[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE VOTING RIGHTS ACT:
A CONTINUING RECORD OF DISCRIMINATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
THURSDAY, MAY 27, 2021
__________
Serial No. 117-24
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
46-229 WASHINGTON : 2022
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY McBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
PERRY APELBAUM, Majority Staff Director and Chief Counsel
CHRISTOPHER HIXON, Minority Staff Director
------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
DEBORAH ROSS, North Carolina, Vice-Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana, Ranking
HENRY C. ``HANK'' JOHNSON, Jr., Member
Georgia TOM McCLINTOCK, California
SYLVIA R. GARCIA, Texas CHIP ROY, Texas
CORI BUSH, Missouri MICHELLE FISCHBACH, Minnesota
SHEILA JACKSON LEE, Texas BURGESS OWENS, Utah
JAMES PARK, Chief Counsel
C O N T E N T S
----------
Thursday, May 27, 2021
Page
OPENING STATEMENTS
The Honorable Deborah Ross, Vice-Chair of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties from the State
of North Carolina ............................................. 1
The Honorable Michelle Fischbach, a Member of the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties from the
State of Minnesota............................................. 3
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 4
WITNESSES
Janai Nelson, Associate Director--Counsel, NAACP Legal Defense
and Educational Fund
Oral Testimony................................................. 7
Prepared Testimony............................................. 9
Jon M. Greenbaum, Chief Counsel and Senior Deputy Director,
Lawyers' Committee for Civil Rights Under Law
Oral Testimony................................................. 28
Prepared Testimony............................................. 30
T. Russell Nobile, Senior Attorney, Judicial Watch
Oral Testimony................................................. 45
Prepared Testimony............................................. 47
Wendy R. Weiser, Vice President, Democracy, Brennan Center for
Justice
Oral Testimony................................................. 59
Prepared Testimony............................................. 61
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
Materials submitted by the Honorable Sylvia Garcia, a Member of
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties from the State of Texas for the record
Testimony from the Honorable Sylvia Garcia, June 25, 2014...... 98
A letter to Attorney General Garland from the Texas Democratic
Delegation................................................... 143
A letter to the Honorable Charles Schumer, Majority Leader of
the U.S. Senate from the State of Texas from the Texas
Democratic Congressional Delegation.......................... 146
Materials submitted by the Honorable Sheila Jackson Lee, a Member
of the Subcommittee on the Constitution, Civil Rights, and
Civil Liberties from the State of Texas for the record
Statement from the Honorable Sheila Jackson Lee, dated June 25,
2014,........................................................ 150
An article entitled, ``Gov. Abbott limits mail ballot drop-off
locations, forcing Harris County to close 11 sites,'' Houston
Chronicle.................................................... 162
An article entitled, `` `Racist voter suppression': Texas laws
keep Latinos from the ballot box, groups say,'' NBC News..... 164
An article entitled, ``Analysis: It's harder to vote in Texas
than in any other state,'' The Texas Tribune................. 169
An article entitled, ``Texas Supreme Court again blocks Harris
County from sending mail-in ballot applications to all
voters,'' Texas Tribune...................................... 171
An article entitled, ``Greg Abbott's Voter Suppression Methods
Have Become More Subtle--But They're Still Transparent,''
Texas Monthly................................................ 173
APPENDIX
Materials submitted by Jon M. Greenbaum, Chief Counsel and Senior
Deputy Director, Lawyers' Committee for Civil Rights Under Law,
submitted by Steve Cohen, a Member of Subcommittee on the
Constitution, Civil Rights, and Civil Liberties from the State
of Tennessee for the record.................................... 182
Materials submitted by Wendy R. Weiser, Vice President,
Democracy, Brennan Center for Justice, submitted by Steve
Cohen, a Member of Subcommittee on the Constitution, Civil
Rights, and Civil Liberties from the State of Tennessee for the
record......................................................... 182
OVERSIGHT OF THE VOTING RIGHTS ACT:
A CONTINUING RECORD OF DISCRIMINATION
----------
Thursday, May 27, 2021
U.S. House of Representatives
Subcommittee on the Constitution, Civil Rights,
and Civil Liberties
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to call, at 10:04 a.m., via
Zoom, Hon. Deborah Ross [Vice Chair of the Subcommittee]
presiding.
Members present: Representatives Nadler, Raskin, Ross,
Johnson of Georgia, Garcia, Bush, Jackson Lee, Jordan, and
Fischbach.
Staff present: David Greengrass, Senior Counsel; John Doty,
Senior Advisor; Moh Sharma, Member Services and Outreach
Advisor; Jordan Dashow, Professional Staff Member; Cierra
Fontenot, Staff Assistant; John Williams, Parliamentarian;
James Park, Chief Counsel for Constitution; Keenan Keller,
Senior Counsel; Will Emmons, Professional Staff Member; Matt
Morgan, Counsel for Constitution; Betsy Ferguson, Minority
Senior Counsel; Ken David, Minority Counsel; Caroline Nabity,
Minority Counsel; James Lesinski, Minority Counsel; Andrea
Woodard, Minority Professional Staff Member; and Kiley
Bidelman, Minority Clerk.
Ms. Ross. The Committee on Judiciary Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order. Without objection, the Chair is authorized to declare
recesses of the Subcommittee at any time. I welcome everybody
to today's hearing on Oversight of the Voting Rights Act: A
Continuing Record of Discrimination.
Before we continue, I would like to remind Members that we
have established an email address and distribution list
dedicated to circulating exhibits, motions, or other written
materials that Members might want to offer as part of our
hearing today. If you would like to submit materials, please
send them to judiciarydocs @mail.house.gov and we will
distribute them to Members and staff as quickly as we can.
Finally, I would ask that all Members and witnesses mute
your microphones while you are not speaking. This will help
prevent feedback and other technical issues. You may unmute
yourself at any time you seek recognition. I will now recognize
myself for an opening statement.
Last month, the Reverend Dr. William Barber from North
Carolina reminded us in testimony before our Subcommittee that
our Constitution says that we must establish justice. Our
Constitution requires equal protection under the law and our
Constitution commands that you cannot deny or abridge the right
to vote on account of race or color.
When you suppress the right to vote, in essence, you are
suppressing people's humanity. You are saying that they are not
worthy of whole citizenship. Unfortunately, African Americans
and other racial, ethnic, and language minorities know what it
is like to have their right to vote, that is their humanity and
their full inclusion in our nation's body, politically
suppressed.
Throughout our nation's history, federal, state, and local
governments as well as individuals and hate groups have tried
to undermine voting rights for minority voters. Civil rights
leaders like our late colleague John Lewis put their lines on
the line to ensure the right to vote for everyone. Their work
led to the enactment of one of the most important civil rights
measures in our country's history, the Voting Rights Act of
1965.
While the passage of the Voting Rights Act did not end
attacks on the right to vote, it did offer a powerful tool to
prevent states and localities from implementing discriminatory
voting measures or to overturn such measures when they had
already been implemented.
Since the Supreme Court's effective gutting of the act's
pre-
clearance provision in Shelby County v. Holder, states have
introduced and, in some cases, acted into law new voting
restrictions. Before Shelby County, the act's preclearance
provision required certain jurisdictions with a history of
voting discrimination against racial and language minority
groups to obtain approval from the Justice Department or the
U.S. District Court for the District of Columbia of any changes
to their voting laws or procedures prior to such measures being
able to take effect. This mechanism provided significant
protection to minority voters by preventing potentially
discriminatory voting practices from taking effect before they
could harm voters and their right to vote. Unfortunately, in
Shelby County, the Supreme Court struck down the geographic
coverage formula that determined which jurisdictions would be
subject to preclearance, meaning that the preclearance
provisions remain inactive until Congress adopts a new coverage
formula.
Last Congress, the Subcommittee held numerous hearings in
which it gathered significant and extensive evidence of ongoing
voter suppression since the Shelby County decision, especially
by those jurisdictions that were once subject to preclearance.
As a North Carolinian and former State representative, I have
seen up close how the gutting of the Voting Rights Act
preclearance formula has led to increased efforts to erode the
right to vote.
Before Shelby County, many counties within North Carolina
were subject to the preclearance requirement. Once this pre-
clearance requirement was effectively eliminated, the
legislature moved quickly to pass a sweeping voter suppression
law that a federal appeals court would later strike down
because it intentionally targeted African Americans with almost
surgical precision. Sadly, that law was not the only voter
suppression law my State enacted. There are ongoing legal
challenges to a voter ID law that the State enacted in 2018 to
implement a new State constitutional amendment, and other forms
of voter suppression continue to impact minority voters'
ability to vote in North Carolina. North Carolina is not alone
in its efforts to restrict the right to vote. States across the
country have enacted dozens of restrictive voting laws since
2013, including six states that have enacted restrictive voting
laws this year alone. According to the Brennan Center for
Justice at New York University Law School, as of March 2021,
there have been 361 bills with restrictive voting provisions
introduced in 47 states as part of this year's State
legislative sessions and those numbers have certainly grown
since then.
