan M. Olson, and Jennifer L. Robinson,
    Native Vote, at 3 (2007).
        \8\ Cong. Globe, 39th Cong., 1st Sess. 2895 (1866).
    ---------------------------------------------------------------------------
        Notwithstanding the jurisdictional carve-out, the text of
    the Fourteenth amendment appeared to leave open the question of
    whether Native Americans could gain citizenship, and therefore
    the right to vote, by voluntarily subjecting themselves to
    federal jurisdiction in some way. But the Supreme Court
    answered that question in 1884.\9\ John Elk, a Winnebago
    Indian, was born on a reservation but later moved to non-
    reservation land in Omaha, Nebraska, where he renounced his
    tribal allegiance and claimed U.S. citizenship by virtue of the
    citizenship clause of the Fourteenth Amendment.\10\ He then
    sought to register and vote but was refused. In Elk v. Wilkins,
    the Supreme Court held that the citizenship clause did not
    apply to Elk because he was not subject to the jurisdiction of
    the United States when he was born.\11\ He could only obtain
    citizenship, and therefore the right to vote, through some
    affirmative Act of Congress.\12\
    ---------------------------------------------------------------------------
        \9\ Elk v. Wilkins, 112 U.S. 94 (1884).
        \10\ Id. at 98-99.
        \11\ Id. at 102.
        \12\ Id. at 103.
    ---------------------------------------------------------------------------
        Congress had begun selectively naturalizing certain
    Indians, often conditioned on renouncing tribal affiliation and
    culture, in the middle of the 1800s.\13\ That effort
    accelerated with the Treaty of Fort Laramie in 1868, which
    offered citizenship to the Lakota Sioux and the Arapahoe,\14\
    and it continued through the early 1900s. By the early 1920s,
    about two-thirds of the Indian people in the United States were
    citizens,\15\ and Congress conferred citizenship on the
    remainder when it passed the Indian Citizenship Act of
    1924.\16\
    ---------------------------------------------------------------------------
        \13\ See., e.g., Act of Mar. 3, 1843, ch. 101, Sec. 7, 5 Stat. 645,
    647 (offering conditional citizenship to the Stockbridge-Munsee tribe).
        \14\ 1868 Fort Laramie Treaty, 15 Stat. 635, reprintedin II Charles
    J. Kappler, Indian Affairs: Laws and Treaties 998 (1904). article VI of
    the treaty offered citizenship to any member of a signatory tribe who
    could occupy a plot of land for three years and make at least two
    hundred dollars' worth of improvements.
        \15\ McCool et al., supra note 7, at 7.
        \16\ 43 Stat. 253 (1924).
    ---------------------------------------------------------------------------
        Unfortunately, citizenship did not automatically confer
    suffrage. The right to vote in both federal and State (or
    territorial) elections is determined by State (or territorial
    law).\17\ And even though the Fifteenth amendment provides that
    states may not deny a citizen's right to vote on the basis of
    ``race, color, or previous condition of servitude,''\18\ states
    found other ways to continue denying the right to vote to
    Native American citizens. In 1936, for example, the attorney
    general of Colorado opined that Indians had no right to vote
    because they were not citizens of the state.\19\ Other grounds
    used by states to deny Native American citizens the right to
    vote included residency on Indian reservations, continued
    tribal enrollment, taxation, and guardianship status.\20\
    Gradually, all of the formal restrictions denying Native
    American citizens the right to vote were either struck down by
    the courts or repealed by State legislatures. But Native
    Americans were not fully eligible to vote in every State until
    1957, when Utah finally repealed its residency statute.\21\
    ---------------------------------------------------------------------------
        \17\ See U.S. Const. art I, Sec. 2, cl. 1; U.S. Const. amend. XVII,
    Sec. 1.
        \18\ U.S. Const. amend. XV.
        \19\ McCool et al., supra note 7, at 9.
        \20\ Id. at 11-19.
        \21\ Act of Feb. 14, 1957, ch. 38, 1957 Utah Laws 89-90; see
    Rothfels v. Southworth, 356 P.2d 612, 613 (Utah 1960).2
    ---------------------------------------------------------------------------
        Indian suffrage, however, did not immediately translate
    into full political participation.
        State and local officials in Indian Country used a variety
    of facially neutral tactics, such as onerous registration
    requirements, poll taxes, literacy tests, and a host of other
    election rules, to make it difficult for Native Americans to
    participate in the political process and to elect candidates of
    their choice.\22\ These tactics had been used in the South to
    prevent African Americans from exerting electoral power, and
    they could be used against Native Americans to the same effect.
    ---------------------------------------------------------------------------
        \22\ McCool et al., supra note 7, at 20.
    ---------------------------------------------------------------------------
        With the passage of the Voting Rights Act of 1965, Native
    Americans gained a new tool in the struggle for full political
    participation. All of Indian Country was covered by the
    nationwide and permanent provisions of the Act. Among other
    things, those provisions prohibit voting discrimination on the
    basis of ``race or color'' and the use of any ``test or
    device,'' such as a literacy test, as a prerequisite for
    registering or voting in any federal, State or local
    election.\23\ The permanent provisions of the Act were aimed
    primarily at voting discrimination against AfricanvAmericans in
    the South, but Native Americans were also covered as a
    cognizable racial group.\24\ Native Americans were also
    expressly covered when Congress amended the Act in 1975 to
    address discrimination against Members of language minorities,
    and to require certain jurisdictions to provide language
    assistance to voters with limited English proficiency.\25\
    ---------------------------------------------------------------------------
        \23\ 52 U.S.C. 1A10301, 10303.
        \24\ See Rice v. Sioux City Mem'l Park Cemetery, 349 U.S. 70, 76
    (1955) (acknowledging that Native Americans are protected by laws that
    prohibit discrimination on the basis of race or color).
        \25\ See, An Act to Amend the Voting Rights Act of 1965, Pub. L.
    No. 94-73, 89 Stat. 400 (1975).
    ---------------------------------------------------------------------------
        Enforcement of the Act's permanent provisions was somewhat
    lacking in the early years. The extensive voting-rights
    litigation campaign that swept through the South in the 1970s,
    `80s, and `90s largely bypassed Indian Country. At least one
    scholar has attributed this lack of enforcement to a
    combination of factors, including a lack of resources and
    access to legal assistance among Native Americans, lax
    enforcement of the Voting Rights Act by the Department of
    Justice, the geographic isolation of Indian reservations, and
    the debilitating legacy of discrimination by the State and
    Federal Government.\26\
    ---------------------------------------------------------------------------
        \26\ Laughlin McDonald, Voting Rights Act in Indian Country: A Case
    Study, 29 Am. Indian L. Rev. 43, 53 (2004-2005).
    ---------------------------------------------------------------------------
        Over time, however, litigation activity increased. In the
    seven years between 1999 and 2006, for example, there were
    eight voting-rights cases brought by or on behalf of Native
    Americans in South Dakota alone. Recent years have also seen a
    number of Indian voting cases in Alaska, Arizona, Montana,
    Nevada, North Dakota, South Dakota, Utah, and Wyoming. I had
    the privilege of working on some of those cases, and it is to
    those matters that I turn next.

      Cases Involving At-Large Elections or Multi-Member Districts

                             Emery v. Hunt

        In 1991, the South Dakota legislature adopted a new
    legislative redistricting plan using data from the 1990
    Census.\27\ The plan divided the State into 35 districts and
    provided, with one exception, that each district would be
    entitled to one senate member and two house Members elected at-
    large from within the district.
    ---------------------------------------------------------------------------
        \27\ An Act to Redistrict the Legislature, ch. 1, 1991 S.D. Laws
    1st Spec. Sess. 1.
    ---------------------------------------------------------------------------
        The exception was the new District 28. The 1991 legislation
    provided that ``in order to protect minority voting rights,
    District No. 28 shall consist of two single-member house
    districts.'' \28\ House District 28A consisted of Dewey and
    Ziebach counties and portions of Corson County, and included
    the Cheyenne River Sioux Reservation and portions of the
    Standing Rock Sioux Reservation. House District 28B consisted
    of Harding and Perkins Counties and portions of Corson and
    Butte Counties. According to 1990 census data, Indians were 60%
    of the voting-age population of House District 28A, and less
    than 4% of the voting age population of House District 28B.
    ---------------------------------------------------------------------------
        \28\ Id. at 5.
    ---------------------------------------------------------------------------
        Five years later, despite its pledge to protect minority
    voting rights, the legislature abolished House Districts 28A
    and 28B and required candidates for the house to run at large
    in District 28.\29\ The repeal took place after an Indian
    candidate, Mark Van Norman, won the Democratic primary in
    District 28A in 1994. A chief sponsor of the repealing
    legislation was Eric Bogue, the Republican candidate who
    defeated Van Norman in the general election.\30\ The
    reconstituted House District 28 had an Indian voting-age
    population of only 29%. Given the prevailing patterns of
    racially polarized voting, of which Members of the legislature
    were surely aware, Indian voters could not realistically expect
    to elect a candidate of their choice in the new district.
    ---------------------------------------------------------------------------
        \29\ An Act to Eliminate the Single-member House Districts in
    District 28, ch. 21, 1996 S.D. Laws 45.
        \30\ Minutes of House State Affairs Committee, January 29, 1996, p.
    5.
    ---------------------------------------------------------------------------
        Steven Emery, Rocky Le Compte, and James Picotte--all
    residents of the Cheyenne River Sioux Reservation--challenged
    the repeal in early 2000. They claimed that the changes in
    District 28 violated section 2 of the Voting Rights Act, as
    well as article III, section 5 of the South Dakota
    constitution, which mandated reapportionment once every tenth
    year, but prohibited all reapportionment at other times. The
    South Dakota Supreme Court had expressly held ``when a
    Legislature once makes an apportionment following an
    enumeration no Legislature can make another until after the
    next enumeration.'' \31\
    ---------------------------------------------------------------------------
        \31\ In re Legislative Reapportionment, 246 N.W. 295, 297 (S.D.
    1933).
    ---------------------------------------------------------------------------
        The plaintiffs' experts analyzed the six legislative
    contests between 1992-1994 involving Indian and non-Indian
    candidates in District 28 held under the 1991 plan to determine
    the existence, and the extent, of any racial bloc voting.
    Indian voters favored the Indian candidates at an average rate
    of 81%, while whites voted for the White candidates at an
    average rate of 93%. In all six of the contests the candidate
    preferred by Indians was defeated.\32\
    ---------------------------------------------------------------------------
        \32\ Emery v. Hunt, Civ. No. 00-3008 (D.S.D.), Report of Steven P.
    Cole, Tables 1 & 2.
    ---------------------------------------------------------------------------
        White cohesion also fluctuated widely depending on whether
    an Indian was a candidate.
        In the four head-to-head white-white legislative contests,
    where there was no possibility of electing an Indian candidate,
    the average level of White cohesion was 68%. In the Indian-
    white legislative contests, the average level of White cohesion
    jumped to 94%.\33\ This phenomenon of increased White cohesion
    to defeat minority candidates has been called ``targeting.''
    \34\
    ---------------------------------------------------------------------------
        \33\ Id., Tables 1 & 3.
        \34\ See Clarke v. City of Cincinnati, 40 F.3d 807, 457 (6th Cir.
    1994) (``[w]hen White bloc voting is 'targeted' against Black
    candidates, Black voters are denied an opportunity enjoyed by White
    voters, namely, the opportunity to elect a candidate of their own
    race'').
    ---------------------------------------------------------------------------
        Before deciding the plaintiffs' section 2 claim, the
    district court certified the State law question to the South
    Dakota Supreme Court. That court accepted certification and
    held that, in enacting the 1996 redistricting plan, ``the
    Legislature acted beyond its constitutional limits.'' \35\ It
    declared the 1996 plan null and void and reinstated the
    preexisting 1991 plan. At the ensuing special election ordered
    by the district court, Tom Van Norman was elected from District
    28A, the first Native American in history to be elected to the
    State house from the Cheyenne River Sioux Indian Reservation.
    ---------------------------------------------------------------------------
        \35\ In re Certification of a Question of Law, 615 N.W.2d 590, 597
    (S.D. 2000).
    ---------------------------------------------------------------------------

              Weddell v. Wagner Community School District

        The City of Wagner is a border town in Charles Mix County,
    South Dakota. The county, in the southeastern part of the State
    along the Missouri River, is home to the disestablished Yankton
    Sioux Reservation.
        The local school district in Wagner was run by a seven-
    member school board elected at large to staggered three-year
    terms. Although Indians were 42% of the district's total
    population and 36% of the district's voting-age population,
    Indian voters had not been able to elect a candidate of their
    choice to the school board for many years.
        In March 2002, three Members of the Yankton Sioux Tribe
    filed suit against the school district, alleging that its at-
    large elections diluted Indian voting strength in violation of
    section 2 of the Voting Rights Act.\36\ The plaintiffs
    demonstrated that Native American voters could control at least
    two seats if the seven board Members were elected from single-
    member districts.
    ---------------------------------------------------------------------------
        \36\ Weddell v. Wagner Community School District, Civ. No. 02-4056
    (D.S.D. March 22, 2002).
    ---------------------------------------------------------------------------
        The parties eventually agreed to settle the case by
    replacing the at-large elections with cumulative voting. The
    district court approved a consent decree containing the
    settlement agreement on March 18, 2003.\37\
    ---------------------------------------------------------------------------
        \37\ Weddell v. Wagner Community School District, Civ. No. 02-4056
    (D.S.D. March 18, 2003).
    ---------------------------------------------------------------------------
        The very first election under the new system resulted in a
    tie between an Indian candidate and a non-Indian candidate.
    Under South Dakota law, the tie was to be settled with a deck
    of cards, and the Indian candidate prevailed by drawing a
    queen.

                        Large v. Fremont County

        In 2005, Members of the Eastern Shoshone and Northern
    Arapaho Tribes residing on the Wind River Indian Reservation
    filed suit against Fremont County, Wyoming. The plaintiffs
    alleged that at-large elections for the county's Board of
    Commissioners diluted Native American voting strength in
    violation of the Constitution and section 2 of the Voting
    Rights Act. At the time the suit was filed no Native American
    had ever been elected to the county commission despite the fact
    that Native Americans were 20 percent of the county's
    population and had frequently run for office with the
    overwhelming support of Native American voters.
        Following extensive discovery and a lengthy trial, the
    district court issued a detailed, 102-page opinion on April 29,
    2010, holding the at-large system diluted Indian voting
    strength. the court made extensive findings about past and
    continuing discrimination against Indians, racially polarized
    voting, the isolation of the Indian community, and the lack of
    responsiveness by the County Commission to the special needs of
    Indians. The court concluded: ``The evidence presented to this
    Court reveals that discrimination is ongoing, and that the
    effects of historical discrimination remain palpable.'' \38\
    ---------------------------------------------------------------------------
        \38\ Large v. Fremont County, Wyo., 709 F. Supp. 2d 1176, 1184 (D.
    Wyo. 2010).
    ---------------------------------------------------------------------------
        As a remedy, the court adopted a plan containing five
    single-member districts, one of which was majority-Indian,
    giving Native Americans the opportunity to elect candidates of
    their choice. The county did not appeal the decision on the
    merits but did appeal the remedy provided by the district
    court. The court of appeals, however, affirmed the decision of
    the district court in 2012.\39\
    ---------------------------------------------------------------------------
        \39\ Large v. Fremont County, Wyo., 670 F.3d 1133 (10th Cir. 2012).
    ---------------------------------------------------------------------------

                   Cases Involving Redistricting Bone

                           Shirt v. Hazeltine

        The State of South Dakota enacted a new redistricting plan
    for its 105-member State legislature in November 2001.\40\ The
    plan divided the State into thirty-five districts, each of
    which elected one member of the State senate and two Members of
    the State house of representatives.
    ---------------------------------------------------------------------------
        \40\ 2001 S.D. Laws ch. 2.
    ---------------------------------------------------------------------------
        Voters elected their two house Members at large in each
    district except District 28, which the plan subdivided into two
    single-member house districts, Districts 28A and 28B. The plan
    contained two majority-Indian districts: District 27 and
    District 28A. District 27 encompassed part of the Pine Ridge
    Indian Reservation and all of the Rosebud Indian Reservation in
    the southern part of the state. Native Americans comprised
    approximately 90% of District 27's total population and 86% of
    its voting-age population. In majority-white District 26, which
    bordered District 27 to the north and east and encompassed the
    remainder of the Pine Ridge Indian Reservation, Native
    Americans comprised approximately 30% of the total population
    and 23% of its voting-age population. In the State as a whole,
    Native Americans were approximately 9% of the total population
    and 7% of the voting-age population.
        Shortly after the 2001 plan became law, Alfred Bone Shirt
    and three other Native American voters sued in federal court,
    alleging that the plan violated Sections 2 of the Voting Rights
    Act.\41\ Among other things, the plaintiffs contended that the
    plan diluted Native American voting strength in violation of
    section 2 by ``packing'' Native Americans into District 27 with
    the result that Indian voters in the neighboring District 26
    were unable to elect representatives of their choice.
    ---------------------------------------------------------------------------
        \41\ Bone Shirt v. Hazeltine, Civ. No. 01-3032 (D.S.D. Dec. 26,
    2001).
    ---------------------------------------------------------------------------
        After extensive discovery and a bench trial held over nine
    days in April 2004, the district court ruled in a 144-page
    opinion that the State's plan violated section 2.\42\ The court
    first considered whether the evidence established the three
    factors that the Supreme Court identified in Thornburg v.
    Gingles \43\ as generally necessary to prove a violation of
    section 2. The court then analyzed whether the totality of the
    evidence had also shown that Indian voters had less opportunity
    than White voters to participate in the political process and
    to elect candidates of their choice. In conducting this
    analysis, the district court examined twelve additional
    factors, and the district court made extensive findings of fact
    on each factor.
    ---------------------------------------------------------------------------
        \42\ See, Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976, 1053
    (D.S.D. 2004).
        \43\ 478 U.S. 30, 50-51 (1986).
    ---------------------------------------------------------------------------
        With respect to the first Gingles factor, the district
    court found that Native Americans in South Dakota are
    sufficiently numerous and geographically compact that they
    could constitute a majority in at least one more legislative
    district than existed in the state's plan.\44\ The court based
    its finding on the report and testimony of William S. Cooper,
    the plaintiffs' expert demographer, as well as several
    redistricting plans drafted by State legislative staffers
    during the 2001 redistricting process.
    ---------------------------------------------------------------------------
        \44\ Bone Shirt v. Hazeltine, 336 F. Supp. 2d at 995.
    ---------------------------------------------------------------------------
        The district court rejected the defendants' argument that
    the required threshold for the first Gingles factor should be
    well above 65% of the voting-age population. The court noted
    that the defendants had failed to identify any cases in which a
    court had ever required such an elevated threshold. The
    district court also rejected the defendants' contention that
    the plaintiffs' illustrative plans were based on racial
    considerations above all else. To the contrary, the court found
    that the plans did not subordinate traditional race-neutral
    districting principles to racial considerations and did not
    consider race any more than reasonably necessary to determine
    whether an additional majority-Indian district was possible.
    After considering all of the evidence, the district court
    concluded that the plaintiffs had satisfied the first Gingles
    factor ``as a matter of law.'' \45\
    ---------------------------------------------------------------------------
        \45\ Id. at 995.
    ---------------------------------------------------------------------------
        With respect to the second Gingles factor, the district
    court found that Native Americans in Districts 26 and 27 were
    politically cohesive. Turning first to the parties' statistical
    evidence, the court found that, despite a difference in
    methodology, experts for both parties produced reliable results
    which ``demonstrate[d] significant cohesion among Indian
    voters.'' \46\ The district court also surveyed the parties'
    nonstatistical evidence of cohesion at some length. Relying on
    the testimony of numerous witnesses, both expert and lay, and
    literally dozens of documentary exhibits, the court concluded
    that the nonstatistical evidence, like the statistical
    evidence, established Indian cohesion.\47\
    ---------------------------------------------------------------------------
        \46\ Id. at 1004.
        \47\ Id. at 1004-08.
    ---------------------------------------------------------------------------
        The district court rejected the defendants' contention that
    Democratic partisanship, not race, was the reason that Native
    Americans tended to vote the same way at the polls.\48\ Relying
    on statistical and nonstatistical evidence, including two of
    the defendants' own lay witnesses, the court found that the
    balance of the evidence did not support the defendants' claim.
    The district court also rejected the defendants' partisanship
    claim as a matter of law, reasoning that section 2 protects a
    minority voter's right to elect candidates of choice even if
    the voter chooses candidates solely because they belong to a
    particular political party. After considering all of the
    evidence, the district court found that the plaintiffs had
    satisfied the second Gingles factor.\49\
    ---------------------------------------------------------------------------
        \48\ Id. at 1008-10.
        \49\ Id. at 1010.
    ---------------------------------------------------------------------------
        With respect to the third Gingles factor, the court found
    that both parties' experts had produced results that ``show[ed]
    that non-Indian voters in District 26 vote sufficiently as a
    bloc to enable them, particularly in the most probative
    elections and in the absence of special circumstances, usually
    to defeat the Indian-preferred candidate.'' \50\ Across all of
    the many elections on which the district court relied, the
    plaintiffs' expert had shown that White voters in District 26
    voted sufficiently as a bloc to defeat 21 out of 21 (100%)
    Indian-preferred candidates. And the defendants' expert had
    shown that White voters defeated 17 out of 25 (68%) Indian-
    preferred candidates. Considering all of this evidence in the
    aggregate, the district court concluded that the plaintiffs had
    satisfied the third Gingles factor.\51\
    ---------------------------------------------------------------------------
        \50\ Id. at 1016.
        \51\ Id. at 1017.
    ---------------------------------------------------------------------------
        Turning to the ``totality of the circumstances,'' the court
    found that eleven of the twelve totality factors weighed in the
    plaintiffs' favor, and it rejected the defendants' claim on the
    twelfth factor that Indian voter apathy alone accounted for the
    difficulty Indian voters had experienced in electing candidates
    of their choice in District 26.\52\
    ---------------------------------------------------------------------------
        \52\ Id. at 1017-52.
    ---------------------------------------------------------------------------
        According to the Supreme Court, the two ``most important''
    totality factors are: (1) The extent to which minorities have
    been elected under the challenged plan; and (2) the extent to
    which voting is racially polarized.\53\ The district court
    found that both factors weighed in the plaintiffs' favor. The
    defendants admitted, and the district court found, that not a
    single Native American candidate was elected to the State
    legislature from the area in District 26 between 1982 and
    2002.\54\ The district court also found that ``substantial
    evidence, both statistical and lay, demonstrates that voting in
    South Dakota is racially polarized among whites and Indians in
    Districts 26 and 27.'' \55\ It described that polarization as
    ``extensive'' and at a ``high level.'' \56\ It also found that
    White crossover voting dropped precipitously when the Indian-
    preferred candidate was an Indian.\57\
    ---------------------------------------------------------------------------
        \53\ Gingles, 478 U.S. at 48-49 n.15; accord Harvell v. Blytheville
    Sch. Dist. No. 5, 71 F.3d 1382, 1390 (8th Cir. 1995) (en banc).
        \54\ Bone Shirt, 336 F. Supp. 2d at 1043.
        \55\ Id. at 1036.
        \56\ Id. at 1035.
        \57\ Id. at 1035.
    ---------------------------------------------------------------------------
        The district court's analysis of the totality factors is
    also noteworthy because of its extensive findings on South
    Dakota's history of discrimination against Native Americans.
    The court's review of that history of discrimination covers
    more than forty pages in its slip opinion.\58\ The review
    synthesizes innumerable documents, many of which were pulled
    directly from the state's own session laws.
    ---------------------------------------------------------------------------
        \58\ Id. at 1018-34.
    ---------------------------------------------------------------------------
        The review also highlights the testimony of Native American
    witnesses who offered their own experiences of discrimination
    at trial. For example, Elsie Meeks, a tribal member at Pine
    Ridge and the first Indian to serve on the U.S. Commission on
    Civil Rights, told about her first exposure to the non-Indian
    world and the fact ``that there might be some people who didn't
    think well of people from the reservation.''\59\ When she and
    her sister enrolled in a predominantly White school in Fall
    River County and were riding the bus, ``somebody behind us said
    . . . the Indians should go back to the reservation. And I mean
    I was fairly hurt by it . . . it was just sort of a shock to
    me.'' \60\ Meeks said that there is a ``disconnect between
    Indians and non-Indians'' in the state.\61\ ``[W]hat most
    people don't realize is that many Indians, they experience this
    racism in some form from non-Indians nearly every time they go
    into a border town community . . . . [T]hen their . . .
    reciprocal feelings are based on that, that they know, or at
    least feel that the non-Indians don't like them and don't trust
    them.'' \62\
    ---------------------------------------------------------------------------
        \59\ Id. at 1032.
        \60\ Id. at 1032.
        \61\ Id. at 1032.
        \62\ Id. at 1032.
    ---------------------------------------------------------------------------
        Lyla Young, a Rosebud tribal member, said that the first
    contact she had with whites was when she went to high school in
    Todd County.\63\ The Indian students lived in a segregated dorm
    at the Rosebud boarding school, and were bussed to the high
    school, then bussed back to the dorm for lunch, then bused
    again to the high school for the afternoon session.\64\ The
    White students referred to the Indians as ``GI's,'' which stood
    for ``government issue.'' \65\ Young said that ``I just
    withdrew. I had no friends at school. Most of the girls that I
    dormed with didn't finish high school . . . I didn't associate
    with anybody.'' \66\ Even as an adult, Young has had little
    contact with the White community. ``I don't want to. I have no
    desire to open up my life or my children's life to any kind of
    discrimination or harsh treatment. Things are tough enough
    without inviting more.'' \67\ Testifying in court was
    particularly difficult for her. ``This was a big job for me to
    come here today . . . . I'm the only Indian woman in here, and
    I'm nervous. I'm very uncomfortable.'' \68\
    ---------------------------------------------------------------------------
        \63\ Id. at 1032.
        \64\ Id. at 1032.
        \65\ Id. at 1033.
        \66\ Id. at 1033.
        \67\ Id. at 1033.
        \68\ Id. at 1033.
    ---------------------------------------------------------------------------
        Arlene Brandis, a Rosebud tribal member, recalled walking
    to and from school in Tripp County: ``[C]ars would drive by and
    they would holler at us an call us names . . . like dirty
    Indian, drunken Indian, and say why don't you go back to the
    reservation.'' \69\ Although that was yearsvago, Brandis does
    not seen much difference between then and now. White families
    in Winner, where she lives now, do not sit near her family at
    high school football and basketball games. She believes that
    this is because she and her husband are Native American.
    ---------------------------------------------------------------------------
        \69\ Id. at 1033.
    ---------------------------------------------------------------------------
        Almost without exception, the tribal Members who testified
    at trial could recount incidents of being mistreated,
    embarrassed, or humiliated by whites. Based on ``the wealth of
    evidence and testimony'' before it, the court concluded that
    ``there is a long and extensive history of discrimination
    against Indians in South Dakota that touches upon the right to
    register and to vote, and affects their ability to participate
    in the political process on an equal basis with other
    citizens.'' \70\
    ---------------------------------------------------------------------------
        \70\ Id. at 1034.
    ---------------------------------------------------------------------------
        Lastly, the district court returned to the defendants'
    attempt to attribute the lack of Indian electoral success to
    voter apathy and low voter turnout. In particular, the
    defendants claimed that the lack of success was due to a lack
    of Indian interest in State politics, internal divisions among
    the tribes, and a fear among Indian voters that voting in State
    and county elections would erode tribal sovereignty.
        The district court found, however, that the record refuted
    those claims. \71\ ``Throughout South Dakota's history, Native
    Americans have made repeated and persistent efforts to
    participate in the political process at all levels of
    government despite facing outright discrimination and informal
    barriers in exercising their right to vote.'' \72\ The court
    based its conclusion in part on more than two dozen documentary
    exhibits and the testimony of several Native American lay
    witnesses who underscored the value of participating in State
    and federal elections. Even the defendants own expert
    historian, Dr. Michael Lawson, conceded that Native Americans
    in South Dakota are not disinterested in State politics. He
    added: ``I think there's a growing number of tribal Members who
    see the importance of political participation at every level.''
    \73\
    ---------------------------------------------------------------------------
        \71\ Id. at 1050-52.
        \72\ Id. at 1052.
        \73\ Id. at 1052.
    ---------------------------------------------------------------------------
        After reviewing each of the factors in its analysis, the
    district court found, based on the totality of circumstances,
    that South Dakota's 2001 legislative redistricting plan
    ``results in unequal electoral opportunity for Indian voters.''
    \74\ Accordingly, the court concluded that the plan
    ``impermissibly dilutes the Indian vote and violates Sec. 2 of
    the Voting Rights Act.'' \75\
    ---------------------------------------------------------------------------
        \74\ Id. at 1052.
        \75\ Id. at 1052.
    ---------------------------------------------------------------------------
        After finding a violation of section 2, the district court
    gave the gave the defendants two separate opportunities to
    propose a remedy. Each time they declined to do so. The court
    then issued an order adopting one of the plaintiffs' proposed
    remedial plans and enjoining the defendants from using the
    unlawful plan in future elections.\76\
    ---------------------------------------------------------------------------
        \76\ Bone Shirt v. Hazeltine, 387 F. Supp. 2d 1035, 1044 (D.S.D.
    2005).
    ---------------------------------------------------------------------------
        The State appealed, but the Eight Circuit affirmed the
    decision of the district court.\77\ The State did not ask the
    Supreme Court to hear the case, and the redrawn districts were
    used for the remainder of the decade, resulting in Indian-voter
    control over one additional seat in the South Dakota House of
    Representatives.
    ---------------------------------------------------------------------------
        \77\ Bone Shirt v. Hazeltine, 461 F.3d 1011 (8th Cir. 2006).
    ---------------------------------------------------------------------------

