    [House Hearing, 117 Congress]
    [From the U.S. Government Publishing Office]

                                    ------
                         THE IMPLICATIONS OF BRNOVICH v.
       DEMOCRATIC NATIONAL COMMITTEE AND POTENTIAL LEGISLATIVE RESPONSES

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

                                    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

                                   ----------

                             FRIDAY, JULY 16, 2021

                                   ----------

                               Serial No. 117-35

                                   ----------

             Printed for the use of the Committee on the Judiciary

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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

       THE IMPLICATIONS OF BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE AND

                        POTENTIAL LEGISLATIVE RESPONSES

                        THE IMPLICATIONS OF BRNOVICH v.
       DEMOCRATIC NATIONAL COMMITTEE AND POTENTIAL LEGISLATIVE RESPONSES

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

                                    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

                                   __________

                             FRIDAY, JULY 16, 2021

                                   __________

                               Serial No. 117-35

                                   __________

             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
    46-432              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

                                  ----------

                             Friday, July 16, 2021

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Steve Cohen, Chair of the Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties from the State
      of Tennessee...................................................     2
    The Honorable Michelle Fischbach, a Member of the Subcommittee on
      the Constitution, Civil Rights, and Civil Liberties from the
      State of Minnesota.............................................     4
    The Honorable Jerrold Nadler, Chair of the Committee on the
      Judiciary from the State of New York...........................     5

                                   WITNESSES

    Sean Morales-Doyle, Acting Director, Voting Rights & Elections,
      Democracy, Brennan Center for Justice
      Oral Testimony.................................................     7
      Prepared Testimony.............................................    10
    Nicholas Stephanopoulos, Kirkland & Ellis Professor of Law,
      Harvard Law School
      Oral Testimony.................................................    20
      Prepared Testimony.............................................    22
    Robert D. Popper, Senior Attorney, Judicial Watch
      Oral Testimony.................................................    34
      Prepared Testimony.............................................    36
    Ezra Rosenberg, Co-Director, Voting Rights Project, Lawyers'
      Committee for Civil Rights Under Law
      Oral Testimony.................................................    47
      Prepared Testimony.............................................    49

                                    APPENDIX

    Materials submitted by the Honorable Steve Cohen, Chair of the
      Subcommittee on the Constitution, Civil Rights, and Civil
      Liberties from the State of Tennessee
      A report entitled ``The Case for Restoring and Updating the
        Voting Rights Act: A Report of the American Civil Liberties
        Union 2021,'' ACLU...........................................    88
      Statement from Sophia Lin Lakin, Deputy Director, Voting Rights
        Project American Civil Liberties Union.......................   319
      Materials from Ezra Rosenberg, Co-Director, Voting Rights
        Project, Lawyers' Committee for Civil Rights Under Law.......   350

                        THE IMPLICATIONS OF BRNOVICH v.