Many of these bills seek to make absentee voting or voting
registration harder, reduce early voting, impose stricter voter
ID requirements, or undermine the power of local elected,
election officials. In the absence of an effective preclearance
provision, it is unsurprising that discriminatory measures
continue to erode our democracy, undermining the voting rights
of racial and language minorities and eroding our democracy.
The way forward for Congress to address this latest form of
discrimination and voter suppression is clear: A fully updated
and improved Voting Rights Act. Congress must create a new
coverage formula to restore the act's preclearance regime and
strengthen its other provisions to improve our ability to
combat discriminatory voter suppression. Our witnesses today
will make clear how relevant our record of voter suppression
from last Congress remains today and the need for congressional
action. I thank our witnesses for joining us today and look
forward to their testimony.
It is now my pleasure to recognize the Ranking Member of
the Subcommittee for this Subcommittee hearing, the gentlelady
from Minnesota, Ms. Fischbach, for her opening statement.
Ms. Fischbach. Thank you very much, Madam Chair.
Voting is a fundamental right in the United States. The
election clause of the U.S. Constitution gives State
legislatures the authority to prescribe the times, places, and
manner of holding elections. The 15th amendment requires that
states ensure that voting is accessible and available to every
American. In 1965, Congress passed the Voting Rights Act to
overcome State resistance and barriers that prevented
minorities from exercising their right to vote guaranteed by
the 15th Amendment.
Congress has reauthorized the VRA since its passage, most
recently extending the law for another 25 years in 2006.
However, at that time, Congress did not alter what is known as
the coverage formula for the VRA, and so states and counties
who had violated their citizens' voting rights in the 1960s and
1970s were still required to undertake onerous steps to update
their voting laws, regardless of their more recent records.
In 2010, Shelby County, Alabama challenged the
constitutionality of the VRA's coverage formula for subjecting
them to these continued requirements based on conduct decades
ago. It is worth noting that between 1965 and 2010, Shelby
County and the cities and towns within it have submitted at
least 682 requested election law changes to the Department of
Justice in accordance with the VRA, and the DOJ had objected to
just five of them.
In 2013, the Supreme Court agreed that continuing to
require states to preclear election law changes based upon
conduct from decades ago was an unconstitutional invasion of
State sovereignty. In announcing its opinion in Shelby County
v. Holder, the Supreme Court found that, and I quote, ``The
conditions that originally justified these measures no longer
characterize voting in the covered jurisdiction.'' Some of my
colleagues argue that the Court's opinion in Shelby County has
unleashed a flood of State election law changes designed to
disenfranchise minority voters, but this is a misunderstanding
of the intent and the result of State election changes.
Georgia, recently in the news for its law to tighten
election security after a very controversial election cycle,
has higher rates of African American voter registration and
participation according to the Census Bureau data than
Democratic-controlled states of Illinois, New York, and
California. Similarly, Arizona, another State recently under
scrutiny for its election laws, has higher voter turnout among
minority groups than neighboring California.
Laws designed to increase election security and integrity
are not the same thing as voter suppression or voter
discrimination. After a very controversial election, many
states should indeed reexamine their election laws for ways to
promote greater voter confidence in our election system. The
Court's decision in Shelby County in no way invalidated
existing voting protections in the VRA or other federal laws
and authorities have continued to use these laws when
appropriate.
After the Shelby County decision, then Attorney General
Eric Holder announced the DOJ would, and I quote, ``shift
resources to the enforcement of Voter Rights Act provisions
that were not affected by the Supreme Court's ruling, including
Section 2.'' There was no wave of enforcement because there was
no wave of voter suppression. The Obama Administration filed 75
percent fewer section 2 cases than the Bush Administration and
similarly made little use of other voting right authorities.
Therefore, there is no record that merits reinstating the
section 4 coverage formula and section 5 preclearance regime as
previous legislation has sought to do.
Republicans want every legally cast vote to count. We want
robust elections in our country where everyone has confidence
in the outcome. I hope today we can have a productive
conversation about the VRA and how we can best assist states in
enhancing voter protections and preserving the integrity of our
elections. I want to thank all our witnesses for appearing
today and I look forward to hearing all of the testimony.
I thank you, Madam Chair, and I yield back.
Ms. Ross. Thank you very much, Ms. Fischbach.
It is now my great pleasure to recognize the Chair of the
Full Committee, the gentleman from New York, Mr. Nadler, for
his opening statement.
Chair Nadler. Thank you, Madam Chair. The purpose of
today's hearing is to continue the subcommittee's oversight of
the Voting Rights Act, in part, by revisiting the extensive
record we compiled during the 116th Congress documenting voting
barriers in various jurisdictions. Indeed, since the
subcommittee's hearing last Congress, states have only
intensified their efforts to enact laws that suppress minority
voting rights.
To begin with, it is important to reflect on the origins of
the Voting Rights Act as we consider how to amend the Act to
address the current barriers to voting faced by too many
Americans today. In response to public pressure from the civil
rights movement, the Federal Government took renewed interest
in protecting minority voters.
Starting in the late 1950s, the Federal Government engaged
states and localities with a history of discrimination in a
cat-and-mouse chase over their attempts to rob racial
minorities of a meaningful participation in a democratic
process. Every time a court struck down a jurisdiction's
discriminatory voting measure as a result of a successful legal
challenge, that jurisdiction would simply implement another way
to discriminate against minority voters in response. Meanwhile,
as a case slowly worked its way through the courts, racial
minorities would continue to be denied the constitutional right
to vote.
Congress sought to put an end to this unending cycle, often
referred to as the whack-a-mole in which minority rights were
the casualty, by passing the Voting Rights Act of 1965. The VRA
proved a potent remedy for the most egregious forms of overt
voting discrimination and the voting rights landscape changed
significantly following its enactment. Under the VRA section 5
preclearance regime, states, and localities with a history of
discrimination against racial and ethnic minority voters had to
submit changes to their voting laws to the Justice Department
or to a federal court for approval prior to taking effect.
While preclearance did not fully eliminate State attempts
to discriminate against minority voters, it did end the cat-
and-mouse chase, and minority voter registration and political
participation increased markedly compared to its previously
abysmal levels. In the decades following its initial passage,
Congress reauthorized and amended the VRA several times on a
bipartisan basis to keep pace with states and localities that
still stubbornly refused to stop discriminating against their
minority citizens.
In 2013, however, the Supreme Court effectively gutted the
Voting Rights Act's most important enforcement mechanism, the
section 5 preclearance provision, in its disastrous ruling in
Shelby County v. Holder. In that decision, the Court struck
down the formula for determining which states and localities
are subject to preclearance, effectively rendering the
preclearance provision null and void. In her dissent, the late
Justice Ginsburg compared throwing out preclearance when it has
worked and is continuing to work to stop discriminatory changes
to throwing your umbrella in a rainstorm because you are not
getting wet.
Last Congress, we heard testimony from dozens of witnesses
about examples of voting discrimination post-Shelby County that
illustrated this point. They testified that at least 23 states
had enacted restrictive voting laws since the Shelby County
decision including strict voter ID laws, barriers to voter
registration such as requiring proof of citizenship documents,
allowing challenges of voters in the voting rolls, unfairly
purging voters from the voter rolls, reductions in early
voting, and the moving or elimination of polling places. In
fact, within just 24 hours of the Shelby County decision, both
Texas Attorney General and North Carolina's General Assembly
announced that they would reinstitute draconian voter ID laws.
The federal courts later found that both laws were
intentionally racially discriminatory.
Unfortunately, these are just two of the most egregious
examples of State and local efforts to discriminate against
minority voters from the past eight years. Indeed, since this
Subcommittee began examining these issues last Congress, these
efforts have only intensified. As of May 24th, a nonpartisan
organization voting rights lab is tracking 410 antivoter bills
at various stages of the enactment process.
The dozens of bills that would curb minority voting rights
have actively been moving through State legislatures and six
states have already enacted restrictive voting laws: Arizona,
Arkansas, Florida, Georgia, Iowa, and Utah. These recent bills
have been justified under the false pretense of addressing the
baseless allegations of voter fraud in the 2020 election that
have been promoted by former President Trump and his allies.
Let me be clear. There is absolutely no evidence that
significant voter fraud or voting irregularities in any way
affected the outcome of the 2020 election and it is clear that
these laws will suppress minority voters.
Prior to Shelby County, the Voting Rights Act had been an
unqualified success in helping to reduce discriminatory
barriers to voting and expanding electoral opportunities for
people of color to federal, state, and local offices. While it
continues to play an important role in remedying discriminatory
barriers to voting, the VRA remains weakened without an
effective preclearance provision. Too many Americans are still
denied the right to vote because of their race, ethnicity, or
language minority status.