                        Kirkie v. Buffalo County

        In March 2003, three Members of the Crow Creek Sioux Tribe
    filed suit challenging to the county commission districts in
    Buffalo County, South Dakota.\78\ The plaintiffs alleged that
    the districts were malapportioned in violation of the one-
    person-one-vote principle and were adopted or maintained for
    the purpose of discriminating against Native American voters.
    ---------------------------------------------------------------------------
        \78\ Complaint, Kirkie v. Buffalo County, Civ. No. 03-5024 (D.S.D.
    Mar. 20, 2003).
    ---------------------------------------------------------------------------
        Buffalo County, which according to the 2000 Census was the
    poorest county in the United States, had a population of
    approximately 2000 people. Approximately 85% of the county's
    population was Native American.
        The county was governed by a three-member county commission
    elected from three single-member districts. Those districts,
    which had been in use for decades, contained populations of
    approximately 1,550, 350, and 100 people, respectively.
    Virtually all of the 1,550 people in commissioner district 1
    were Native American, while not a single Indian lived in the
    underpopulated district 3. The system not only violated the
    ``one person, one vote'' standard of the Equal Protection
    Clause but had also been clearly implemented and maintained to
    dilute the Indian vote and ensure White control of county
    government.
        The malapportionment persisted, moreover, despite a state-
    law made for decennial redistricting. South Dakota law required
    a board of county commissioners to redistrict ``at its regular
    meeting in February of each year ending in the numeral 2 . . .
    if such change is necessary in order that each district shall
    be as regular and compact in form as practicable and it shall
    so divide and redistrict its county that each district may
    contain as near as possible an equal number of residents, as
    determined by the last preceding federal decennial census.''
    \79\ Minutes of the county commission meeting held in February
    2002 reveal that the commissioners considered the issue and
    decided--despite the overwhelming inequality among the
    districts--that the existing districts ``required no change.''
    \80\ The commissioners were, in effect, thumbing their noses at
    State and federal redistricting requirements in order to
    prevent Native Americans from having a full voice on the
    commission.
    ---------------------------------------------------------------------------
        \79\ S.D.C.L. Sec. 7-8-10.
        \80\ See Answer, Kirkie v. Buffalo County, Civ. No. 03-5025 (D.S.D.
    Apr. 28, 2003), at 10.
    ---------------------------------------------------------------------------
        The parties settled the case in early 2004. In a consent
    decree approved by the court, the county was required to redraw
    its commissioner districts and to hold a special election for
    two ofvthe three seats.\81\ The county also admitted that its
    plan was discriminatory and agreed to relief under section 3 of
    the Voting Rights Act. That relief included the authorization
    of federal observers to monitor elections and the activation of
    the ``pocket-trigger'' in section 3(c), which effectively made
    Buffalo County subject to the preclearance requirements of
    section 5 of the Voting Rights Act through 2013.
    ---------------------------------------------------------------------------
        \81\ Consent Decree, Kirkie v. Buffalo County, Civ. No. 03-5024
    (D.S.D. Feb. 12, 2004).
    ---------------------------------------------------------------------------

                    Blackmoon v. Charles Mix County

        The litigation against Charles Mix County may be the best
    example of the continuing need for further protections under
    the Voting Rights Act. Charles Mix has historically been a
    county divided. Members of the Yankton Sioux Tribe, who make up
    approximately 30 percent of the county's population, live
    mainly in the southern part of the county, along the banks of
    the Missouri River, and in the small towns of Lake Andes,
    Marty, and Wagner. Farmers make up the bulk of the county's
    non-Indian population, and they are concentrated in the
    northern and eastern parts of the county. Social life remains
    largely, though informally, segregated. There is a plaque in
    the main hall of the county courthouse recognizing county
    residents who served in the Vietnam War, and it lists not a
    single Indian name even though many served.
        The county is governed by a three-member county commission,
    with each commissioner elected from a single-member district.
    Before the litigation, no Native American had ever been elected
    to the commission.
        The county's commissioner districts were decades old and
    badly malapportioned. The total deviation of the districts from
    equality was greater than 19 percent, and White voters were a
    majority in all three districts.
        In anticipation of redistricting following the 2000 Census,
    the Yankton Sioux Tribe sent a letter to the commission in
    November 2001 pointing out the malapportionment and proposing a
    new plan with one majority-Indian district. State law required
    the commission to redraw its districts at its regular meeting
    in February 2002 and then prohibited further redistricting for
    the rest of the decade.\82\ The February meeting came and went,
    however, and the commission decided to leave its existing
    districts intact.
    ---------------------------------------------------------------------------
        \82\ S.D.C.L. Sec. 7-8-10.
    ---------------------------------------------------------------------------
        Four tribal Members then sued the county, alleging that the
    three commissioner districts were malapportioned in violation
    of the one-person-one-vote standard of the Fourteenth amendment
    and had been drawn or maintained to dilute Indian voting
    strength in violation of section 2 of the Voting Rights
    Act.\83\ In response to the suit, the county commission took
    the position that its districts were not unlawful, but it also
    asked the State legislature to pass legislation establishing a
    process for emergency redistricting. The purpose of the bill,
    according to its proponents, was to allow the defendants in the
    Blackmoon case to render the plaintiffs' claims moot by
    modifying the challenged redistricting plan and thereby to
    avoid liability in the suit. Because of the urgency of that
    goal, the bill's sponsors brought the bill directly to the
    House floor, where the House suspended its rules, dispensed
    with a hearing, and passed the bill on the same day without the
    usual public notice. In the South Dakota Senate, the
    defendants' attorneys lobbied aggressively in favor of the bill
    and testified in support of it. Although many Native Americans,
    including several from Charles Mix County, testified in
    opposition to the bill, the Senate passed it shortly
    thereafter. Because it contained an emergency clause, the law
    went into effect immediately upon the governor's signature. The
    new law allowed a county to redistrict any time it became aware
    of facts that called into question whether its districts
    complied with State or federal law, and the county commission
    immediately began the process of redrawing its districts to
    avoid court-ordered redistricting.\84\
    ---------------------------------------------------------------------------
        \83\ Complaint, Blackmoon v. Charles Mix County, Civ. No. 05-4017
    (D.S.D. Jan. 27, 2005).
        \84\ 2005 S.D. Laws., ch. 43.
    ---------------------------------------------------------------------------
        Before the county could complete the redistricting process,
    however, the Native American plaintiffs in the Quiver
    litigation obtained a temporary restraining order and
    preliminary injunction prohibiting the State from enforcing the
    new law unless and until it obtained preclearance under section
    5 of the Voting Rights Act.\85\ In a strongly worded opinion
    granting the injunction, the three-judge district court noted
    that State officials in South Dakota ``for over 25 years . . .
    have intended to violate and have violated the preclearance
    requirements,'' and that the emergency clause in the new law
    ``gives the appearance of a rushed attempt to circumvent the
    VRA.'' \86\ The injunction effectively put the new law on hold
    while the litigation against Charles Mix County proceeded.
    ---------------------------------------------------------------------------
        \85\ Quiver v. Nelson, 387 F. Supp. 2d 1027 (D.S.D. 2005) (three-
    judge district court).
        \86\ Id. at 1034.
    ---------------------------------------------------------------------------
        While the new law was on hold, the district court in
    Blackmoon granted the plaintiffs' motion for partial summary
    judgment on their malapportionment claim and ordered the
    defendants to submit a remedial proposal for court
    approval.\87\ The county commission then tried to push through
    a redistricting plan that would have continued to dilute Native
    American voting strength. Using noncontiguous districts, the
    plan included recently developed land along the Missouri River
    in the district that, according to the 2000 Census, contained
    mostly Native Americans. Because the developments didn't exist
    at the time of the 2000 Census, the impact of those voters was
    not apparent on the county's proposed plan. Residents of the
    county knew full well, however, that most of the voters in the
    newly developed area were non-Indian. The county commission
    held a hearing on its dilutive plan, and Native Americans
    strongly opposed it. In light of that opposition, the county
    adopted the plan that had been proposed by the Yankton Sioux
    Tribe in 2001, and that remedied both the malapportionment and
    the dilution of Indian voting strength.
    ---------------------------------------------------------------------------
        \87\ Blackmoon v. Charles Mix County, 2005 WL 2738954 (D.S.D.
    2005).
    ---------------------------------------------------------------------------
        Reaction to new districts was swift. Less than a month
    after the county adopted a redistricting plan with a majority
    Indian district, a White resident of the northeast part of the
    county began circulating a petition to split Charles Mix into
    two counties, one part of which would be almost all white. The
    petition received significant news coverage, and it was widely
    seen as directly related to the Indian victory in the Blackmoon
    case.\88\
    ---------------------------------------------------------------------------
        \88\ See Kimberly Kolden, Residents in Charles Mix consider plan to
    split county, Mitchell Daily Republic (Feb. 14, 2006).
    ---------------------------------------------------------------------------
        The secession movement fizzled after the media coverage,
    and the petitions to divide the county were never turned in.
    Instead, a new petitioning effort sprung up--this time seeking
    to increase the number of county commissioners from three to
    five. In a thinly veiled reference to an Indian candidate who
    was running for commissioner in the new majority-Indian
    district, the circulator of the petition told the media that
    the purpose of increasing the size of the county commission was
    to ``take[] power away from one strong commissioner.'' \89\
    ---------------------------------------------------------------------------
        \89\ Monica Wepking, Petition to Change County Commission Numbers,
    Lake Andes Wave (June 14, 2006).
    ---------------------------------------------------------------------------
        Native Americans opposed the increase, but it passed in
    November 2006 with strong White support. In an effort to stop
    the increase from being implemented, tribal Members
    successfully circulated a petition to refer the county's five-
    member plan to the voters. In a special election on the
    referendum, however, the matter failed, and the increase was
    scheduled to take effect in 2008.
        In early 2007, the district court ruled that the
    plaintiffs' remaining claims could go forward and set them for
    trial in March 2008.\90\ The primary issue was the plaintiffs'
    request for relief under the ``pocket trigger' provisions in
    section 3 of the Voting Rights Act, which would require the
    county to comply with the preclearance provisions of section 5.
    ---------------------------------------------------------------------------
        \90\ Blackmoon v. Charles Mix County, 505 F. Supp. 2d 585 (D.S.D.
    2007).
    ---------------------------------------------------------------------------
        Rather than go to trial, the county requested mediation. In
    December 2007, the parties negotiated a consent decree that,
    among other things, activated the ``pocket trigger'' in section
    3(c) of the Voting Rights Act and requires the county to
    preclear its voting changes until 2024. The county subsequently
    submitted for preclearance its plan to increase the size of the
    county commission from three to five. The Department of Justice
    objected to the change on the ground that the county had not
    met its burden of proving that the increase was not motivated
    by a discriminatory purpose. As a result of the objection, the
    three-member plan with one majority-Indian district remained in
    place.
        The first election under the new districts was held in
    November 2006, and Sharon Drapeau was elected to be the first
    woman and the first Native American to serve on the commission.

        Cases Involving Documentation or Qualifications To Vote

                            Janis v. Nelson

        Eileen Janis and Kim Colhoff, both residents of Pine Ridge,
    South Dakota, were registered voters until early 2008, after
    they were each convicted of a felony offense and sentenced to
    five years of probation but no jail time. Despite the fact that
    South Dakota law expressly provided that the right to vote is
    denied only while persons convicted of felonies are imprisoned
    in the State penitentiary, Colhoff and Janis were removed from
    the voter rolls without any notice and denied the right to vote
    at their polling places when they attempted to vote in the 2008
    presidential election. In front of several other voters,
    election officials refused to allow Janis to cast either a
    regular or provisional ballot.
        In 2009, Janis and Colhoff filed a class-action lawsuit
    against State and local election officials, alleging that the
    illegal disfranchisement of individuals with felony convictions
    has had a disproportionate and negative impact on American
    Indian voters who are overly represented in South Dakota's
    criminal justice system. The lawsuit also contended that the
    removal of individuals' names from the State and county voter
    registration lists based on felony convictions for which they
    were sentenced only to probation violates their rights to equal
    protection and due process under the federal and State
    constitutions, the Help America Vote Act, the National Voter
    Registration Act and Sections 2 and 5 of the Voting Rights Act.
        The defendants moved to dismiss the case on various
    grounds, but the district court allowed the suit to
    proceed.\91\ Following a period of discovery and mediation, the
    parties reach a settlement. The agreement restored Janis and
    Colhoff to the rolls and established procedures to prevent
    unlawful disfranchisement from happening in the future,
    including increased training for election officials and public
    education.
    ---------------------------------------------------------------------------
        \91\ Janis v. Nelson, Civ. No. 09-cv-05019 (D.S.D. Dec. 30, 2009).
    ---------------------------------------------------------------------------

      Drivers' Licensing Offices in Todd and Charles Mix Counties

        In September 2009, South Dakota announced plans to close 17
    of its drivers' licensing offices around the state. Among the
    offices to be closed were those in Todd and Charles Mix
    counties, both of which were covered jurisdictions subject to
    the Act's preclearance mandates. (Todd by section 5 and Charles
    Mix by section 3(c)). Residents of those counties would in many
    instances have to drive long distances to get a driver's
    license or photo ID. Several residents of those counties
    complained, and the ACLU began an investigation.
        The closure would affect both voter registration and
    voting. Under the National Voter Registration Act, drivers'
    license offices in South Dakota conduct voter registration, and
    the closure of drivers' licensing offices would mean that
    residents of Todd and Charles Mix counties would have less
    access to motor-voter registration. Access to drivers' licenses
    would also affect voting because South Dakota is one of several
    states that require each voter to show identification before
    voting in person or by absentee ballot\92\ The closure would
    likely mean that some voters would not be able to meet the
    identification requirements because they would not have an up-
    to-date driver's license or state-issued photo identification
    card. Census data showed that Native Americans in Todd and
    Charles Mix counties had a lower socioeconomic status and less
    access to cars than their White counterparts, which would mean
    less access to gas money and the ability to travel long
    distances to obtain or renew the necessary identification.
    ---------------------------------------------------------------------------
        \92\ See S.D.C.L. Sec. Sec. 12-18-6.1, 12-19-2.
    ---------------------------------------------------------------------------
        The ACLU asked the Department of Justice to send the State
    a ``please submit'' letter asking the State to submit its
    closure plan to the Attorney General for preclearance. It is
    unclear whether the Department did, in fact, send such a letter
    or make an oral request for a submission, but the State
    announced three weeks later that it was reversing the decision
    to close the offices in Todd and Charles Mix counties. The
    state's Department of Public Safety, which oversees the
    licensing program, issued a statement specifically citing the
    preclearance provisions of the Voting Rights Act and the
    state's desire to avoid potential litigation as a reason for
    its decision.

                    Cases Involving Voting Locations

                   Polling Places in Mellette County

        In September 2008, officials in sparsely-populated Mellette
    County, South Dakota, voted to close all but one of the
    county's four polling places. The move was touted as a cost-
    saving measure designed to save the cash-strapped county about
    $1,000. But it meant that some voters would have to drive as
    many as 40 miles each way to the county seat in order to cast a
    vote. And, to make matters worse, South Dakota had one of the
    most restrictive absentee ballot laws in the country, requiring
    voters to have their absentee ballot applications notarized or
    witnessed by county officials.
        Soon after the county's decision to close the polls, the
    Rosebud Sioux Tribe contacted the ACLU's Voting Rights Project
    for help. Mellette County is within the historical boundaries
    of the Rosebud Indian Reservation, and Native Americans still
    make up about half of the county's population.
        The ACLU analyzed the impact of the county's decision and
    concluded that the poll closure would have a severe and
    disparate impact on Native American voters. Not only would a
    higher percentage of Indians than non-Indians have to travel
    significant distances to vote or cast an absentee ballot, but
    Native Americans were also much less likely than whites to have
    access to a vehicle or the money to pay for gas. And, to add
    insult to injury, the all-white county commission moved the
    county's only remaining polling place next door to the
    sheriff's office, a place that would further deter Indians from
    voting because of a history of friction between Native
    Americans and law enforcement in the county. The ACLU prepared
    a lawsuit alleging violations of section 2 of the Voting Rights
    Act as well as the Fourteenth and Fifteenth Amendments to the
    United States Constitution.
        One of the largest television stations in the State ran a
    story on the poll closure, and word of the ACLU's investigation
    got out. Less than 24 hours before the ACLU was prepared to
    file suit against the county on behalf of Native American
    voters, county officials called a hastily arranged meeting and
    rescinded the poll closing ordinance to avoid the possibility
    of litigation.

                   Spirit Lake Tribe v. Benson County

        Shortly before the November 2010 election, Benson County,
    North Dakota, announced that it was closing all but one of the
    county's polling places, including the two that were located on
    the Spirit Lake Indian Reservation. The Spirit Lake Tribe filed
    suit in federal district court that closing the precincts on
    the Reservation would make it difficult or impossible for many
    Indians to vote in violation of the federal and State
    constitutions and section 2 of the Voting Rights Act.
        The tribe moved for a preliminary injunction, and,
    following an expedited hearing, the district granted the motion
    on October 21, 2010.\93\ The order required the county to
    maintain the two polling places on the Reservation, concluding
    that closing the precincts would have a disparate impact on
    Indian voters who lacked access to transportation or to voting
    by mail.
    ---------------------------------------------------------------------------
        \93\ Spirit Lake Tribe v. Benson Cnty., No. 2:10-cv-095, 2010 WL
    4226614 (D.N.D. Oct. 21, 2010).
    ---------------------------------------------------------------------------
        In 2012, the parties settled the case, with the county
    agreeing to keep the reservation polling places open in future
    general elections. The settlement also called for a series of
    meetings between county and tribal officials to foster
    communication between the two entities.

