[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
         
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               Available via: http://judiciary.house.gov
               
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                       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\
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    \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\
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    \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/.
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    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\
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    \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).
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    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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