       DEMOCRATIC NATIONAL COMMITTEE AND POTENTIAL LEGISLATIVE RESPONSES

                                  ----------

                             Friday, July 16, 2021

                         U.S. 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 1:03 p.m., via
    Zoom, Hon. Steve Cohen [chairman of the subcommittee]
    presiding.
        Present: Representatives Cohen, Nadler, Raskin, Ross,
    Jackson Lee, Johnson of Louisiana, Jordan, and Fischbach.
        Staff Present: John Doty, Senior Advisor; Moh Sharma,
    Director of Member Services and Outreach & Policy Advisor;
    Jordan Dashow, Professional Staff Member; Cierra Fontenot,
    Chief Clerk; John Williams, Parliamentarian; Keenan Keller,
    Senior Counsel; Gabriel Barnett, Staff Assistant; Atarah McCoy,
    Staff Assistant; Merrick Nelson, Digital Director; Kayla
    Hamedi, Deputy Communications Director; James Park, Chief
    Counsel; Will Emmons, Professional Staff Member/Legislative
    Aide; Matt Morgan, Counsel; Betsy Ferguson, Minority Senior
    Counsel; Caroline Nabity, Minority Counsel; and Kiley Bidelman,
    Minority Clerk.
        Mr. Cohen. The Committee on the Judiciary, Subcommittee on
    the Constitution, Civil Liberties, and Civil Rights will come
    to order.
        Without objection, the Chair is authorized to declare a
    recess of the Subcommittee at any time.
        I welcome everyone to today's hearing on the implications
    of Brnovich v. Democratic National Committee and potential
    legislative responses.
        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. That would be
    judiciarydocs@ mail.house.gov. We will distribute them to
    Members and staff as quickly as we can.
        Finally, I would ask all Members and witnesses to mute
    their microphones when you are not speaking. This will help
    prevent feedback and other technical issues. You may unmute
    yourself at any time when you seek recognition.
        I will now recognize myself for an opening statement.
        Rights are only as strong and meaningful as the ability to
    enforce them. Among the most fundamental rights in our country
    is the right to vote, free from discrimination based on race or
    ethnicity. And at a time when American democracy itself is
    under severe threat from demagogue forces, amid a tidal wave of
    voter suppression efforts in many States since the 2020
    election, it is more important that we in Congress help
    facilitate strong and expansive enforcement of voting rights,
    and no statute is more central to this effort than the Voting
    Rights Act of 1965.
        Yet, 2 weeks ago, the Supreme Court's conservative majority
    reiterated its hostility to the VRA's simple purpose of
    eradicating race discrimination in voting by further
    undermining the Act's enforcement mechanisms in Brnovich v.
    Democratic National Committee. In reaching its decision, the
    Court compounded the damage it inflicted on the Voting Rights
    Act in 2013, when it effectively gutted the Act's most powerful
    enforcement mechanism, its preclearance requirement, section 5
    in Shelby County v. Holder.
        In Brnovich, the Court upheld two Arizona voting measures
    and some legal challenges brought pursuant to section 2 of the
    VRA, alleging that these measures denied or abridged minority
    citizens' voting rights on account of race or ethnicity. That
    is what the section 2 is about.
        In 1982, in response to an earlier Supreme Court decision
    restricting the scope of section 2, Congress wrote the current
    version of section 2, deliberately choosing to use very broad
    and expansive language.
        Section 2(a) provides that no voting qualification or
    prerequisite to voting or standard practice or procedure shall
    be imposed or implied by any State or political subdivision in
    a manner that results in a denial or abridgement of any
    citizen's right to vote on account of race, color, or language
    minority status.
        Section 2(b) provides that there is a section 2(a)
    violation when, based on the totality of the circumstances, it
    is shown that the political processes of the State or locality
    are not equally open to participation by minority citizens.
    That means that minority citizens, quote, have less opportunity
    than other Members of the electorate to participate in the
    political process and to elect representatives of their choice.
        In 1986, the Supreme Court, in Thornburg v. Gingles,
    adopted a list of historical and social factors taken from
    Senate report of the 1982 amendments to section 2 that courts
    should consider when assessing whether, under the totality of
    the circumstances test, the voting Rule violates section 2.
    Taken together, this expansive rules test has now been in place
    for four decades.
        More troubling than the outcome of the individual cases at
    issue with Brnovich was the reasoning underlying it and its
    potential impact to future cases alleging vote denial claims
    under section 2.
        In a brazen opinion, the Court in Brnovich created out of
    thin air five guideposts that lower courts are to follow in
    assessing vote denial claims under section 2. These guideposts
    are found nowhere in the Voting Rights amendment--or Voting
    Rights Act, directly contradicts section 2's purpose, and
    potentially narrows its scope.
        As Justice Kagan wrote in dissent, the Court was operating
    in a law-free zone, or this was an activist court not relying
    on precedent.
        Depending on how lower courts interpret and apply these
    guideposts, any one of them can become a giant loophole for
    States and localities to discriminate against minority
    citizens. Taken together, they can present a formidable
    obstacle for future section 2 plaintiffs alleging vote denial
    claims.
        One particularly offensive example is the, quote, ``size of
    disparity,'' end quote, guidepost, under which the Court
    concluded small disparities in the burden imposed by a
    challenge to voting Rule are less likely than large ones to
    indicate that an election system is unlawfully discriminatory.
    Kind of like a light violation of the law.
        Put another way, this can be taken to mean that imposing a
    little bit of racially disparate burdens in voting is okay.
    That is really amazing.
        Of course, section 2 contemplates no such de minimis
    exception for racially discriminatory burdens in voting.
    section 2 allows for no voting qualification or other practice
    or procedure that results in denial or abridgement of the right
    to vote. In essence, strict scrutiny.
        Moreover, how does one assess that a racially disparate
    burden is small enough not to matter? Just a little bit of
    discrimination, just a little bit of racial animosity and
    political politics over race and justice and equality.
        The Court provides no answer, leaving the door wide open
    for voting rights defendants to make the argument, and for
    lower courts to accept, that many kinds of racially disparate
    burdens are too small to violate section 2.
        In a similar vein, the Court created a mere inconvenience
    exception to section 2, concluding that an assessment of a
    section 2 vote denial claim had to account for the usual
    burdens associated with voting and that such ordinary burdens
    cannot implicate section 2. Of course, section 2 recognizes no
    such exception. Moreover, this guidepost put the cart before
    the horse.
        The whole point of a section 2 inquiry, when focused on the
    interaction of a given jurisdiction's historical and social
    condition with facially neutral voting rules, is to determine
    whether such a voting rule, which might impose a mere
    inconvenience or usual burden on White citizens, might have a
    discriminatory effect on minority citizens' voting
    opportunities.
        Without section inquiry, no court can objectively say
    whether a voting Rule imposes a burden that is merely
    inconvenient. The Court's decision in Brnovich is deeply
    troubling because of its implications for section 2, what we
    have left of the Voting Rights Act after the emasculation in
    2013. It heightens the risk that future section 2 plaintiffs in
    vote denial cases will have a harder time prevailing.
        It did, however, leave Congress with the option to respond
    with a legislative fix. We welcome suggestions from our
    witnesses how to best respond to this problematic decision,
    other than redistricting the Senate. I thank our witnesses for
    participating in today's hearing and look forward to their
    testimony.
        Now, I would like to recognize the Ranking Member, who
    today will be the gentlelady from Minnesota, Ms. Fischbach, for
    her opening statement.
        Ms. Fischbach. Thank you very much, Mr. Chair.
        Today's Subcommittee hearing is about the decision, the
    Supreme Court's decision in Brnovich, and this is now the
    fourth hearing this Subcommittee has held on the Voting Rights
    Act since April. Today, we will hear the same talking points,
    which are being repeated daily in the mainstream media.
        I don't know anyone who wants to prevent minorities or
    anyone from voting, but I have many constituents who are
    calling on me to protect the integrity of our elections. Let me
    be clear. Republicans want every legally cast vote to be
    counted and want every election to be free from fraud and
    error.
        There are many commonsense ways of doing this, which I
    think many of us could agree on behind closed doors and away
    from the cameras, including the provisions from this case.
        With this decision, the Supreme Court refused to politicize
    the Voting Rights Act and to transfer the authority to regulate
    elections from the States to the courts.
        As we know, the Election Clause of the United States
    Constitution gives State legislatures the authority to
    prescribe the times, places, and manners of holding elections.
    That is simply what Arizona did with its out-of-precinct policy
    and ballot collection restrictions, both commonsense measures
    that uphold the integrity of their State's elections.
        The DNC disagreed and tried to politicize the VRA by
    challenging these measures under section 2. On July 1, 2021,
    the Supreme Court issued its decision, which presented the
    Court with its first opportunity to weigh in on the VRA section
    2 claim that challenged voting laws regulating the time, place,
    and manner of casting a ballot.
        The Court held that Arizona's regulations governing out-of-
    precinct voting and ballot collections did not violate section
    2. Although Justice Alito did not announce a test to govern all
    similar VRA section 2 challenges, the Court found that equal
    openness of election procedures remains the touchstone in
    establishing whether there is a violation of section 2, and
    courts must examine the totality of the circumstances.
        The Court reiterated that States have a compelling interest
    in preserving the integrity of its election process. The Court
    received a letter from the Biden Justice Department, agreeing
    the case presented no VRA section 2 violations.
        I look forward to discussing the implications that this
    case will have on future section 2 litigation.
        Like the Shelby decision, and contrary to misinformation,
    this decision does not gut the VRA. Even after this decision,
    section 2 remains an effective tool to stop racially
    discriminative voting laws. However, the decision denies its
    critics the opportunity to use the VRA as a partisan tool to
    stop policy decisions that they simply disagree with.
        Following the 2020 election, several States have passed
    commonsense election integrity reform measures, which I again
    think we could agree on many of them behind closed doors.
    Unfortunately, we have already seen a false narrative pushed
    surrounding election integrity efforts in an attempt to build a
    false record of voter suppression to build momentum for
    amending the VRA.
        It is disheartening that politician groups and legislators
    are being maligned as trying to harm the very elections they
    are trying to secure. For example, just look at the Biden
    Administration's section 2 lawsuit against Georgia. Georgia's
    commonsense election integrity law is being attacked as
    discriminatory.
        Instead of attacking the motives of good Americans on both
    sides, we should be working together to ensure that both, that
    minorities are protected from discrimination and that our
    elections are secure from fraud.
        I look forward to discussing this landmark voting rights
    decision today, and I thank all the witnesses for being with us
    today.
        Thank you, Mr. Chair. I yield back.
        Mr. Cohen. Thank you, Ms. Fischbach. I appreciate your
    opening statement and for filling in for Mr. Johnson today.
        It is now my pleasure to recognize the Full Committee
    Chair, the gentleman from the great State of New York, the
    Empire State, Mr. Nadler, for his opening statement.
        Chair Nadler. Thank you, Mr. Chair.
        Mr. Chair, I appreciate your holding today's hearing to
    consider what action Congress should take in response to the
    Supreme Court's recent decision in Brnovich v. Democratic
    National Committee, which significantly narrowed the scope of
    section 2 of the Voting Rights Act of 1965.
        Section 2 prohibits voting practices or procedures that
    discriminate on the basis of race, color, or Membership in
    certain language minority groups. While the extent of the
    fallout remains to be seen, the Brnovich decision appears to
    have significantly undermined section 2's voting rights
    protections.
        Specifically, it will likely make it harder for plaintiffs
    to prove vote denial claims under the results test, which
    Congress adopted in 1982 as a guide for courts to determine
    whether the plaintiff has established that a challenged voting
    practice violates section 2's prohibition on discrimination
    when the challenged practice, while facially neutral, has a
    discriminatory effect.
        One silver lining to this decision, however, is that it
    leaves Congress with the ability to undo any potential damage
    the Court has inflicted on section 2. That is because the
    majority's opinion in Brnovich is based solely on its tortured
    interpretation of section 2, which is unsupported by the
    statute's text and is contrary to its purpose, and which
    Congress can correct through legislation.
        Congress included section 2 in the Voting Rights Act with
    the important purpose of protecting minority citizens from
    racial discrimination in voting in those areas of the country
    that were not subject to preclearance under section 5.
        In 1980, in the case of City of Mobile v. Bolden, the
    Supreme Court interpreted section 2 to prohibit only those
    voting measures that were motivated by discriminatory purpose,
    narrowing what had been the then understood scope of section 2.
        In response, in 1982, Congress amended section 2's language
    expressly to broaden its scope. Congress was concerned that
    State and local policymakers were implementing facially neutral
    voting practices--like those affecting the time, place, or
    manner of elections--that could interact with underlying social
    conditions created by historical discrimination to result in
    the denial of minorities' right to vote.
        Congress was intent on stopping this more subtle form of
    discrimination. Yet, in what can only be described as a
    usurpation of Congress' constitutionally assigned legislative
    role, the Court in Brnovich announced several new guideposts,
    seemingly from whole cloth, that lower courts are to consider
    in evaluating vote denial claims under section 2's results
    test.
        When evaluating claims under these new factors, lower
    courts could narrow plaintiffs' ability to challenge
    discriminatory, yet facially neutral, voting practices, the
    very practices that Congress broadened the scope of section 2
    to confront.
        None of these new guideposts have a basis in the text or
    legislative history of section 2. Instead, they appear to
    reflect what the Brnovich majority thinks the scope of section
    2 ought to be, not what Congress actually intended the scope to
    be when it amended the statute in 1982.
        As I have already noted, Congress passed the current
    version of section 2 in response to an earlier Supreme Court
    decision that narrowed section 2's scope. Today, 40 years
    later, Congress again finds itself in the position of having to
    consider how to clarify the scope of section 2 to ensure that
    broad voting rights protections remain in place.
        The circumstances Congress faces today, however, appear far
    more dire. The Brnovich decision has come in the midst of a new
    wave of racially discriminatory voting rights laws across the
    country, which itself is a result of the Court's disastrous
    2013 decision in Shelby County v. Holder, which gutted the
    VRA's section 5 preclearance regime.
        As many of you know, dozens of Texas lawmakers are in
    Washington now in a brave attempt to prevent the Texas
    legislature from jamming through a harsh new voter suppression
    law. Similar efforts to restrict voting are under way in State
    legislatures throughout the country. Congress must ensure that
    Federal protections are in place to block such discriminatory
    laws.
        In a dissent to the Brnovich opinion, Justice Kagan
    properly raised the alarm. She wrote, ``The Voting Rights Act
    of 1965 is an extraordinary law. Rarely has a statute required
    so much sacrifice to ensure its passage. Never has a statute
    done more to advance the Nation's highest ideals. Few laws are
    more vital in the current moment. Yet, in the last decade, this
    Court has treated no statute worse.''
        I could not agree more.
        Congress must Act where the Court has failed voters across
    the country.
        I thank Chair Cohen for holding today's hearing, and I look
    forward to the testimony of our witnesses.
        With that, I yield back the balance of my time.
        Mr. Cohen. Thank you, Mr. Chair.
        It is my understanding that the Ranking Member of the Full
    Committee, the gentleman from Ohio, Mr. Jordan, does not have
    an opening statement. If I am wrong, he is welcome to present
    at this point.
        Mr. Jordan. No, thank you, Mr. Chair. I associate myself
    with the remarks of Ms. Fischbach and look forward to the
    hearing. Thank you for this and I look forward to hearing from
    our witnesses.
        Mr. Cohen. Thank you, Mr. Jordan.
        We welcome our witnesses and thank them for participating
    in today's hearing. I will now introduce each of the witnesses,
    and after each introduction, will recognize that witness for
    his or her oral testimony.
        I do this a little differently. I give the introduction
    before they testify so you can kind of have it in your mind,
    rather than doing them all at once.
        Each of your written statements will be entered into the
    record in its entirety. Accordingly, I ask you to summarize
    your testimony in 5 minutes. To help you stay within that
    frame, there is a timer in the Zoom view that should be visible
    on your screen.
        Before proceeding with the testimony, I remind all our
    witnesses you have a legal obligation to provide truthful
    testimony in answers to the Subcommittee. Any false statements
    you make today may subject you to prosecution under section
    1001 of title 18 of the U.S. Code.
        Our first witness is Sean Morales-Doyle. Mr. Morales-Doyle
    is acting director of the democracy program at the Brennan
    Center for Justice at the New York University School of Law,
    where he focuses on voting rights and elections. He advocates
    for pro bono reforms, like automatic voter registration and
    voting rights restoration, while fighting back against voter
    suppression efforts in the courts.
        Prior to joining the Brennan Center, Mr. Morales-Doyle
    practiced law in Chicago, where he litigated all manners of
    civil rights and constitutional matters, and I am sure he had
    broad shoulders.
        Mr. Morales-Doyle earned both his undergraduate and law
    degrees from Northwestern University. He served as a law clerk
    to the Honorable William J. Hibbler of the U.S. District Court
    for the Northern District of Illinois.
        Mr. Morales-Doyle, you are recognized for 5 minutes.