                    Wandering Medicine v. McCulloch

        In 2012, tribal Members living on the Crow, Northern
    Cheyenne, and Fort Belknap reservations in Montana filed suit
    against State and local election officials seeking equal access
    to in-person late registration and absentee voting
    opportunities.\94\ Montana law permits late registration and
    early voting at the county seat, but also permits counties to
    create satellite locations for these purposes. The plaintiffs
    moved for a preliminary injunction ordering the counties to
    open satellite offices accessible to voters on the
    reservations.
    ---------------------------------------------------------------------------
        \94\ Wandering Medicine v. McCulloch, No. 1:12-cv-0135 (D. Mont.).
    ---------------------------------------------------------------------------
        The Department of Justice filed a Statement of Interest in
    the case, arguing that the plaintiffs were likely to succeed on
    their claim that the location of the late-registration and
    early voting sites violated section 2.\95\ The Department's
    brief also contained expert analysis showing that, in order to
    access the lone site in the county seat, Native Americans were
    forced to travel 189 percent further than White voters in Big
    Horn County, 322 percent further in Blaine County, and 267
    percent further in Rosebud County.
    ---------------------------------------------------------------------------
        \95\ Statement of Interest of the United States, Wandering Medicine
    v. McCulloch, No. 1:12-CV-135-RFC (D. Mont. Oct. 23, 2012), https://
    www.justice.gov/crt/case-document/si-wandering-medicine-v-mcculloch-
    2012.
    ---------------------------------------------------------------------------
        The district court denied the motion, but the plaintiffs
    appealed. In 2014, following the Ninth Circuit's dismissal of
    the plaintiffs' appeal as moot,\96\ the parties conducted
    further discovery and filed cross motions for summary judgment.
    The defendants argued that the plaintiffs' claims were not
    cognizable under section of the Voting Rights Act, and the
    Department of Justice again filed a Statement of Interest
    supporting the plaintiffs' claims.\97\
    ---------------------------------------------------------------------------
        \96\ Wandering Medicine v. McCulloch, 544 Fed. App'x 699 (9th Cir.
    2013).
        \97\ Statement of Interest of the United States, Wandering Medicine
    v. McCulloch, No. 1:12-CV-135-RFC (D. Mont. Apr. 25, 2014), https://
    www.justice.gov/crt/case-document/si-wandering-medicine-v-mccullough.
    ---------------------------------------------------------------------------
        In June 2014, the parties agreed to settle the case by
    establishing satellite offices on the reservations twice a week
    through Election Day.\98\
    ---------------------------------------------------------------------------
        \98\ John S. Adams, Montana Indian Voting Lawsuit Settled, Great
    Falls Tribune, June 12, 2014, available at https://
    www.greatfallstribune.com/story/news/politics/2014/06/12/montana-
    indian-voting-lawsuit-settled/10389781/.
    ---------------------------------------------------------------------------

                      Poor Bear v. Jackson County

        In September 2014, four Members of the Oglala Sioux Tribe
    filed suit against Jackson County, South Dakota, alleging that
    the county's refusal to open a satellite office for in-person
    absentee voting and registration on the Pine Ridge Reservation
    violates section 2 of the Voting Rights Act of 1965 and the
    Fourteenth amendment of the United States Constitution.
        Under South Dakota law, residents can register and vote in
    one stop starting 46 days before an election at locations
    designated by each county.\99\ Nothing in South Dakota law
    prohibits a county from creating satellite election offices so
    that one-stop in-person voter registration and in-person
    absentee voting can take place in more than one location. Nor
    does South Dakota law require that there be a one-stop site in
    the county seat. Yet the only location for one-stop in-person
    voter registration and in-person absentee voting in Jackson
    County was the election office in Kadoka, the county seat--a
    town that is more than 90% white.
    ---------------------------------------------------------------------------
        \99\ See generally S.D.C.L. chs. 12-4, 12-19.
    ---------------------------------------------------------------------------
        Jackson County is geographically large and sparsely
    populated. It also has a substantial Native American
    population, most of which lives on or near the Pine Ridge
    Indian Reservation at a great distance from Kadoka. On average,
    Indian citizens in Jackson County have to travel almost two
    hours round-trip to reach Kadoka, and that is twice as long as
    the average round-trip travel time required for White citizens.
    The time and resources required for a trip to Kadoka, combined
    with the depressed socioeconomic status of Indians in Jackson
    County, made in-person absentee voting and therefore one-stop
    voting effectively unavailable for many Indians in Jackson
    County.
        The plaintiffs filed a motion for a preliminary injunction
    in October 2014, but that became moot after the county reversed
    course and agreed to open a satellite office that would be more
    accessible to Native American voters. That office provided in-
    person absentee voting from October 20 until the November 4
    election.
        The defendants then filed a motion to dismiss, arguing that
    the plaintiffs' claims are not cognizable under section 2 of
    the Voting Rights Act. The Department of Justice filed a
    Statement of Interest supporting the plaintiffs' claims,\100\
    and the district court denied the motion.\101\
    ---------------------------------------------------------------------------
        \100\ Statement of Interest of the United States, Poor Bear v.
    Jackson County, 5:14-CV-5059-KES (D.S.D. Dec. 23, 2014), https://
    www.justice.gov/crt/case-document/si-poor-bear-v-jackson.
        \101\ Poor Bear v. Jackson County, 5:14-CV-5059-KES (D.S.D. May 1,
    2015).
    ---------------------------------------------------------------------------
        Jackson County thereafter entered into an agreement with
    the State of South Dakota under which the County committed to
    opening a satellite office accessible to Indian voters during
    all federal primary and general elections through January 1,
    2023.\102\
    ---------------------------------------------------------------------------
        \102\ Poor Bear v. Jackson County, 5:14-CV-5059-KES (D.S.D. June
    17, 2016).
    ---------------------------------------------------------------------------

             Cases Involving the Denial of Attorneys' Fees

        The Poor Bear case, discussed immediately above, is also
    noteworthy because it illustrates the need to strengthen the
    attorneys' fees provisions of the Voting Rights Act.
        Most voting-rights litigation is brought on behalf of
    private plaintiffs who generally lack the means to pay for
    their own attorneys. Like most civil-rights statutes, the
    Voting Rights Act contains a fee-provision that changes the so-
    called ``American rule'' for attorney fees by allowing
    victorious citizen plaintiffs to recover their attorney fees
    from the losing party.\103\
    ---------------------------------------------------------------------------
        \103\ 52 U.S.C. Sec. 10310(e).
    ---------------------------------------------------------------------------
        It is well established that plaintiffs who win a judgment
    in their favor qualify for the benefits of fee-shifting. What
    used to be less clear, however, was whether those parties whose
    successes come outside the courtroom could also recover fees.
    In the past, the so-called ``catalyst theory'' answered this
    question affirmatively. Parties were entitled to fees by
    demonstrating that their litigation was the catalyst for
    obtaining the relief sought, even though the relief was
    obtained through the defendant's voluntary change in conduct or
    through a private, non-judicial settlement agreement.
        In 2001, however, the Supreme Court rejected the ``catalyst
    theory'' in Buckhannon Board and Care Home, Inc. v. West
    Virginia Department of Health and Human Resources.\104\ In
    Buckhannon, the Supreme Court construed the term ``prevailing
    party'' in the fee-shifting provisions of the Fair Housing
    Amendments Act and the Americans with Disabilities Act. The
    ---------------------------------------------------------------------------
        \104\ 532 U.S. 598 (2001).
    ---------------------------------------------------------------------------
        Buckhannon majority adopted a narrow view of the term
    ``prevailing party,'' ruling that, for those two statutes at
    least, ``the `catalyst theory' is not a permissible basis for
    the award of attorney's fees.'' \105\ The Court required some
    ``judicially sanctioned'' victory as a prerequisite to a fee
    award.\106\
    ---------------------------------------------------------------------------
        \105\ Id. at 610.
        \106\ Id.
    ---------------------------------------------------------------------------
        The Supreme Court's rejection of the catalyst theory has
    had ``a profoundly negative impact on civil rights
    litigation.'' \107\ Buckhannon reduces plaintiffs' leverage in
    settlement negotiations because defendants are aware that they
    can often avoid a fee award by capitulating, and it also makes
    settlement more difficult by taking away the potential for
    face-saving out-of-court settlements in which the defendants do
    not admit liability.\108\
    ---------------------------------------------------------------------------
        \107\ Rebecca Glenberg, Attorney's Fees and Buckhannon, J. Va. Tr.
    Lawyers' Assoc., Vol. 20, No. 4, at 13 (2009).
        \108\ See Catherine R. Albiston & Laura Beth Nielsen, The
    Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon
    for the Private Attorney General, 54 UCLA L. Rev. 1087 (2007).
    ---------------------------------------------------------------------------
        So it was in Poor Bear. The parties litigated the case for
    more than two years. The district court had rejected the
    counties primary defenses, and the plaintiffs had filed a
    motion for summary judgment on the merits. Rather than defend
    their position on the merits or engage in settlement
    discussions with the plaintiffs, the County entered into a
    temporary agreement with the State to offer a satellite voting
    location for four election cycles. The County then immediately
    sought to dismiss the case on ripeness grounds, and the
    district court granted the motion.\109\
    ---------------------------------------------------------------------------
        \109\ Poor Bear v. Jackson County, 5:14-CV-5059-KES (D.S.D. June
    17, 2016).
    ---------------------------------------------------------------------------
        The plaintiffs still moved for an award of fees, but the
    district court rejected the motion under Buckhannon.\110\ There
    was no dispute that the plaintiffs had been the catalyst for
    the defendants' capitulation, that was no longer enough to
    qualify for fees as a prevailing party.
    ---------------------------------------------------------------------------
        \110\ Poor Bear v. Jackson County, 5:14-CV-5059-KES (D.S.D. Jan. 4,
    2017).
    ---------------------------------------------------------------------------
        The plaintiffs in Poor Bear were represented by a non-
    profit civil rights organization and private counsel that had
    undoubtedly devoted hundreds of hours to the case. Although
    they obtained excellent results for their clients, they
    recovered nothing. The district court's decision denying fees
    risks creating a chilling effect on future voting-rights
    litigation in Indian Country, with attorneys less likely to
    take a risk on uncompensated cases.
        Congress should therefore fix the Voting Rights Act to
    restore a plaintiff's ability to recover fees under the
    catalyst theory as it existed prior to Buckhannon.

                               Conclusion

        The cases that I have discussed today are just the tip of
    the proverbial iceberg. They are only some of the cases in
    Indian Country that one attorney has participated in over the
    course of a twenty-year career. There are many more such cases
    brought in Indian Country by other attorneys, including my
    colleagues in the Native American Voting Rights Coalition. But
    these cases and the volumes of evidence they generated show
    that voting discrimination continues to be a significant
    problem in Indian Country. This problem justifies strong
    congressional action to ensure that Native Americans, like all
    Americans, can be free to participate fully in our democracy.
        I thank you for the opportunity to testify here today, and
    I look forward to answering any questions that you might have.

        Mr. Cohen. Thank you, sir.
        Mr. John Eastman, a Henry Salvatori Professor of Law and
    Community Service at Chapman University Fowler School of Law,
    served as the school's dean from June 2007 to January 2010. He
    teaches courses in common law and legal history, among others.
        He previously worked in private practice, served as law
    clerk for Judge Clarence Thomas of the Supreme Court and for
    Judge J. Michael Luttig of the United States Court of Appeals
    for the Fourth District.
        He received his J.D. with high honors from the University
    of Chicago Law School, where he served on the Law Review; Ph.D.
    and M.A. from Claremont Graduate School; and a B.A. in politics
    and economics from the University of Dallas.
        Professor Eastman, you are recognized for 5 minutes.

                       TESTIMONY OF JOHN EASTMAN

        Mr. Eastman. Good morning, Chairman Cohen, Ranking Member
    Johnson, Chairman Nadler. Thank you very much for inviting me
    to aid in your deliberations on how both to strengthen and
    preserve the Voting Rights Act.
        That act, as originally adopted in 1965, as everybody has
    acknowledged, is one of the signature accomplishments of the
    civil rights era, and it has been rightly credited with greatly
    reducing and, in many cases, outright eliminating rank
    discrimination in voting rights that have persisted in parts of
    our country for a century after the conclusion of the Civil
    War.
        One provision of that act, section 5, was an extraordinary
    and drastic departure from the normal Rule that law must have
    general applicability even to warrant the name ``law,'' an idea
    that has been a mainstay of legal systems since at least Roman
    times and certainly here in the United States since the very
    founding.
        That section's targeting of only certain jurisdictions was
    upheld by the Supreme Court at the time only because Congress
    had determined, and the Court agreed, that such strong medicine
    was needed to address entrenched racial discrimination voting.
    As the Court put it in that case, South Carolina v. Katzenbach,
    ``exceptional conditions can justify legislative measures not
    otherwise appropriate.''
        That last phrase, ``not otherwise appropriate,'' was a
    strong signal from the Court that at some point, the
    extraordinary remedy of targeting only certain States with the
    drastic remedy of preclearance--of seeking permission from
    either the Attorney General or Federal court for every change
    in voting law, practice, or procedures--must come to an end.
        The States are, after all, separate sovereigns in our
    Federal system, and they are not to be treated as children with
    a ``Mother, may I?'' advance preclearance supervision of the
    Federal Government. That is why from the very beginning,
    Members of the Court have expressed concerns about the
    constitutionality of section 5, and my prepared written
    testimony identifies a number of examples.
        That is also why several times over the last two decades,
    the Supreme Court itself more broadly has warned Congress that
    provisions of the Voting Rights Act have become
    constitutionally problematic. In Reno v. Bossier Parish School
    Board, for example, the Court warned that a broadening
    interpretation of section 5 coverage to read laws that merely
    prevented the favoring of racial minority groups would
    exacerbate the substantial federalism costs that the
    preclearance procedure already exacts, perhaps to the extent of
    raising concerns about section 5's constitutionality. Despite
    that warning, Congress codified that very requirement just 6
    years later in the 2006 amendments to the act.
        In the 2003 case of Georgia v. Ashcroft, Justice Kennedy
    identified a key anomaly in the law, namely, that conduct which
    would be unconstitutional under the Fourteenth amendment was
    being required to obtain preclearance under section 5 of the
    Voting Rights Act. He added that this fundamental flaw should
    be confronted in a case in which the issue was squarely
    presented. Quite frankly, his advice there is not just
    applicable to the Court, but to Congress as well.
        Similarly, in Northwest Austin Municipal Utility District
    v. Holder, the Supreme Court noted that the plaintiff had
    raised a big question about the constitutionality of section 5
    but did not reach that question because a preliminary issue of
    statutory construction allowed it to avoid the question at the
    time.
        The decision was, nevertheless, a broadside criticism of
    both section 5 and the triggering formula found in section 4,
    criticisms that would come to the forefront in Shelby County.
    Although the Shelby County Court invalidated only section 4's
    triggering formula, it continued to identify significant
    constitutional problems with section 5, problems that, as
    Justice Thomas noted in his concurrence, led to the inevitable
    conclusion that section 5 is, under modern circumstances,
    unconstitutional.
        Yet instead of addressing those increasingly manifest
    constitutional problems, the Voting Rights Advancement Act,
    H.R. 4, doubles down on them. Granted, it proposes a new
    triggering formula that is not based on 50-year-old data, the
    principal problem identified in Shelby County. That was not the
    only problem identified in Shelby County. The very notion that
    preclearance requirements apply only in some parts of the
    country and not others is itself constitutionally problematic.
    Section 5 continues to violate that general rule.
        The constitutional problems of the Voting Rights Act, as
    have been amended over the years, have run even deeper than
    that. I was a law clerk at the Supreme Court when the City of
    Boerne case was decided, and that says that the--reminds us
    that the power that Congress has under section 5 of the
    Fourteenth Amendment, and the identical provisions in a number
    of other amendments, is to enforce the provisions of that
    amendment, not add to them.
        So, when the Congress adds to those requirements, they can
    only do so if their remedy is proportional and congruent to the
    constitutional violations. Converting the Voting Rights Act, as
    happened in 1982, from one focusing on intentional
    discrimination to one focusing merely on disparate impact is,
    itself, constitutionally problematic under the City of Boerne.
        I would encourage this body to look at those kinds of
    constitutional infirmities that the Court has repeatedly
    brought to your attention in order to save the Voting Rights
    Act rather than ensuring that the entire Act ends up being held
    to be unconstitutional if we don't Act now to save it.
        Thanks so much.
        [The statement of Mr. Eastman follows:]

                       STATEMENT OF JOHN EASTMAN

     Henry Salvatori Professor of Law & Community Service Chapman
             University's Dale E. Fowler School of Law \1\
    ---------------------------------------------------------------------------

        \1\ Institutional affiliation listed for identification purposes
    only. The views presented by Dr. Eastman are his own, and do not
    necessarily reflect the views of the Institutions with which he is
    affiliated.
    ---------------------------------------------------------------------------
        Good afternoon, Chairman Cohen, Ranking Member Johnson, and
    the other Members of the House Judiciary Subcommittee on the
    Constitution, Civil Rights, and Civil Liberties. Thank you for
    inviting me to aid in your deliberations on how to strengthen
    and preserve the Voting Rights Act. That Act, as originally
    adopted in 1965, was one of the signature accomplishments of
    the civil rights era of the late 1950s and 1960s. It has
    rightly been credited with greatly reducing and in many cases
    outright eliminating rank discrimination in voting rights that
    had persisted in parts of our country for a century after the
    conclusion of the Civil War.
        One provision of the Act, section 5, was an extraordinary
    and drastic departure from the normal Rule that law must have
    general applicability even to warrant the name ``law''--an idea
    that has been a mainstay of legal systems since at least Roman
    times, and certainly here in the United States since the very
    founding of our Republic. That Section's targeting of only
    certain jurisdictions was upheld by the Supreme Court at the
    time only because Congress had determined, and the Court
    agreed, that such ``strong medicine . . . was needed to address
    entrenched racial discrimination in voting.'' \2\ As the Court
    put it in South Carolina v. Katzenbach: ``exceptional
    conditions can justify legislative measures not otherwise
    appropriate.'' \3\
    ---------------------------------------------------------------------------
        \2\ Shelby Cty., Ala. v. Holder, 570 U.S. 529, 535 (2013) (citing
    South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966)).
        \3\ 383 U.S. at 334 (emphasis added).
    ---------------------------------------------------------------------------
        That last phrase, ``not otherwise appropriate,'' was a
    strong signal from the Court that, at some point, the
    ``extraordinary remedy'' of targeting only certain states with
    the drastic remedy of requiring permission from either the
    Attorney General or a federal court for every change in its
    voting laws, practices, and procedures must come to an end. The
    States are, after all, separation sovereigns in our federal
    system, and they are not to be treated as children under the
    constant ``mother may I'' advance preclearance supervision of
    the Federal Government.
        That is why from the very beginning Members of the Court
    have expressed concerns about the constitutionality of section
    5. See, e.g., Katzenbach, 383 U.S., at 358-62 (Black, J.,
    concurring and dissenting); Allen v. State Board of Elections,
    393 U.S. 544, 586, n. 4 (1969) (Harlan, J., concurring in part
    and dissenting in part); Georgia v. United States, 411 U.S.
    526, 545 (1973) (Powell, J., dissenting); City of Rome v.
    United States, 446 U.S. 156, 209-21 (1980) (Rehnquist, J.,
    dissenting); Id., at 200-06 (Powell, J., dissenting); Lopez v.
    Monterey County, 525 U.S. 266, 293-98 (1999) (Thomas, J.,
    dissenting); Id., at 288 (Kennedy, J., concurring in judgment).
        That is also why, on several occasions over the past two
    decades, the Supreme Court itself has warned Congress that
    provisions of the Voting Rights Act have become
    constitutionally problematic. In Reno v. Bossier Parish School
    Board, for example, the Court warned that a broadening
    interpretation of section 5 coverage to reach laws that merely
    prevented the favoring of racial minority groups would
    ``exacerbate the substantial federalism costs that the
    preclearance procedure already exacts, perhaps to the extent of
    raising concerns about Sec. 5's constitutionality.'' \4\
    Despite that warning, Congress codified that very requirement
    just six years later in the 2006 amendment of the Act.
    ---------------------------------------------------------------------------
        \4\ 528 U.S. 320, 336 (2000).
    ---------------------------------------------------------------------------
        In the 2003 case of Georgia v. Ashcroft, Justice Kennedy
    identified a key anomaly in the law, namely, that conduct which
    would be unconstitutional under the Fourteenth amendment was
    being required in order to obtain preclearance under section 5
    of the Voting Rights Act. He added that this ``fundamental
    flaw'' ``should be confronted'' in a case in which the issue
    was squarely presented, but, quite frankly, that advice is
    equally applicable to Congress. Similarly, in Northwest Austin
    Municipal Utility District v. Holder, 557 U.S. 193 (2009), the
    Supreme Court noted that the plaintiff had raised a ``big
    question'' about the constitutionality of section 5, but did
    not need to reach the question because a preliminary issue of
    statutory construction allowed it to avoid reaching the
    constitutional question at that time. The decision itself was
    nevertheless a broadside criticism of both section 5 and the
    trigging formula found in section 4, criticisms that would come
    to the forefront just four years later in Shelby County v.
    Holder, 570 U.S. 529 (2013). Although in Shelby County the
    Court invalidated only section 4's triggering formula, it
    continued to identify significant constitutional problems with
    section 5--problems that, as Justice Thomas noted in his
    concurrent, lead to the ``inevitable conclusion'' that section
    5 is, under current circumstances, unconstitutional.
        Yet instead of addressing those increasingly manifest
    constitutional problems, the Voting Rights Advancement Act of
    2019, H.R. 4, doubles down on them. Granted, it proposes a new
    triggering formula that is not based on 50-year-old data, the
    principal problem with the old formula identified in Shelby
    County. But that was not the only problem identified in Shelby
    County. The very notion that preclearance requirements apply
    only to some jurisdictions and not others is a significant
    departure from the long-standing norm that law must be
    generally applicable, not imposing duties only on some. The
    general rule, in other words, is that federal laws must, absent
    extraordinary circumstances, treat all states as the equal
    sovereigns that our
        Constitution recognizes. section 5 continues to violate
    that general rule, and the proposed new triggering formula
    contained in H.R. 4 is a far cry from the pervasive violations
    that warranted Congress's resort to that extraordinary remedy
    back in 1965, and that led the Court to uphold what was
    initially a temporary measure in 1966.
        But the constitutional problems with the Voting Rights Act,
    as it has been amended over the years, run even deeper than
    that. I was a law clerk at the Supreme Court during the October
    1996 term, when City of Boerne v. Flores was decided. That case
    reminded us of the importance of critical text in section 5 of
    the Fourteenth Amendment, that Congress's power is ``to
    enforce'' the requirements of the Fourteenth amendment against
    the States, not to add to them. The identical language is found
    in section 2 of the Fifteenth amendment (which prohibits denial
    and abridgement of voting rights on the basis of race), the
    Nineteenth amendment (which prohibits denial and abridgement of
    voting rights on the basis of sex), section 2 of the Twenty-
    Fourth amendment (which prohibits denial and abridgement of
    voting rights by reason of failure to pay a poll tax), and
    section 2 of the Twenty-Sixth amendment (which prohibits denial
    and abridgement of voting rights on the basis of age for anyone
    eighteen years or older).
        The Supreme Court has held in numerous cases that both the
    Fourteenth Amendment's Equal Protection Clause and the
    Fifteenth amendment are violated only by a discriminatory
    purpose or intent, not merely a disparate effect.\5\ Laws that
    do more than ``enforce'' the prohibition on purposeful
    discrimination are permissible remedial legislation only if
    they are ``congruent and proportional'' to the constitutional
    violation, as the Court held in City of Boerne. Two amendments
    to the original Voting Rights Act that were added over the
    years run afoul of that proposition, and this Committee should
    be considering ways to rectify those constitutional violations
    rather than expanding them.
    ---------------------------------------------------------------------------
        \5\ Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429
    U.S. 252, 265 (1977) (``Proof of racially discriminatory intent or
    purpose is required to show a violation of the Equal Protection
    Clause.''); Washington v. Davis, 426 U.S. 229 (1976); Wisconsin v. City
    of New York, 517 U.S. 1, 19 n.8 (1996) (``Strict scrutiny of a
    classification affecting a protected class is properly invoked only
    where a plaintiff can show intentional discrimination by the
    Government''); City of Mobile v. Bolden, 446 U.S. 55, 62 (1980)
    (plurality opinion) (``[A]ction by a State that is racially neutral on
    its face violates the Fifteenth amendment only if motivated by a
    discriminatory purpose [R]acially discriminatory motivation is a
    necessary ingredient of a Fifteenth amendment violation''); Reno v.
    Bossier Parish Sch. Bd., 520 U.S. 471, 481 (1997) (holding that a
    plaintiff bringing a vote dilution claim under either the Fourteenth or
    Fifteenth Amendments must ``establish that the State or political
    subdivision acted with a discriminatory purpose'').
    ---------------------------------------------------------------------------
        One such constitutionally problematic amendment occurred in
    1982, following the Supreme Court's decision in Mobile v.
    Bolden. In that case, the Court held that the original language
    of section 2, like the Fourteenth and Fifteenth Amendments
    themselves, reached only intentional discrimination. Without
    benefit of the Court's subsequent analysis in City of Boerne
    confirming that Congress's section 5 enforcement power did not
    allow Congress to impose additional substantive requirements on
    the states, Congress added language to section 2 that reached
    disparate impact rather than merely intentional discrimination.
    Section 2 of the Act as originally adopted provided that ``No
    voting qualification or prerequisite to voting, or standard,
    practice, or procedure shall be imposed or applied by any State
    or political subdivision to deny or abridge the right of any
    citizen of the United States to vote on account of race or
    color.'' Pub. L. 89-110, 79 Stat. 437 (Aug. 6, 1965) (emphasis
    added). The amended section provides that ``No voting
    qualification or prerequisite to voting or standard, practice,
    or procedure shall be imposed or applied by any State or
    political subdivision in a manner which results in a denial or
    abridgement of the right of any citizen of the United States to
    vote on account of race or color, or in contravention of the
    guarantees set forth in section 4(f)(2), as provided in
    subsection (b).'' Pub. L. 97-205, 96 Stat. 131 (June 29, 1982),
    now codified at 52 U.S.C. 10301(a) (emphasis added). That
    alteration in the language to ``in a manner which results in''
    changed the statute from one prohibiting purposeful
    discrimination to one prohibiting law that have merely a
    disparate impact, which is to say, changed the statute from one
    ``enforcing'' the provisions of the Fifteenth amendment to one
    adding to the substantive requirements of the Fifteenth
    Amendment. Constitutionally problematic at the time, the
    constitutional infirmity is even more clear after City of
    Boerne.
        Another amendment to the Act, adopted in 1975, suffers from
    a similar infirmity. Purportedly relying on its Fourteenth
    amendment section 5 authority, Congress prohibited states and
    local governments from conducting elections only in English.
    Pub. L. 94-73 (H.R. 6219), 89 Stat 400 (Aug. 6, 1975), now
    codified at 52 U.S.C. 10303(f)(1). Specifically, section 203 of
    the 1975 Amendments, now codified at 52 U.S.C. 10303(f)(2),
    provides that: ``No voting qualification or prerequisite to
    voting, or standard, practice, or procedure shall be imposed or
    applied by any State or political subdivision to deny or
    abridge the right of any citizen of the United States to vote
    because he is a member of a language minority group.'' But
    ``language minority'' is not a suspect classification,\6\ so
    under the Fourteenth's Equal Protection analysis,
    classifications based on language are subject only to highly
    deferential rational basis review.
    ---------------------------------------------------------------------------
        \6\ ``National origin'' is a suspect classification, of course, but
    almost by definition, the expansion of the Voting Rights Act to
    ``language minorities'' reaches a different class of people than those
    who have migrated to the United States from different nations and
    become naturalized citizens. A precondition of naturalization in most
    cases is proficiency in English. 8 U.S.C. 1423.
    ---------------------------------------------------------------------------
        That means that nearly all State laws that implicate
    ``language minorities'' would be upheld against an Equal
    Protection challenge, as long as it might have been viewed as
    furthering a conceivable legitimate government purpose. The
    additional cost of printing ballots and other election
    materials in multiple languages is alone sufficient to pass
    rational basis review. As a result, the 1975 amendment was not
    designed to ``enforce'' the provisions of the Fourteenth
    amendment against States that were violating it, but rather to
    impose additional burdens on the States.
        The Supreme Court's holding in Nevada v. Hibbs, 538 U.S.
    721 (2003), is instructive here. In that case, the Court upheld
    the abrogation of State sovereign immunity in a remedial
    statute addressing discrimination on the basis of sex (a
    suspect class), but distinguished two cases \7\ in which the
    Court had struck down an abrogation provision in remedial
    statutes addressing discrimination on the basis of age or
    disability (non-suspect classes). The difference between the
    scrutiny applied to suspect classifications and non-suspect
    qualifications was outcome determinative on the issue whether
    Congress was enforcing the Fourteenth Amendment, or adding to
    it.
    ---------------------------------------------------------------------------
        \7\ Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356,
    363 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73-78 (2000).
    ---------------------------------------------------------------------------
        Instead of addressing and curing these existing
    constitutional infirmities, H.R. 4 actually exacerbates them.
    The proposed amendment to section 3(c) of the Voting Rights Act
    adds in enforcement of federal statutes, not just the
    Fourteenth Amendment, in a context where Congress's authority
    is based solely on its Fourteenth amendment section 5
    enforcement authority. Second, the proposed amendment to
    section 203(f) expands the existing language dealing with
    purposeful discrimination against language minorities, already
    constitutionally suspect under City of Boerne and Hibbs, to
    disparate impact discrimination, making it even more
    constitutionally suspect.
        Finally, the proposed change to section 4--the preclearance
    trigger formula--fails the ``congruence and proportionality''
    test the Supreme Court set out in City of Boerne. Instead of
    targeting the extraordinary preclearance remedy afforded by
    section 5 to those jurisdictions currently engaged in pervasive
    and entrenched discrimination in voting, as was the case with
    the original triggering formula upheld in 1966, the new formula
    would extend the extraordinary preclearance remedy to any State
    in which as few as 10 voting rights violations had occurred in
    the prior quarter century--an extremely low threshold that is
    far from the massive, pervasive history of voting rights
    violations that led to the adoption of section 5 of the
    original Voting Rights Act by Congress and upholding of that
    provision by the Supreme Court in Katzenbach.