Without the full protection of the VRA, the right to vote
remains under considerable threat. I look forward to hearing
from the excellent witnesses participating in today's panel on
how we can best strengthen the VRA, and I yield back the
balance of my time.
Ms. Ross. Thank you very much, Chair Nadler.
We are going to go right into our witness testimony right
now and thank them very much for being with us this morning. We
welcome our witnesses, and I will now introduce each of the
witnesses and after each introduction will recognize that
witness for his or her oral testimony. Please note that each of
your written statements will be entered into the record in its
entirety; accordingly, that I ask that you summarize your
testimony in five minutes. To help you stay within that time,
there is a timer visible on your screen in the grid view, and I
may remind you.
Before proceeding with the testimony, I would like to
remind all our witnesses appearing on that you have a legal
obligation to provide truthful testimony and answers to this
Subcommittee and that any false statement you make today may
subject you to prosecution under section 1001 of title 18 of
the United States Code.
Our first witness is Janai Nelson. Ms. Nelson is Associate
Director-Counsel of NAACP Legal Defense and Educational Fund,
Inc. She is also a member of LDF's litigation and policy teams
and was one of the lead counsel in Veasey v. Abbott, a federal
challenge to the Texas voter ID law. Prior to joining LDF in
June 2014, she was associate dean and faculty scholarship and
associate director of the Ronald H. Brown Center for Civil
Rights and Economic Development at St. John's University School
of Law, where she was also a full professor of law.
Ms. Nelson received a J.D. from the University of
California Los Angeles School of Law where she served as
articles editor of the UCLA Law Review. She received her B.A.
from New York University. Upon graduation from law school, she
clerked for the honorable Theodore McMillan on the United
States Court of Appeals for the Eighth Circuit and the
honorable David Coar on the United States District Court for
the Northern District of Illinois.
Ms. Nelson, you are recognized for five minutes.
STATEMENT OF JANAI NELSON
Ms. Nelson. Thank you. Good morning, Chair Ross, Chair
Nadler, and Ranking Member Fischbach and Members of the
committee. My name is Janai Nelson, and I am associate
director-counsel at the NAACP Legal Defense and Educational
Fund. Since our founding in 1940 by Thurgood Marshall, LDF has
led the fight to secure, protect, and advance the rights of
Black voters.
Despite the guarantees of the 14th and 15th Amendments, the
Voting Rights Act, and other federal statutes, racial
discrimination and targeted suppression of the Black vote
persist. In the years since the infamous 2013 Supreme Court in
Shelby County v. Holder, methods of voter suppression have
metastasized across the country. By disabling section 5 of the
Voting Rights Act, the Shelby decision unleashed devastating
attacks on the voting rights of racial and language minorities.
In that decision, Chief Justice John Roberts expressly
invited Congress to update the Act to respond to these modern
conditions. However, in the eight years since, Congress has
failed to do so leaving voters of color and our democracy
woefully unprotected. Our report, Democracy Diminished, State
and local threats to voting post-Shelby County v. Holder which
we have entered into the record, tracks, monitors, and
publishes a record of discriminatory voting changes in
jurisdictions formerly protected by section 5 and which section
5 likely would have prevented.
For example, in 2013, LDF sued the State of Texas to stop
implementation of its stringent voter ID Law SB 14, the same
law previously blocked by section 5 in 2012 and that Texas
revived within hours of the Shelby decision. The litigation
produced multiple federal court findings that Texas's voter ID
Law violated section 2 of the Voting Rights Act, including a
finding of intentional racial discrimination against Black and
Latinx Texans. Although LDF and our partners succeeded at
improving that law, by the time the case concluded in 2018,
thousands of Texas voters had been disenfran-chised in hundreds
of local, state, and federal elections.
In 2016, the largely White city of Gardendale, Alabama,
attempted to secede from the more racially diverse Jefferson
County School Board. Gardendale's secession would have
transferred Black voters from the County School Board's
election system in which Black voters have some representation
to Gardendale City Council's at-large election system in which
Black voters have no representation at all. The Eleventh
Circuit blocked the secession in 2018 after LDF successfully
proved that Gardendale was motivated by racial discrimination.
Also in 2018, LDF filed a suit on behalf of students at
Prairie View A&M University, an Historically Black University
in the majority Black city of Prairie View in Waller County,
Texas. The city refused to provide any early voting location on
Prairie View's campus during the first week of voting, even
though it provided this opportunity to other voters. This
denied Prairie View students an equal an adequate opportunity
to vote. Although modest modifications were made, that
litigation is still ongoing.
Finally, in 2019, LDF and other civil rights groups sued to
stop Florida from overriding the will of its voters enshrined
in amendment 4, by mandating that people with past felony
convictions pay all their civil or other fees before
registering to vote. However, the en banc Eleventh Circuit
reversed the district court's favorable ruling, effectively
denying voting rights of thousands of people with past felony
convictions.
Each of the discriminatory voting laws or changes in this
representative sample would have been subject to preclearance.
Instead, civil rights groups were forced to try to vindicate
the rights of voters through protracted litigation. Litigation,
while powerful, is a blunt instrument, and elections occurring
under conditions later found to be racially discriminatory have
consequences that existing methods of defense cannot combat.
The inability of courts to retroactively correct these wrongs
means that thousands if not millions of voters are
disenfranchised during the pendency of litigation.
We urgently need prophylactic legislation that allows
federal authorities to stop discrimination before it infringes
on the right to vote. It is unacceptable that in 2021, 56 years
after the passage of the Voting Rights Act by a bipartisan
super majority, the right to vote remains under threat and
under protected. It is the obligation of this generation of
lawmakers to respond to the call of the majority of Americans
who support new legislation to protect the vote.
Congress must once again use the power enshrined in the
Constitution and entrusted to this body to ensure the franchise
for all citizens and create a 21st century democracy that is
representative of and responsive to our increasingly diverse
nation. It is the obligation of this Congress to guard our
democracy and to continue the work of perfecting our union by
protecting the right to vote. Thank you.
[The statement of Ms. Nelson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Ross. Thank you very much, Ms. Nelson.
Our next witness is Jon Greenbaum. Mr. Greenbaum is the
Chief Counsel and Senior Deputy Director of the Lawyers'
Committee for Civil Rights Under Law, where he is responsible
for managing the Committee's efforts to seek racial justice. He
oversees the Committee's legal projects on among other things
criminal justice, fair housing, and voting rights. He
previously served as director of the Lawyers' Committee's
voting rights project.
He also is a Co-Chair of the Voting Rights Task Force of
the Leadership Conference on Civil and Human Rights, the
national umbrella organization of American civil rights groups.
Mr. Greenbaum received his J.D. from the University of
California Los Angeles School of Law and his undergraduate
degree from the University of California at Berkeley.
Mr. Greenbaum, you are recognized for five minutes.
STATEMENT OF JON GREENBAUM
Mr. Greenbaum. Chair Ross, Ranking Member Fischbach, and
Members of the subcommittee, thank you for the opportunity to
testify today on oversight of the Voting Rights Act as the
Judiciary Committee addresses the issue of whether and how to
respond to the Supreme Court's decision in Shelby County v.
Holder, which effectively immobilized the preclearance
provision of section 5 of the Voting Rights Act by finding its
underlying coverage formula unconstitutional.
In my view, Congress needs to respond to the Shelby County
decision in a manner akin to the bill passed by the House last
session, the John Lewis Voting Rights Advancement Act. I come
to this conclusion based on 24 years of working on voting
rights issues nationally at the United States Department of
Justice and at the Lawyers' Committee for Civil Rights Under
Law. Since the Shelby County decision, the Lawyers' Committee's
own contribution of compiling the record of discrimination have
been substantial and my testimony today provides an opportunity
to introduce these contributions into the legislative record.
These documents establish the following: First, the
effectiveness and efficiency of section 5 in preventing voting
discrimination prior to the Shelby County decision. Second, the
high level of voting discrimination since the Shelby County
decision especially in the jurisdictions formerly covered by
section 5. Third, the hole the Shelby County decision left in
the federal enforcement scheme to combat voting discrimination.
Fourth, the need for Congress to address Shelby County by
enacting legislation that will prevent discriminatory voting
changes from going into effect in places where voting
discrimination is greatest.
Since Shelby County, the Lawyers' Committee has had to
litigate voting rights cases more frequently than prior to
Shelby County, and a substantial majority of these cases have
involved jurisdictions that were covered by section 5, even
though less than half the country is covered by section 5.
Moreover, we have sued seven of the nine states that were
formerly covered by section 5 as well as the two states that
were not covered but had a substantial percentage of the
population covered locally.