                    STATEMENT OF SEAN MORALES-DOYLE

        Mr. Morales-Doyle. Thank you, Chair Cohen, Ranking Member
    Johnson, and Members of the Committee. Thank you for the
    opportunity to testify before you today about the Supreme
    Court's recent decision and how Congress should respond.
        We are witnessing a wave of restrictive voting laws more
    significant than we have seen since the voting rights was
    enshrined into law. While the Supreme Court's 2013 Shelby
    County decision helped open the floodgates to these efforts to
    roll back voting rights, the Brnovich decision weakened one of
    the tools we might otherwise use to stem the tide.
        So, Congress must once again meet this moment, as it has in
    the past, in 1965 and in 1982, to protect voters from
    discrimination. To provide truly comprehensive protection,
    Congress must restore the Voting Rights Act to its former glory
    and pass the For the People Act to set a new standard for
    elections free from discrimination.
        I will start with a brief explanation of the harm the
    Brnovich decision does and then turn to potential remedies.
        The first mistake of the Brnovich majority is that it
    departs from decades of precedent and shifts the focus of its
    analysis away from what Congress intended, which was an
    evaluation of how voting rules interact with the effects of
    race discrimination. That is the purpose of the totality of the
    circumstances test in section 2.
        The Court shifts its focus to a set of five so-called
    guideposts for courts to consider moving forward. In my written
    testimony, I explain in detail how each of these guideposts
    will lead courts astray from the cause of identifying and
    rooting out discrimination in voting.
        The short version is that they direct courts to view with
    skepticism characteristics that are in reality the hallmarks of
    modern-day voter suppression. The reality is that State
    legislatures are not hacking but slicing away at voting rights
    from every angle. They shave away access to mail voting. They
    cut back on in-person voting. They trim voters from the rolls
    through faulty purges.
        While any one slice might appear minor, the end result is
    death by a thousand cuts. This is how States, in the words of
    the Fourth Circuit Court of Appeals, target voters of color
    with almost surgical precision.
        The majority in Brnovich seems willing to accept
    discriminatory burdens, so long as they do not deny the right
    to vote to too many. The majority doubts a restriction on one
    method of voting discriminates if there are other methods
    available.
        If a State's voting laws are better than the status quo in
    1982, the majority suggests it will be hard-pressed to find
    them discriminatory.
        What is worse, the majority is far too quick to accept the
    excuse States give for these discriminatory laws in each and
    every instance--fighting fraud. The Court accepts at face value
    the lie that currently threatens to undermine our democracy.
        My colleagues and I make it our mission to defend the right
    to vote. This decision, following on Shelby County and others,
    leaves us facing unprecedented attacks with a blunted tool for
    fighting back.
        So, what is the solution? To remedy the harm done by Shelby
    County, Congress should restore preclearance by passing the
    John Lewis Voting Rights Advancement Act.
        Now to truly restore our power to push back on
    discriminatory laws, Congress must strengthen section 2.
        First, Congress must ensure that the Court's wrong-headed
    guideposts won't prevent the identification of truly
    discriminatory practices. Congress could spell out the
    considerations that are relevant to determining whether a Rule
    produces discriminatory results, making explicit the central
    role that historical and current discrimination must play in
    the Court's analysis of section 2 claims.
        The Senate factors helped guide the courts for decades, but
    Congress could also elaborate upon them.
        Second, Congress must make clear that the true threat to
    our democracy is race discrimination, not widespread voter
    fraud. To right-size deference to States, Congress could
    require courts to consider the tenuousness of the relationship
    between the policy at issue and the stated goal, or it could
    require States to prove that the Rule in question actually
    serves the goal.
        Finally, it is critical that Congress make explicit that
    there is no tolerable level of race discrimination. With these
    goals in mind, Congress can remedy the harm done to the Voting
    Rights Act.
        Restoring the Voting Rights Act is not enough. Congress
    must also pass the For the People Act and create a new national
    standard for voting. This will take some common tactics for
    restricting voting off the table. We applaud the House for
    doing its part on this already.
        Thank you again for the opportunity to contribute to this
    conversation.
        [The statement of Mr. Morales-Doyle follows:]

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        Mr. Cohen. Thank you, Mr. Morales-Doyle. We appreciate your
    work and your testimony.
        Our next witness is Nicholas Stephanopoulos. Mr.
    Stephanopoulos is Kirkland & Ellis professor of law at Harvard
    Law School, where he teaches classes on election law and
    constitutional law, the future of voting rights, and workshops
    on law and politics and on voting rights litigation and
    advocacy.
        Prior to joining the Harvard faculty, Professor
    Stephanopoulos taught at the University of Chicago Law School
    and Columbia Law School. Before that, he was in private
    practice.
        Professor Stephanopoulos received his JD from Yale Law
    School, his Master of Philosophy from the University of
    Cambridge, and his AB in government, summa cum laude, from
    Harvard University.
        He also served as a law clerk for the Honorable Raymond C.
    Fisher, of the United States Court of Appeals for the Ninth
    Circuit.
        Quite an impressive resume.
        Professor Stephanopoulos, you are recognized for 5 minutes.

                  STATEMENT OF NICHOLAS STEPHANOPOULOS

        Mr. Stephanopoulos. Thank you, Chair Cohen, Ranking Member
    Johnson, and distinguished Members of the committee, for
    inviting me to testify today.
        As the Chair mentioned, I am a Professor at Harvard Law
    School where I specialize in election law.
        Much of my work over the years has involved the Voting
    Rights Act, and most relevant here, I wrote a 2019 article
    called, ``Disparate Impact, Unified Lot,'' in which I proposed
    a standard for vote denial claims under section 2 of the Act.
        Several justices asked about my proposal at the Brnovich
    oral argument, and the Court's decision also cited my article.
        I would like to make three points about that decision in my
    testimony today. The first is that it is indefensible as a
    matter of ordinary statutory interpretation. The Justices in
    the Brnovich majority claim to be textualists. When reading a
    statute, they claim that they start with the text, and they end
    with the text.
        The factors the Court announced for future section 2 cases
    are simply unmoored from the statute's language. You can stare
    at that language for as long as you want, but you will never
    find any references to the size of a voting burden or the size
    of a racial disparity, let alone what policies happened to be
    in place back in 1982.
        The Court's only defense for its extratextual factors is
    that section 2 mentions the, quote, ``totality of
    circumstances.'' That phrase supposedly authorizes the Justices
    to invent whatever criteria they think are appropriate. The
    totality of circumstances isn't an invitation to the Justices
    to become our platonic guardians. It is just a reference to the
    factors listed in the 1982 Senate report.
        As Justice Kennedy once wrote, quote, ``For this purpose of
    interpreting the totality of circumstances, the Court has
    referred to the Senate report on the 1982 amendments.''
        Until now, the Court hasn't relied on its own idiosyncratic
    judgment. Bad textualism is bad enough.
        My second point, though, is that the Court's flawed reading
    of section 2 will seriously impair efforts to fight racial
    discrimination in voting. This is because each of the Court's
    factors is designed to make it harder for section 2 plaintiffs
    to win their cases. Each factor puts a thumb on the scale in
    favor of defendants.
        Together, the factors amount to a roadmap showing States
    how to avoid liability for the racial inequities of their
    elections.
        Take the factor about the State of the world in 1982. In
    that era, early and mail-in voting were strictly limited.
    Innovations like automatic voter registration and ballot drop-
    off boxes were unknown.
        So, under the Court's approach, cutbacks to those policies
    would likely be fine. No matter what racial disparities the
    cutbacks caused, at worst, they would just return States to the
    1982 status quo.
        Fortunately, Congress doesn't have to accept the shackles
    the Court attached to section 2. Brnovich is just a decision
    construing a Federal statute. If Congress disagrees with the
    decision, it can and it should override the Court. That is the
    last point I want to make today.
        In particular, I would recommend the insertion of two new
    paragraphs into section 2. Let me flag that my written
    testimony includes potential language for these provisions.
        The first new paragraph would list the Court's factors and
    then State that they are not among the circumstances that
    should be considered in section 2 cases.
        The second new paragraph would say that the approach
    Justice Kagan described in her dissent is part of the totality
    of circumstances.
        Under that approach, there are two critical issues. First,
    does electoral practice result in a statistically significant
    racial disparity; and second, is the practice necessary, the
    least restrictive means to achieve an important State interest.
        Something like Justice Kagan's test is already used under
    title VII and the Fair Housing Act. Justice Kagan's test is
    also constitutional, given that the rest of disparate impact
    law is valid.
        Most importantly, Justice Kagan's test is effective. Many
    electoral rules cause significant and unnecessary racial
    disparities. More such rules are currently being debated around
    the country.
        All these policies would be caught by Justice Kagan's test.
    So, therefore, Congress ought to embrace that test and move us
    closer to a world where our elections are finally free of
    racial inequities.
        Thank you very much. I look forward to your questions.
        [The statement of Mr. Stephanopoulos follows:]

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        Mr. Cohen. Thank you, Professor.
        Our third witness is Robert Popper. Mr. Popper is a senior
    attorney and director of voting integrity efforts at Judicial
    Watch, Incorporated, where he has been an employee since 2013
    and has litigated several voting rights cases. He has been
    practicing as a litigator for 31 years, with special knowledge
    and expertise in the areas of voting law.
        In 2005, he joined the voting section of the Civil Rights
    Division of the U.S. Department of Justice, where he worked for
    8 years, earning a special commendation award for his efforts
    in enforcing National Voter Registration Act of 1993. He was
    also promoted to deputy chief of the voting section.
        In his time at the DOJ, he managed voting rights
    investigations, litigation, consent decrees, and settlements in
    dozens of States, including those concerning the Voting Rights
    Act of 1965.
        Mr. Popper received his JD from Northwestern University
    School of Law, his undergraduate degree from University of
    Pennsylvania.
        Mr. Popper, you are recognized for 5 minutes.