        Mr. Cohen. Thank you, Mr. Eastman.
        Our next witness is Mr. Arturo Vargas. He is chief
    executive Officer of the National Association of Latino Elected
    and Appointed Officials, a position he has held since 1994.
    Prior to joining NALEO Educational Fund, he held various
    positions at MALDEF, and before there, he was senior education
    policy analyst at the National Council of La Raza in DC.
        He is a nationally recognized expert in Latino demographic
    trends, electoral participation, voting rights, the Census, and
    redistricting. Master's degree in education, a Bachelor's
    degree in history and Spanish from Stanford University.
        Mr. Vargas, you are recognized for 5 minutes.

     TESTIMONY OF ARTURO VARGASThank you very much, Mr. Chairman.
     Chairman Nadler, Ranking Chairman Johnson, and Members of the
     Judiciary Committee, thank you for the opportunity to testify
                           before you today.

        I also serve as CEO of the National Association of Latino
    Elected and Appointed Officials, a national Membership
    organization of Latino public servants from all levels of
    government--Democrats, Republicans, and Independents--and very
    proud that one of our past national presidents is
    Representative Sylvia Garcia.
        We are acutely concerned that the Supreme Court's decision
    in Shelby County v. Holder has left newly mobilized communities
    of historically underrepresented voters of color vulnerable to
    efforts to limit their voting participation. Latino voters and
    candidates have an increasing presence in elections and elected
    office everywhere in the United States.
        NALEO Educational Fund's first compilation of the number of
    Latinos in elected office revealed that they were present in 33
    States. By 2016, the number of States with Latino elected
    leaders had grown to more than 40, with Latinos being elected
    in locations like urban Northern Virginia, rural corners of
    Oklahoma and Iowa, and Western frontier towns, including
    Wilder, Idaho, and Casper, Wyoming.
        This rapid, visible growth of Latino communities and other
    racial and ethnic populations, however, has fostered
    perceptions of threat in long and extensive patterns, a
    manipulation of election laws and response to minorities'
    potential and growing political influence.
        In hundreds of instances within the past 35 years,
    jurisdictions throughout the country have employed the same
    favored tactics repeatedly to suppress the political voice of a
    growing mobilizing minority community. The changes that most
    merit scrutiny based on their history of misuse include
    transitions to at-large or multi-member districts,
    redistricting plans devised in the wake of significant
    demographic change, annexations and de-annexations, restrictive
    identification requirements, wholly placed consolidations, and
    withdrawals of language assistance.
        I would like to point out three examples of how these
    tactics have suppressed, have been designed to suppress Latino
    voter participation. One of these has already been mentioned,
    the Pasadena, Texas, case that was litigated by MALDEF.
        I just would like to lift up the words of the Federal judge
    in that case that the intent of the effort to move from single
    member districts to at-large seats. The judge said that the
    intent was to delay the day when Latinos would make up enough
    of Pasadena's voters to have an equal opportunity to elect
    Latino-preferred candidates to a majority of the city council
    seats.
        Population shifts and growth in Latino citizen voting age
    and Spanish surname registered voter population made it clear
    that this power shift was about to occur. In that trial, it was
    revealed that, among other activity, advocates of the ballot
    measure that would have converted these districts had
    instructed a vendor to remove Latino names from the mailing
    list for a document urging support for at-large elections.
        In 2006 in Ohio, the State enacted legislation to require
    election judges processing voter challenges to distinguish
    between native, foreign, and naturalized citizens and singled
    out naturalized Americans for extra scrutiny. Only those
    challenged voters who were naturalized citizens will be
    required to immediately produce proof of citizenship or to vote
    a provisional ballot that would only be counted if the voter
    displayed proof of citizenship to an election official within
    10 days.
        As of 2006, the African Americans, Latino, and Asian
    Americans constituted just 14.3 percent of the State's total
    electorate, but nearly 48 percent of the naturalized Ohioans
    eligible to cast ballots. In light of its potential
    significantly increased racial and ethnic profiling of Ohio
    voters, a Federal court granted a permanent injunction
    invalidating this law in October 2006.
        In Pennsylvania, some high-profile negative responses to
    the change of demographics included events in 2001 and 2002
    where poll workers were overheard saying things such as, ``This
    is the USA. Hispanics should not be allowed to have two last
    names. They should learn to speak the language, and we should
    make them take only one last name.'' And they were overheard
    saying, ``They can't speak, they can't read, and they come to
    vote.''
        Poll workers also demanded of Latino voter's photo
    identification not required by law and selectively required
    only Latino voters to confirm their addresses. A Federal judge
    granted a preliminary injunction against the county and
    required it to negotiate a plan of remedial action with
    community advocates.
        We need to prevent these foreseeable harms of these types
    of discriminatory election practices, and we urge Congress to
    restore the Voting Rights Act to its full strength by enacting
    the Voting Rights Advancement Act and its practice-based
    preclearance formula.
        Thank you for the opportunity to testify.
        [The statement of Mr. Vargas follows:]
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        Mr. Cohen. Thank you, Mr. Vargas.
        Mr. John Yang is president, chief executive director of
    Asian Americans Advancing Justice. He leads the organization's
    efforts to fight for civil rights and empower Asian Americans
    to create a more just America for all through public policy,
    advocacy, education, and litigation.
        He previously served in the Obama Administration as senior
    adviser for trade and strategic initiatives at the U.S.
    Department of Commerce. Before that, partner at a major law
    firm in DC. He graduated with honors from G.W. Law School here
    in DC and served on the George Washington Law Review and moot
    court team.
        Mr. Yang, welcome, and you are recognized for 5 minutes.

                         TESTIMONY OF JOHN YANG

        Mr. Yang. Thank you, Chairman Cohen. And thank you, Chair
    Nadler, and thank you to Ranking Member Johnson and the other
    Members of Congress.
        Let me first start by offering my condolences as well for
    your loss of Representative Cummings. As a civil rights
    organization that advances the civil and human rights of Asian
    Americans and to promote a fair and just society for all,
    Representative Cummings was certainly a beacon for us and a
    hero for us on many of the issues that we worked on every day.
        I really appreciate the opportunity to testify here today
    about known practices coverage and the need to have practice-
    based preclearance provisions in the Voting Rights Advancement
    Act. In conjunction with the restored coverage formula, it is
    critical for Asian Americans to have known practices coverage
    and let me tell you a little bit about why this is important
    for Asian Americans.
        Asian Americans are the fastest-growing community in the
    United States. Between the 2000 Decennial Census and the 2010
    Decennial Census, we grew by 46 percent. Today, we represent
    about 22.6 million Americans in the United States, which is a
    little bit over 6 percent. We have grown in the voter rolls
    tremendously in the last several election cycles.
        Between 2012 and 2016, we have grown by over 1 million
    voters. Now that growth is not monolithic. In fact, our fastest
    areas of growth are in Nevada, Arizona, North Carolina, and
    Georgia. So, it is not only in the major urban centers that
    oftentimes people think about with respect to Asian Americans.
        Notwithstanding this growth of Asian Americans and the fact
    that our community has been here for centuries, whether as
    workers for the Transcontinental Railroad, whether as the
    Japanese-American soldiers that served in the most decorated
    combat regiment during World War II, Asian Americans are often
    still seen as outsiders, as foreigners, as aliens. We have been
    denied rights entitled to other American citizens, including
    the right to vote, the right to be in the United States.
        It is only recently in the last 50 years or so that many of
    these laws have changed. So, this is not only a problem with
    the present, but it is also a problem of the past. It is also a
    problem of the present.
        Asian Americans are becoming more politically visible, and
    our numbers are showing that. So, with that addition in
    numbers, with that addition in the electorate, that growth also
    creates an increase in racial appeals against Asian-American
    candidates and efforts to erect barriers to the ballot for
    Asian-American voters.
        For example, in 2004, the primary elections in Bayou La
    Batre, Alabama, supporters of a White incumbent facing a
    Vietnamese-American opponent during the primaries challenged
    the eligibility of only Asian-American voters at the polls and
    falsely accusing them of not being American citizens or not
    being city residents. The losing incumbent's rationale was,
    ``If they couldn't speak English good enough, then they
    probably aren't American citizens.'' That year, Bayou La Batre
    did elect its first Asian-American city council member.
        One Texas lawmaker suggested that Asian-American voters
    should adopt names that are easier for Americans to deal with
    to avoid difficulties resulting from voter identification laws.
    The statement made clear that the Asian-American community was
    not welcome in American politics and notably cast Asian
    Americans apart from other Americans.
        So, as you have heard from my colleagues and other
    witnesses today, these practice-based preclearance programs
    focus on these practices that have been shown to be used
    against the political voice of a growing emerging community of
    voices.
        The U.S. Census Bureau forecasts that while the number of
    Asian Americans will grow between now and 2040, the proportion
    of Asian Americans who are immigrants will decrease, with high
    naturalization rates and an increase in U.S.-born Asian
    Americans in the upcoming years. What that also means is that
    voter participation rates among the Asian-American community
    will continue to increase in rapid numbers, and indeed, its
    political visibility will only increase as well.
        It is precisely for these reasons that restoring and
    strengthening the Voting Rights Act is a top priority for our
    organization.
        Thank you very much.
        [The statement of Mr. Yang follows:]

                       STATEMENT OF JOHN C. YANG

                              Introduction

        The Voting Rights Act of 1965 (VRA) has been vital to the
    prevention of actual and threatened discrimination aimed at
    Asian Americans in national and local elections, and for
    increasing the community's access to the ballot. And while the
    VRA continues to protect the voting rights of Asian Americans,
    its efficacy has been curtailed by the harmful and short-
    sighted decision by the Supreme Court in Shelby County v.
    Holder, 570 U.S. 2 (2013) (Shelby County). This testimony will
    detail the Asian American electorate and the discrimination
    Asian Americans face in the Post-Shelby County world as well as
    the need to restore and strengthen the VRA through modernizing
    how to determine coverage for section 5 preclearance. While
    Asian Americans are the nation's fastest growing racial group
    and are quickly becoming a significant electoral force, the
    community will not be able to maximize its political power
    without the full protection of their voting rights.
        Based on the perception of Asian Americans as
    ``outsiders,'' ``aliens,'' and ``perpetual foreigners, Asian
    Americans were denied rights held by U.S. citizens, including
    the ability to vote for most of the country's existence. Racist
    laws barring Asian Americans from entering the country, staying
    in the country or voting in the country, among other
    exclusionary laws, were often driven by fear of the ``other''
    and the potential threat to the political livelihood of those
    in power. This is not only a problem of the past but one that
    rears its ugly head in present day and one that is poised to
    become even bigger due to the demographic shifts in America. As
    the fastest growing racial or ethnic group for almost the last
    two decades, Asian Americans are becoming more politically
    visible and viable in new jurisdictions across the country,
    including the South. With this growth is an increase in racial
    appeals against Asian American candidates and efforts to erect
    barriers to the ballot for Asian American voters. The practice-
    based preclearance provision in the Voting Rights Advancement
    Act, in conjunction with a restored coverage formula, is
    critical to protecting the emerging political voice of Asian
    American voters. In targeting those practices that have been
    used through history to silence the political voice of minority
    communities just when they begin to reach critical mass and
    when they could begin to impact the outcome of elections,
    practice-based preclearance will ensure that these practices
    are reviewed in areas where Asian Americans and other
    communities of color are reaching the point where they are
    perceived as threats to ensure that the practice being proposed
    is not discriminatory or harmful to the minority community.

                       Organizational Information

        Asian Americans Advancing Justice--AAJC (Advancing
    Justice--AAJC) is a member of Asian Americans Advancing Justice
    (Advancing Justice), a national affiliation of five civil
    rights nonprofit organizations that joined together in 2013 to
    promote a fair and equitable society for all by working for
    civil and human rights and empowering Asian Americans and
    Pacific Islanders and other underserved communities. The
    Advancing Justice affiliation is comprised of our nation's
    oldest Asian American legal advocacy center located in San
    Francisco (Advancing Justice--ALC), our nation's largest Asian
    American advocacy service organization located in Los Angeles
    (Advancing Justice--LA), the largest national Asian American
    policy advocacy organization located in Washington DC
    (Advancing Justice--AAJC), the leading Midwest Asian American
    advocacy organization (Advancing Justice--Chicago), and the
    Atlanta-based Asian American advocacy organization that serves
    one of the largest and most rapidly growing Asian American
    communities in the South (Advancing Justice--Atlanta).
    Additionally, over 160 local organizations are involved in
    Advancing Justice--AAJC's Community Partners Network, serving
    communities in 33 states and the District of Columbia.
    Advancing Justice--AAJC was a key player in collaboration with
    other civil rights groups regarding the reauthorization of the
    Voting Rights Act in 2006. In the 2012 election, Advancing
    Justice conducted poll monitoring and voter protection efforts
    across the country, including in California, Florida, Georgia,
    Illinois, Texas, and Virginia. And since the 2012 election,
    Advancing Justice--AAJC, in partnership with APIAVote, has run
    a multilingual Asian election protection hotline, 888-API-VOTE
    that provides in- language assistance to voters who have
    questions about the election process or are experience problems
    while trying to vote.

                       Asian American Electorate

        Since the passage of the 1965 Immigration Act and the end
    of race-based immigration quotas, Asian American communities in
    the United States have grown dramatically. According to Census
    2010, Asian Americans are the nation's fastest growing racial
    group, with a growth rate of 46% between 2000 and 2010, growing
    to over 17.3 million Asian Americans and making up 6 percent of
    the total population.\1\ Today there are over 22.6 million
    Asian Americans living in the United States.\2\
    ---------------------------------------------------------------------------
        \1\ Asian Pac. Am. Legal Ctr. & Asian Am. Justice Ctr., A Community
    of Contrasts: Asian Americans in the United States: 2011, 6, 16, http:/
    /www.advancingjustice.org/pdf/Community_of_Contrast.pdf [hereinafter
    Community of Contrasts].
        \2\ U.S. Census Bureau, 2018 Population Estimates, Table PEPALL5N:
    Annual Estimates of the Resident Population by Sex, Single Year of Age,
    Race Alone or in Combination, and Hispanic Origin for the United
    States: April 1, 2010 to July 1, 2018 (July 1, 2018).
    ---------------------------------------------------------------------------
        Often viewed as a monolithic group, Asian Americans are
    exceedingly diverse with different needs. The country's fastest
    growing Asian American ethnic groups were South Asian, with the
    Bangladeshi and Pakistani American populations doubling in size
    between 2000 and 2010.\3\ Chinese Americans continue to be the
    largest Asian American ethnic group, numbering nearly 3.8
    million nationwide in 2010, followed in size by Filipino,
    Indian, Vietnamese, and Korean Americans.\4\
    ---------------------------------------------------------------------------
        \3\ Community of Contrasts at 9.
        \4\ Id.
    ---------------------------------------------------------------------------
        Asian Americans are also geographically diverse and are
    growing fastest in non-traditional gateway communities. Asian
    American populations in Nevada, Arizona, North Carolina, and
    Georgia were the fastest growing nationwide between 2000 and
    2010.\5\ California's Asian American population remained by far
    the country's largest, with New York, Texas, New Jersey, and
    Hawai'i following in size.\6\ Of the 19 states home to more
    than 225,000 Asian Americans, six are in the South (Texas,
    Florida, Virginia, Maryland, Georgia, and North Carolina) and
    four are in the Midwest (Illinois, Michigan, Minnesota, and
    Ohio).\7\ The South was the fastest growing region for the
    Asian American population during the last decade.\8\
    ---------------------------------------------------------------------------
        \5\ Id. at 8.
        \6\ Id.
        \7\ Id.
        \8\ Asian Americans Advancing Justice, A Community of Contrasts:
    Asian Americans, Native Hawaiians and Pacific Islander in the South:
    2014, 6, https://www.advancingjustice-aajc.org/sites/default/files/
    2016-09/2014_Community%20of%20Contrasts.pdf.
    ---------------------------------------------------------------------------
        At the same time, we saw a parallel increase among Asian
    American voters. The number of eligible Asian Americans grew by
    over 2 million between 2012 and 2016, with almost an additional
    1.14 million added to the electorate. This nearly doubles the
    average increase of 620,000 new voters in the prior three
    presidential cycles.\9\ 2018 showed a continuation of these
    record increases, with an increase of over 1.6 million eligible
    Asian Americans in 2018, and an even higher increase in Asian
    Americans who actually registered and voted.\10\ This
    represented a 24.4% increase in registered Asian Americans and
    29.2% increase in Asian Americans who voted between the 2012
    and 2016 presidential elections and a 21.3% increase and 43%
    increase respectively between the 2014 and 218 midterm
    elections (see table below).\11\ This growth will continue,
    with Asian American and Pacific Islander (AAPI) voters making
    up five percent of the national electorate by 2025 and 10
    percent of the national electorate by 2044.\12\
    ---------------------------------------------------------------------------
        \9\ See U.S. Census Bureau, Current Population Survey, Table 2.
    Reported Voting and Registration, by Race, Hispanic Origin, Sex, and
    Age, for the United States: November 2012, https://www2.census.gov/
    programs-surveys/cps/tables/p20/568/table02_5.xls. See also U.S. Census
    Bureau, Current Population Survey, Table 2. Reported Voting and
    Registration, by Race, Hispanic Origin, Sex, and Age, for the United
    States: November 2016, U.S. Census Bureau, https://www2.census.gov/
    programs-surveys/cps/tables/p20/580/table02_5.xls.
        \10\ Author's calculations of U.S. Census Bureau data available on
    voter participation in presidential and midterm elections through its
    Current Population Survey.
        \11\ Id.
        \12\ Center for American Progress and AAPI Data, ``State of Asian
    Americans and Pacific Islanders'' (2014), http://ampr.gs/
    AAPIreports2014.
    ---------------------------------------------------------------------------

              Table: Asian American Electorate: 2012-2018

                                                 Presidential Elections
    ----------------------------------------------------------------------------------------------------------------
                              Year                               Asian CVAP      Registered Asian     Asians Voted
    ----------------------------------------------------------------------------------------------------------------
    2016...................................................         10,283,000        115,785,000         15,043,000
    2012...................................................          8,254,000          4,649,000          3,904,000
    Growth in numbers......................................          2,029,000          1,136,000          1,139,000
    Growth by percent (%)..................................               24.6               24.4               29.2
    ----------------------------------------------------------------------------------------------------------------

                                                    Midterm Elections
    ----------------------------------------------------------------------------------------------------------------
                              Year                               Asian CVAP      Registered Asian     Asians Voted
    ----------------------------------------------------------------------------------------------------------------
    2018...................................................         11,128,000         15,898,000         14,519,000
    2014...................................................         19,504,000          4,642,000          2,575,000
    Growth in numbers......................................          1,624,000          1,256,000          1,944,000
    Growth by percent (%)..................................               14.6               21.3               43.0
    ----------------------------------------------------------------------------------------------------------------

        The growing Asian American electorate is also starting to
    influence election outcomes. Of the 27 congressional districts
    in 11 states where Asian American and Pacific Islander voters
    could have maximum impact (as identified leading into the 2018
    elections), 19 districts had an AAPI electorate that was larger
    than the margin of victory.\13\ The 2018 elections also saw 18
    additional races where the AAPI electorate was greater than the
    margin of victory.\14\ This meant that ``[i]n total, AAPI
    voters represented a significant portion of the electorate in
    37 congressional races across 17 different states.'' \15\ As
    our communities continue to grow and expand in new areas, they
    will have even more relevance as it relates to electoral
    outcomes.
    ---------------------------------------------------------------------------
        \13\ These were districts where AAPIs represent at least 5 percent
    of eligible voters, and where the Cook Political Report had declared
    the race to be competitive. Sono Shah, AAPI Voters in 2018
    Congressional Elections: Bigger Impact than Anticipated, AAPIData, Nov.
    20, 2018, http://aapidata.com/blog/aapi-voters-post18-cd/.
        \14\ Id.
        \15\ Id.
    ---------------------------------------------------------------------------

