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

                            OVERSIGHT OF THE VOTING RIGHTS ACT:
                              POTENTIAL LEGISLATIVE REFORMS

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

                                    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

                                   ----------

                            MONDAY, AUGUST 16, 2021

                                   ----------

                               Serial No. 117-39

                                   ----------

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

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

                                   __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    46-516 PDF                 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

                                  ----------

                            Monday, August 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 Mike Johnson, Ranking Member of the Subcommittee on
      the Constitution, Civil Rights, and Civil Liberties from the
      State of Louisiana.............................................     5
    The Honorable Jerrold Nadler, Chair of the Committee on the
      Judiciary from the State of New York...........................     7
    The Honorable Jim Jordan, Ranking Member of the Committee on the
      Judiciary from the State of Ohio...............................     9

                                   WITNESSES
                                    Panel I

    The Honorable Kristen Clarke, Assistant Attorney General for
      Civil Rights, U.S. Department of Justice
      Oral Testimony.................................................    12
      Prepared Testimony.............................................    15

                                    Panel II

    Wade Henderson, Interim President and CEO, The Leadership
      Conference on Civil and Human Rights
      Oral Testimony.................................................    74
      Prepared Testimony.............................................    77
    James Peyton McCrary, Professorial Lecturer in Law, The George
      Washington University Law School
      Oral Testimony.................................................    99
      Prepared Testimony.............................................   102
    Wendy R. Weiser, Vice President, Democracy, Brennan Center for
      Justice
      Oral Testimony.................................................   129
      Prepared Testimony.............................................   131
    Maureen Riordan, Litigation Counsel, Public Interest Legal
      Foundation
      Oral Testimony.................................................   148
      Prepared Testimony.............................................   150
    Thomas A. Saenz, President and General Counsel, Mexican American
      Legal Defense and Educational Fund
      Oral Testimony.................................................   174
      Prepared Testimony.............................................   176
    Sophia Lin Lakin, Deputy Director, Voting Rights Project,
      American Civil Liberties Union
      Oral Testimony.................................................   185
      Prepared Testimony.............................................   187
    Hans A. von Spakovsky, Manager, Election Law Reform Initiative
      and Senior Legal Fellow, Meese Center for Legal and Judicial
      Studies, The Heritage Foundation
      Oral Testimony.................................................   202
      Prepared Testimony.............................................   204
    Jon M. Greenbaum, Chief Counsel and Senior Deputy Director,
      Lawyers' Committee for Civil Rights Under Law
      Oral Testimony.................................................   257
      Prepared Testimony.............................................   260
    Samuel Spital, Director of Litigation, NAACP Legal Defense and
      Educational Fund, Inc.
      Oral Testimony.................................................   286
      Prepared Testimony.............................................   289

              LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

    Items submitted by the Honorable Steve Cohen, Chair of the
      Subcommittee on the Constitution, Civil Rights, and Civil
      Liberties from the State of Tennessee for the record
      An article entitled ``The Importance of Protecting Voting
        Rights for Voter Turnout and Economic Well-Being,'' Council
        of Economic Advisors.........................................    44
      A report entitled ``Voting in America: Ensuring Free and Fair
        Access to the Ballot,'' House Administration Committee and
        the Subcommittee on Elections................................    51
    Items submitted by the Honorable Sheila Jackson Lee, a Member of
      the Subcommittee on the Constitution, Civil Rights, and Civil
      Liberties from the State of Texas for the record
      A document entitled ``VRA Reauthorization Vote Counts''........    60
      An article entitled ``Warrants served to Texas Democrats, but
        holdout continues,'' AP News.................................    61
      An article entitled ``Analysis: It's harder to vote in Texas
        than in any other state,'' The Texas Tribune.................    64
    A letter in support of H.R. 1, July 29, 2021, submitted by the
      Honorable Sylvia Garcia, a Member of the Subcommittee on the
      Constitution, Civil Rights, and Civil Liberties from the State
      of Texas for the record........................................    70
    Items submitted by the Honorable Sheila Jackson Lee, a Member of
      the Subcommittee on the Constitution, Civil Rights, and Civil
      Liberties from the State of Texas for the record
      An article entitled ``Greg Abbott's Voter Suppression Methods
        Have Become More Subtle--But They're Still Transparent,''
        Texas Monthly................................................   324
      An article entitled `` `Racist voter suppression': Texas laws
        keep Latinos from the ballot box, groups say,'' NBC News.....   328

