[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
         
         
         
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               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:]
    
[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:]
    
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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.