                     STATEMENT OF ROBERT D. POPPER

        Mr. Popper. Thank you, Chair Cohen, Ranking Member Johnson,
    and Members of the Subcommittee.
        In my view, the Brnovich decision relied heavily on the
    plain text of section 2, which Chair read at the beginning of
    this hearing. The Court analyzed the words ``open'' and
    ``equally open'' using dictionary assistance, and it analyzed
    the text holistically in the light of, in the context of the
    additional phrase in that ``open'' and ``equally open'' meant
    in that the Members of a group have less opportunity than other
    Members of the electorate to participate in the political
    process and to elect representatives of their choice.
        The Court's decision was not unexpected and had been
    presaged by a majority of circuit courts to have considered
    this issue.
        Remember, there has been a long unresolved legal problem as
    to how to apply section 2 of the Voting Rights Act to time,
    place, and manner restrictions. Numerous courts over the years
    have commented on how the Gingles criteria are an uncomfortable
    fit for vote denial cases, and that guidance was something that
    the Court provided.
        I wanted to note that we have discussed already the five
    guideposts that the Court identified, and it is important to
    realize that the Court called them nonexhaustive--a
    nonexhaustive list of factors to consider in looking at the
    totality of the circumstances.
        Now, bear in mind that the original Senate factors that we
    all know and work with was a nonexhaustive list. I am quoting
    now from the 1982 report, from which the Senate factors, where
    they were first enumerated, and the report says typical factors
    include--and it lists the nine factors. Then it says, ``while
    these enumerated factors will often be the most relevant ones,
    in some cases, other factors will be indicative of the alleged
    dilutions.''
        That raises another point. The language in section 2 came
    from White v. Regester in 1973. That was a multimember district
    case. Gingles was a multimember district case.
        From the beginning, section 2 has been targeted to vote
    dilution and districting, multimember district, at-large
    districts kinds of cases.
        As I indicated, as I said, courts have routinely commented
    on how there is no guidance as to how to treat a time, place,
    and manner restriction.
        Now, because it was unresolved, there has been a rash of
    lawsuits that I would say were of poor quality and should not
    have been brought. In my written testimony, I discuss the Ohio
    Democratic Party v. Husted from 2016. Bear in mind that the
    alleged section 2 violation that the trial court found to have
    occurred was that Ohio cut its early voting days from 35 days
    to 29 days.
        Bear in mind as well that as we sit here, Connecticut and
    Delaware have no early voting. So, it is not that you are going
    to get sued for whether or not you have early voting; you are
    going to get sued if you have it and then repeal it. That makes
    no sense.
        Now, I would add that some very famous politicians,
    including the President of the United States, have invoked Jim
    Crow. That is, in my view, an outrageous thing to say. At its
    worst, Jim Crow involved State government officials colluding
    with domestic terrorists to murder American citizens.
        Even if you look at the voting angle of Jim Crow, it
    involved literacy tests that were six pages long, and no one, I
    respectfully submit, on this Committee could pass. It involved
    all White primaries that determined the winner. It was shocking
    in its extent, but it has nothing to do with 35 days to 29 days
    of early voting. It has nothing to do with out-of-precinct
    voting, as in Arizona, for some counties, not all. It has
    nothing to do with saying that mail ballots after COVID have to
    be collected by a family member, household member, or
    caregiver.
        We need some perspective in this debate. We need to
    understand what is happening. I can go on at length, although
    not according to the clock, but I can talk about the Texas and
    the Georgia legislation as well. By the way, both Texas and
    Georgia, unlike Connecticut and Delaware, have early voting.
        Thank you, Mr. Chair.
        [The statement of Mr. Popper follows:]

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        Mr. Cohen. You are welcome, Mr. Popper, and we thank you
    for your testimony.
        Our final witness is Ezra Rosenberg. Mr. Rosenberg is co-
    director of the Voting Rights Project and Lawyers' Committee
    for Civil Rights Under the Law. For that role, he supervised
    the Lawyers' Committee's national voting rights litigation.
        He joined the Lawyers' Committee in November 2014,
    continuing a 40-year career in the public and private sectors.
    He previously practiced at a major national firm, where he was
    actively involved in pro bono representation and successfully
    challenging Texas' photo ID voting law. He was also one of the
    lead trial counsels in the case challenging the Secretary of
    Commerce's decision to add a citizenship question to the 2020
    Census.
        Mr. Rosenberg received his JD, cum laude, and Order of
    Coif--Coif--whatever--from the NYU School of Law, and his BA,
    cum laude, from the University of Pennsylvania.
        Mr. Rosenberg, you are recognized for 5 minutes.

                      STATEMENT OF EZRA ROSENBERG

        Mr. Rosenberg. Thank you, Chair Cohen, today's Ranking
    Member Fischbach, and the Members. Thank you for giving me the
    opportunity to testify today on these important issues.
        Racial discrimination in voting diminishes our democracy.
    The Voting Rights Act of 1965, and particularly Sections 2 and
    5, has been an indispensable tool in the fight against such
    discrimination. With the evisceration of section 5 by the
    Supreme Court in Shelby, section 2 is needed more than ever.
        For decades, section 2 has been working quite well. The
    courts had developed standards designed to meet the intent of
    Congress to stop not only explicit discrimination but also
    facially neutral voting laws that, through subtle methods, had
    a significant impact on minority citizens' right to vote. Thus,
    the courts adopted standards that recognize that a seemingly
    innocuous voting practice can interact with underlying social
    conditions, themselves the consequence of this discrimination,
    to result in pernicious discrimination in voting.
        Those standards were judicially manageable. There has been
    no flood of questionable section 2 vote denial cases, no
    widespread invalidation of voting regulations. Indeed, Brnovich
    marked the first time since the 1982 amendments to the Voting
    Rights Act that the Supreme Court reviewed a pure vote denial
    claim.
        In Brnovich, writing for the Court's majority, Justice
    Alito provided guidelines for future treatment of section 2
    vote denial cases that were not only new, but also contrary, or
    at least dilutive of the decades long-accepted standards.
        Now, I emphasize that Brnovich does not spell the end of
    section 2 cases, but it unnecessarily and unreasonably makes it
    much more difficult for civil rights plaintiffs to win those
    cases, particularly results cases, when they already were
    difficult to win. It does so in a way that flies in the face of
    congressional intent. Further, it raises too many ambiguities
    in too many important areas to leave it to the courts to fill
    in the blanks.
        I come to these views after having devoted the bulk of the
    last decade litigating voting rights cases on behalf of voters
    of color for the Lawyers' Committee.
        The Lawyers' Committee is a national civil rights
    organization, created at the request of President Kennedy in
    1963, to mobilize a private bar to confront issues of racial
    discrimination pro bono.
        In fact, I first became associated with the Lawyers'
    Committee in 2011, when I was in private practice and
    volunteered to take on voting rights case pro bono, and that
    case was the challenge to Texas' strict photo ID law. My
    experience with that case heavily influences my views here
    today.
        There, we and other groups successfully sued under section
    2, and Texas was forced to change its law after the Fifth
    Circuit ruled en banc that Texas' photo ID law discriminated
    against Black and Latino voters. The case was hard-fought, took
    6 years to litigate. It is difficult to predict how the Fifth
    Circuit would have applied Brnovich to the facts of the Texas
    case, but one thing is certain, the case would have been much
    more difficult to prove and more costly to litigate.
        There are at least two approaches that Congress can take in
    response to the Shelby County/Brnovich assault on the Voting
    Rights Act. The first is to pass legislation like the John
    Lewis Voting Rights Advancement Act that addresses the hole in
    the Voting Rights Act left by the Shelby County decision.
        The second is to deal with the expected consequences of
    Brnovich. Common sense and history instruct us that those who
    wish to target voters of color will undoubtedly feel emboldened
    by a decision that can be read as making it more difficult for
    plaintiffs to prove a section 2 violation and read it as a
    signal that they have a get-out-of-jail card to pass additional
    voter suppressive legislation.
        Although we firmly believe that the Court should not apply
    Brnovich in such manner, the threat is there. Continued
    commitment to the core purpose of the Voting Rights Act should
    not be left to the uncertainty created by the ambiguous and
    problematic language of Brnovich.
        I am going to end with the same quote that Chair Nadler.
    used from Justice Kagan's dissent. We must share the same
    speech writer, but it is important language.

            ``The Voting Rights Act of 1965 is an extraordinary
            law. Rarely has a statute required so much sacrifice to
            ensure its passage. Never has a statute done more to
            advance the Nation's ideals. And few laws are more
            vital in the current moment.''