In 2019, the Lawyers' Committee conducted a 25-year review
of the number of times that an official entity made a finding
of voting discrimination. This preliminary analysis of
administrative actions and court proceedings identified 340
instances. We found that successful court cases occurred in
disproportionally greater numbers in jurisdictions that were
previously covered by section 5.
Voter turnout by race is an additional measure of the
distance we have to go in eliminating voting discrimination in
Georgia, Louisiana, South Carolina and North Carolina, all of
which were covered by section 5 in whole or in part, and these
states where voter data by race is available in the November
2020 election, White voter turnout was substantially greater
than Black turnout in all four of these states.
Section 5 was designed to prevent a specific problem:
Prevent jurisdictions with a history of discrimination from
enacting new measures that would worsen the position of
minority voters, the concept known as retrogression. Section 2
is quite different. It evaluates whether the status quo is
discriminatory and thus must be changed. The section 2 results
inquiry is complex and resource-intensive to litigate. My
written testimony identifies four examples from the Lawyers'
Committee's litigation record that illustrate why section 2 is
an inadequate substitute for section 5.
Let me discuss the most recent. It involves a law in
Georgia, a previously covered jurisdiction, enacted this year.
The law SB 202 is a 53-section, 98-page law that changes many
aspects of Georgia elections. It has spawned several lawsuits
including one the Lawyers' Committee is involved in. For the
Shelby County decision, SB 202 would not have been allowed to
take effect until there was an opportunity to determine its
impact on voters of color. At least some aspects of SB 202
appear to be clearly retrogressive and probably would not have
been proposed in the first place, let alone passed.
This is perhaps most thoroughly demonstrated by Georgia
introducing several restrictions focused on voting by mail
where these restrictions were adopted after the November 2020
election where, notably, voters of colors used absentee ballots
to an unprecedented degree, and in the cases of Black and Asian
voters used absentee voting at higher rates than the White
voters. In the eight years since the Shelby County, since the
Supreme Court decision in Shelby County v. Holder have left
voters of color the most vulnerable to voting discrimination
they have been in decades.
The records in the Shelby County decision demonstrates what
voting rights advocates fear that without section 5 voting
discrimination would increase substantially. Without
legislation like the John Lewis Voting Rights Advancement Act
that addresses the hole in the Voting Rights Act left by the
Shelby County decision, our democracy is at grave risk.
[The statement of Mr. Greenbaum follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Ross. Thank you, Mr. Greenbaum, for your testimony.
Our next witness is T. Russell Nobile. Mr. Nobile is a
senior attorney for Judicial Watch and from 2005 to 2012, he
served as a trial attorney in the Civil Rights Division of the
U.S. Department of Justice including five years in the
Division's voting section. He also previously was a legislative
assistant for a Member of the House Financial Services
Committee. Mr. Nobile received his J.D. from the Mississippi
College of Law and his B.A. from University of Mississippi. He
served as a law clerk to the Supreme Court of Mississippi.
Mr. Nobile, you are recognized for five minutes.
STATEMENT OF T. RUSSELL NOBILE
Mr. Nobile. Good morning, Chair Ross, and Ranking Member
Fischbach and Chair Nadler and the other Members of the
subcommittee. Thank you for the opportunity to speak to you
today.
As Chair Ross noted, I have been litigating and involved in
election and voting cases dating back to 2005, including
bringing cases against Prairie View A&M in 2008 and being a
part of the section 5 redistricting case involving the State of
Texas around 2011. The Committee has my written testimony. I am
not going to rehash it all. What I would like to do draw the
committee's attention to three points from H.R. 4 that was
considered in the previous Congress.
The first point is that H.R. 4 grants 14th amendment
standing to the Attorney General of the United States, which is
a sea change in the Administration and the prosecution of
constitutional laws in the United States. Shelby County and
virtually none of the Voting Rights Act litigation preceding
that ever had anything to do with granting the Attorney General
14th amendment standing to bring due process in equal
protection claims, and I worry that, and I caution the
Committee about the significant impact that will have on both
the Department and the relationships between the United States
and its inner states.
The second point I would like to talk about in H.R. 4 is
the new coverage formula that has been proposed. I believe it
has been the same proposed, it is the same formula that has
been around since 2014, though I am sure it has changed some.
The new formula actually sets up an incentive system so that
activist groups will go around targeting jurisdictions and it
replaces the previous data-driven metric for determining
coverage under section 5 which was struck down in Shelby.
Now Shelby, it is important to note, wasn't struck down
because it relied on data. It was a question about whether or
not the data was adequate enough based on 1965 to reauthorize
section 5 in 2006. So, the problem with the coverage formula
proposed in H.R. 4 is it shifts away from the data-driven
metric and moves to something called a voting rights violation,
or a voting violation.
That is very broadly defined and as the Committee may know,
there are a lot of reasons why jurisdictions will settle a
voting claim brought against it without any consideration as to
the legitimacy of the claim. There are obviously political
questions, public finance questions, and good-faith reasons to
settle that have nothing to do with their view of the
legitimacy of the claims.
The third point I would like to draw to the committee's
attention is the proposed nationwide coverage of section 5 or a
section 5-like as being considered. Whatever you can say about
the current circumstances of voting litigation and voting
rights issues and disputes, it is safe to say that if the
circumstances weren't bad enough to provide section 5 coverage
nationwide in 1965, it is hard to see the data supporting
driving, or data supporting covering the Nation in section 5
coverage in 2021.
Again, I appreciate the opportunity to speak to the
Committee and I look forward to answering any questions.
[The statement of Mr. Nobile follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Ross. Thank you, Mr. Nobile. You get the gold star for
coming in under time, so thank you for doing that so quickly.
Our final witness is Wendy Weiser. Ms. Weiser directs the
democracy program at the Brennan Center for Justice at New York
University's School of Law. Her program focuses on voting
rights and election, money in politics and ethics,
redistricting and representation, government dysfunction--maybe
we will hear a little bit about that--rule of law and fair
courts. She founded and directed the program's voting rights
and elections project directing litigation, research, and
advocacy efforts to enhance political participation and prevent
voter disenfranchisement across the country. Ms. Weiser
received her J.D. from Yale Law School and her B.A. from Yale
Law School. She served as a law clerk to the honorable Eugene
Nickerson of the United States District Court for the Eastern
District of New York.
Ms. Weiser, you are recognized for five minutes.
STATEMENT OF WENDY WEISER
Ms. Weiser. Thank you, Chair Nadler, Vice-Chair Ross,
Ranking Member Fischbach, and Members of the Subcommittee.
Thank you so much for the opportunity to testify on
strengthening the Voting Rights Act which is one of the
foundational tests of America and a critical bulwark against
discrimination in our voting system. Unfortunately, in the
eight years since the Supreme Court gutted the law's most
powerful provision, its preclearance requirement, it has become
clear that the remaining provisions are simply not strong
enough to protect Americans from increasingly pervasive acts of
discrimination in voting. The John Lewis Voting Rights
Advancement Act is urgently needed.
Today, American democracy and our most cherished values are
under attack from within and core to that attack is a fierce
assault on Americans' right, Americans' freedom to vote. As we
have heard, as of March 31st, the Brennan Center counted more
than 360 bills to curb voting in 47 states this year alone, and
will be publishing new, larger numbers tomorrow. Many of these
bills clearly target voters of color. They restrict access to
voting options that voters of color used in recent elections,
and they even empowered poll watchers to harass or intimidate
voters with fewer limits. These bills are being driven by the
false and often racially-tinged claim that the 2020 election
was stolen, the same claim that fueled the January 6th
insurrection at the Capitol. More and more, proponents are
brazenly admitting that their goal is to subtract voters from
the electorate. Now, as of today, more than a dozen states have
already enacted new restrictions and bills are actively moving
in many more.
We at the Brennan Center have been tracking vote
suppression legislation for over a decade and the current
antivoter attacks are breathtaking in their scale, their scope,
and their speed. It is the biggest legislative assault on
voting since Reconstruction. Although the problem has grown
more acute, it is not new. Since Shelby County, we have found
that attacks on voting rights are especially severe in states
and localities that were previously covered by section 5 of the
Voting Rights Act.
In my written testimony, I present recent evidence of
racial discrimination in the voting process; it is
overwhelming. For example, dozens of court cases have found
that State and local voting laws and practices to be racially
discriminatory and in some intentionally so. In a Texas
redistricting case, for example, a three-judge court found that
the record contained more evidence of discriminatory intent
than we have space or need to address.
Our research shows that since Shelby County voter purge
rates have soared and the bulk of this growth was in counties
that were previously covered by section 5. In 2018, the median
purge rate in those counties was 40 percent higher than in
others, and in 90 out of a hundred counties in North Carolina,
for example, people of color were overrepresented among those
purged. I note that the Constitution does not only prohibit
racially discriminatory voting restrictions where Members of
targeted groups have low turnout, turnout is caused by many
factors including hotly contested races.
