[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
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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
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Serial No. 117-35
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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
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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
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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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.