          Discrimination Against the Asian American Electorate

        Discrimination against Asian American populations is rooted
    in the perception of Asian Americans as ``outsiders,''
    ``aliens,'' and ``perpetual foreigners.'' \16\ Based on this
    perception, Asian Americans were denied rights held by U.S.
    citizens, including the ability to vote for most of the
    country's existence. Until 1943, federal policy barred
    immigrants of Asian descent from even becoming United States
    citizens, and it was not until 1952 that racial criteria for
    naturalization were removed altogether.\17\ Indeed, history is
    replete with examples of anti-immigrant sentiment directed
    towards Asian Americans, manifesting in legislative efforts to
    prevent Asian immigrants from entering the United States and
    becoming citizens.\18\
    ---------------------------------------------------------------------------
        \16\ See, e.g., Claire Jean Kim, The Racial Triangulation of Asian
    Americans, 27 Pol. & Soc'y 105, 108-16 (1999) (describing history of
    whites perceiving Asian Americans as foreign and therefore politically
    ostracizing them). Racial stereotyping of Asian Americans reinforces an
    image of Asian Americans as ``different,'' ``foreign,'' and the
    ``enemy,'' leading to stigmatization of Asian Americans, heightened
    racial tension, and increased discrimination. Spencer K. Turnbull,
    Comment, Wen Ho Lee and the Consequences of Enduring Asian American
    Stereotypes, 7 UCLA Asian Pac. Am. L.J. 72, 75 (2001); Terri Yuh-lin
    Chen, Comment, Hate Violence as Border Patrol: An Asian American Theory
    of Hate Violence, 7 Asian L.J. 69, 72, 74-75 (2000); Cynthia Kwei Yung
    Lee, Beyond Black and White: Racializing Asian Americans in a Society
    Obsessed with O.J., 6 Hastings Women's L.J. 165, 181 (1995); Note,
    Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926, 1930-
    32 (1993); see also Thierry Devos & Mahzarin R. Banaji, American =
    White?, 88 J. Personality & Soc. Psychol. 447 (2005) (documenting
    empirical evidence of implicit beliefs that Asian Americans are not
    ``American'').
        \17\ See Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58, 58-61
    (prohibiting immigration of Chinese laborers; repealed 1943);
    Immigration Act of 1917, ch. 29, 39 Stat. 874, 874-98, and Immigration
    Act of 1924, ch. 190, 43 Stat. 153 (banning immigration from almost all
    countries in the Asia-Pacific region; repealed 1952); Leti Volpp,
    Divesting Citizenship: On Asian American History and the Loss of
    Citizenship Through Marriage, 53 UCLA L. Rev. 405, 415 (2005).
        \18\ See, e.g., Philippines Independence Act of 1934, ch. 84, 48
    Stat. 456, 462 (imposing annual quota of fifty Filipino immigrants;
    amended 1946); Immigration Act of 1924, ch. 190, 43 Stat. 153 (denying
    entry to virtually all Asians; repealed 1952); Scott Act of 1888, ch.
    1064, 1, 25 Stat. 504, 504 (rendering 20,000 Chinese re-entry
    certificates null and void); Naturalization Act of 1790, ch. 3, 1 Stat.
    103 (providing one of the first laws to limit naturalization to aliens
    who were ``free White persons'' and thus, in effect, excluding African-
    Americans, and later, Asian Americans; repealed 1795).
    ---------------------------------------------------------------------------
        Legally identified as aliens ``ineligible for
    citizenship,'' Asian immigrants were prohibited from voting and
    owning land.\19\ Both immigrant and native-born Asian Americans
    also experienced pervasive discrimination in everyday life.\20\
    Perhaps the most egregious example of discrimination was the
    incarceration of 120,000 Americans of Japanese ancestry during
    World War II without due process.\21\ White immigrant groups
    whose home countries were also at war with the United
    ---------------------------------------------------------------------------
        \19\ See, Ozawa v. United States, 260 U.S. 178, 198 (1922); see,
    e.g., Cal. Const. art. II, Sec. 1 (1879) (``no native of China . . .
    shall ever exercise the privileges of an elector in this State'');
    Oyama v. California, 332 U.S. 633, 662 (1948) (Murphy, J., concurring)
    (noting that California's Alien Land Law ``was designed to effectuate a
    purely racial discrimination, to prohibit a Japanese alien from owning
    or using agricultural land solely because he is a Japanese alien'').
        \20\ People v. Brady, 40 Cal. 198, 207 (1870) (upholding law
    providing that ``No Indian . . . or Mongolian or Chinese, shall be
    permitted to give evidence in favor of, or against, any White man''
    against Fourteenth amendment challenge); see also Gong Lum v. Rice, 275
    U.S. 78 (1927) (upholding segregation of Asian schoolchildren).
        \21\ See, Exec. Order 9066, 7 Fed. Reg. 1407 (Feb. 19, 1942)
    (authorizing the internment); see also Korematsu v. United States, 323
    U.S. 214 (1944) (upholding the internment under strict scrutiny
    review).
    ---------------------------------------------------------------------------
        States during that time were not similarly detained and no
    assumptions were similarly made regarding their loyalty,
    trustworthiness and character.\22\
    ---------------------------------------------------------------------------
        \22\ See Korematsu, 323 U.S. at 233, 240-42 (Murphy, J.,
    dissenting) (noting that similarly situated American citizens of German
    and Italian ancestry were not subjected to the ``ugly abyss of racism''
    of forced detention based on racist assumptions that they were
    disloyal, ``subversive,'' and of ``an enemy race,'' as Japanese
    Americans were); Natsu Taylor Saito, Internments, Then and Now:
    Constitutional Accountability in Post-9/11 America, 72 Duke F. for L. &
    Soc. Change 71, 75 (2009) (noting ``the presumption made by the
    military and sanctioned by the Supreme Court that Japanese Americans,
    unlike German or Italian Americans, could be presumed disloyal by
    virtue of their national origin'').
    ---------------------------------------------------------------------------
        Racist sentiment towards Asian Americans is not a passing
    fad but a continuing reality, fueled in recent years by a
    growing xenophobic and racist backlash against immigrants.\23\
    Numerous hate crimes have been directed against Asian Americans
    either because of their minority group status or because they
    are perceived as unwanted immigrants.\24\ Between 2104 and
    2015, crimes targeting Asian-Americans tripled in Los Angeles
    county.\25\ Nationally, FBI data anti-Asian bias crimes
    increased by around 20 percent, from 137 in 2016 to 165 in
    2017.\26\
    ---------------------------------------------------------------------------
        \23\ See U.S. Dep't of Justice, Confronting Discrimination in the
    Post-9/11 Era: Challenges and Opportunities 10 Years Later, at 4 (Oct.
    19, 2011) (noting that the FBI reported a 1,600 percent increase in
    anti-Muslim hate crime incidents in 2001), http://www.justice.gov/crt/
    publications/post911/post911summit_report_2012-04.pdf.
        \24\ See, e.g., Id., at 7-9 (discussing numerous incidents of post-
    9/11 hate crimes prosecuted by the DOJ).
        \25\ Jenny J. Chen, First-Ever Tracker Of Hate Crimes Against
    Asian-Americans Launched, NPR CodeSwitch, Feb. 17, 2017, https://
    www.npr.org/sections/codeswitch/2017/02/17/515824196/first-ever-
    tracker-of-hate-crimes-against-asian-americans-launched (referencing a
    Los Angeles County Commission on Human Relations report on hate
    crimes).
        \26\ This number likely under-represents the number of hate crimes
    and incidents due to underreporting of existing hate crimes and
    incidents. Chris Fuchs, Hate Crimes Spiked in 2017. Community Advocates
    Think There's Even More, NBC News, Nov. 21, 2018, https://www.nbcnews
    .com/news/asian-america/hate-crimes-spiked-2017-community-advocates-
    think-there-s-even-n938551.
    ---------------------------------------------------------------------------
        Discriminatory attitudes towards Asian Americans also
    manifest themselves in the political process as well. For
    example, during a 2009 Texas House of Representatives hearing,
    legislator Betty Brown suggested that Asian American voters
    adopt names that are ``easier for Americans to deal with'' in
    order to avoid difficulties resulting from voter identification
    laws.\27\ This statement made clear that the Asian American
    community was unwelcome in American politics and notably cast
    Asian Americans apart from other ``Americans.'' At a campaign
    rally during the 2004 U.S. Senate race in Virginia, incumbent
    George Allen repeatedly called a South Asian volunteer for his
    opponent a ``macaca''--a racial epithet used to describe Arabs
    or North Africans that literally means ``monkey''--and
    simultaneously talked about the ``war on terror.'' \28\
    ---------------------------------------------------------------------------
        \27\ G. Ratcliffe, Texas Lawmaker Suggests Asians Adopt Easier
    Names, Houston Chron., Apr. 8, 2009, http://www.chron.com/news/houston-
    texas/article/Texas-lawmaker-suggests-Asians-adopt-easier-names-
    1550512.php.
        \28\ See Tim Craig & Michael D. Shear, Allen Quip Provokes Outrage,
    Apology; Name Insults Webb Volunteer, Wash. Post, Aug. 15, 2006, http:/
    /www.washingtonpost.com/wp-dyn/content/article/2006/08/14/
    AR2006081400589.html.
    ---------------------------------------------------------------------------
        We have also seen efforts to undermine the community's
    political voice, such as what happened during the 2004 primary
    elections in Bayou La Batre, Alabama. Supporters of a White
    incumbent, facing a Vietnamese American opponent during the
    primaries, challenged the eligibility of only Asian Americans
    at the polls by falsely accusing them of not being U.S.
    citizens or city residents, or of having felony
    convictions.\29\ The losing incumbent's rationale was ``if they
    couldn't speak good English, they possibly weren't American
    citizens.'' \30\ DOJ's investigation found the challenges
    racially motivated and prohibited interference from the
    challengers during the general election.\31\ That year, Bayou
    La Batre elected its first Asian American to the City
    Council.\32\ Similarly, in Harris County (Houston), Texas,
    during the 2004 Texas House of Representatives race,
    accusations of non-citizen voting were implied in the request
    for an investigation by the losing incumbent into the election
    resulting in the victory of Hubert Vo, a Vietnamese
    American.\33\ While both recounts affirmed Vo's victory, making
    him the first Vietnamese American State representative in Texas
    history, his campaign voiced concern that such an investigation
    could intimidate Asian Americans from political participation
    altogether in future elections.\34\
    ---------------------------------------------------------------------------
        \29\ See H.R. Rep. No. 109-478, at 45 (2006); Challenged Asian
    Ballots in Council Race Stir Discrimination Concerns, Associated Press,
    Aug. 30, 2004, at 2B.
        \30\ See DeWayne Wickham, Why Renew Voting Rights Act? Ala. Town
    Provides Answer, USA Today, Feb. 22, 2006, http://
    usatoday30.usatoday.com/news/opinion/editorials/2006-02-22-forum-
    voting-act_x.htm (quoting defeated City Council incumbent Jackie
    Ladnier).
        \31\ See Id.
        \32\ See Press Release, U.S. Dep't of Justice, Justice Department
    to Monitor Elections in New York, Washington, and Alabama (Sept. 13,
    2004), http://www.justice.gov/opa/pr/2004/September/04_crt_615.htm
    (``In Bayou La Batre, Alabama, the Department will monitor the
    treatment of Vietnamese-American voters.'').
        \33\ See Decided Victory: Heflin's Camp Swelled Store of
    Disinformation, Houston Chronicle, Feb. 9, 2005, http://www.chron.com/
    opinion/editorials/article/Decided-victory-Heflin-s-camp-swelled-store-
    of-1640120.php.
        \34\ See Id.; Thao L. Ha, The Vietnamese Texans, in Asian Texans:
    Our Histories and Our Lives, 263, 284-85 (Irwin A. Tang ed., 2007).
    ---------------------------------------------------------------------------

    Need for Restoring and Strengthening Section 5 To Protect Asian
                            American Voters

        Section 5 of the Voting Rights Act prohibits the
    implementation by covered jurisdictions of ``any voting
    qualification or prerequisite to voting, or standard, practice,
    or procedure with respect to voting'' without first receiving
    approval, or ``preclearance,'' from DOJ or the U.S. District
    Court for the District of Columbia.\35\ Section 5 applies to
    all voting changes in covered jurisdictions, including
    redistricting, annexation of other territories or political
    subdivisions, and polling place changes. Voting changes with a
    discriminatory purpose or with a retrogressive effect (i.e.,
    where the change puts minorities in a worse position than if
    the change did not occur) will not be pre-cleared and the
    submitting jurisdiction would be prohibited from adopting the
    voting change.
    ---------------------------------------------------------------------------
        \35\ 52 U.S.C. 1A10304. The following States are covered by section
    5: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South
    Carolina, Texas, and Virginia. Only certain counties or towns in the
    following states are covered under section 5: California, Florida,
    Michigan, New York, North Carolina, and South Dakota. It must be noted,
    however, that even if only a part of a jurisdiction is covered by
    section 5, congressional and State legislative redistricting plans for
    the entire State must be submitted for review. For a detailed listing
    of counties and towns covered, please visit http://www.justice.gov/crt/
    about/vot/sec_5/covered.php.
    ---------------------------------------------------------------------------
        In enacting the VRA in 1965, Congress recognized that
    previous efforts to litigate discriminatory voting practices
    were limited in their effectiveness as particularly
    recalcitrant jurisdictions would simply replace the struck-down
    discriminatory practice with another, newer discriminatory
    practice. Responding to the persistent nature of discriminatory
    schemes in voting, Congress developed a mechanism in the VRA to
    provide a ``check'' on whether proposed voting changes by
    particularly bad actors would be problematic for minority
    voters--section 5 preclearance. This infrastructure
    (preclearance) has been critical to (a) prevent discriminatory
    voting practices from going into effect, (b) provide notice to
    the community about potential discriminatory changes and (c)
    provide a cost-effective and swift mechanism to determine
    whether a proposed voting change should be approved. As a
    result, voting became more accessible to all communities.
        Because of the changing demographics of this country,
    section 5 is needed more than ever. Racial tensions often occur
    when groups of minorities grow rapidly in an area and where
    there is an increase in political relevance of that minority
    community, such as Asian American communities across the
    country.\36\ This can lead to fear of and resentment toward
    Asian Americans by those in power, which can then result in
    hampering the Asian American community's exercising of their
    right to vote free of harassment and discrimination.
    ---------------------------------------------------------------------------
        \36\ See generally Toni Monkovic, Why Donald Trump Has Done Worse
    in Mostly White States, New York Times, Mar. 8, 2016, http://
    www.nytimes.com/2016/03/09/upshot/why-donald-trump-has-done-worse-in-
    mostly-white-states.html?_r=0 (``Political scientists have written
    about the importance of tipping points in ethnic strife or resentment
    around the globe. It occurs when one group grows big enough to
    potentially alter the power hierarchy.''); see also Audrey Singer, Jill
    H. Wilson & Brooke DeRenzis, Metropolitan Policy Program at Brookings,
    Immigrants, Politics, and Local Response in Suburban Washington (2009),
    https://www.brookings.edu/wp-content/uploads/2016/06/
    0225_immigration_singer.pdf (noting that longtime residents of Prince
    William County, Virginia, perceived that their quality of life was
    diminishing as Latinos and other minorities settled in their
    neighborhoods); James Angelos, The Great Divide, New York Times, Feb.
    20, 2009, http://www.nytimes.com/2009/02/22/nyregion/thecity/
    22froz.html? _r=3&pagewanted=1 (describing ethnic tensions in
    Bellerose, Queens, New York, where the South Asian population is
    growing); Ramona E. Romero & Cristo<1bal Joshua Alex, Immigrants
    Becoming Targets of Attacks, National Campaign to Restore Civil Rights,
    Jan. 26, 2009, http://rollback.typepad.com/campaign/2009/01/it-has-
    happened-again-in-early-december-less-than-a-month-after-seven-
    teenagers-brutally-attacked-and-killed-marcelo-luc.html (describing the
    rise in anti-Latino violence where the immigration debate is heated in
    New York, Pennsylvania, Texas, and Virginia); Sara Lin, An Ethnic Shift
    Is in Store, Los Angeles Times, Apr. 12, 2007), http://
    articles.latimes.com/2007/apr/12/local/me-chinohills12 (describing
    protest of Chino Hills residents to Asian market opening in their
    community where 39% of residents were Asian).
    ---------------------------------------------------------------------------
        This has been seen throughout our country's history.
    Concerns about the political impact of new immigrants to
    American ran rampant and drove many policy decisions around the
    contours of suffrage.\37\ However, ``[i]ntense as apprehensions
    about poor European immigrants may have been, they paled in
    comparison to American attitudes toward the Chinese and other
    east Asians: By the final quarter of the nineteenth century,
    most Americans--and especially those on the West Coast--wanted
    not only to keep the Chinese from voting but to halt Chinese
    immigration and even deport those who were already here.'' \38\
    But the federal bar on Chinese (and eventually all Asian)
    immigration was not enough for some in the states. For example,
    in California in the late 1870s, an anti-Chinese political
    party promoted a ``a slew of measures designed to remove the
    Chinese from the state's economic and political life. One
    proposal even called for disfranchising anyone who hired a
    Chinese worker.'' \39\ Their efforts resulted in ``the
    California Constitutional Convention of 1878-1879 . . .
    pass[ing] almost without objection a series of anti-Chinese
    articles. One delegate claimed that without such laws,
    California would become `the mercenary Mecca of the scum of
    Asia--a loathsome Chinese province.' Although many of these
    measures were thrown out by the courts, the suffrage provision
    of the 1879 constitution remained in force until 1926. It
    specified that ``no native of China'' (the wording was aimed at
    circumventing the Fifteenth Amendment's ban on racial barriers)
    `shall ever exercise the privileges of an elector in this
    State.' '' \40\
    ---------------------------------------------------------------------------
        \37\ Alexander Keyssar, Right to vote: The contested history of
    democracy in the United States (2008) (``Right to Vote'').
        \38\ Id. at 113.
        \39\ Id. at 114.
        \40\ Id. Similar provisions appeared in the constitutions of Oregon
    and Idaho.
    ---------------------------------------------------------------------------
        Today, the Asian American population is growing rapidly in
    previously covered section 5 jurisdictions. Georgia and North
    Carolina are among the three fastest-growing Asian American
    populations during the last decade.\41\ Five of the states
    covered in their entirety and another four states covered
    partially by section 5 are among the top 20 states with the
    fastest-growing Asian American populations. The remaining
    covered states all experienced a growth in their Asian American
    populations.\42\ As Asian American communities continue to grow
    and move to nontraditional cities and areas of the country, we
    have seen an increase in racial appeals and racial
    discrimination in elections. The aforementioned ``perpetual
    foreigner'' stereotype is embedded in the political process.
    Insidious manifestations of the stereotype can be found in the
    verbal attacks levied against Asian American candidates and
    voters, negative political ads that use the misconception of
    ``Asia'' as an enemy to the U.S., and manipulation of images of
    candidates to trigger negative stereotypes of minority
    candidates. As reported in previous testimony by Asian
    Americans Advancing Justice--AAJC, the following excerpt
    provides some incidents occurring in the South against Asian
    American candidates and voters:
    ---------------------------------------------------------------------------
        \41\ Terry M. Ao, Alyson Hong, & Sophia Lai, Census 2000: Asian
    Population Demographic Data, 10 (2002), http://
    www.advancingequality.org/files/census_handbook.pdf.
        \42\ Id.

            In November 2005, a candidate of South Asian descent, Tom
            Abraham, running for City Council Seat 4 in Orange City,
            Florida was mocked by his opponent for his accent at a
            community forum. His opponent, Dan Sherrill, claimed that he
            could not understand him and was quoted by the Orlando Sentinel
            as saying, ``I'm usually not prejudiced, but I don't want an
            Indian in my government. As far as I know, he could be a nice
            guy, but these kind of people get embedded over here. You
            remember 9/11.'' The St. Petersburg Times further reported that
            Sherrill said that voters wouldn't support Abraham if they saw
    ---------------------------------------------------------------------------
            and heard him . . . .

             . . .

            In May 2010, Americans for Job Security ran a television ad set
            in Bangalore, India with traditional South Asian music playing
            in the background. The ad utilized dark-skinned and accented
            actors dressed in traditional South Asian dress facetiously
            thanking U.S. Senate candidate and Arkansas Lieutenant Governor
            Bill Halter for outsourcing Arkansan jobs abroad . . . .

            In June 2010, State Senator Jake Knotts described South
            Carolina State Representative Nikki Haley, an Indian American
            who was running in the state's gubernatorial race, as ``[a]
            f__ing raghead . . . [w]e got a raghead in Washington; we don't
            need one in South Carolina . . . [s]he's a raghead that's
            ashamed of her religion trying to hide it behind being
            Methodist for political reasons.'' Knotts further stated he
            believed Haley had been set up by a network of Sikhs and was
            programmed to run for governor of South Carolina by outside
            influences in foreign countries. . . .

             . . .

            In September 2010, State Senator Nancy King targeted an
            opponent in the Maryland primary race for State Senate,
            Maryland State Delegate Saqib Ali, by sending mailers in which
            Ali's photograph was altered with darker skin tone and hair.
            Despite the King campaign's denial, the difference was clear
            when comparing the mailer to the original photo (that was also
            included in the mailer).\43\
    ---------------------------------------------------------------------------
        \43\ Testimony for the Senate Judicial Hearing on the Voting Rights
    amendment Act of 2014, S.1945, (June 25, 2014) (statement of Asian
    Americans Advancing Justice--AAJC) (footnotes omitted), http://
    vrafortoday.org/wp-content/uploads/2014/07/AAJC-Testimony-for-6-25-14-
    Senate-Judiciary-Hearing-on-VRAA.pdf.

        We have continued to see these racist attitudes and
    stereotypes permeate our political process over the last
    ---------------------------------------------------------------------------
    several election cycles:

          During the 2017 local and statewide elections in
    New Jersey, Asian American candidates were targets of racist
    propaganda. First, in Edison, New Jersey, two school board
    candidates, Jerry Shi and Falguni Patel were targeted with
    anti-immigrant mailers that said ``Make Edison Great Again''
    and calling for their deportation.\44\ The mailers said that
    "[t]he Chinese and Indians are taking over our town,'' and
    ``Chinese school! Indian school! Cricket fields! Enough is
    enough.'' \45\ Next, in Hoboken, New Jersey, Sikh mayoral
    candidate, Ravi Bhalla was targeted with racist flyers placed
    on car windshields in Hoboken with the message ``Don't let
    TERRORISM take over our town!'' above his picture.\46\
    Ultimately, despite these xenophobic attacks, all three Asian
    Americans won their elections.
    ---------------------------------------------------------------------------
        \44\ Amy B. Wang, `DEPORT': Racist Campaign Mailers Target Asian
    School Board Candidates, Washington Post, Nov. 2, 2017, https://
    www.washingtonpost.com/news/education/wp/2017/11/02/deport-racist-
    campaign-mailers-target-asian-school-board-candidates/?utm_term=.c84
    f7d1ab7a2.
        \45\ Id.
        \46\ Alyana Alfaro, Racist Campaign Literature Surfaces in New
    Jersey, Observer, Nov. 6, 2017, http://observer.com/2017/11/racist-
    campaign-literature-surfaces-in-new-jersey/.
    ---------------------------------------------------------------------------
          At a Congressional hearing on March 15, 2018,
    Japanese-American Congresswoman Hanabusa questioned Interior
    Secretary Ryan Zinke about why the Trump Administration
    ``cancelled funding for a program to preserve the history of
    internment camps that held people of Japanese ancestry--most of
    them Japanese-Americans--during World War II.'' \47\ As part of
    her questioning, Representative Hanabusa began by detailing her
    own family's experiences during this atrocious time in American
    history. In response, Secretary Zinke, began his response with
    an insensitive ``Oh, Konnichiwa.'' \48\ ``Konnichiwa is a
    Japanese expression that roughly translates to `good
    afternoon.' This prompted Hanabusa to shoot back that it was
    still morning, which meant `ohayo gozaimasu' would actually be
    the more appropriate greeting.'' \49\ Secretary Zinke's remarks
    demonstrate the ongoing ``perpetual foreigner'' problem faced
    by Asian Americans; although she is a fourth-generation
    American-born member of Congress, Secretary Zinke somehow
    thought it appropriate to greet the Congresswoman in Japanese.
    ---------------------------------------------------------------------------
        \47\ Interior Secretary Ryan Zinke criticized for internment camp
    remarks, CBS News, March 16, 2018, https://www.cbsnews.com/news/
    interior-secretary-ryan-zinke-criticized-for-internment-camp-remarks-
    colleen-hanabusa/.
        \48\ Id.
        \49\ Id.