We are also heading into the first redistricting cycle in
more than half a century without preclearance, posing a high
risk to fair representation for communities of color. These
forceful threats to our democracy demand an equally forceful
response. Congress has the power and the moral duty to stop
these attacks, to protect Americans against further erosion of
their rights, and to help realize the Constitution's vision of
an inclusive democracy.
The VRAA is extremely well-tailored to combat these modern
racially discriminatory practices consistent with the Supreme
Court's guidance. It is more than justified by the record
already before Congress. While critical, the VRAA alone is not
enough to address current threats. To fully counter the scourge
of vote suppression we are seeing today, we also need the For
the People Act, H.R. 1. While the VRAA specifically targets
race discrimination in voting, H.R. 1 sets baseline national
standards for voting access for all Americans and it addresses
other threats as well.
Both bills enjoy broad and bipartisan support across the
country, and both are desperately needed. We strongly urge this
Congress to work diligently to send an updated VRAA and the For
the People Act to President Biden's desk for signature this
year. Thank you.
[Statement of Ms. Weiser follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Ross. Thank you very much, Ms. Weiser.
We will now proceed under the five-minute Rule with
questions, and I will begin by recognizing myself for five
minutes and my first question is for Ms. Nelson.
Ms. Nelson, according to your previous testimony, in the
years since Shelby County your organization has documented a
significant increase in the enactment of discriminatory voting
practices across numerous jurisdictions including North
Carolina and including those previously covered by section 5
preclearance. The NAACP Legal Defense Fund has also filed many
successful lawsuits challenging these practices under section 2
of the Voting Rights Act. However, is section 2 litigation
alone adequate to remedy such widespread voter discrimination?
Ms. Nelson. Thank you very much for that question. The
short answer is that no, section 2 is wholly inadequate to
prevent the deluge of voter suppression efforts that we see
proliferating across the country. Section 5 operated as a
gatekeeper for intentional discrimination and for retrogressive
actions of states. It allowed jurisdictions to go to the
Federal Government to ensure that any new voting change would
not harm the status quo for minority communities in their
jurisdiction.
That was an incredibly powerful tool to ensure that
elections would not occur, and elected officials would not be
elected to bodies to govern to determine the fate and lives of
people within their jurisdiction and later to find out that the
tool that helped get them there was, in fact, discriminatory
and that election and any subsequent actions could not be
undone.
If we think about the work that section 2 does, it is an
after-the-fact tool to prevent a remedy and seek a forward-
acting remedy for past discrimination. Section 5 prevents that
discrimination from ever occurring, so section 2 is no
replacement for section 5. As powerful as it is and as much as
we utilize it, it is alone not sufficient to prevent racial
discrimination in voting.
Ms. Ross. Thank you very much, Ms. Nelson.
Ms. Weiser, it is suggested that one way Congress could
avoid a lengthy debate regarding updated preclearance coverage
would be to adopt a nationwide preclearance regime. What are
your thoughts on this idea?
Ms. Weiser. Thank you very much for that question. I
believe that the approach taken by the John Lewis Voting Rights
Advancement Act, a modern geographic formula for preclearance
coupled with coverage of practices known to be discriminatory,
has been very carefully tailored to address modern threats to
voting consistent with the Supreme Court's guidance and there
is strong reason to fear that a nationwide preclearance
approach would not survive a constitutional challenge before
the current U.S. Supreme Court.
As you know, in the Shelby County decision, the Court has
made clear that there needs to be very strong justification to
require states to submit their voting laws and practices for
federal preclearance and strong evidence that this requirement
addresses a real and current threat to discrimination in voting
process. Congress has already amassed a wealth of evidence of
discrimination in the voting process and in recent years that
supports the preclearance requirements that are in the VRAA.
While I do agree that the problem of discriminatory voting
requirements is now spreading nationwide, I think it would be
very difficult for Congress to make a similar showing with
respect to every voting jurisdiction and every voting practice
nationwide or at least one that would pass muster before the
current U.S. Supreme Court. So, and I do note that there is as
we have heard, even in the current VRAA, a nationwide
preclearance provision that is tailored to a defined set of
specific practices that are known to be discriminatory and so
there is a nationwide component in there already.
Ms. Ross. Thank you very much.
We are now going to move to the Ranking Member. Ms.
Fischbach, you are recognized for five minutes.
Ms. Fischbach, we can't hear you.
We will give her just a second and we may have to come back
to her.
Ms. Fischbach, we can't hear you, so I am going to go to
Chair Nadler and then hopefully you will be ready when he
finishes.
So, Chair Nadler, you are recognized for five minutes.
Chair Nadler. Thank you.
Ms. Weiser, in striking down the VRA's coverage formula in
the Shelby County decision, the Supreme Court emphasized that
the extraordinary remedy of section 5 preclearance must be
justified by current needs. The Court noted that the increase
in minority voter registration and participation in covered
jurisdictions since the VRA's initial enactment demonstrated
that a preclearance formula did not reflect current needs. The
Court suggested that widespread voter discrimination was a
problem of the past.
How do voting laws and practices your organization has
documented in the last decade demonstrate that despite what the
Supreme Court suggested in 2013, widely, widespread voting
discrimination continues to exist, to persist in jurisdictions
obvious, previously covered by section 5 even before the
Court's decision in Shelby?
Ms. Weiser. Thank you, Chair.
We have been documenting some both before and after the
Shelby County decision a growing push to restrict access to
voting across the country and growing discriminatory voting
measures at both State and local levels. In the immediate
aftermath of the Shelby County decision, there was a flood of
new State laws and even local practices that were immediately
put into effect that had been previously blocked by section 5
of the Voting Rights Act. You have heard an example already,
two examples already, from Ms. Nelson and that were put in
effect, only later to be challenged for years before being
struck down as discriminatory.
I note that the VRAA is very well-tailored to address these
modern threats to voting that we are seeing today. Unlike the
prior section 4, the touchstone is not registration and turnout
numbers. It is actual proven acts of discrimination that this
Congress is amassing and there are a lot of them in the records
that have been out there today.
Chair Nadler. Ms. Nelson, do you see parallels between the
current post-Shelby era and the unending cycle of voter
discrimination litigation that defined the pre-VRA section 5
era?
Ms. Nelson. Absolutely. We were litigating cases well
before Shelby County v. Holder and continue to do so after
Shelby County released just an onslaught of attacks on the
right to vote. We saw, literally, the day of the decision,
states that were previously covered under section 5
resurrecting the same laws that the Federal Government had said
were discriminatory and putting them into effect. If that
doesn't indicate the willingness of too many jurisdictions in
our country to knowingly and implement laws that they know will
discriminate against American voters, then I don't know what
other proof we need.
So, there is a direct line between the efforts pre-Shelby
and those that are now permitted post-Shelby.
Chair Nadler. Thank you.
Mr. Greenbaum, you note in your written testimony that an
oft-overlooked side effect of the Shelby County decision is the
reduced number of federal observer appointments under the
section 8 of the VRA. Instead, DOJ has relied on so-called
monitors to ensure jurisdictions with a history of
discrimination conduct the election process in a fair manner
that does not disenfranchise minority voters.
Can you explain the difference between these monitors and
observers and what impact the reduction in full-fledged
observers has had on the efficacy of voting rights enforcement?
Mr. Greenbaum. Thank you, Chair Nadler. There is a dramatic
difference. Observers, federal observers have a federal right
to observe each step of the voting process to make sure that it
is nondiscriminatory and fair to all voters. So, it is very
powerful in terms of preventing any discrimination at the polls
and the lead-up to the election and on election day. When I was
at the Department of Justice and did observer coverage, I saw
that in practice.
Post-Shelby County when DOJ sends monitors out to the
polls, those monitors do not have a right to be there. If a
jurisdiction allows them to observe parts of the process that
is okay, but a jurisdiction can throw them out in much the same
way that most people can be thrown out from observing the
election process. So that protection against discrimination
that exists when you have the federal observers has gone away.
One of the things that we are seeing in some of the
legislation that is being proposed in states this year are
rules that are going to make it more difficult for poll workers
to be able to throw out partisan poll watchers who may be
disruptive. I think in one state, Texas, they are even
contemplating allowing partisan poll watchers to be able to
videotape what is going on at the polls, which has a long
history of photographing and videotaping and being a measure
that has been used to intimidate voters of color.
Chair Nadler. Thank you. My time has expired. I yield back.
Ms. Ross. Thank you, Mr. Chair.
We are going to try Ms. Fischbach again.
Ms. Fischbach, are you still with us?
I am not hearing her, but we are going to keep trying, and
we are going to move to Mr. Johnson.
You are recognized for five minutes.