                                    APPENDIX

    Items submitted by the Honorable Steve Cohen, Chair of the
      Subcommittee on the Constitution, Civil Rights, and Civil
      Liberties from the State of Tennessee for the record
      A report entitled ``Consulting Report for the Brennan Center
        for Justice and the Leadership Conference Education Fund,''
        Peyton McCrary, Professorial Lecturer in Law, The George
        Washington University Law School.............................   336
      Items available online submitted by the Honorable Steve Cohen,
        Chair of the Subcommittee on the Constitution, Civil Rights,
        and Civil Liberties from the State of Tennessee for the
        record.......................................................   365
    Items submitted by the Honorable Sheila Jackson Lee, a Member of
      the Subcommittee on the Constitution, Civil Rights, and Civil
      Liberties from the State of Texas for the record
        Statement of the Honorable Sheila Jackson Lee................   366
        A document entitled ``Background on Voter Roll Bifurcation''.   375

                      QUESTIONS AND ANSWERS FOR THE RECORD

    Questions for the Honorable Kristen Clarke, Wade Henderson, and
      Thomas A. Saenz, submitted by the Honorable Sheila Jackson Lee,
      a Member of the Subcommittee on the Constitution, Civil Rights,
      and Civil Liberties from the State of Texas for the record.....   394
    Answers from Thomas A. Saenz, submitted by the Honorable Sheila
      Jackson Lee, a Member of the Subcommittee on the Constitution,
      Civil Rights, and Civil Liberties from the State of Texas for
      the record.....................................................   398
    Questions for the Honorable Kristen Clarke, Jon Greenbaum, Sophia
      Lin Lakin, and Samuel Spital, submitted by the Honorable Cori
      Bush, a Member of the Subcommittee on the Constitution, Civil
      Rights, and Civil Liberties from the State of Missouri for the
      record.........................................................   402
    Answers from Jon Greenbaum, submitted by the Honorable Cori Bush,
      a Member of the Subcommittee on the Constitution, Civil Rights,
      and Civil Liberties from the State of Missouri for the record..   404
    Answers from Sophia Lin Lakin, submitted by the Honorable Cori
      Bush, a Member of the Subcommittee on the Constitution, Civil
      Rights, and Civil Liberties from the State of Missouri for the
      record.........................................................   405