        Thank you.
        [The statement of Mr. Rosenberg follows:]

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        Mr. Cohen. Thank you, Professor Rosenberg.
        I will now recognize myself under the 5-minute Rule and
    proceed with questioning.
        Professor Stephanopoulos, the Brnovich majority is, in my
    opinion--and I would like to know your opinion--activist and
    not textural. Would you agree with describing their opinion as
    an activist decision?
        Mr. Stephanopoulos. Thank you, Chair Cohen, for that
    question. Yes, I would absolutely agree with that assessment.
    There is a real irony in the current Court's conservative self-
    description as modest, restrained, textualist, when every line
    of Brnovich--you can read the insertion of the court's own
    conservative ideology--that the five factors as we have
    discussed, are plucked out of thin air. They are not rooted in
    the actual language of section 2. Every one of them reflects
    the Court's hostility to the mission of the Voting Rights Act,
    which is ending racial inequities in American elections.
        Mr. Cohen. In some ways, I think of it as being analogous
    to Plessy v. Ferguson. Plessy was the--after we had ended
    reconstruction with the 1976 Hayes-Tilden agreement that was a
    pox on both political parties. The Court in Plessy v. Ferguson
    said separate but equal.
        Is this kind of like that in a way, Professor
    Stephanopoulos, in that they are saying that if it affects
    certain voters similar to majority voters, in that if they have
    some problems and the minority has some problems, and it is
    going to make not much of a discrimination, that it is okay?
        Mr. Stephanopoulos. Well, that is a fairly inflammatory
    analogy, and I don't--
        Mr. Cohen. I know. You are not.
        Mr. Stephanopoulos. I wouldn't say that the current
    measures are really the equivalent of Jim Crow. I think they
    are more fairly described as Jim Crow-light as opposed to Jim
    Crow 2.
        The intent and the massive racial disparities of the real
    Jim Crow era I don't think are present here, but nevertheless,
    we have a host of nominally neutral restrictions of voting,
    that one after another end up causing predictable and
    substantial racial disparities.
        These aren't the huge racial disparities of the late 19th
    century or the early 20th century, which is why I don't think
    that this is a Jim Crow 2.0 era. We do see a proliferation of
    measures that do, in fact, disproportionately and unnecessarily
    make it harder for minority citizens to vote.
        Mr. Cohen. Do you agree with Professor Rosenberg that this
    is basically a canary in a coal mine, and it portends future
    cases being interpreted and construed in the same manner?
        Mr. Stephanopoulos. I would say it is more than a canary in
    a coal mine. This is the coal mine itself on fire. This isn't a
    portent of bad things that might happen in the future. This is
    the bad things happening right now.
        Mr. Cohen. If there are these problems that we can foresee
    coming as the VRA is eroded, Congress needs to Act to amend the
    Court rules. Do you have any suggestions on what we need to do
    in amending the law?
        Mr. Stephanopoulos. Yeah. I would recommend following the
    path that Justice Kagan laid out in her dissent, which is to
    say that two factors above all are critical in section 2 vote
    denial cases. Those are, number one, does some regulation of
    voting cause a statistically significant racial disparity; and
    if so, number two, is that practice really necessary to achieve
    some important State interest.
        Not all neutral voting regulations would fail under this
    test, not by a long shot, but some would, the ones that are
    producing large inequities that can't be justified. Those
    practices would properly be eradicated. That is exactly what
    the VRA was meant to accomplish.
        Mr. Cohen. Professor Rosenberg [inaudible] consideration
    that the Court majority read into section 2 is the degree to
    which a voting Rule departs from local standard practice when
    section 2 was amended in 1982.
        Do you think Congress intended the [inaudible] to remain
    the standard by which burden is placed on minority voters by
    present-day voting practices should be forever compared? Was
    that a time that we just froze in history and there will be no
    improvements, no changes, no more progress? It is just
    basically 1982.
        Mr. Rosenberg. Thank you. I assume that was addressed to
    me, Chair Cohen. I am not a professor as much as I would like
    to be Professor Stephanopoulos' colleague.
        Justice Alito, in his opinion where he set 1982 as what he
    called a benchmark against which to compare present-day
    discrimination just doesn't make sense. Not only doesn't make
    sense, but Justice Alito never explained why. In response to
    Justice Kagan's dissent, he simply said, ``well, it is useful,
    it is useful because it is useful.'' That tautology just
    doesn't really do the job.
        As Justice Kagan said in her dissent, section 2 was
    intended to eradicate discrimination, not to set it in amber,
    and that is precisely what using a 1982 benchmark does.
        If one thing we have been taught by history it is that
    those who want to discriminate on the basis of race in voting,
    they change with the times. When at one time, of course, only
    White people were allowed to vote, and after that, it was
    declared unconstitutional in the 15th Amendment. Different
    means were used by those people. They changed with the times.
        Poll taxes, literacy tests. After those were rendered
    unconstitutional, they changed with the time. Closing polling
    locations, complicated registration systems, voter ID laws that
    they knew would affect Black and Latino voters much more
    severely than it would affect White voters.
        History also teaches us that those who would discriminate
    against people of color in their voting will change as those
    voters of color change the way they vote.
        So, now we have voters of color using absentee ballots in
    places like Georgia more--at a greater rate than do White
    voters. What happens? Suddenly, the Georgia legislature decides
    it is going to start clamping down and adding unnecessary and
    burdensome restrictions on absentee ballots.
        States cannot be led to believe that they can get away with
    voter suppressive legislation by pointing to what happened 40
    years ago.
        Mr. Cohen. Thank you, Mr. Rosenberg.
        That concludes, plus a little bit of extra of my time, and
    I now recognize Ms. Fischbach for 5 minutes or a little more.
        Ms. Fischbach. Mr. Chair, I would just ask, Ranking Member
    Johnson has joined us, and I would defer to him if he had
    questions before me.
        Mr. Johnson of Louisiana. I do. I thank you so much and
    thank you for filling in today.
        I apologize for being late to the hearing. I just attended
    a funeral of a fallen law enforcement officer in my district,
    and it is quite a sad occasion.
        I thank the witnesses for being here. I have questions for
    Mr. Popper.
        Let me just start and say, one of the laws in question in
    the Brnovich case requires voters to vote in their own
    precinct. In your estimation, I am wondering if you could tell
    us how widespread is this requirement across the country, and
    specifically, is it only limited to States with Republican
    majority legislatures?
        Mr. Popper. I am sorry for your loss and for your State's
    loss.
        Mr. Johnson of Louisiana. Thank you.
        Mr. Popper. It most definitely is not. I wanted to touch on
    something that Mr. Rosenberg--I almost said Professor
    Rosenberg--touched on, and that is that when you have a voting
    Rule that has a disparate impact even by a tiny fraction, you
    can construct a case on that, prior to Brnovich at least, in
    which you say, we will take that tiny difference and we will
    call that a disparate impact, and we will look at historical
    conditions, having nothing to do with voting in many cases, and
    we will say that there is a section 2 violation.
        That was the old rubric. That is how you get to sue over
    what are ordinary regulations.
        Now, what the Supreme Court identified was the trick that
    is being played, out-of-precinct voting is used by 1 percent of
    minority voters, and that means that 99 percent vote in the
    right precinct.
        Out-of-precinct voting is used by 99.5 percent of
    nonminority voters. This is in Arizona, and this is in the
    decision. So, in other words, 99 percent minority, 99.5 percent
    nonminority, well, what do you conclude from that? Minority
    voters vote out of precinct at twice the rate of nonminority
    voters.
        It is technically true, but the difference between 99 and
    99.5 percent is not something that people should sit up and
    take notice about. It is fair as a part of the totality of the
    circumstances analysis to say that in the totality of the
    circumstances, that difference is not appreciable enough.
        I would also add that every court paid lip service to the
    idea, and in many cases it was just lip service. They said that
    while all courts--I am sorry--that disparate impact is not
    enough to make a section 2 claim.
        You need more. You need some sort of showing. You need some
    sort of Senate factor evidence, and it has always been unclear
    what you needed for vote denial.
        Well, while saying that, Arizona is a pure disparate impact
    case when it comes to out-of-precinct voting. The difference
    between 99.5 and 99 percent was enough to get you a violation,
    and that is what was reversed by the Supreme Court.
        Many other ordinary seeming restrictions, for example,
    straight-ticket voting, that is only allowed in six States. Six
    States. So, a State can be sued for trying to restrict
    straight-precinct voting--or straight-ticket voting.
        Procedures and provisions that have vast majority usage
    throughout the United States are subject to a section 2 claim,
    particularly if they have been passed and then there is an
    attempt to repeal them.
        Congressman, before you joined us, I had pointed out that
    both Texas and Georgia have early voting, and Connecticut and
    Delaware do not.
        Now, a perverse incentive of the pre-Brnovich jurisprudence
    is that it would behoove Connecticut and Delaware never to pass
    early voting, because if they do, they will always be subject
    to a section 2 claim if they try to repeal it.
        Mr. Johnson of Louisiana. Well, and let me just say on the
    earlier issue, speaking of Connecticut and Delaware, if I am
    correct--correct me if I am wrong--at least 25 States do not
    count ballots cast in the wrong precinct, and that includes
    Connecticut, Vermont, Delaware, and Hawaii. So, it is not just
    Republican jurisdictions, of course; this is a widespread
    understanding.
        We are running out of time. Let me ask you real quick.
    Would you agree that the Brnovich decision effectively at least