Mr. Johnson of Georgia. I thank the Chair for holding this
hearing. Racism is defined as a belief that inherent
differences among the various human racial groups determine
cultural or individual achievement, usually involving the idea
that one's own race is superior and has the right to dominate
others or that a particular racial group is inferior to others.
When the Europeans landed at Jamestown, Virginia, in 1607, they
came with the idea that they were a superior race and the
Native Americans known as ``Indians'' or even ``Injuns'' were
subhuman.
This idea of White supremacy was further evidenced was
further evidenced with the start of the transatlantic slave
trade just twelve years later in 1619, 401 years ago. Racism
has never suddenly disappeared from the hearts and minds of the
people it afflicts, and, in fact, racism has been foundational
and permeates the soil of America. It has manifested itself in
the area of voting rights for nonwhite people in America.
Because racism still exists in America, the racist knife of
voters' disenfranchisement is alive and well.
The lie of voter fraud in American elections is just the
latest iteration. It has entrenched itself into the American
psyche and proven resistant to fact checks and studies. The
poison of Donald Trump's big lie has put our democracy in
peril. The protections embedded in the 14th and 15th Amendments
to the United States Constitution enabled Congress with the
responsibility to pass laws that protect and enforce the sacred
right to vote. I thank the Chair for continuing this
Subcommittee's commitment to upholding and protecting that
fundamental right.
Ms. Nelson, in your testimony you State that the Voting
Rights Act preclearance process was ``successful at dismantling
the continuation of Jim Crow subjection in the electoral
arena.'' Can you explain to us why the Voting Rights Act was so
successful and how did it achieve success?
Ms. Nelson. That was tremendously successful. In fact, it
wasn't until the Voting Rights Act was passed that our
democracy really earned its name, and it fulfilled the promise
of the 15th amendment that the right to vote should not be
denied because of race, color, or a previous condition of
servitude and it advanced the 14th Amendment's guarantee of
equal protection under the law and it did that in many ways.
It, for example, banned literacy tests that we know were
used to disenfranchise African Americans. It provided
protections through section 2 of the Voting Rights Act by
allowing the government and civil rights organizations and
individuals to bring lawsuits against tests and devices and any
other method of affecting the right to vote that ultimately
resulted in discrimination because of race. All importantly, it
created section 5 which was a filter for discrimination in our
society.
Not only did it allow a federal district court in DC or the
Department of Justice to examine new laws in certain
jurisdictions, it also had a chilling effect in those
jurisdictions and made them think twice before they would
introduce a law that could potentially have a discriminatory
impact on African American and other mar-
ginalized voters.
Mr. Johnson of Georgia. Well, let me stop you right there
and turn your attention to the fact that in Georgia, premised
upon the big lie, in Georgia and other states, laws have been
signed into operation. I would like for you to describe how
those laws based on not having section 5 preclearance
requirements, how these laws are acting to suppress the votes
of Black people and people of color in America.
Ms. Nelson. Yes, we are actually engaged in litigation in
Georgia because of the law that was recently passed that on
many aspects, but particularly mail-in voting, and we know that
that is a direct result of the fact that many African Americans
availed themselves of this all-important tool and widely
embraced tool to vote up until recently, because they turned
out in record numbers and this was a direct backlash to that
impressive turnout and that impressive exercise of the
fundamental right to vote.
The Georgia law also limits the ability of people to
receive sustenance as they wait online to vote. It criminalizes
the provision of water and food to voters as they wait to
exercise their right to vote. The very targeted way in which
that law responded to the turnout and the particular challenges
that face African American voters in Georgia is a reveal, and
the particular process that was used to enact that legislation
also demonstrated that the legislature was willing to do all it
could to get this bill passed with no transparency, virtually
no public comment, and no rigor as to how it would affect
Georgia residents.
That is but one example of the very many bills and laws
that the Brennan Center does such an excellent job of tracking
and that we are seeing proliferate across the country.
Mr. Johnson of Georgia. Thank you.
My time has expired, and I yield back.
Ms. Ross. Thank you so much.
We are going to try Ms. Fischbach again.
Ms. Fischbach. All right, can you hear me now?
Ms. Ross. Great job. You are recognized for five minutes.
Ms. Fischbach. Thank you, Madam Chair, for your patience. I
appreciate it. Remote internet is also a challenge so, and now
I am on my phone so using my phone today. I thank you again.
I just wanted to ask Mr. Nobile a couple of questions if I
could. In your opinion, do you think that states have used the
Shelby County decision to institute measures that amounted to
voter suppression or did covered states wait until after this
decision to institute changes to voting practices that would
have previously been blocked by the preclearance regime?
Mr. Nobile. That is correct, Congresswoman Fischbach. It
is, I enforced section 5 in the voting section for six years. I
have represented covered jurisdictions in my time since then,
and section 5 was effective, but what it did was increase
regulation to stop discrimination and it increased costs to
make minor changes to voting laws. So, there really is no
surprise that following Shelby there was a flood of laws that
people had either delayed or been thinking about implementing
but just didn't because the expenses would have been so much.
So, the degree of that and how many of those there are, it is
tough to say, but just because things were implemented post-
Shelby doesn't mean they were done with discriminatory intent
or effect or were retrogressive effect.
Ms. Fischbach. Well, thank you very much. I just wanted to
ask you if you have anything else to add? I know you have been
listening, and if you had anything to add to some of the
questions that have already been asked, maybe from your
opinion.
Mr. Nobile. Well, I think everyone has different views on
election integrity. Some people think it is inherently racist.
Some people think it is good to have procedures to ensure chain
of custody in ballots and to make sure that there is proper
observation in the electoral process.
As you know, as everyone knows, Arizona is undergoing an
audit as we speak right now. There was a series of letters from
the Secretary of State and the sum of some of her complaints
was that there was an inadequate chain of custody of the
ballots during the auditing process. Basically, what she is
arguing is that there is inadequate chain of custody post-
election through the audit to justify the legitimacy of the
audit, which is, honestly, some of the very same things that
people have been saying pre-election. There is concern about
chain of custody, ballot drop boxes and how these things are
being used. Maybe there is someone out there, but most people
don't have a problem with the drop box. They have a problem
with the drop box that isn't monitored because they want to
make sure there is no malfeasance.
As everyone knows, politics in elections doesn't bring out
always the best in human nature, and politics in elections are
a form of human competition. For at least 2,500 years, over the
history of democracy, people have been using whatever they need
to do to get a competitive advantage in the election. People
cheat and humans cheat in a variety of contexts, whether it is
cheerleading competitions, sumo wrestling, or the Kentucky
Derby, recently, people are going to do whatever they need to
do to get a competitive advantage.
Now, I suspect we all disagree on the quantity of that, but
it is confusing to me as someone, that someone who has actually
sat and observed elections firsthand to see why the context it
brings out some of the worst behavior in human behavior,
suddenly there is no cheating or people trying to get a
competitive advantage. Whatever people's disposition towards
election integrity, I think human nature shows us that people
will strive to get a competitive advantage in the electoral
process and so it is appropriate to have measures to try to
ensure the legitimacy of the vote.
I honestly believe that the civil rights era, the Civil
Rights Act, the Voting Rights Act was a voter integrity measure
to some extent because the legitimacy of the elections was
suspect in the '60s and before then, because large swaths of
the American South were not allowed to participate in the
electoral process. So, it is tough to evaluate human or popular
opinion without having people vote.
I am sorry, Chair Fischbach. I can't hear you.
Ms. Ross. Yes, Ms. Fischbach. We can't hear you. Are you
yielding back?
Ms. Fischbach. I am sorry. I guess that muted automatically
for some reason and I apologize. Thank you very much. My time
has expired, so I yield back.
Ms. Ross. Okay, thank you.
I see we have Mr. Raskin. You are recognized for five
minutes.
Mr. Raskin. Thank you, Ms. Ross, for calling this important
hearing. I want to pick up with something that Mr. Nobile just
said and perhaps, Ms. Nelson, you could address this.
I appreciate Mr. Nobile's candor about this because
sometimes what we get from our friends on the other side is a
denial of the history of disenfranchisement and suppression of
the right of people to vote, and he seemed to acknowledge that
it would come back again if we don't do anything to stop it. He
attributed it to human nature; Mr. Johnson attributed it to our
history of racism and political White supremacy in the country,
but we are already seeing it coming back.
Ms. Nelson, let me ask you about Georgia. We know there are
hundreds of bills across the country that are meant to
dismantle early voting, weekend voting, or make people go out
and get a notary public before they ask for an absentee ballot
or whatever. In Georgia they have already signed into law a
bill making it a crime punishable by up to a year in jail to
pass somebody a bottle of water or a chocolate chip cookie who
has been waiting in line for six hours to vote.
So, you say, correctly, this will have a disproportionate
effect in African American communities, where I think it has
been shown the lines are longer in a lot of the minority
communities, so let's say a State comes up with a law like that
which will definitely have a severely disproportionate effect
on the minority community.