        The community's population growth will also likely lead to
    increased efforts to undermine the political voice of Asian
    Americans similar to the recent and ongoing efforts to restrict
    access to the polls.\50\ Asian Americans are potential swing
    voters \51\ and are becoming numerous enough to make the
    difference in certain races, and they will be facing new, more
    aggressive tactics to minimize their political impact.
    ---------------------------------------------------------------------------
        \50\ See Ari Berman, Texas Voter ID Law Discriminates Against
    Women, Students and Minorities, The Nation, Oct. 23, 2013, http://
    www.thenation.com/blog/176792/texas-voter-id-law-discriminates-against-
    women-students-and-minorities# (noting that Texas' voter ID law likely
    would have an extremely disproportionate impact on Hispanic voters);
    Emily Deruy, Could New Voter ID Laws Really Disenfranchise 10 Million
    Latinos?, Fusion, Sep. 24, 2012, http://fusion.net/justice/story/voter-
    id-laws-hinder-10-million-eligible-latinos-11471 (arguing that recent
    proof of citizenship and photo identification requirements and voter
    roll purges had the potential to disenfranchise millions of Latino
    voters); and Christopher Ingraham, Study Finds Strong Evidence for
    Discriminatory Intent Behind Voter ID Laws, Washington Post, Jun. 3,
    2014, http://www.washingtonpost.com/blogs/wonkblog/wp/2014/06/03/study-
    finds-strong-evidence-for-discriminatory-intent-behind-voter-id-laws/
    (finding that State legislators who had supported voter ID laws were
    less likely to respond to emails sent from voters with Hispanic-
    sounding names).
        \51\ See Caitlin Yoshiko Kandil, Asian Americans' numbers and
    political influence are growing, Los Angeles Times, Sept. 22, 2016,
    http://www.latimes.com/socal/daily-pilot/entertainment/tn-wknd-et-0925-
    asian-american-voting-20160903-story.html; Seung Min Kim, The one big
    Senate race that Asian-Americans could decide, Politico, Aug. 25, 2016,
    https://www.politico.com/story/2016/08/senate-nevada-asian-american-
    voters-227366.
    ---------------------------------------------------------------------------
        Unfortunately, the U.S. Supreme Court weakened the VRA in
    Shelby County. The Court ruled 5-4 that the formula used to
    determine section 5 jurisdictions was based on ``decades-old
    data and eradicated practices,'' despite the extensive record
    confirming that these areas continued to commit acts of voting
    discrimination.\52\ Thus, while the Court did not invalidate
    section 5, it rendered it useless by invalidating the formula
    that determined what jurisdictions were required to submit
    voting changes for preclearance. But at the same time, the
    Court recognized that ``no one doubts'' that voting
    discrimination still exists and invited Congress to pass
    legislation with a modernized formula.\53\
    ---------------------------------------------------------------------------
        \52\ Shelby Cnty. v. Holder, 133 S.Ct. 2612, 2627 (2013).
        \53\ Id. at 2619.
    ---------------------------------------------------------------------------
        Since the Court invalidated the key enforcement provision
    of the Act in 2013, voting discrimination has become harder to
    stop. In states, counties, and cities across the country,
    legislators pushed through laws designed to make it harder for
    minorities to vote. For example, in 2013, mere months after the
    Shelby County decision, North Carolina--where the Asian
    American population increased by 85 percent between 2000 and
    2010--passed H.B. 589. The legislation restricted voting
    through a ban on paid voter registration drives; eliminated
    same-day voter registration; allowed voters to be challenged by
    any registered voter of the county in which they vote, rather
    than just their precinct; reduced early voting by a week;
    authorized vigilante poll observers with expanded range of
    interference; expanded the scope of who may examine
    registration records and challenge voters; repealed out-of-
    precinct voting; eliminated the flexibility in opening early
    voting sites at different hours within a county; and curtailed
    satellite polling sites for the elderly or voters with
    disabilities. In striking down the law, the Fourth Circuit
    found that the legislature purposefully and selectively decided
    to attack specific election laws that benefit African American
    voters in order to impede their political participation. In
    fact, the court noted that ``the new provisions target African
    Americans with almost surgical precision'' and ``impose cures
    for problems that did not exist.'' \54\ This litigation would
    not be necessary if section 5 were still in full force. Indeed,
    one State senator noted that it was because of the Court's
    decision in Shelby County that the legislature was free to ``go
    with the full bill,'' indicating his full awareness that they
    would never have received approval for the bill under the full
    protections of the VRA. In 2016, 14 states, including Alabama,
    Arizona, Mississippi, South Carolina, Texas, and Virginia,
    which were previously covered in full or in part by section 5,
    had new voting restrictions that include strict photo ID
    requirements and registration restrictions in place for the
    first time in a presidential election.\55\
    ---------------------------------------------------------------------------
        \54\ Robert Barnes and Ann E. Marimow, Appeals Court Strikes Down
    North Carolina's Voter-ID Law, Washington Post, July 29, 2016, https://
    www.washingtonpost.com/local/public-safety/appeals-court-strikes-down-
    north-carolinas-voter-id-law/2016/07/29/810b5844-4f72-11e6-aa14-
    e0c1087f7583_story.html?utm_term=.8e86e5a8273c. See also Complaint,
    North Carolina State Conference of the NAACP et al. v. McCrory et al.,
    No. 1:13-cv-658 (M.D.N.C. Aug. 12, 2013)., Complaint, League of Women
    Voters et al. v. North Carolina et al., No. 1:13-cv-00660 (M.D.N.C.
    Aug. 12, 2013)., and, Complaint, U.S. v. The State of North Carolina,
    No. 13-cv-861 (M.D.N.C. Sept. 30, 2013).
        \55\ Brennan Center for Justice, Webpage on New Voting Restrictions
    in America, https://www.brennancenter.org/sites/default/files/analysis/
    New_Voting_Restrictions.pdf.
    ---------------------------------------------------------------------------
        As noted in our forthcoming joint report with the Mexican
    American Legal Defense and Education Fund (MALDEF) and the
    National Association of Latino Elected and Appointed Officials
    (NALEO), a legislative fix to the Shelby County decision must
    include both a substitute coverage formula and a mechanism that
    also addresses the needs of emerging communities of color that
    face discrimination aimed to silence their political influence
    by those currently in power. A history-based coverage formula
    alone is not enough to protect the voting rights of emerging
    minority populations. The practice-based preclearance mechanism
    in HR 4 focuses on suspect practices that have historically
    been utilized to silence the political voice of communities of
    color and would require preclearance review (performed by
    either the Department of Justice or the federal District Court
    in Washington, DC) prior to implementation of the known
    practice.\56\ The coverage for Practice-Based Preclearance as
    contemplated by HR 4 would apply to diverse jurisdictions
    throughout the country, generally defined as those states and
    political subdivisions in which two or more racial, ethnic, or
    language minority groups each represent 20 percent or more of
    the citizen voting-age population or in which a single language
    minority group represents 20 percent or more of the voting-age
    population on Indian lands located in whole or in part in the
    political subdivision. These jurisdictions would only be
    required to seek preclearance if they are making one of the
    covered changes and not all voting changes. This is important
    for Asian American communities that are growing exponentially
    in new cities and counties, where they are beginning to emerge
    as a potential political power. Preclearance has been proven to
    protect the voting rights of Asian Americans and is needed
    today.
    ---------------------------------------------------------------------------
        \56\ See the forthcoming joint report from Advancing Justice--AAJC,
    MALDEF and NALEO on practice-based preclearance for a deeper analysis
    of the specific practices.
    ---------------------------------------------------------------------------
        Section 5 has helped address discriminatory redistricting
    plans that continue to be drafted in states with large Asian
    American communities. As shown in Perry v. Perez, 132 S. Ct.
    934 (2012), the Texas Legislature drafted a redistricting plan,
    Plan H283, that would have had significant negative effects on
    the ability of minorities, and Asian Americans in particular,
    to exercise their right to vote. Since 2004, the Asian American
    community in Texas State House District 149 has voted as a
    bloc. With Hispanic and African American voters to elect Hubert
    Vo, a Vietnamese American, as their State representative.
    District 149 has a combined minority citizen voting-age
    population of 62 percent.\57\ Texas is home to the third-
    largest Asian American community in the United States, growing
    72 percent between 2000 and 2010.\58\ In 2011, the Texas
    Legislature sought to eliminate Vo's State House seat and
    redistribute the coalition of minority voters to the
    surrounding three districts. Plan H283, if implemented, would
    have redistributed the Asian American population in certain
    State House voting districts, including District 149 (Vo's
    district), to districts with larger non-minority
    populations.\59\ Plan H283 would have thus abridged the Asian
    American community's right to vote in Texas by diluting the
    large Asian American populations across the state.\60\
    ---------------------------------------------------------------------------
        \57\ See United States and Defendant-Interveners Identification of
    Issues 6, Texas v. United States, C.A. No. 11-1303 (D.D.C.), Sept. 29,
    2011, Dkt. No. 53.
        \58\ See Community of Contrasts, Appendix B.
        \59\ See Martin Test. at 350:25-352:25. District 149 would have
    been relocated to a county on the other side of the State, where there
    are few minority voters. See http://gis1.tlc.state.tx.us/download/
    House/PLANH283.pdf.
        \60\ In fact, it was only due to section 5 that the Texas
    Legislature was not able to dilute the Asian American community's right
    to vote. Advancing Justice--AAJC's partner, the Texas Asian-American
    Redistricting Initiative (TAARI), working with a coalition of Asian
    American and other civil rights organizations, participated in the
    Texas redistricting process and advocated on the District 149 issue.
    Despite the community's best efforts, the Texas Legislature pushed
    through this problematic redistricting plan. However, because of
    section 5's preclearance procedures, Asian Americans and other
    minorities had an avenue to object to the Texas Legislature's
    retrogressive plan, and Plan H283 was ultimately rejected as not
    complying with section 5. See Texas v. United States, C.A. No. 11-1303
    (D.D.C.), Sept. 19, 2011, Dkt. No. 45, para. 3. Indeed, AALDEF
    submitted an amicus brief to the D.C. District Court illustrating how
    the Texas plan retrogressed the ability of Asian Americans to elect a
    candidate of their choice and violated section 5. However, the U.S.
    Supreme Court vacated the District Court of the District of Columbia's
    ruling suspending Texas' redistricting map as moot in light of their
    decision in Shelby.
    ---------------------------------------------------------------------------
        In addition to discrimination in redistricting, Asian
    American voters have also endured voting system changes that
    impair their ability to elect candidates of choice. For
    example, before 2001 in New York City, the only electoral
    success for Asian Americans was on local community school
    boards. In each election--in 1993, 1996, and 1999--Asian
    American candidates ran for the school board and won.\61\ These
    victories were due, in part, to the alternative voting system
    known as ``single transferable voting'' or ``preference
    voting.'' Instead of selecting one representative from single-
    member districts, voters ranked candidates in order of
    preference, from ``1'' to ``9.'' \62\ In 1998, New York
    attempted to switch from a ``preference voting'' system, where
    voters ranked their choices, to a ``limited voting'' system,
    where voters could select only four candidates for the nine-
    member board, and the nine candidates with the highest number
    of votes were elected.\63\ This change would have put Asian
    American voters in a worse position to elect candidates of
    their choice.\64\
    ---------------------------------------------------------------------------
        \61\ See Lynette Holloway, This Just In: May 18 School Board
    Election Results, New York Times, June 13, 1999, http://
    www.nytimes.com/1999/06/13/nyregion/making-it-work-this-just-in-may-18-
    school-board-election-results.html; Jacques Steinberg, School Board
    Election Results, New York Times, June 23, 1996, http://
    www.nytimes.com/1996/06/23/nyregion/neighborhood-report-new-york-up-
    close-school-board-election-results.html; Sam Dillon, Ethnic Shifts Are
    Revealed in Voting for Schools, New York Times, May 20, 1993, http://
    www.nytimes.com/1993/05/20/nyregion/ethnic-shifts-are-revealed-in-
    voting-for-schools.html.
        \62\ See Thomas T. Mackie & Richard Rose, The International Almanac
    of Electoral History, 508 (3d ed. 1991).
        \63\ See 1998 N. Y. Sess. Laws 569-70 (McKinney).
        \64\ See Letter from M. Fung, AALDEF Exec. Dir., and T. Sinha,
    AALDEF Staff Attorney, to E. Johnson, U.S. Dep't of Justice (Oct. 8,
    1998) (submitted to Congress and on file with counsel). See also,
    Voting Rights Act: section 5 of the Act-History, Scope, and Purpose,
    Hearing Before the H. Subcomm. on the Const., H. Judiciary Comm., 109th
    Cong. 1664-66 (2005) (appendix to statement of the Honorable Bradley J.
    Schlozman, U.S. Dep't. of Justice) (providing section 5 objection
    letter to Board and summarizing changes made to the voting methods,
    along with overall objections to the changes).
    ---------------------------------------------------------------------------
        Furthermore, the ability of Asian Americans to vote is also
    frustrated by sudden changes to poll sites without informing
    voters. For example, in 2001, primary elections in New York
    City were rescheduled due to the attacks on the World Trade
    Center. The week before the rescheduled primaries, AALDEF
    discovered that a certain poll site, I.S. 131, a school located
    in the heart of Chinatown and within the restricted zone in
    lower Manhattan, was being used by the Federal Emergency
    Management Agency for services related to the World Trade
    Center attacks. The Board chose to close down the poll site and
    no notice was given to voters. The Board provided no media
    announcement to the Asian language newspapers, made no attempts
    to send out a mailing to voters, and failed to arrange for the
    placement of signs or poll workers at the site to redirect
    voters to other sites. In fact, no consideration at all was
    made for the fact that the majority of voters at this site were
    limited English proficient, and that the site had been targeted
    for Asian language assistance under section 203.\65\ With
    section 5 no longer applicable in most jurisdictions,
    disruptive changes to polling sites, voting systems, and
    redistricting plans can now occur unfettered, wreaking havoc on
    Asian American voters' ability to cast an effective ballot.
    ---------------------------------------------------------------------------
        \65\ The voters were only protected from this sudden change that
    would have caused significant confusion and lost votes because DOJ
    issued an objection under section 5 and informed the Board that the
    change could not take effect. The elections subsequently took place as
    originally planned at I.S. 131, and hundreds of votes were cast on
    September 25. See Asian American Legal Defense and Education Fund,
    Asian Americans and the Voting Rights Act: The Case for
    Reauthorization, 41 (2006), http://www.aaldef.org/docs/AALDEF-
    VRAReauthorization-2006 .pdf.
    ---------------------------------------------------------------------------

                               Conclusion

        Despite the gains that have been made since the enactment
    of the VRA, more is left to be done. Voting discrimination, as
    Chief Justice Roberts acknowledged in his opinion, is still
    very real and very current. The U.S. Census Bureau forecasts
    that while the number of Asian immigrants will grow between now
    and 2040, the proportion of Asian Americans who are immigrants
    will decrease, with high naturalization rate and in increase of
    U.S.-born Asian Americans in the coming years. It is likely
    that voter participation rates among the Asian American
    community, and indeed its political visibility, will only
    increase. It is precisely for these reasons that restoring and
    strengthening the Voting Rights Act is a top priority for our
    organization.

        Mr. Cohen. Thank you, sir, Mr. Yang. I appreciate it very
    much.
        Our next witness is Ms. Janai Nelson, associate director-
    counsel for the NAACP Legal Defense Fund. A member of the LDF's
    litigation and policy team, she was one of the lead counsels of
    Veasey v. Abbott, the Federal challenge to Texas' voter ID law.
    Prior to joining the LDF, in 2014 she was associate dean for
    faculty scholarship and associate director of Ronald H. Brown
    Center for Civil Rights and Economic Development at St. John's
    University School of Law, where she was a full professor of
    law.
        J.D. from UCLA, articles editor at the UCLA Law Review,
    consulting editor of the National Black Law Journal, and
    associate editor of the UCLA Women's Law Journal. She has a
    B.A. from NYU in Mr. Nadler's district. She has served as a law
    clerk for the Honorable Theodore McMillian on the U.S. District
    Court of Appeals for the Eighth Circuit and the Honorable David
    Coar of the U.S. District Court for the Northern District of
    Illinois.
        Ms. Nelson, you are recognized for 5 minutes. Thank you.

                       TESTIMONY OF JANAI NELSON

        Ms. Nelson. Chairman Cohen, Ranking Member Johnson,
    Chairman Nadler, and Members of the subcommittee, my name is
    Janai Nelson, and I am the associate director-counsel of the
    NAACP Legal Defense and Educational Fund.
        On behalf of the Legal Defense Fund, I extend our deepest
    condolences for the loss of the Honorable Elijah Cummings. He
    was a dear friend of our institution, and we regret his death
    immeasurably.
        Thank you for the opportunity to testify this morning on
    the might of Congress' enforcement power in the area of voting
    and the critical need to exercise that power by passing the
    Voting Rights Advancement Act. LDF has fought to secure,
    protect, and advance voting rights for Black voters and other
    voters of color since its founding in 1940 by Thurgood
    Marshall.
        From our early victory in 1944 eliminating all-white
    primaries in Texas to our victory a full 70 years later in 2014
    proving the racially discriminatory intent and effect of Texas'
    voter ID law, LDF has challenged both blatant racially
    exclusionary voting barriers and their modern-day corollaries.
    As a result, we can attest to the exigent need for Congress to
    restore and strengthen the Voting Rights Act of 1965. Indeed,
    Congress has the explicit constitutional duty to ensure the
    equally protected vote of every eligible voter regardless of
    race.
        Racial discrimination in voting is so antithetical to our
    democratic ideals that we amended the Constitution to expressly
    prohibit it and to expressly delegate to Congress the ability
    to enforce its protections, and it is that power that we ask
    Congress to exercise today.
        Since the Supreme Court's decision in Shelby County v.
    Holder, gutting the VRA's preclearance provision in 2013, there
    has been a proliferation of discriminatory voting practices
    across the country. More than 16 States have passed laws that
    made it more difficult for African Americans and other voters
    of color to vote. LDF recently published a report summarizing
    some of the barriers Black voters faced in seven States in the
    2018 midterm elections--Alabama, Florida, Georgia, Louisiana,
    Mississippi, South Carolina, and Texas--where voters
    experienced poll closures, malfunctioning machines, inaccurate
    voter rolls, and long lines up to 4 hours.
        With your permission, I would like to enter our report,
    ``Democracy Defended: Analysis of Barriers to Voting in the
    2018 Midterm Elections,'' into the record.
        Mr. Cohen. Without objection, that will be done.
        [The information follows:]

                          JANAI NELSON FOR THE RECORD

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

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Ms. Nelson. Thank you.
        In addition, leading up to the 2018 elections, there were
    widely reported mass purges of Black and Latinx voters in
    Georgia and Ohio, fraud on Black voters using absentee ballots
    in North Carolina, and new onerous ID requirements imposed on
    Native American communities in North Dakota. In short, there is
    no shortage of discriminatory voting practices presently
    infecting our electoral process.
        The VRAA is a measured, flexible, and forward-looking
    effort to update the VRA with a new prescription for
    preclearance that is directly tied to current voting rights
    violations. It is precisely what Shelby County asked and
    commands of Congress, to ``draft another formula based on
    current conditions.'' A formula that demonstrates that
    exceptional conditions justify Federal oversight of an
    extraordinary tool to confront racial discrimination in
    elections. That was an invitation to this body to enact new
    legislation.
        Consistent with that mandate, the VRAA's practice-based
    preclearance applies equally to all States and political
    subdivisions and is triggered only in jurisdictions that have a
    significant racial or language minority citizen voting age
    population and that seek to employ any of six categories of
    voting practices that are known to correlate with racial and
    language-based discrimination. It does not impose a ban on
    specific voting practices. It does not require continuing or
    permanent coverage. It doesn't have a targeted geographic
    scope, nor are there prescribed jurisdictions.
        Indeed, practice-based preclearance is constitutional
    precisely because it targets specific practices and their known
    impact on targeted populations and not the jurisdictional
    actor. Even though the Supreme Court has held that distinctions
    can be justified in some cases, practice-based preclearance
    does not offend the principle of equal sovereignty embraced by
    the majority in Shelby because it applies to each State equally
    based on current data.
        Finally, the Congressional Record contains ample evidence
    of and justification for practice-based preclearance based on
    persistent and ingenious methods of racially motivated voter
    suppression. Preclearance is long established as a valid
    exercise of power under South Carolina v. Katzenbach, which was
    decided a year after the Voting Rights Act. The Supreme Court
    has upheld the constitutionality of the Voting Rights Act, as
    well as Congress' power to ban facially neutral practices like
    literacy tests. I can cite to Oregon v. Mitchell and a plethora
    of other cases that uphold that principle, and I will end by
    saying that violations of the fundament right to vote are not
    ordinary harms. They require extraordinary remedies.
        Practice-based preclearance is a direct, measured, and
    constitutionally sound response to the current conditions of an
    increasingly racial diverse and multilingual electoral that are
    fraught with voter suppression. The VRAA is desperately needed
    to curb discriminatory incursions on the right to vote that
    compromise our elections and diminish the integrity of our
    democracy.
        Thank you.
        [The statement of Ms. Nelson follows:]

                       STATEMENT OF JANAI NELSON

                            I. Introduction

        Good morning, Chairman Cohen, Ranking Member Johnson,
    Chairman Nadler and Members of the Subcommittee. My name is
    Janai Nelson, and I am Associate Director-Counsel of the NAACP
    Legal Defense and Educational Fund, Inc. (``LDF''). Thank you
    for the opportunity to testify this morning on the
    constitutionality of Congressional oversight of voting rights
    legislation and the specific and urgent need for the strong
    provisions outlined in the Voting Rights Advancement Act
    (``VRAA'').
        Since its founding in 1940 by Thurgood Marshall, LDF has
    fought to protect and expand voting rights for Black voters and
    other communities of color. Through litigation, public policy,
    and public education, LDF seeks structural changes to expand
    democracy, eliminate disparities, and achieve racial justice in
    a society that fulfills the promise of equality for all
    Americans. LDF was launched at a time when the nation's
    aspirations for equality and due process of law were stifled by
    widespread state-sponsored racial inequality in every area of
    life. Our mission has always remained focused on racial justice
    and equality. In advancing that mission, protecting the right
    to vote for African Americans has been the epicenter of our
    work since our inception. Beginning with Smith v. Allwright,
    our successful U.S. Supreme Court case challenging the use of
    whites-only primary elections in 1944, LDF has been fighting to
    overcome a myriad of obstacles to ensure the full, equal, and
    active participation of Black voters.\1\
    ---------------------------------------------------------------------------
        \1\ 321 U.S. 629 (1994).
    ---------------------------------------------------------------------------
        LDF has consistently been a leader in the struggle to
    secure, protect, and advance voting rights for Black voters and
    has repeatedly defended the gains and protections won over the
    course of our nearly 80-year history. For these reasons, we are
    particularly well-positioned and qualified to definitively
    State that there is a critical need for Congress to restore and
    strengthen the Voting Rights Act of 1965 (``VRA''). In each
    reauthorization of the VRA, LDF has played a critical role:
    providing testimony at congressional hearings, publishing
    research detailing places with persistent racial discrimination
    in voting and defending the right to vote through litigation.
    Threats to our electoral system are threats to the very
    foundation of our democracy and require comprehensive remedies.
    Congress has the explicit constitutional duty to protect the
    right of every eligible person to vote, and to ensure that each
    vote counts. Indeed, racial discrimination in voting is so
    pernicious, so antithetical to our democratic ideals, that we
    amended the U.S. Constitution to expressly prohibit it and to
    expressly delegate power to Congress to enforce its
    protections.\2\
    ---------------------------------------------------------------------------
        \2\ U.S. Const. amend. XV.
    ---------------------------------------------------------------------------
        Since the Supreme Court's 2013 decision in Shelby County v.
    Holder there has been a proliferation of discriminatory voting
    practices across the country.\3\ By gutting the VRA's
    preclearance provision in Shelby, the Supreme Court allowed
    jurisdictions with a history and ongoing record of voting
    discrimination to change their laws without scrutiny or
    oversight from any federal authority. Predictably, within hours
    of the decision, states and jurisdictions formerly covered by
    section 5, adopted voter suppression practices that were
    formerly prevented by preclearance.\4\ section 5 preclearance
    was an efficient and effective mechanism for detecting and
    redressing the many forms of discrimination before elections
    take place--without preclearance, these discriminatory
    practices now undermine our democratic process. The immense
    record of discriminatory voting practices enacted since the
    2013 Shelby decision demands Congress fulfill its
    constitutional obligation to protect voters from an onslaught
    of new and ``ingenious methods'' of voter discrimination.\5\
    ---------------------------------------------------------------------------
        \3\ Shelby County, Ala. v. Holder, 570 U.S. 529 (2013).
        \4\ Ed Pilkington, Texas Rushes Ahead With Voter ID Law After
    Supreme Court Decision, The Guardian (June 25, 2013), https://
    www.theguardian.com/world/2013/jun/25/texas-voter-idsupreme-court-
    decision.
        \5\ U.S. Congress, House, Committee on the Judiciary Voting Rights,
    89th Cong., 1st sess., 1965, Mar. 18-19, 23-25, 29-Apr. 1, 1965.
    ---------------------------------------------------------------------------
        It is past time for Congress to act. The VRA is universally
    acknowledged as the most successful and most transformative
    piece of legislation to emerge from the Civil Rights Movement.
    It enshrined our most fundamental values ensuring dignity and
    equality for all citizens by guaranteeing the right to vote,
    which the Supreme Court has called ``preservative of all
    rights.'' \6\ For decades, the VRA authorized Congress to
    enforce the Fourteenth and Fifteenth Amendments when federal
    and State governments ignored and circumvented their
    directives. Congress reauthorized the VRA on four separate
    occasions--in 1970, 1975, 1982, and most recently in 2006--each
    time on a bipartisan basis, with overwhelming support.
    ---------------------------------------------------------------------------
        \6\ Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).
    ---------------------------------------------------------------------------
        It is not only imperative that Congress restore the Voting
    Rights Act, but that it authorizes an Act that addresses the
    modern needs and political climate of the nation. The Voting
    Rights Advancement Act does precisely that: It establishes a
    new coverage formula for preclearance that is tied to recent
    voting rights violations and strengthens other aspects of the
    VRA to better address the ingenious methods that are, and will
    be, used to suppress the full voting strength of African
    Americans and people of color.