    begins to put a stop to partisans using courts to throw out
    policy decisions they simply disagree with?
        Mr. Popper. It certainly does. As I explain in my
    testimony, there was a majority decision--and while we were
    sitting here, I identified nine courts of appeals that would
    have ruled basically as the Supreme Court did in Brnovich--
    nine--or decisions. I am sorry. Some of them were double from
    the same court.
        It was this minority decision that was allowing these kinds
    of, in my view, outrageous claims to proceed against what are
    very ordinary rules based on the tiniest discrepancies.
        Mr. Johnson of Louisiana. I don't have the clock, Mr.
    Chair, so stop me, but do I have time for one more question?
        Mr. Cohen. Your time has expired, sir.
        Mr. Johnson of Louisiana. All right. I yield back. Thank
    you. Appreciate the accommodation.
        Mr. Cohen. You are legislating while driving.
        Mr. Johnson of Louisiana. I have parked.
        Mr. Cohen. Oh, are you? Good. Thank you.
        Next is Mr. Nadler.
        Chair Nadler. Thank you, Mr. Chair.
        Mr. Morales-Doyle, in the Brnovich majority's view, one
    relevant factor courts should consider when evaluating section
    2 vote denial claims is the legitimate State interest
    justifying the challenged voting rule. The Court observed that
    rules that are supported by strong State interests are less
    likely to violate section 2. The Court then pointedly noted
    that one strong and entirely legitimate State interest is the
    prevention of fraud.
        We all agree that preventing fraud is a legitimate State
    interest, but we are now living in the age of the big lie, and
    there is no evidence that widespread voting fraud is a
    significant problem that affects the outcome of elections.
    Meanwhile, State after State is enacting discriminatory voting
    practices in the name of election integrity protection.
        Are you concerned that this State interest factor opens the
    door to a lower court upholding a facially neutral yet
    discriminatory voting practice without even requiring the State
    to show evidence of widespread voting fraud?
        Mr. Morales-Doyle. Yes, I am concerned about the way lower
    courts will apply this guidepost. The fact is that the Senate
    factors, and the test that has been applied for years under
    section 2, already took account of State interests. It asked
    courts to look at whether the connection between the State
    interest offered up and the policy in question was tenuous or
    not, and if it were tenuous, then a court might look more
    skeptically at the policy in question.
        Courts have always taken State interests into account. What
    is troubling about the majority's opinion is how quick the
    Court is to accept the idea that these policies are actually
    ruling out fraud and necessary to do so, when actually we have
    States, including Arizona, are extremely effective at stopping
    fraud already. That is why we don't see widespread voter fraud.
        The Federal Cyber and Infrastructure Security Agency said
    the 2020 election was the most secure election in American
    history. This just isn't a problem that needs fixing, and so
    courts should be skeptical when disparate burdens are being
    placed on voters of color to pursue it.
        Chair Nadler. Thank you. Now, Justice Kagan's dissent notes
    that a State is not even required to demonstrate that a
    challenged practice is the least restrictive means for the
    State to achieve its interests. Can you explain why this is so
    problematic?
        Mr. Morales-Doyle. Right. So, as I said, most States are
    already effectively stopping fraud, and so the idea that States
    need to add more and more restrictive rules on top of what they
    already have to accomplish that goal is just not true.
        So, what Justice Kagan would say is, if you say that you
    are preventing fraud but there is a way to do it that doesn't
    stop people of color from voting, that doesn't impose a
    disparate burden on people of color, then you should go that
    route. Frankly, that route, in many instances, would be, leave
    things as they are, keep the status quo. We are doing a great
    job of stopping fraud.
        Under the majority's opinion you can say fraud, and,
    unfortunately, they are giving courts a lot of room to run with
    that excuse and allow discriminatory burdens to persist.
        Chair Nadler. Is there any textual basis or legislative
    history that supports the Court reading this so-called
    guidepost into section 2?
        Mr. Morales-Doyle. No. I think the Senate factors from
    Congress made clear that they did want to take State interests
    into account, but nothing in the legislative history or in the
    text suggests that the courts should be so deferential to State
    interests that they allow claims of fraud--or claims of
    fighting fraud to trump the goal of rooting out discrimination.
        The point of section 2 is to eradicate race discrimination
    in voting.
        Chair Nadler. Thank you.
        Mr. Rosenberg, in 1982, Congress amended section 2(a) of
    the Voting Rights Act, and they added section 2(b) to reverse
    the Supreme Court's decision in the City of Mobile v. Bolden,
    which had interpreted the previous version of section 2 to
    prohibit only intentionally discriminatory voting rules.
        How did courts previously interpret this legislative
    history up until the Supreme Court's decision in Brnovich? How
    is the Brnovich decision a significant departure from the
    Court's previous understanding of this history?
        Mr. Rosenberg. Oh, in every which way, Chair Nadler. The
    focus of the post-1982 amendment was on effects, irrespective
    of State justification. Results, effects. That was what the
    1982 amendment was all about. What the Brnovich decision does
    is not only veer from there, but it veers from the totality of
    the circumstances, a standard that was put into the statute at
    that time. The focus, as the court in Gingles interpreted that,
    and it was applied consistently on the interaction between the
    challenged conduct and historical social and economic
    discrimination. That is not even mentioned by Justice Alito
    when he goes through his various guideposts. He doesn't talk
    about the key factor of the interaction between the challenged
    conduct and the effects of historical discrimination.
        Chair Nadler. Thank you. I see that my time has expired. I
    yield back.
        Mr. Cohen. Thank you, Mr. Nadler.
        Now, it comes to one of those moments when the Chair has to
    make a great decision. Should he recognize Mr. Jordan, who is
    next up in line to Mr. Johnson, or should he go back to Ms.
    Fischbach, who was so nice as to yield her time to Mr. Johnson.
        Mr. Jordan. I thank you, Mr. Chair. Go to Ms. Fischbach,
    and I will wait till the next round.
        Mr. Cohen. Thank you, sir.
        Ms. Fischbach, you are on.
        Ms. Fischbach. Well, thank you Mr. Chair, and thank you,
    Mr. Jordan. I appreciate that. I appreciate you deferring to
    me.
        I just have got a question for Mr. Popper. Justice Alito
    identified a nonexhaustive list of circumstances for courts to
    consider as part of the totality of the circumstances review,
    and I think you touched on it a little bit in your testimony.
    One of those circumstances is the size of the burden imposed by
    the voting rule. Justice Alito did note that mere inconvenience
    is insufficient, and an equally open voting system must
    tolerate the usual burdens of voting.
        Can you expand a little bit on what that means?
        Mr. Popper. Well, yes. In many ways--thank you for your
    question. I am sorry. I was organizing something else.
        In many ways, it is an application of what we call the
    Anderson-Burdick test, I mean, where you have an administrative
    burden to a civil right or to voting. You assess the importance
    of the State interest, and you assess how much of an
    inconvenience it is. If it is a severe inconvenience, that is
    one thing. If another point that the court mentions, if there
    are other ways for you to get done what you need to get done as
    a voter, you have to take that into account. You have to be
    practical about this.
        I think that in a way, or perhaps directly, what the Court
    was doing was combating the rash or what it called a
    proliferation of lawsuits of little merit that had sprung up,
    the cottage industry of challenging any restriction of early
    voting, any restriction of registration or same-day
    registration, any restriction of voting in precinct,
    particularly if you once passed the law one way and you are
    looking to put it back the other way.
        I would refer to the atmosphere in Texas. In Texas,
    consider the law that they are fleeing to avoid passing
    provides a free voter ID to anyone who doesn't already have
    one.
        What you have to do to identify your absentee ballot is put
    the number of the voter's driver's license or the number of
    their free ID or the last four Social or certify that you don't
    have these numbers.
        In Texas, you also--they provide an opportunity for voters
    using absentee ballots who did it wrong to go back and correct
    a defect in their ballot, so it is not tossed. You sure don't
    see that covered in the newspapers, but it is in the statute.
    They require an assister, someone who gives assistance to give
    their name.
        Now, in California, it can be anyone knocking on your door.
    It could be--they don't have to say where they are from. They
    don't have to give their first name, their last name, their
    real name. They don't have to register. You will never
    discover, once you receive the ballot in California, that it
    was collected. Okay?
        This merely asks a person to put down their name. What is
    so shameful about that? So, that is the atmosphere in Texas.
        In Georgia, the atmosphere is that you get 3 weeks of early
    voting. You still get no-excuses absentee ballot. You still get
    that. In other words, any reason you can have such a ballot.
    Voters have to submit a State ID number. It does away with
    signature matching on mail ballots, but signature matching on
    mail ballots had long been considered problematic and is
    unclear that it favored one side or the other. It was just hard
    to tell a bunch of untrained poll workers how to make that
    assessment. That is the atmosphere in Georgia.
        Voting is easy in Ohio. It is easy in Arizona. Frankly, it
    is easy in most of the country.
        So, I think I may have strayed from your question. My
    apologies.
        Ms. Fischbach. Well, and maybe--we have just got a couple
    of seconds left here, but I would just like to kind of follow
    up and maybe ask you, what is a usual burden of voting as they
    use that term?
        Mr. Popper. Well, as they said in Crawford, you have to get
    in your car and go vote. It is not a usual burden to get in
    your car and drive for 3 hours, and there is lawsuits about
    that. It is not a usual burden. It is a usual burden to have to
    show up in person. You can't say, COVID to one side, COVID-