In the wake of Shelby County v. Holder, Ms. Nelson, what
can you do as a lawyer to stop it? If everybody agrees, if a
reasonable person would agree that this has targeted the
minority community, what can you do to stop it? Does
preclearance work anymore or can you go get an injunction
against it? What can you do?
Ms. Nelson. Well, if section 5 were in place, we would have
that law screened by the Federal Government. There would have
to be an examination by a federal district court or the
Department of Justice, and the analysis would be whether
minority voters are put in a worse position as a result of the
passage of that law, and I think the answer would be a
resounding yes.
As you mentioned, minority voters are exponentially more
likely to have to wait in long lines, to have to endure
obstacles for a variety of reasons as they try to exercise the
fundamental right to vote. There have been studies in Georgia
that show that Georgia voters waited in longer lines this past
election and in previous elections. So, this type of targeted
legislation that makes that wait, makes that burden even more
difficult and more onerous to bear is something that I am
certain a federal court or a Department of Justice that was
doing its job would recognize puts minority voters in a hard
place.
Mr. Raskin. I am sorry. So, now what, do you have any means
in your arsenal to deal with it now?
Ms. Nelson. Yes. We can use section 2 as we are and the
Constitution to bring litigation to try to seek injunctive
relief, but that is a very, very high bar. Courts are not
inclined to grant injunctive relief without a very significant
showing of a likelihood of success and the hope is that the
injunction would be granted before any election occurs. That is
not something that we can rely on and short of--
Mr. Raskin. In fact, isn't there a canon of construction
where the courts favor not getting involved in an election
before it occurs? You see what has happened with the removal of
section 5, is the burden has been put on the voters all over
the country--in Georgia, Alabama, Texas, and California,
wherever it might be to go and get a court to get involved and
to overcome all the burdens in doing that as opposed to simply
the Department of Justice or a Federal Court looking at what
their plan is and then examining whether it has got a
discriminatory effect.
Well, let me go to Ms. Weiser. If we do adopt this attempt
to save the precoverage formula where now we are covering based
on proven voting rights violations that Mr. Nobile has already
given us a preview of what the right-wing attack on that is
going to be. They are going to say, well, there are a lot of
reasons that you might have adjudicated cases of violations
they might just want to settle the case and so on.
So, what is going to save us from the Supreme Court just
again finding another reason to strike it down the way that
they did in Shelby County v. Holder? That leads to my final
question, which is: Do we need a constitutional amendment
guaranteeing the right to vote so we are not constantly playing
whack-a-mole or hide-the-ball with people who fundamentally
don't want to allow huge populations of Americans to vote?
Ms. Ross. Ms. Weiser, Mr. Raskin's time has expired so if
you could do it in ten seconds, it would be great. I think the
last one is a yes or no question.
Ms. Weiser. The last one is that would certainly help, but
I don't think it is necessary because under properly
interpreted under grand doctrine, the Constitution does protect
the right to vote not only through multiple amendments but also
through the first and 14th Amendments. On the proven cases of
discrimination, Mr. Nobile's objections seemed to only be to
the settlements prong. I think that there aren't other reasons
why there would be judgments or on the settlements, if they are
excluded then we will certainly lose a bunch of instances of
discrimination.
This is something that Congress can balance, the incentives
on both sides and that--
Ms. Ross. Thank you for doing that.
Ms. Garcia, you are recognized for five minutes.
Ms. Garcia. Thank you, Madam Chair, and it is great to see
you at the gavel.
To the Ranking Member, I am so sorry about all the
technical problems. I know, I have had them. So, I know that it
is, we all have to work together through all these even though
we have been doing it now for almost a year. We still seem to
have some of these difficulties.
I want to thank you, Madam Chair, for putting this great
panel together on this very important topic. It is important
that we know that the Voting Rights Act in its history, as my
colleague Representative Raskin has mentioned, has a rich
history of the need for the Act and it is as one of the
witnesses said, it kind of puts a ribbon on what our democracy
is because it is, in fact, the right to vote that helps us
protect all our other rights.
So, that is why it is important that we have this
discussion because it is not really just about protecting the
rights to vote for Latinos and for African Americans and Asian
Pacific Americans, it is to protect everyone's right to vote.
So, even when attempting to register, organize resist voters at
registration, sometimes it has meant risking our jobs, it has
meant risking our lives. It has meant putting our homes and
ourselves at risk, but people have a right to vote and we
better make sure that they can exercise that right.
It is unfortunate that even with this rich history that we
fast-track to today, we are still finding these assaults on our
democracy through assaults on the right to vote. As it has been
mentioned already by many of you and some of my colleagues,
Texas, regrettably, is a leader in this area. Republicans today
are in Austin legislating and as has been mentioned Georgia has
passed some laws, now Texas is trying to mirror passage of all
those laws to restrict the right to vote and making it harder
for communities of color and people to be able to cast their
ballots.
So, in light of this attack on voting rights and extreme
concerns about the impact to our communities, it is important
that I share with you, and I ask for unanimous consent to add
to the record a letter from the Texas congressional delegation
to the Department of Justice to provide what actions the
Department may take to review and challenge these laws from
Texas should they become law. The session is still about three
or four more days to end, so we will know soon just what we
will have to challenge.
The 2020 election has repeatedly shown to be secure, safe,
and accurate and, in Texas, this last election brought the
highest turnout in 30 years. So, it is no surprise that we are
seeing all these additional suppression and intimidation
through the ballot, through these laws that are being proposed.
So, I implore my colleagues from across the aisle in Texas to
stop attempting to suppress the minority vote and let the
people vote. That is the core of our democracy. So, I think it
is high time that we pass the John Lewis act.
I also, Madam Chair, wanted to include a unanimous consent
for a letter from the congressional delegation to Majority
Leader Schumer urging him to pass their companion bill. Also,
of course, a copy of my written testimony from June 2014, when
I was a State Senator and spoke before the Senate Judiciary
Committee on updating the Voting Rights Act in response to the
Shelby case. So, Madam Chair, I ask for unanimous consent.
Ms. Ross. All great additions to the record.
Ms. Garcia. All right. Thank you, ma'am.
So, I want to start, Ms. Nelson, with you. Mr. Raskin put
you through some of the items that have been passed in Georgia.
I am sure you are keeping track, as many of you are, of the
bills that are being proposed in Texas, and the question
becomes, how are we really going to be able to challenge it?
What would be the cost of litigation should we choose to
challenge any one of these bills that, unfortunately, at least
a couple of them are getting through?
If we can't do it under section 5, then we have got to use
the constitutional basis. It is a hard bar as you said, but
what about the cost? I mean, can your average litigant afford
this?
Ms. Nelson. That is an excellent question and just in
brief, no. These cases cost hundreds of thousands of dollars
and sometimes into the millions to litigate. As many of my
colleagues on this panel know because we were all involved in
the Veasey v. Abbott case and that litigation has wrapped and
we are dealing with attorneys' fees and they are significant,
it takes enormous resources to challenge these laws and the
complex bill that Texas is attempting to pass would require an
intense amount of time, money, and commitment to challenge it
and it is not something that the average voter is likely to be
able to do own and it is very challenging for civil rights
organizations like ours to continue to bear the burden of
protecting our democracy from these assaults and from these
discriminatory laws.
So, it is we absolutely need prophylactic legislation that
would prevent us from the need to litigate at this clip and at
this scope.
Ms. Garcia. It takes a long time, doesn't it?
Ms. Nelson. It takes a very long time, and during that time
elections happen, and leaders are elected under discriminatory
conditions. That cannot be how our--
Ms. Ross. Ms. Nelson, we are going to need to have you wrap
up because we are going over time, so.
Ms. Nelson. Thank you. That is not how our democracy can
continue to operate.
Ms. Garcia. Well, thank you again and thank you to all the
groups. Without you, we could not get some of this success so
thank you for your work, and I yield back.
Ms. Ross. Okay. Without objection, all your additions to
the record are added.
[The information follows:]
MS. GARCIA FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Garcia. Thank you.
Ms. Ross. Finally, we have Ms. Jackson Lee.
Ms. Jackson Lee, you are recognized for five minutes.
Ms. Jackson Lee. Thank you very much, Madam Chair.
Thank you to the witnesses for their testimony. I was
openly wanting to submit five articles into the record and
would like to specifically read a quote into the record. One
article says, ``Racist voter suppression Texas laws keep
Latinos from the ballot box.'' A particular quote, ``Texas has
a long history. It is a State that has the most pronounced
overt, racist voter suppression tactics that we know of.''
I can assure you that is extremely accurate inasmuch as
that my district is a voting rights district. It has been a
voting rights district since Barbara Jordan went to the United
States Congress and it has been a voting rights district since
I was elected in 1994. But, for the NAACP Legal Defense Fund
and counsel, this district would be the target along with
others for extinction. Right now, we are in the line of
redistricting, and we are likewise the target.