        II. The Proposed Known Practices Coverage Provision Is
      Constitutional on its Face and Consistent with Longstanding
                        Supreme Court Precedent

        Congress has a critical opportunity to pass the Voting
    Rights Advancement Act, a measured, flexible and forward-
    looking effort to update the VRA. Faced with an extensive
    record of racial discrimination in voting practices, Congress
    must act
        swiftly, deliberately and boldly to restore the now-defunct
    preclearance provision. In Shelby, the Supreme Court provided
    instructions for Congress to Act in this very instance. The
    Court did not overrule the constitutionality of a measured and
    properly tailored preclearance provision--nor did it render
    other remedies inherently unconstitutional. Indeed, the Supreme
    Court found preclearance a ``stringent'' and ``potent''
    measure, fully available to Congress to deploy as an
    ``extraordinary'' tool to confront racial discrimination in
    elections and voting systems.\7\ Racial and ethnic
    discrimination is an extraordinary harm that necessitates the
    extraordinary remedy of preclearance. We urge Congress to
    employ the full force of its authority in order to protect the
    American people from such a malicious and extraordinary
    harm.\8\ The Known Practices Coverage (KPC) provision of the
    VRAA is a necessary tool to that end.
    ---------------------------------------------------------------------------
        \7\ Shelby County, 133 S. Ct. 2612, slip op. at 11-12.
        \8\ Shelby County, 133 S. Ct. 2612, slip op. at 11-12.
    ---------------------------------------------------------------------------
        The KPC provision of the VRAA would require federal
    preclearance of voting practices that are known to correlate
    with racial or language-based discrimination only in
    jurisdictions that have a significant racial or language
    minority citizen voting age population. Indeed, while the
    formula applies equally nationwide to all jurisdictions, it is
    only triggered if a State actor chooses to adopt or pursue one
    of five categories of voting practices with a known
    disproportionate, discriminatory impact.\9\ Coverage,
    therefore, is not based on geography but rather combines a
    demographic threshold with the prevalence of specific, known
    practices of voting rights discrimination. Accordingly, KPC is
    constitutional specifically because its emphasis is decidedly
    on the practices themselves and not the jurisdictional actor.
    In this regard, states remain ``equal in power, dignity and
    authority'' per the Shelby County mandate.\10\
    ---------------------------------------------------------------------------
        \9\ Proposed Sec. 4(c)(2).
        \10\ Shelby County, 133 S.Ct. at 2623 (citing Coyle v. Smith, 221
    U.S. 559, 567 (1911).
    ---------------------------------------------------------------------------
        Importantly, KPC also does not impose a strict ban on any
    specific voting practices. Instead, the identified practices
    are subject to federal preclearance to ensure against potential
    discrimination based on race or language minority status
    thereby ensuring compliance with Supreme Court precedent. It is
    a valid exercise of Congress's constitutional power to require
    that practices known to most likely result in racial or
    language discrimination--practices with entrenched and virulent
    histories of voting discrimination--can be subject to
    preclearance.
        KPC is a reasonable, flexible response to the very
    standards articulated by the Supreme Court. It does not
    arbitrarily subject states or political subdivisions to
    disparate treatment. Rather, it singles out specifically
    tailored discriminatory practices for federal oversight. It has
    no specific geographic scope and does not require continuing or
    permanent coverage. It does not offend the principle of equal
    sovereignty embraced by the majority in the Shelby decision.
    Moreover, as the Court noted in NAMUDNO v. Holder, where it
    first introduced the principle of equal sovereignty as a
    constraint on congressional power in connection with the VRA,
    ``distinctions can be justified in some cases.'' \11\ The
    congressional record contains ample evidence and justification
    for KPC on the basis of persistent and ingenious methods of
    racially motivated voter suppression.
    ---------------------------------------------------------------------------
        \11\ 557 U.S. 193 (2009).
    ---------------------------------------------------------------------------
        Furthermore, Congress's authority to outlaw practices that
    are not per se unconstitutional but are known to perpetuate
    racial discrimination stands on ample precedent. The Supreme
    Court has repeatedly found that Congress's enforcement powers
    have broad reach. In South Carolina v. Katzenbach, the Supreme
    Court upheld the constitutionality of the VRA and Congress's
    power to ban certain discriminatory voting practices as a
    rational exercise of authority.\12\ While the Court recognized
    that voting practices like literacy tests were presumptively
    lawful and facially neutral, it held that such practices could
    still be employed to diminish minority voting power and impede
    equal political participation. Furthermore, such practices were
    recognized by judicial and legislative bodies to serve no
    legitimate purpose other than to perpetuate the exclusion of
    African Americans from the political process.\13\ The court
    therefore found that Congress ``may use any rational means to
    effectuate the constitutional prohibition of racial
    discrimination in voting,'' including a nationwide ban of this
    known discriminatory practice.\14\
    ---------------------------------------------------------------------------
        \12\ South Carolina v. Katzenbach, 383 U.S. 301 (1966).
        \13\ See Lassiter v. Northampton County Board of Elections 360 U.S.
    45 (1959).
        \14\ South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).
    ---------------------------------------------------------------------------
        In Oregon v. Mitchell, the Court again affirmed Congress's
    authority to overturn State laws governing elections if
    necessary.\15\ The Court found article 1 section 4 of the
    Constitution and the Necessary and Proper Clause gave the
    States the power to make laws that govern elections and,
    according to a ``long line of decisions in th[e] Court,'' gave
    Congress the ``ultimate supervisory power over congressional
    elections.'' \16\ Importantly, the Court recognized that the
    legislative record surrounding the Thirteenth, Fourteenth,
    Fifteenth, and Nineteenth Amendments also supported the finding
    that Congress has the authority to prevent racial
    discrimination in the electorate without infringing on states'
    rights.
    ---------------------------------------------------------------------------
        \15\ Oregon v. Mitchell, 400 U.S. 112 (1970).
        \16\ Oregon v. Mitchell, 400 U.S. 112, 124 (1970).
    ---------------------------------------------------------------------------
        In City of Rome v. United States, the Court found it
    permissible for Congress to identify and overturn changes to
    the voting process that had racially discriminatory effects--
    whether intentional or not.\17\ Indeed, while the City of Rome
    proved it had not pursued electoral changes with any racially
    discriminatory purpose, its proposed changes were denied by the
    Department of Justice as they prevented African Americans from
    securing local representation. The Court recognized that
    Congress's power to repeal changes to voting practices, even in
    the absence of intentional racial discrimination, was derived
    from the Fifteenth amendment and ruled in favor of the
    Department of Justice.
    ---------------------------------------------------------------------------
        \17\ City of Rome v. United States, 446 U.S. 156, 177-78 (1980).
    ---------------------------------------------------------------------------
        The Supreme Court has continued to affirm the proposition
    that ``[l]egislation which deters or remedies constitutional
    violations can fall within the sweep of Congress's enforcement
    power even if in the process it prohibits conduct which is not
    itself unconstitutional and intrudes into legislative spheres
    of autonomy previously reserved to the States.'' \18\ In both
    Tennessee v. Lane and Nevada Dept. of Human Resources v. Hibbs,
    the Supreme Court found that Congress may enact ``prophylactic
    legislation'' to prohibit practices that are facially
    constitutional but discriminatory in effect.\19\ In Kimel v.
    Florida Bd. of Regents, the Court further elaborated that
    Congress's ``power `to enforce' the [Fourteenth] amendment
    includes the authority both to remedy and to deter violation of
    rights guaranteed.'' \20\
    ---------------------------------------------------------------------------
        \18\ City of Boerne v. Flores, 521 U.S. 507, 518 (1997).
        \19\ See Tennessee v. Lane, 541 U.S. 509, 518-20 (2004); Nevada
    Dept. of Human Resources v. Hibbs, 538 U.S. 721, 727-28 (2003).
        \20\ Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81 (2000).
    ---------------------------------------------------------------------------
        Indeed, even after the Shelby decision, the Circuit Courts
    have reaffirmed Congress's power to enact prophylactic
    legislation under the Thirteenth, Fourteenth and Fifteenth
    amendments.\21\ It is well documented and well established in
    both the legislative record and caselaw that Congress has the
    authority to identify and prohibit manipulations of the voting
    process that could be used to disenfranchised minority voters.
    ---------------------------------------------------------------------------
        \21\ See, e.g., U.S. v. Metcalf, 881 F. 3d 641, 644-45 (8th Cir.
    2018); Veasey v. Abbott, 830 F. 3d 216, 253 n.47 (5th Cir. 2016) (en
    banc); U.S. v. Cannon, 750 F. 3d 492, 503-505 (5th Cir. 2014); U.S. v.
    Hatch, 722 F.3d 1193, 1201 (10th Cir. 2013).
    ---------------------------------------------------------------------------
        In banning these practices, Congress relied heavily on the
    extensive record of evidence showing depressed voter turnout
    and registration in jurisdictions in which these measures were
    used.\22\ By holding congressional hearings, field hearings and
    engaging in a detailed fact-finding process, while considering
    the KPC provision of the VRAA, Congress today operates with the
    same care and caution.
    ---------------------------------------------------------------------------
        \22\ South Carolina, 383 U.S. at 309-313.
    ---------------------------------------------------------------------------

     III. Full Restoration of the Voting Rights Act Is Critical to
                     the Integrity of Our Democracy

        Evidence of widespread discrimination against Black voters
    is overwhelming and growing, and the need for legislative
    action to protect the integrity of our democracy is urgent. The
    2013 Shelby decision has undermined the Voting Rights Act, made
    our democracy vulnerable and allowed for voter suppression to
    go unchecked. Even one election in which the right to vote is
    restricted, threatened, or violated, is one election too many.
        Violations of our electoral system are not ordinary harms
    and must therefore be met with extraordinary remedies. An
    election with conditions later found to be racially
    discriminatory, has consequences that existing methods of
    defense cannot combat. Officials elected under unlawful
    conditions influence and create policy that affects all
    constituents in their jurisdiction. They may write and
    implement legislation that allows them to maintain power or
    that targets communities with viable claims of discrimination.
    Even if future elections are not tainted by discriminatory
    practices, those elected to office under unlawful conditions
    have already accessed and used powers intended only for
    candidates who constituents fairly and democratically elected.
    The inability of the courts to retroactively correct these
    wrongs further disenfranchises and threatens to disengage
    voters who may understandably believe that their vote does not
    matter if discriminatory voting practices are left unchecked.
    Racially discriminatory practices in the electoral system have
    consequences that preclearance can prevent and correct.
    Preclearance was designed as a unique and powerful intervention
    to stop discrimination before elections take place.
        While section 2 of the VRA authorizes plaintiffs to
    challenge racial discrimination in voting after a
    discriminatory voting practice is implemented and is a vital
    tool of enforcement, it cannot redress some of the most
    egregious voting harms. And, while civil rights groups like LDF
    continue to actively pursue litigation to protect voting rights
    under section 2 of the VRA, we know that litigation alone is
    insufficient to stymie the innumerable assaults on the right to
    vote. We know that justice has been delayed and denied for
    millions of eligible voters across the country.
        Even when we prevail in section 2 cases, irreparable damage
    is already done. In Texas, during the three years we spent
    challenging the state's voter ID law, elections continued to
    take place. In that time, and under conditions the court later
    found impermissible, voters elected a U.S. senator, all 36
    Members of the Texas delegation to the U.S. House of
    Representatives, a Governor, a Lieutenant governor, an Attorney
    General, a Controller, various statewide Commissioners, four
    Justices of the Texas Supreme Court, candidates for special
    election in the State Senate, State boards of education, 16
    State senators, all 150 Members of the State House, over 175
    State court trial judges, and over 75 district attorneys. We
    proved at trial that more than half a million eligible voters
    were disenfranchised by the ID law but there was no retroactive
    solution available. As a result, the voices and votes of
    thousands were successfully suppressed.
        Voters should not have to wait years to ensure that their
    constitutional right to vote is vindicated. Voters should not
    have to spend an exorbitant amount of money to litigate a
    section 2 case, to ensure their vote has been counted.\23\
    Litigation is time consuming and expensive.
    ---------------------------------------------------------------------------
        \23\ NAACP LDF, The Cost (in Time, Money, and Burden) of section 2
    of the Voting Rights Act Litigation (Feb. 14, 2019), https://
    www.naacpldf.org/wp-content/uploads/Section-2-costs02 .14.19.pdf.
    ---------------------------------------------------------------------------
        In addition to KPC, a full restoration of the VRA should
    include provisions that address other modern challenges to our
    democracy: The disenfranchisement of formerly incarcerated
    people and cyber threats to our election systems. We strongly
    urge Congress to adopt the democracy restoration provisions
    included in HR 1, For the People Act, along with KPC to further
    strengthen its impact.\24\
    ---------------------------------------------------------------------------
        \24\ See For the People Act, H.R. 1, 116th Cong. Sub. E, title I,
    Sec. 1402.
    ---------------------------------------------------------------------------
        People of color, specifically African Americans, are
    disproportionately represented in the prison population.
    Restoring federal voting rights to returning citizens would
    roll back unduly restrictive disenfranchisement laws that bar
    formerly incarcerated people from participating in democracy
    and fully returning to society. LDF has been instrumental in
    challenging these restrictive laws across the country.
    Recently, we filed suit challenging the implementation of a
    thinly-veiled poll tax designed invalidate the express intent
    of amendment 4 to the Florida Constitution, the Voting
    Restoration Amendment.\25\ Congress must do its part to remove
    obstacles to voting for the nearly 4.7 million disenfranchised
    citizens who have been released from incarceration and are
    still denied the right to vote in federal elections.\26\
    ---------------------------------------------------------------------------
        \25\ Gruver, et al. v. Barton, et al., No. 1:19-cv-121 (N.D. Fla.
    2019).
        \26\ Morgan McLeod, The Sentencing Project, Expanding the Vote: Two
    Decades of Felony Disenfranchisement Reform, (Oct. 2018), https://
    www.sentencingproject.org/publications/expanding-vote-two-decades-
    felony-disenfranchisement-reforms/.
    ---------------------------------------------------------------------------
        Congress must also address how digital platforms are
    increasingly used to influence elections.\27\ As our democracy
    faces new and pervasive threats, we encourage Congress to
    confront these digital threats within the historic context of
    race in the public space. HR 1 includes provisions to prevent
    deceptive cyber-practices and to require the Director of
    National Intelligence to conduct regular checks on foreign
    threats.\28\ It is critical that Congress Act to investigate
    and legislate these activities that threaten to severely
    compromise the integrity of our elections.
    ---------------------------------------------------------------------------
        \27\ NAACP LDF, LDF Responds to Facebook's New Policy on False
    Voter Information Ahead of Election (Oct. 16, 2018) https://
    www.naacpldf.org/press-release/ldf-responds-facebooks-new-policy-false-
    voter-information-ahead-election/;https://www.washingtonpost.com/
    opinions/its-time-to-face-the-facts-racism-is-a-national-security-
    issue/2018/12/18/f974646-02e8-11e9-b5df-
    5d3874f1ac36_story.html?utm_term=.8a1252669166.
        \28\ See For the People Act, H.R. 1, 116th Cong. Sub. D, title I,
    Sec. 1302.
    ---------------------------------------------------------------------------

                             IV. Conclusion

        The mounting record of discriminatory voting changes since
    the Shelby decision requires decisive, comprehensive and
    restorative Congressional action. Congress has the ultimate and
    distinguished authority to enforce the anti-discrimination
    principle articulated in the Fourteenth and Fifteenth
    Amendments, to protect the vote of every eligible citizen and
    ensure that their vote counts.
        There have been approximately 10 federal court decisions
    finding that states or localities intentionally discriminated
    against voters of color since 2013. There is no doubt that
    racial discrimination in voting continues to be relentlessly
    pursued. We will continue to fight racial discrimination in
    electoral systems wherever it may arise, and we will continue
    to use all the tools provided to us by Congress. But it is
    imperative that Congress use its authority to strengthen the
    Voting Rights Act by implementing a new preclearance provision.
    The Known Practices Coverage provision deftly responds to the
    Supreme Court's express invitation to Congress to ``draft
    another formula based on current conditions'' that demonstrates
    that ``exceptional conditions'' to justify federal oversight of
    State election law practices.\29\ KPC is a direct, measured,
    and constitutionally sound response to the current political
    conditions of an increasingly racially diverse and multi-
    lingual electorate in a context fraught with voter suppression.
    This hearing and fact-gathering process are critical to laying
    the foundation to fully restore the VRA and enable Congress to
    exercise its vital enforcement powers to protect the right to
    vote. Thank you.
    ---------------------------------------------------------------------------
        \29\ 570 U.S., 133 S.Ct. at 2631.