    style elections to one side. You can't say that that imposes a
    terrible burden.
        I would add too that what was appropriate for COVID may no
    longer be appropriate and repealing the COVID-related absentee
    rules isn't discrimination.
        Ms. Fischbach. Thank you very much, and I am out of time.
        Mr. Chair, I yield back.
        Mr. Cohen. Thank you. I appreciate it.
        Next person will be Congresswoman, Professor, Mr. Raskin.
        Mr. Raskin. Mr. Chair, thank you very much. Thanks to all
    the witnesses for your testimony.
        Our colleague, Representative Fischbach, started by saying
    that she didn't know anyone who wants to stop people from
    voting, but even Mr. Popper referred to the history of Jim Crow
    and the vicious disenfranchisement that took place then. Of
    course, we all know about the history of grandfather tests and
    poll taxes and literacy tests and character tests and so on.
        Professor Stephanopoulos, let me start with you. Do you
    agree with Ms. Fischbach's suggestion that the determination to
    keep people from voting ended at some point, say, between the
    1960s and 1970s and today, or does that history continue right
    up until today?
        Mr. Stephanopoulos. I think that history, unfortunately,
    continues. I think that when politicians regulate the electoral
    process, they are highly, highly aware of what the likely
    composition of the electorate is going to be as a result of
    their regulations. They are also highly, highly aware of which
    voters are likely to support their party and their candidates
    and which voters are likely to oppose them.
        Mr. Raskin. Let me ask you about, that if I could? If there
    is a determination to keep, say, African Americans from voting
    or Latino voters from voting, not out of racial animosity but
    because of a prediction, a fair prediction that they will
    disproportionately support the other party, is that itself race
    discrimination within the meaning of the Voting Rights Act?
        Mr. Stephanopoulos. Well, whether or not it is a
    discriminatory racial intent, it absolutely is a disparate
    racial impact if the effect of that regulation is to deny the
    vote to a larger proportion of African-American or Latino or
    Asian-American citizens. I think it is complicated when the
    true motivation is partisan whether one can also label that as
    invidious racial intent.
        Mr. Raskin. Mr. Rosenberg, let me come to you. The striking
    thing to me today is that voter fraud is the slogan of people
    trying to commit voter fraud. One great example of that is
    Donald Trump's famous hour-long phone call with the Republican
    secretary of State of Georgia, Brad Raffensperger, in which he
    twisted his arm, needled him, begged him, and tried to coerce
    him into finding just 11,780 votes. That is all he was looking
    for. All of this was done publicly in the name of preventing
    fraud, preventing voter fraud against him. He was claiming in
    his big lie that the election was being stolen from him while
    he was trying openly to commit voter fraud by getting an
    election official to manufacture and concoct votes that didn't
    exist.
        So, what is the public supposed to do when people who are
    trying to commit voter fraud are invoking voter fraud as the
    reason for their disenfranchisement in voter suppression
    schemes?
        Mr. Rosenberg. Invoking fraud prevention has been used
    historically to justify discriminatory practices for well over
    a century. It was used to justify poll taxes. It was used to
    justify literacy tests. It was used to justify early poll
    closings. Then it was trans-
    mogrified into this feeling that, well, the public is demanding
    action because they have concerns about election integrity.
        What happened is that the people who are purveying this
    myth of voter fraud are fabricating the justification. They are
    fabricating the results of the surveys because they are the
    ones who are out there telling the people that there is fraud
    when there is not fraud. Then they survey the people, and the
    people say, oh, we have terrible concerns because there is
    voter fraud. Then they use those basically false survey results
    to justify voter suppressive legislation.
        Mr. Raskin. Thank you. Thank you.
        Professor Stephanopoulos, let me come back to you. You
    pointed out that the Brnovich decision is not a constitutional
    decision; it is a question of statutory interpretation. You are
    saying that Congress could override the invention of these five
    guideposts or signposts that were pulled out of a hat by
    Justice Alito, which we definitely could.
        Has the Congress had success before in reversing
    reactionary decisions by the Supreme Court giving pinched or
    erroneous interpretations of civil rights statutes by rewriting
    those statutes or does the Court keep on moving the football at
    every point?
        Mr. Stephanopoulos. Yes. Congress absolutely has had luck
    at doing that, not just with respect to the Voting Rights Act,
    but also with respect to the Civil Rights Act. So, section 2's
    amendment in 1982 is a great example of Congress stepping in to
    reverse a mistaken court decision, and so is Congress'
    amendment of the Civil Rights Act of title VII to reverse a
    Supreme Court decision that overly narrowed the disparate
    impact theory under title VII of the Civil Rights Act.
        Mr. Raskin. I appreciate that.
        My time is up, Mr. Chair, and I yield back to you.
        Mr. Cohen. Thank you, Mr. Raskin.
        We will now yield to Mr. Jordan for 5 minutes.
        Mr. Jordan. Thank you, Mr. Chair.
        I would just come to Mr. Popper. I think in your opening
    statement, you said there were a couple other States you wanted
    to highlight and, frankly, didn't have the time in your 5
    minutes, which I understand. We always run out of time in these
    hearings. So, I was just going to give you a chance to talk
    about--I think one of the States you mentioned was Texas. I
    actually forget the other State that you may have referenced,
    but I will give you a few minutes to talk about those States
    and what is happening there and how it relates to our subject
    matter.
        Mr. Popper. Thank you, Congressman. I think I did speak
    about them. I managed to sneak them in somewhere.
        Mr. Jordan. Okay.
        Mr. Popper. I was merely making the point I thought that in
    Texas, the atmosphere is so loaded in favor of getting people
    to the polls. It is in Georgia, too. These two bills, I find
    almost universally that the people who are the angriest about
    them--and I don't include anyone on this Committee. I am just
    saying that in other conversations, there are people who
    haven't read this legislation.
        Mr. Jordan. If I could, Mr. Popper. My understanding is in
    both States, there was already great access, amazing access for
    people to vote, which is what we want. We want to make it easy
    to vote, hard to cheat. It is a cliche statement, but it is
    accurate. So that was already the case, but these two pieces of
    legislation actually make it easier for all residents in
    Georgia and Texas to get to the polls. Is that accurate?
        Mr. Popper. I would say it is accurate. When you are
    talking about being able to on your absentee ballot certify
    that you don't have the necessary numbers or provide that--if
    you have an ID number or if you have a Social Security number.
    Who doesn't have a Social Security number? There are people who
    don't, but if you don't, all you have to do is certify that you
    don't have one.
        Mr. Jordan. Yeah.
        Mr. Popper. Who is this going to scare off?
        I would like to say just a word about voting fraud,
    Congressman, if I could.
        Mr. Jordan. Sure. Go ahead.
        Mr. Popper. Voting fraud is hard to detect by its nature.
    It is not heavily penalized. My favorite example of this, no
    doubt, and I almost regret the day when they repealed this
    because I will lose the talking point. In Vermont, double
    voting is a $200 penalty, no jail time, and selling maple syrup
    without a license is $5,000 and a year in jail. Okay. Why would
    you invest any State resources in ferreting out double voting
    in those circumstances? There are States that admit they don't
    even track these.
        That to one side, what I hate, what I don't like is when
    you say that it is rare, because you take the total number of
    votes and you divide it by the instances of fraud. Is that how
    you measure securities fraud? There are only a couple of
    hundred securities fraud cases per year, but how many millions
    or is it billions of securities transactions?
        Mr. Jordan. Right.
        Mr. Popper. Everyone knows that just because of the nature
    of the enterprise, you need rules. Okay. Kitchens should be
    clean. Voting should be clean. Securities should be clean.
        I also am mystified as to why people are aware that people
    will cheat at baseball. I read a book about people cheating at
    sumo wrestling. I have cheated at solitaire, and no one will
    cheat at something as consequential as voting.
        Mr. Jordan. Yeah. Thank you. Thank you, Mr. Popper.
        Mr. Chair, I yield back.
        Mr. Cohen. Thank you, Mr. Jordan.
        Who won those solitaire games, Mr. Popper?
        Mr. Popper. I did. I paid.
        Mr. Cohen. Thank you.
        Ms. Ross, you are recognized for 5 minutes.
        Ms. Ross. Thank you, Mr. Chair, and thank you very much for
    having this important hearing so close after the Supreme
    Court's decision. We have a lot of work to do on voting rights
    this session of Congress, and it is very important that we
    understand the law and do the right thing.
        I want to talk about the State of North Carolina. As a
    former civil rights attorney and a State legislator in North
    Carolina, I have seen up close the hidden ways in which States
    and localities can restrict citizens' rights to vote, and I
    have fought against them.
        I want to talk briefly about Thornburg v. Gingles, a
    seminal Supreme Court case that has been referred to, which
    upheld a ruling from the Federal District Court in North
    Carolina. Decided in 1986, it solidified the 1982 amendments to
    the Voting Rights Act, and utilized several of the factors
    enumerated in the 1982 Senate report for how to consider
    potentially discriminatory laws.
        The Supreme Court affirmed what the district court in my
    home State had found, that the essence of a section 2 claim is
    that a certain electoral law, practice, or structure interacts
    with social and historical conditions to cause inequality in
    voting opportunities.
        In Brnovich, the Court turned away from this
    interpretation, narrowed the scope of section 2, and subverted
    Congress' efforts to clarify the Voting Rights Act. I fear that
    this decision will embolden State legislatures, including my
    own, to enact more restrictive voting laws, and I have reason
    to have this fear.
        This is exactly the effect that Shelby County had on North
    Carolina's State legislature, which enacted a restrictive voter