So, I want to ask these questions, and I cannot, Madam
Chair, see the time, so I appreciate your help. I would like to
ask this to Mr. Greenbaum, and I would like to ask a question
as well to Ms. Nelson, if you would.
There is, obviously, a discussion about the practical
aspects of voting and that is mail ballots, ballot locations,
re-enfranchising felons--those are all very important and I
advocate for them strongly. Even there is an idea of a voting
or a redistricting commission, which one would also note that
it may not be a perfect commission in every state. Tell me how
preclearance section 5, Mr. Greenbaum, in particular, indicates
that the efficiency of section 5 is the element that gets to
stopping what is voting discrimination at the door and how
relevant that is in comparison to forcing the section 2
procedures. Also, if you would, the former President routinely
undermined election integrity. He did it in the election in
2020. Considering these base attacks on election integrity,
equity, can you explain what is at stake if we do not address
the Supreme Court's gutting of the Voting Rights Act?
I would like both of you to answer that question and
realize that my time is probably already gone.
Madam Chair, I ask to submit five articles into the record.
I would appreciate that.
Ms. Ross. Without objection.
[The information follows.]
MS. JACKSON LEE FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Jackson Lee. Thank you.
So, both of you would ask that question quickly, please.
Mr. Greenbaum. Sure. Congresswoman Jackson Lee, section 5
is effective and efficient because, number one, it stopped
voting rights discrimination before discriminatory changes
could be put into effect. It followed a pretty straightforward
retrogression test; whether all our voters of color were worse
off under the change than they were before. In comparison to
that litigation, under section 2 or under causes of action is
time-consuming and expensive. Going back to the Texas ID case
as an example that it took us three and a half years to
successfully litigate and during that time there were a lot of
elections that took place under the discriminatory law, and
then at the end of it we recovered over six million dollars in
fees that is now on appeal. The State as of 2016 spent three
and a half million on its own not to mention the expense of the
Department of Justice.
Democracy--and really quickly in terms of your second
question, I really think democracy is at risk, at serious risk
right now, and some of the laws that we are seeing enacted in a
number of states we will see what happens in Texas over the
next couple days, it is really scary. As I alluded to in my
testimony, I think the Georgia law is a great example of that.
That suddenly after a number of years of having vote by mail in
Georgia, it is after the election in which Black, in particular
Black and Asian voters turned out in large numbers in terms of
voting by mail and in bigger numbers than in White voters, that
suddenly you have these restrictions.
Ms. Jackson Lee. Thank you.
Can I quickly go to Ms. Nelson, and as you answer the
question, remember preclearance for drawn a Congressional
District, a preclearance as opposed to a section 2 action, why
the John Robert Lewis bill is so crucial in restoring section
5.
Ms. Nelson?
Ms. Ross. Again, very briefly. We have run out of time, so
quickly.
Ms. Jackson Lee. Thank you, Madam. I cannot see the clock
where I am. Thank you so very much.
Ms. Ross. No, that is okay. Okay.
Ms. Jackson Lee. Thank you.
Ms. Nelson. Yes, we have talked about the durability of
some of these discriminatory laws and decisions and how
elections take place in that timeframe that we are challenging
and litigating them, but I think in the redistricting context
it is even more acute. You have lines drawn that often last the
better part of the decade of redistricting that entrench power
in a way that is not easily undone.
If we don't have a gatekeeping mechanism, if we don't have
the ability to examine these redistricting plans before they go
into effect, it will certainly wreak havoc on our democracy and
severely undermine the legitimacy of it and of those elected
officials who ultimately are produced based on discriminatory
redistricting plans. Thank you.
Ms. Jackson Lee. Thank you so very much.
Madam Chair, thank you so very much. I yield back.
Ms. Ross. Thank you.
Is Ms. Bush here? I don't know. I haven't seen her. If she
is not, then this concludes today's hearing.
Ms. Bush. I am here.
Ms. Ross. Oh, are you here, Ms. Bush? Yes. Okay, you are
recognized for five minutes.
Ms. Bush. All right, thank you very much. St. Louis and I
thank you, Madam Chair, for convening this hearing.
To all my colleagues here today and elsewhere, we are
running out of time. Republicans have been scrambling to
suppress votes and they are doing so with urgency. As of March,
more than 250 laws have been introduced in at least 45 states
aimed in doing one thing which we all know, silencing the
voices of Black and brown and indigenous voters. From Georgia
court challenges to the 2020 elections to the ongoing election
audits in Arizona, Michigan, and New Hampshire, the Republican
Party has planted their flag and it is squarely in the camp of
undermining our right to vote. This is not new and it will not
change if Congress neglects our duty to protect the rights of
all people, not just White people, to vote.
I want to highlight three things today. First, which I know
has been stated, the preclearance formula, a key element of the
Voting Rights Act which required many states to get federal
approval to change their voting laws is not enough. In fact,
several states like my own State of Missouri have not
previously been covered by the preclearance formula. Our
Republican-controlled State government has made clear in recent
years that it is committed to surgically suppressing the votes
of nonwhite Missourians including in predominantly Black
communities like St. Louis. Missouri's obstructive voter ID
laws have disincentivized thousands of people from even trying
to vote.
Second, we cannot solely rely on the protections of section
2 of the VRA which prohibits discriminatory voting laws.
Section 2 is reactionary. It can only be used after states
implement their racist voting laws instead of protecting those
rights on the front end. The Shelby v. Holder decision made
clear that those section 2 protections are not enough.
Finally, it is precisely because of these debates that H.R.
4, the John Lewis Voting Rights Advancement Act, must be
accompanied by H.R. 1, has to be, which addresses many voter
protections such as preventing voter purges and long wait times
and expanding early voting nationwide. As Ms. Nelson mentioned,
we cannot rely on the course to retroactively fix these issues.
We have to stop voter suppression before it happens.
For those of in Missouri who were not covered by the pre-
clearance formula and those of us who live in states with a
clear pattern of voter suppression, the protections put forward
in H.R. 1 are crucial. For these reasons, I call on my
colleagues in the Senate to urgently pass this legislation.
So, Ms. Nelson, the record here is extensive, but can you
please briefly highlight the most problematic changes to voter
laws and practices those states have enacted since Shelby
County, including states like Missouri?
Ms. Nelson. There are so many, but I will try to pinpoint
the ones that I think are particularly deleterious. Certainly,
voter identification laws that are targeted to exclude minority
voters and that are designed by their particular requirements
to make it more difficult to vote, registration limitations
that not only limit the ability of parties, third parties to
help register people, they have a deterrent effect on voter
registration drives and get out the vote efforts because people
are concerned that they may be violating laws and ultimately
prosecuted making voter registration more difficult through
needing to produce identification or to request an absentee or
mail-in ballot with missed signature requirements and those
types of means of making it just so much more challenging to
just access the ballot. All of this has been greatly
exacerbated by the pandemic where we are putting people at risk
if they need to have contact with a third party or go to an
administrative office to register or exercise the right to
vote.
There are many other ways in which our voting laws are
limiting the ability to turn out and vote. We talked about the
criminalization of providing sustenance to voters as they wait.
We talked about the idea that many early voting places have
been cut short, the hours are not consistent across the country
and across even State jurisdictions. There are not often the
adequate and equal allocation of voting machines and voting
apparatus. I could go on and on, there are so many ways in
which our democracy is not equitably administered.
Ms. Bush. Yes, I need--Thank you. I just have one more
quick question. Well, I am thinking my time is up, but thank
you.
This concludes today's hearing. I want to thank all our
witnesses for appearing. Without objection, all Members will
have five legislative days to submit additional written
questions--so, Ms. Bush, you can submit your last question--for
the witnesses or additional materials for the record. With
that, the hearing is adjourned.
[Whereupon, at 11:38 a.m., the Subcommittee was adjourned.]
APPENDIX
=======================================================================
Materials submitted by Jon M. Greenbaum, Chief Counsel and
Senior Deputy Director, Lawyers' Committee for Civil Rights
Under Law, National Commission for Voting Rights, submitted by
Steve Cohen, a Member of Subcommittee on the Constitution,
Civil Rights, and Civil Liberties from the State of Tennessee
available at https://docs.house.gov/meetings/JU/JU10/20210527/
112700/HMTG-117-JU10-20210527-SD010.pdf.
Materials submitted by Wendy R. Weiser, Vice President,
Democracy, Brennan Center for Justice, , submitted by Steve
Cohen, a Member of Subcommittee on the Constitution, Civil
Rights, and Civil Liberties from the State of Tennessee
available at https://docs.house.gov/meetings/JU/JU10/20210527/
112700/HMTG-117-JU10-20210527-SD011.pdf.