        Mr. Cohen. Thank you very much.
        We will now start our questioning, and I will start and
    first ask Ms. Nelson a question. Professor Eastman stated in
    his written testimony that section 2's prohibition on voting
    measures that have a discriminatory impact, as opposed to ones
    that are intentionally discriminatory, is constitutionally
    suspect. What is your response to that, Ms. Nelson?
        Ms. Nelson. Well, my first response is that that is not the
    focus of this hearing, although I believe we owe a response to
    an inquiry that intends to lead us in a different direction.
        The Voting Rights Act has been upheld on multiple occasions
    by the Supreme Court, both section 5 and section 2. Section 5
    was most recently clearly rubberstamped by this current Court
    in 2013 in the Shelby County decision that all of us lament.
    The one thing that came out of that that we can rely on for
    some assurance is that the Court had an opportunity to say that
    it was unconstitutional and did not.
        Instead, it extended an invitation to this body to come
    back with a new preclearance formula, and that is exactly what
    this body has done, and I hope we will adopt that measure.
        In terms of the Voting Rights Act as a whole, the Supreme
    Court has never applied the congruence and proportionality test
    that Mr. Eastman suggests that came out of the City of Boerne
    v. Flores to legislation under the Fifteenth Amendment.
    Congress draws heavily upon the enforcement powers of the
    Fifteenth amendment in its exercise of enforcement powers in
    enacting the Voting Rights Act and enforcing its provisions.
        Congress has only--the Court, sorry, has only applied that
    in connection with the Fourteenth Amendment, and in that
    context, the Voting Rights Act has actually been used as a
    beacon of what congruence and proportionality looks like, and I
    can cite to several cases that establish that.
        Mr. Cohen. Let me ask you one other thing. In his written
    testimony, he also said preclearance formula fails the
    congruence and proportionality test, which you were talking
    about, with respect to Congress' authority under the Fourteenth
    Amendment, implicitly importing a testless limitation on our
    Fifteenth amendment authority. Do you find that to be without
    basis?
        Ms. Nelson. Without merit, absolutely. Just to say one word
    about the congruence and proportionality test, what it seeks to
    do is ensure that when Congress enacts legislation, it is
    seeking to remedy and deter congressional violations and not
    create new constitutional rights. That is precisely what the
    Voting Rights Act does. It is seeking to remedy violations that
    many of us here on this panel have identified and that have
    already put into the record.
        It seeks so deter those constitutional violations by
    ensuring that there is preclearance and Federal oversight of
    voting changes. It does not in any way alter the fundamental
    right to vote that the Supreme Court established back in 1886
    as preservative of all rights.
        Mr. Cohen. Do you happen to know the history in the 1965
    Act when section 5 was first passed, what the history was on
    that and why they felt that was necessary?
        Ms. Nelson. Well, the history in 1965 came on the heels of
    a bloody and violent protest for the right to vote.
    Congresswoman Sewell mentioned earlier the very tragic events
    in her hometown of Selma that gave rise to the Voting Rights
    Act, and that was really just the culmination of decades of
    violence visited upon African Americans who dared to exercise
    their citizenship through the political process.
        Mr. Cohen. Most of those States that were in that formula
    were in the Old South. You mentioned some States in your
    testimony where you had had litigation, and they were Texas,
    Louisiana, Mississippi, Alabama, Georgia, South Carolina, and
    there might have been another one, but I think that has got it?
        Ms. Nelson. Missouri and--yes, that was not covered by
    section 5.
        Mr. Cohen. Well, yes, but then they joined the SEC. So, in
    essence, they admitted they probably should have been there. It
    is a sports thing.
        [Laughter.]
        Mr. Cohen. Did not the States that were chosen pretty much
    mirror the problems that have existed in our Nation with civil
    rights laws that have tried to inhibit people's right to vote?
        Ms. Nelson. So back in 1965, the States that were covered
    under section 5 were States with some of the most virulent
    histories of racial discrimination in voting. There were others
    that ultimately came to be covered under section 5, including
    my home State of New York and New York City, portions of the
    city that engaged in racial discrimination.
        Mr. Cohen. They did a pretty good job. We have limited
    time. So, I want to ask Professor Kousser, who is the
    statistics pro, pretty much you showed where most of the cases
    have been brought were in those jurisdictions which were
    covered by the preclearance requirement. Give us a little flesh
    on the bones of that.
        Mr. Kousser. Yes, that is true. Also, the '70 and '75 laws
    were important. About 20 percent of the instances come from
    Texas, which wasn't covered in the original '65 act.
        Mr. Cohen. They were in the Southwest Conference.
        Mr. Kousser. That is true. It is interesting, if you look
    at cases from '57 to '65, there were States that were covered
    by the '65, by section 4 under '65 that were--that had no cases
    from '57 to '65. Both Carolinas, Virginia, no cases during that
    period of time. Congress knew where the voting restrictions
    were, but they weren't necessarily exactly where cases had been
    brought.
        Now we have got a lot more experience. We have got all this
    experience from 1957 through 2019 in my tables and database,
    which will be available for the Committee to look at if they
    want to figure out what practices and where they are. We know
    much more fully than people did in 1965 exactly where voting
    practices, which have been adjudicated to be illegal or were
    parts of settlements or parts of objections, we know exactly
    where they were. So, if Congress wants to base something on
    that, it has a much fuller legislative record than they had in
    '65.
        Mr. Cohen. Thank you, Professor.
        I recognize Mr. Johnson for questions.
        Mr. Johnson of Louisiana. I want to thank you all for being
    here. Don't interpret the empty chairs on either side as lack
    of interest. This is an extraordinary day on Capitol Hill for
    about 15 reasons that I don't need to recount to you, and there
    are multiple events and Committee hearings going on
    simultaneously.
        We have had some of the Republican Members come in and out
    of the back. We are all watching you on a big screen in that
    room right on the other side of the wall. So, what you say here
    is important for the record. You know how this works.
        I am watching all of you and your faces, as there has been
    testimony and questioning. Let me just start first with
    Professor Eastman. Is there anything that has been said so far
    that you would just want to respond to that you haven't had a
    chance to already?
        Mr. Eastman. Two things. I agree with Ms. Nelson that the
    Supreme Court has not yet applied its ruling in City of Boerne
    to Fifteenth Amendment, but the enforcement language of section
    2 of the Fifteenth amendment is identical to the enforcement
    language of section 5 of the Fourteenth Amendment. The notion
    that they would read that language differently is, therefore,
    not something I would anticipate this Court doing.
        The second thing, I would really like to explore with
    Professor Kousser, and I know he is not an attorney, but if I
    could have him in deposition, I would like to explore the
    question because he divided his dataset pre and post 1982.
    Well, a dramatic change in the Voting Rights Act occurred in
    1982. We changed section 2 from an intentional discrimination
    statute to a disparate impact statute.
        So, I would like to ask whether his dataset controlled for
    that? If there was an increase in section 2 intentional
    discrimination cases, there might be evidence of an ongoing
    problem. If what you have got is new cases that could not have
    been brought prior to '82, that is no indication of a problem
    with the existing section 2, it is that we have now got a new
    cause of action that didn't exist before, and I strongly
    suspect it is the latter.
        Mr. Johnson of Louisiana. Let me stop you, and I will go to
    Professor Kousser. Would you want to respond to that answer?
        Mr. Kousser. I will be happy to. What I was trying to show
    was that things didn't get better suddenly, as you move on in
    the years, that after '82, there were three times as many
    violations after '82 as there were before '82. There was a
    considerable disagreement as to whether the amendments in 1982,
    which I testified on in 1981, were clarification of the law or
    a change in the law.
        The section 2 had almost never been used before 1980 before
    the Bolden case, and so most of the litigation and the events
    from pre '82 don't consider, didn't concern section 2. Section
    2 was invigorated simply by the discussion and by the fact that
    you had specific--a specific checklist in the Senate report for
    exactly what you had to do to litigate and win a section 2
    case.
        So, there were changes to be sure that more attention was
    devoted. I don't think that there was a change in congressional
    intention. I think Congress had the intent of having an effect
    provision in section 2 beforehand.
        Mr. Johnson of Louisiana. Let me put the volley back to
    Professor Eastman. So, do you want to respond to that?
        Mr. Eastman. Yes. Look, the Supreme Court held in--I am
    drawing a blank on the case name in 1980 that section 2 only
    reached intentional discrimination, in fact, all it can reach
    under the City of Boerne ruling. Because to add to that, to
    impose a disparate impact cause of action where there is not a
    constitutional violation would be adding to the burdens on the
    States, not enforcing the burdens on the States contained in
    the Fourteenth and Fifteenth Amendment.
        So, Congress deliberately changed 1982 in reaction to that
    case to make clear that it would allow for disparate impact
    claims that had not been the case before, and that is a huge
    distinction because any single procedure that you change,
    whether you move a polling place down a block, you can make the
    case it is going to have a disparate impact. There is no
    question that leads to increase in litigation over those
    things, increased claims of preclearance, increased grounds for
    denial of preclearance. All these things when you go from
    intentional discrimination, as prohibited by the Fourteenth and
    Fifteenth Amendment, to disparate impact is going to
    necessarily drastically increase the potential opportunities
    for litigation and challenges.
        So, it is not a surprise after those changes. It is also a
    change, as I note in my written testimony, makes that provision
    more constitutionally problematic after the City of Boerne. The
    Court has never confronted that issue, but it has been lurking
    out there ever since City of Boerne came in. Lots of
    scholarship written about raising that, trying to defend Voting
    Rights Act after City of Boerne raising the challenges.
        I think eventually this Court is going to confront that
    issue, and they have hinted several times in recent opinions
    that they are going to do that.
        Mr. Johnson of Louisiana. Unfortunately, I am out of time.
    I had a whole long list of questions, and we may submit them to
    you all after the hearing, if you wouldn't mind--
        Mr. Cohen. If you would like to choose the best one, I will
    let you do it.
        Mr. Johnson of Louisiana. Well, all right. Since you did
    that, I am going to pitch it out to Mr. Tyson. Anything you
    would want to add that hasn't been said yet. I will do that.
        Mr. Tyson. I will be brief, Mr. Chairman. There is one
    thing I thought that would be worth clarifying.
        The question related to a lot of the terminology that is
    thrown around, such as the term ``voter purges'' that are used.
    A lot of times what is being referred to as ``voter list
    maintenance.'' Under the Help America Vote Act, under the NVRA,
    there is a need of jurisdictions to conduct list maintenance,
    and the failure to conduct that kind of maintenance to keep the
    voter roles updated will lead to further litigation against a
    State.
        So, in looking at what a State has or has not done in terms
    of their list maintenance, I think it is important to look at
    not only the numbers of individuals and the people who were
    canceled or moved to a different status, but also what the
    State has done.
        For example, in Georgia, there was a period of time where
    there were no removals because of concerns about the data
    quality that led to a higher number at one point. Then, since
    2018, this year Georgia has significantly updated the ``no
    contact'' portion of our voter list maintenance to where people
    have a much longer time period.
        Mr. Cohen. Thank you. That is about the same time as I went
    over.
        Mr. Nadler?
        Chairman Nadler. Thank you, Mr. Chairman.
        Let me first say that the conclusion that Congress rejected
    on disparate impact was decided by the Supreme Court in the
    Mobile v. Bolden case in 1980, but that was a statutory, not a
    constitutional interpretation. Congress clarified that the Act
    applied to disparate impact as well as to intentional
    discrimination.
        Also, I should say that as one of the authors of the
    Religious Freedom Restoration Act passed in 1993, I was
    certainly no fan and I am no fan of the City of Boerne decision
    and which limited that act, and I certainly hope it is not
    extended to the Fifteenth Amendment. It is bad enough on the
    Fourteenth.
        Professor Kousser, in your analysis of voting rights
    litigation, you concluded that the pattern of overall cases was
    driven less by the amount of discrimination than by the nature
    of Supreme Court rulings, essentially that the Court creates
    its own lens through which to shape findings of discrimination.
        How should Congress respond to the Court's influence in
    evaluating the continuing need for section 5 preclearance and
    the structure of section 2 litigation? How should we take
    account of that?
        Mr. Kousser. What you shouldn't do is say that the number
    of cases has gone down, and therefore, that proves there is no
    need. You should take into account over a longer period of
    time--before Shelby County, before Bossier, too, even perhaps
    before Shaw v. Reno--the number of cases that came about and
    that were filed and won.
        You should take into account the experience under the
    California Voting Rights Act, which has different sorts of
    standards. That is an indication that there are still problems
    to be addressed. If you look over the whole period of time and
    you looked farther into the database than I was able to go into
    in 5 minutes or even in my written testimony, you can see the
    different practices that have been used over the period of time
    that have had a discriminatory effect on minorities and have
    been judged to.
        Chairman Nadler. Thank you. Mr. Saenz, I have three
    questions for you.
        First, what is the strongest constitutional basis for H.R.
    4's practice-based preclearance provision?
        Mr. Saenz. I think that it satisfies your constitutional
    powers, however analyzed, whether that is under the Shelby
    County decision, whereas Ms. Nelson pointed out it does not
    focus on specific jurisdictions. It does not single out
    specific jurisdictions.
        Again, I have your concerns as well--the Boerne test were
    to apply, that it would satisfy that measure of your
    congressional authority as well. These are practices that
    historically have correlated with attempts to restrict that
    rights of growing minority communities, and I think the record
    shows that.
        Indeed, all of our experience after Shelby County suggests
    it as well, where the Pasadena, Texas case, for example,
    involved a mayor who asserted I couldn't do this before Shelby
    County. Now, I am going to do it. I want to shift from eight-
    member districts to six-member districts and two at-large
    seats.
        Chairman Nadler. Thank you. Now, inherent in what you are
    saying is the answer to my next question, which is how is H.R.
    4's practice-based preclearance provision responsive to the
    federalism concerns raised by the Supreme Court in Shelby
    County?
        Mr. Saenz. Yes. I think that it responds to those concerns
    by not focusing on any specific jurisdictions, but treating all
    jurisdictions, as long as they meet a threshold of diversity
    and the size of minority populations and subjects' practices
    rather than jurisdictions to the very efficient preclearance
    mechanism.
        Chairman Nadler. In the same vein, how do you reconcile
    support for practice-based preclearance with the push to re-
    establish the more traditional geographic-based preclearance
    regime?
        Mr. Saenz. I think that they serve different needs. The
    geographic-based preclearance formula recognizes that there are
    creative efforts in certain jurisdictions with long histories,
    demonstrated, adjudicated histories of voting rights
    suppression where you ought to look at all the electoral
    changes that are being considered, no matter what they may be.
    While known practices coverage focuses only on specific
    identified practices, but with respect to those where there is
    a long history of violations, appropriate to look at all the
    potential electoral changes being considered.
        Chairman Nadler. That would be well within Congress' power
    under the section 2 of the Fifteenth Amendment?
        Mr. Saenz. Absolutely. I believe that it would meet any
    test that could be applied to those coverage formulas because
    the record supports very strongly that the jurisdictions that
    would come under the geographic formula do have that recent
    demonstrated adjudicated history. The practices and known
    practices coverage have a similar history across jurisdictions
    of being used to suppress minority voting rights.
        Chairman Nadler. Thank you very much. My time has expired.
    I yield back.
        Mr. Cohen. Thank you, Mr. Nadler.
        I recognize Ms. Scanlon for 5 minutes of questioning.
        Ms. Scanlon. Thank you.
        Ms. Nelson, we have appropriated a substantial budget for
    the Department of Justice to enforce voting rights based on the
    statutes we already have. Why do we need other statutory tools
    to combat discrimination based on race or ethnicity in our
    elections?
        Ms. Nelson. I will respond I think there are two reasons.
    One is that the tools that we have are important and robust.
    They are necessary, but not sufficient. We have seen since 2013
    a flood of voter suppression tactics that would never have
    passed preclearance had section 5 been enforced.
        In fact, as my colleague Tom Saenz has already said, from
    the moment the decision was issued, you had attorney generals,
    mayors, and had election officials across the country
    acknowledging that they were going to enact laws that had
    previously been held to be racially discriminatory, that they
    were then going to enact them despite that clear evidence.
        The other answer I would give is that we need laws that
    will protect voters, no matter the Administration, no matter
    the will of any particular Department of Justice to enforce the
    laws that we have. Preclearance does just that. It allows for
    transparency in electoral processes. It allows for the
    Government or, in fact, forces the Government to have to opine
    on voting changes in jurisdictions that meet the criteria of
    preclearance--I am sorry, practice-based preclearance.
        Ms. Scanlon. Okay. Back in February, we had the Acting
    Attorney General, Mr. Whitaker, in here, and at that time, we
    established through his testimony or refusal to testify that
    the Department of Justice under the current Administration had
    not brought any actions to enforce the Voting Rights Act. Is
    that still true?
        Ms. Nelson. I believe that is still true. I don't know of
    any action that is currently pending, despite what is widely
    reported as an epidemic of voter suppression, particularly
    leading up to an election that we already know has--is
    threatened by not only domestic voter suppression tactics, but
    foreign interference that is also rooted in racial
    discrimination, particularly against African Americans.
        Ms. Scanlon. So, the acts that we are looking at here today
    would provide mechanisms that would supplement Department of
    Justice enforcement where the Department of Justice isn't doing
    that job?
        Ms. Nelson. That is right. It would certainly force that. I
    think the VRA, we are focusing on practice-based preclearance,
    but it has many other critical provisions, including the
    transparency provisions, which I think are the most obvious and
    innocuous ones that we could have. We should at least know when
    there are changes that might affect minority populations and
    other targeted populations in the country so that we can be
    ready to combat them if necessary, and if certain triggers are
    met, that they will have to go through some Federal oversight.
        Ms. Scanlon. I was struck a couple of times. People have
    mentioned the language of persistent or unremitting and
    ingenious efforts to suppress the vote. It certainly feels as
    though we have seen some of that ingenuity on display since the
    Shelby decision. So, can you just speak a little bit more to
    how the known practices coverage is responsive to the Supreme
    Court's concerns in Shelby?
        Ms. Nelson. Sure. You know, the Supreme Court said that the
    section 4 coverage provision was outdated, that it relied on
    the data that we opened the hearing with, was largely based on
    Southern States, targeted a particular geographic area of the
    country, and seemingly unfair.
        So, whether we agree with that notion or not, this
    practice-based preclearance addresses that issue by making this
    a preclearance provision that is national in scope. Any State,
    any political jurisdiction might fall under this preclearance
    provision, but only if it reaches a certain threshold in terms
    of minority or language-based population and if it is engaging
    in one of six potential voting practices that we know are known
    to correlate with racial and language-based discrimination.
        So, we are not guessing. These are already practices that
    have a history of discrimination, and we have a large number of
    people who might be subject to that discrimination within that
    jurisdiction. That is a recipe for potential suppression, and
    all we are asking is that the Federal Government look at that
    law and determine whether it will, in fact, suppress the
    minority vote.
        Ms. Scanlon. That is because it is pretty hard to remedy a
    suppression of the vote after the fact, isn't it?
        Ms. Nelson. That is right. Once a violation of the right to
    vote has occurred, we can use other tools to challenge it. But
    if it involves an election, that election is already passed. As
    someone said earlier, the bell cannot be un-rung, and those
    rights to vote cannot be vindicated.
        This can't be a democracy in which we treat the right to
    vote so cavalierly.
        Ms. Scanlon. Thank you very much for your testimony. I
    yield back.
        Mr. Cohen. Ms. Garcia, you are recognized for 5 minutes.
        Ms. Garcia. Thank you, Mr. Chairman, and thank you for
    bringing this hearing to fruition. It is a very important issue
    for so many of us across this country.
        I want to thank also all the witnesses who are here today.
    By 2020, Latinos are expected to become the largest nonwhite
    voter population in the United States. The Pew Research Center
    estimates that 32 million Latinos could cast a ballot in the
    next national election.
        Some of us agree that the increase in anti-immigrant
    policies, in political speech and rhetoric is part of what is
    driving many Latinos to the poll, as well as was the case in my
    district and in Harris County during the 2018 elections.
    Franchising our minority voters will have widespread benefits
    for all Americans and will strengthen our democracy, already
    the strongest democracy in the world.
        To protect our voting rights of eligible voters, today I
    introduced PASA, the Polling Access Safety Act, a bill that
    will prohibit interior immigration enforcement around polling
    places. We need stronger laws to ensure that Presidents--and as
    you stated, Ms. Nelson, not just this one, but for the future--
    can't use their extraordinary powers, including using the tools
    of ICE, to manipulate our elections in other ways. For example,
    to try to scare registered voters away from the polls.
        PASA aims to ensure that the Latino vote is fully
    protected, eliminating the chilling effect that immigration
    enforcement could have on voter turnout on U.S. Citizens.
        So, I would like to start with you, Mr. Vargas, and thank
    you for the kind words in your opening statement. Would you
    agree that interior immigration enforcement around polling
    places would chill a voter turnout for Latino U.S. citizens in
    mixed status families?
        Mr. Vargas. Thank you, Congresswoman, for that question.
        Absolutely. H.R. 4 identifies only six known practices that
    have been used to suppress Latino voting, but there are many
    other tactics that have been used, including the placement of
    law enforcement officials at or near polling locations. So
    certainly, the placement of immigration enforcement officials
    at or near polling locations would be designed to suppress the
    Latino vote.
        We have seen this already happen in other jurisdictions
    around the country where the placement of law enforcement,
    specifically in Latino-heavy polling locations, were designed
    to scare away Latinos from voting.
        Ms. Garcia. Well, thank you for that because I agree with
    you. I personally have experienced receiving a purging letter.
    I have experienced getting to the poll and being told that my
    name was on the list. I have experienced going to a poll and
    machines not being ready.
        I mean, there are so many tools, and I was glad to see that
    Mr. Tyson brought up purging because I think there is more and
    more of that going on, particularly in my home State,
    regretfully, of Texas.
        So, Mr. Saenz, a question for you. What is the latest
    status of the issue with the last purging scandal in Texas,
    where it was alleged that all these voters were quote,
    unquote--and I hate the word, never use it, except I am quoting
    this--``illegal aliens.'' I mean, we knew it was false. We knew
    it was bogus. But what is the status of the current litigation?
        Mr. Saenz. So, fortunately, that litigation was resolved
    with the secretary of State withdrawing and being required to
    withdraw his letter seeking to cause counties to question
    whether naturalized citizens who had naturalized after going to
    the DMV to obtain a license had legitimate places on their
    voter rolls. It was a purge that targeted, as you know,
    naturalized citizens.
        The State knew that DMV records were not an accurate
    reflection of current citizenship status, but despite knowing
    that, it moved forward with challenging and asking county
    registrars to challenge the legitimacy of every person who had
    gone to the DMV when they were not yet a citizen.
        The latest, though, is that this Administration is
    currently attempting to access DMVs around the country in
    different States to use that data, faulty for the same reason
    the data was faulty in Texas for the purpose of voter purge,
    use that data to determine the current citizenship of the
    population around the country. It is again knowing that the
    data isn't accurate but using it to target naturalized
    citizens.
        Ms. Garcia. Thank you.
        Finally, and I only have about 30 seconds, Mr. Kousser,
    your Table 2 of your testimony highlights several important
    conclusions about patterns of discrimination. In whiter
    counties, those in which non-Hispanic whites exceeded 80
    percent of the CVAP, the proportion of counties with at least
    one successful voting rights action was six times as high in
    the covered counties as the noncovered counties.
        Can you explain how a focus on litigation findings can
    target areas where there is a concentration of discrimination?
        Mr. Kousser. Well, obviously, using the congruent and
    proportional language of Boerne, it can find exactly where that
    discrimination has been and provide a more accurate record and
    a concentrated record, a coordinated record that Congress--on
    which Congress can base further designs of a new coverage
    scheme that the Supreme Court has asked for.
        Ms. Garcia. Thank you. Thank you, Mr. Chairman. Like
    others, I have other questions that I may submit for the record
    later.
        Mr. Cohen. You are welcome. Thank you, Ms. Garcia.
        Ms. Garcia. Thank you.
        Mr. Cohen. Ms. Sheila Jackson Lee of Texas is recognized.
        Ms. Jackson Lee. Mr. Chairman, thank you very much.
        To the multiple witnesses, let me thank you for your
    testimony. We are overlapping in Committee assignments, and as
    well, many of us are mourning the loss of my friend and
    colleague, the Honorable Elijah Cummings, and so we were
    addressing his passing in a public setting.
        I would offer to say that he would want us to be in this
    room because there were many occasions that we worked together
    that he worked with the leaders of this committee, including
    Chairman Cohen, on trying to address these questions.
        Let me just for an editorial moment indicate how simple it
    was in 1965 to just write a simple voting rights bill that
    carried us forward and created the opportunity for my
    predecessor, the Honorable Barbara Jordan, to serve for the
    first time in any public setting.
        Barbara Jordan had run in the scheme that was structured in
    Texas, which was an at-large scheme, if you will. So, if you
    lived in a community of color, you had to run county wide. She
    lost every single time. It was only when the voting rights and
    the underpinnings of the Voting Rights Act came that it was one
    vote, one person, but you had the right to select the person of
    your choosing that she went for the first time to the State
    senate.
        Many people think she went to Congress. She went to the
    State senate in a district that she was able to win in. Then
    ultimately came to her opportunity to serve in the United
    States Congress out of a district, becoming one of two African
    Americans to serve in the United States Congress since
    Reconstruction.
        So, I am disturbed that we are even at this place. In the
    last reauthorization of the Voting Rights Act that had all the
    bells and whistles that we think were appropriate, 15,000 pages
    of testimony that we had the same construct, signed by a
    Republican President. Suddenly, a skewed Supreme Court that
    didn't understand that even if you think you don't have polio,
    according to Justice Ginsburg, you don't need to get rid of the
    vaccination, and here we are today.
        So, I would like to those who want to answer the question
    of why do we believe that we are here today when we had a
    perfectly good structure, and I know that we are focusing on
    legislation. Then I am going to give two questions, and I hope
    in the course of that time, you will be able to answer it.
        I know that we are looking at some very outstanding
    legislation by Members of this Congress, Mr. Sensenbrenner and
    Ms. Sewell, who testified today. We thank them so very much.
        It is a complicated process, one that we know that we have
    had the input of many civil rights organizations, but it is
    still going to tie our hands of looking for 15 or 25 and how
    many communities and then a lookback period. I want to hear
    from someone is there any other mode that we should add that
    may provide--and don't be fearful that you are undermining the
    present legislation. That is not the case.
        I would be interested in that. I would be interested in,
    Mr. Kousser, on your observing. You observed that in the Shelby
    County opinion, Justice Roberts was able to pick and choose,
    pick and choosing from misleading statistics to contend that
    the factual underpinnings that previous Supreme Court decisions
    had judged that satisfied treating different States and
    localities differently had now been fatally weakened. Can you
    explain where Justice Roberts was wrong? That is a specific
    question.
        Then to Mr. Yang, what are some examples of how known
    practices coverage would have impacted emerging Asian-American
    communities outside formerly covered in section 5. Let me put
    my first question, that overall question to Ms. Nelson, and add
    in there the work the NAACP did on felons that intimidates
    African Americans, Hispanics, and others that this whole thing
    if you are felon that you can't vote, and it discourages people
    from going.
        Just the overall problem of having to get into the weeds of
    all these complicated layers that is going to be so complicated
    in order to protect people's right to vote. So, I ask
    Chairman's indulgence. Mr. Kousser am I pronouncing your name
    correctly, sir?
        Mr. Kousser. That is correct.
        Ms. Jackson Lee. All right. Then Mr. Yang, the two specific
    questions. Ms. Nelson? Thank all the other witnesses.
        Ms. Nelson. Thank you for that question. I will try to be
    brief.
        I think it was Mr. Tyson who mentioned earlier the issue of
    voter purging. That is something that we know, and we have
    recent proof of, a process that can be manipulated to remove
    minority voters from the voting rolls. In fact, this
    Administration attempted to create an entire commission aimed
    at list maintenance that ultimately intended to purge minority
    voters, and it was shut down by the lawsuits brought not only
    by the NAACP Legal Defense Fund, but many of our allies, and it
    was ultimately an abandoned effort.
        That does not mean, though, that State and local actors
    can't engage in the same sort of mischief and target minority
    voters. So, if I had to choose an additional way to strengthen
    this legislation, that would certainly be one.
        Then, of course, you raised the issue of the
    disenfranchisement of persons with criminal convictions. The
    Legal Defense Fund has long advocated for the elimination of
    any restriction that is tied to a criminal conviction, whether
    the individual is incarcerated or not. The right to vote is
    something that should stand alone and apart from any criminal
    sentence, and we are currently litigating that issue in Florida
    and have been doing that for a few decades now.
        If we could make that mandatory, the elimination of any
    felon disenfranchisement laws in Federal elections, that would
    be an enormous step forward in re-enfranchising millions of
    African Americans and Latinos who have been deprived of their
    right to vote, and the community contagion that is similar to
    what happens when you have mixed status families who are
    intimidated by people at the polls, when you have certain
    Members of your family who cannot vote because of a criminal
    conviction, it actually spreads throughout the community in
    terms of depressing civic engagement and creating voter apathy.
        So that is something that we would certainly press for if
    we had to expand this legislation in any way.
        Mr. Cohen. Thank you very much, and thank--
        Ms. Jackson Lee. Can Yang and Kousser just quickly? They--
        Mr. Cohen. Well, to be honest, I have got to be somewhere,
    and we are 2 minutes over.
        Ms. Jackson Lee. Can they be 2 minutes answering?
        Mr. Cohen. No, they can't. I am going to have to call time.
        Ms. Jackson Lee. All right, Mr. Chairman.
        Mr. Cohen. Thank you, thank you.
        This concludes today's hearing. I want to thank all 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.
        This hearing is adjourned.
        [Whereupon, at 12:21 p.m., the Subcommittee was adjourned.]

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