    ID law and repealed other laws that had expanded the franchise,
    and disproportionately targeted African Americans with surgical
    precision. This monster voter suppression law was later struck
    down after years of litigation.
        Congress must Act to protect the bedrock of our American
    democracy, and I am grateful for the suggestions from our
    witnesses on how we can do that. I look forward to voting on
    several of these suggestions.
        My first question goes more to the specifics of this
    effects test, and it is for all the witnesses, though I would
    like Mr. Stephanopoulos to begin.
        Justice Kagan cited the Senate report, which we have talked
    about, which was amendments to the VRA which, incidentally, was
    signed into law by President Reagan. She wrote, ``Congress
    meant to eliminate all discriminatory election systems or
    practices which operate, designedly or otherwise, to minimize
    or cancel out the voting strength and political effectiveness
    of minority groups, and that broad intent is manifest in the
    provision's broad text.''
        Do you agree that section 2 manifests Congress' broad
    intent to eliminate all voting discrimination?
        Mr. Stephanopoulos. I do. I think that with section 2,
    Congress aimed to eliminate all significant and unnecessary
    racial disparities in our elections, and many of the Court's
    factors in Brnovich point in exactly the other direction,
    frustrating Congress' intent and the language of the statute.
        Ms. Ross. Thank you. It looks like Mr. Rosenberg has
    something to add.
        Mr. Rosenberg. Yes. I would just add, and we set forth in
    our written testimony, that a basic canon of statutory
    construction is remedial statutes must be construed broadly,
    and Justice Alito and the majority in Brnovich did just the
    opposite here.
        Ms. Ross. Okay. My second question goes back to this
    attempt to freeze in time what election laws were in 1982 by
    the Supreme Court, and I find that particularly upsetting
    because we have made so much progress on election laws, and
    Congress even has expanded ways to enhance the franchise,
    particularly with the Help America Vote Act.
        Do you think that there is any justification for saying
    that Congress has not indicated that we want to move forward
    with helping America vote that the Supreme Court could hang its
    hat on?
        For any of the Members. Yes, Mr. Morales-Doyle.
        Mr. Morales-Doyle. No, I don't think there is any basis for
    that. I appreciate you bringing up North Carolina as an
    example. The case you referenced which found that the North
    Carolina legislature was targeting African-American voters with
    almost surgical precision involved changes to a number of laws
    rolling back early voting, getting rid of same-day
    registration, things that didn't exist in North Carolina in
    1982. Yet, that, as the Fourth Circuit Court of Appeals held,
    is how States now intentionally go after voters of color, that
    no one could question after that Court's finding that that was
    discriminatory, and yet, using 1982 as a benchmark would send
    you down the wrong path. That is why these guideposts are so
    misguided.
        Ms. Ross. Thank you.
        Mr. Chair, I yield back.
        Mr. Cohen. Thank you, Ms. Ross.
        Is Mr. McClintock with us? If not, is Mr. Roy with us? If
    not, is Mr. Owens with us? If not, is Mr. McCarthy with us?
    Well, how about Ms. Cheney? She doesn't count.
        All right. Mr. Hank Johnson is not with us. I think Ms.
    Garcia is next. Ms. Garcia with us? Is she having technical
    difficulty?
        Ms. Sheila Jackson Lee. You are here.
        Ms. Jackson Lee. I am here.
        Mr. Cohen. You are here, and you are glorious and
    resplendent and recognized.
        Ms. Jackson Lee. I am delighted. Thank you so very much.
        Thank you for, as has been said earlier, for you holding
    this important hearing. I almost wish I could transpose myself
    to the United States Senate to be able to have at least a 7-10-
    minute moment of inquiry.
        Before I start, let me indicate that I have heard so many
    people offer the name of John Lewis on the other side or the
    other body, including Republicans. We happen to be this weekend
    naming a vessel, a Navy vessel, after John Lewis. More than a
    tribute, but I hope most of the witnesses on this panel would
    agree with me that the greatest tribute to John Lewis is to
    protect the fundamental right to vote and to reinforce the
    basis of the 1965 Civil Rights Act, which is the 15th
    Amendment.
        So, my inquiries will go along those lines, but let me also
    indicate that because of the inertia and inaction of the
    Senate, faith leaders and Black women gathered yesterday, of
    which I participated virtually, along with the Democratic Texas
    delegation who, contrary to Governor Abbott, is working very
    hard to be able to insist that there must be action in the
    Senate. To the extent that our Chair of the Congressional Black
    Caucus, Joyce Beatty, was arrested, some of us will intend to
    do such in the coming weeks, because John Lewis did believe in
    nonviolent civil disobedience, and we must act. I am very glad
    that the House is acting, Chair Cohen is acting, as we move on
    this very important legislation.
        I also want to follow up and pose a question. Mr. Popper, I
    believe, I just want to make a comment, and I would like Mr.
    Rosenberg, Mr. Morales-Doyle to focus on these questions. I
    heard the line of questioning about section 2 that it basically
    is used for partisan activity, partisan challenges, and is, in
    essence, of its own self a contributor to fraud.
        Would you respond to the value of section 2 and that in
    your course of service have not seen section 2 be used and
    manipulated by individuals who are trying to be partisan? Was
    the voter ID legislation partisan when, in the State of Texas,
    there were at least eight counties without DPS officers that
    would allow Hispanics and others to access with a voter ID?
        Would you go first, Mr. Rosenberg? My time, I know, is
    short. Mr. Rosenberg.
        Mr. Rosenberg. Yes. Thank you, Congresswoman Lee, and thank
    you for that question. I will say two things very quickly.
    Number one, you cannot use discrimination against people of
    color to achieve partisan goals. That is unlawful. It is
    unconstitutional, period. Texas photo ID law, which I
    litigated, we proved that it was done with discriminatory
    intent and discriminatory results.
        I will turn it over to Mr. Morales-Doyle.
        Ms. Jackson Lee. Mr. Morales, would--thank you, sir. Mr.
    Morales, would you take up the point of what I believe Mr.
    Popper said, is that section 2 has only been used by those of
    us that engage in partisan litigation. Do you believe that is
    what section 2 has been used for?
        Mr. Morales-Doyle. No, I do not. Thank you for the
    question. Mr. Rosenberg, I, and many of our colleagues do this
    work at nonpartisan organizations. Our goal is not to
    accomplish some partisan outcome; our goal is to protect voting
    rights. That is the point of section 2.
        I would remind everyone that section 2 and its amendments
    in 1982 were passed by bipartisan agreement in both Houses of
    the legislature. The amendments in 1982 were signed into law by
    President Reagan. There is an amicus brief filed in this case
    in the Supreme Court by Congressional Staffers on both sides of
    the aisle from 1982 talking about their intent in passing this
    law and how it was being subverted by many of the arguments
    being made, which the Supreme Court ultimately took up.
        This is not a partisan goal that we have here. The goal is
    to protect voting rights. I think sometimes folks are too quick
    to give the people who are passing these restrictive laws a
    pass, suggesting that they are acting only with partisan
    intent. We are talking about race discrimination. This law is
    meant to protect against race discrimination.
        Ms. Jackson Lee. Unfortunately, it was obliterated by the
    Arizona case.
        Let me quickly raise the point of the big lie and the
    continuous representation of my colleagues on the other side of
    the aisle of fraud in the 2020 election where 150 million
    people voted.
        Let me quickly ask one question for Mr. Rosenberg and Mr.
    Doyle and the other gentleman whose name I don't have right now
    because of where I am. In any event, can you just give me a yes
    or no question. Mr. Rosenberg, you can go first. Is the
    filibuster part of the Constitution? Yes or no.
        Mr. Rosenberg. It is not part of the Constitution.
        Ms. Jackson Lee. Mr. Morales-Doyle?
        Mr. Morales-Doyle. No, it is not.
        Ms. Jackson Lee. Mr. Popper? Is it?
        Mr. Popper. No, it is not.
        Ms. Jackson Lee. There is another witness there that
    doesn't show up on my screen. Forgive me. Can you answer, sir?
        Mr. Stephanopoulos. Yeah. Of course, the filibuster is not
    part of the Constitution.
        Ms. Jackson Lee. So let me just go back to Mr. Rosenberg
    and Mr.--
        Mr. Cohen. The gentlewoman's time has expired.
        Ms. Jackson Lee. Pardon me?
        Mr. Cohen. Your time has expired.
        Ms. Jackson Lee. Can I ask for it on the record and then I
    will look for an answer later?
        Mr. Cohen. Sure.
        Ms. Jackson Lee. All right. I would be interested in
    knowing--and this is a global question. The fundamental rights
    of voters that has been evidenced by our President and pursuant
    to the 15th Amendment, I would like an answer as to whether the
    filibuster, which is a rule, would be superior to that right,
    therefore blocking fundamental voting rights legislation from
    going forward in
    either--well, in the United States Senate. I am going to put
    that on the record.
        I thank you, Mr. Chair, and I hope I will be able to get
    answers from these distinguished witnesses. Thank you.
        Mr. Cohen. Thank you, Ms. Jackson Lee.
        Ms. Garcia is not with us, so if that is the case, we have
    expired our time. We thank the witnesses extremely for their
    thorough testimony and their help. We appreciate your
    appearing.
        Without objection, all Members have 5 legislative days to
    submit additional written questions, and Ms. Jackson Lee has
    submitted her first one, but they will come in writing as well,
    or additional materials for the record.
        With that, the hearing is adjourned. Thank you.
        [Whereupon, at 2:31 p.m., the subcommittee was adjourned.]

                                    APPENDIX

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    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Materials from Ezra Rosenberg, Co-Director, Voting Rights
    Pro-ject, Lawyers' Committee for Civil Rights Under Law,
    submitted by the Honorable Steve Cohen, Chair of the
    Subcommittee on the Constitution, Civil Rights, and Civil
    Liberties from the State of Tennessee, available at https://
    docs.house.gov/meetings/JU/JU10/20210716/113905/HHRG-117-JU10-
    20210716-SD001.pdf.