       OVERSIGHT OF THE VOTING RIGHTS ACT: POTENTIAL LEGISLATIVE REFORMS

                                  ----------

                            Monday, August 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 10:02 a.m., via
    Zoom, Hon. Steve Cohen [Chair of the Subcommittee] presiding.
        Present: Representatives Cohen, Nadler, Raskin, Ross,
    Johnson of Georgia, Garcia, Jackson Lee, Johnson of Louisiana,
    and Jordan.
        Also Present: Representatives Dean, and Scanlon.
        Staff Present: Aaron Hiller, Deputy Chief Counsel; David
    Green-
    grass, Senior Counsel; John Doty, Senior Advisor; Roma Venkate-
    swaran, Professional Staff Member/Legislative Aide; Cierra
    Fontenot, Chief Clerk; John Williams, Parliamentarian and
    Senior Counsel; Keenan Keller, Senior Counsel; Gabriel Barnett,
    Staff Assistant; Daniel Rubin, Communications Director; Merrick
    Nelson, Digital Director; James Park, Chief Counsel; Betsy
    Ferguson, Minority Senior Counsel; Caroline Nabity, Minority
    Counsel; and Kiley Bidelman, Minority Clerk.
        Mr. Cohen. Good morning, everyone. Before we start, I would
    like to ask each person with us to, in whatever way they feel
    most appropriate, whether a call to divine inspiration or just
    a insular thought, to give a moment of silence and think about
    our soldiers who have fought for us in Afghanistan, who are in
    Afghanistan now, trying to protect and bring back our State
    Department staff and other workers that have helped us,
    Afghanis and Americans, and for their safety. Our thoughts are
    with them.
        Thank you.
        The Committee on the Judiciary Subcommittee on the
    Constitution, Civil Rights, and Civil Liberties will come to
    order. Without objection, the Chair is authorized to call
    recesses at any time necessary.
        I welcome everyone to today's hearing on oversight of the
    Voting Rights Act potential legislative reforms. Before we
    continue, I would like to remind all the Members that we have
    established an email address that we have previously shared and
    we have previously reminded you about, that the distribution
    list to circulate exhibits or other written materials Members
    may desire to offer as part of our hearing today.
        I also ask unanimous consent that our Judiciary Committee
    colleagues, Representatives Madeleine Dean and Mary Gay
    Scanlon, be permitted to join the panel in the limited capacity
    where they will be allowed to ask questions if yielded time by
    a Member of the Subcommittee.
        Without objection, thank you.
        Finally, I would ask all Members and Witnesses to mute your
    microphones so when you are not speaking. This will help
    prevent feedback and other technical issues, and you, of
    course, may unmute yourself any time you seek recognition.
        I will now recognize myself for an opening statement.
        Throughout his heroic life, our former colleague and
    friend, the late great John Lewis, often said the right to vote
    is the most powerful, nonviolent tool we have in a democracy.
    If we are ever to actualize the true meaning of equality,
    effective means such as the Voting Rights Act are still a
    necessary requirement of that democracy.
        Last month, we marked the 1-year anniversary of his death.
    Let us not allow another anniversary to go by without ensuring
    the enactment of the legislation that bears his name, the John
    R. Lewis Voting Rights Act, to see that we have carried forth
    what his life's goal was, which was voting. He gave blood when
    he started the Selma to Montgomery march, almost killed, risked
    his life, others did lose their lives in fighting for the right
    to vote just south of here in Mississippi--I am in Memphis--
    Schwerner, Cheney, and Goodman were killed in Philadelphia,
    Mississippi, simply trying to register people to vote.
        This problem which existed since my childhood, when I was
    in Memphis where there were segregated drinking fountains and
    days to go to the zoo, and days to go to public events, and
    where all public facilities had color-only sections. Let me
    tell you, I noticed those were not the good seats. They were
    the worst seats in the football, the basketball, the theater,
    you name it.
        Vestiges of those days still haunt us, and that is why this
    is such an important bill because they percolate up so many
    times in voting.
        This Subcommittee has devoted considerable time and
    resources in taking up John Lewis' call to defend that right to
    vote. All of us in Congress must rededicate ourselves to
    protecting this most fundamental right at a time when it is,
    once again, under severe threat.
        The record we have built over the course of 13 hearings in
    the last 2 years is crystal clear. Voting discrimination
    against citizens based on race, color, or language minority
    status is a current and worsening problem that Congress must
    address through a renewed and strengthened Voting Rights Act.
        The tidal wave of voter suppression that the Nation
    currently faces comes as no surprise. It is an entirely
    predictable result of the Supreme Court's 2013 decision, known
    as Shelby County, as in Alabama v. Holder, which effectively
    gutted the Voting Rights Act's most important enforcement
    mechanism, section 5, the preclear-
    ance provision.
        It struck that formula that determined which jurisdictions
    would be subject to the preclearance requirement. Most of those
    jurisdictions were in the old South, where discrimination led
    us to a civil war, led us to Jim Crow, and still haunt us.
        Under section 5, States with a history of voting
    discrimination would require obtaining approval from the
    Justice Department for any changes to voting rules prior to
    their taking effect, therefore, giving probable cause or prima
    fascia case, when certain actions in the past have shown there
    was reason to be suspect, and the Justice Department can show
    the need to protect citizens.
        In striking down that coverage formula, the court held that
    to justify States unequally, those that had been listed in the
    Voting Rights Act and those that hadn't, Congress must create a
    formula based on current needs.
        The court invited Congress to develop a new coverage
    formula, which is part of our mission today. In the absence of
    preclearance, States and localities have been implementing
    measures to further deny or abridge citizens' right to vote on
    account of race, color, or language minority status, and all
    after one of the most free and fair and impartial elections in
    our country's history, the most looked at and reviewed.
        Since the 2020 election, several States have proposed or
    enacted restrictive voting laws in the name, as they call it,
    of election integrity protection. At a time when we just had
    the most circumscribed election ever analyzed and unanimously
    said to be free and fair and accurate.
        Not surprisingly, those States include some of those that
    have previously been subject to the VRA's preclearance
    requirement because of their history of voting discrimination.
        According to the Brennan Center for Justice, as of July 14
    of this year, 18 States have enacted 30 laws that restrict the
    right to vote, including measures that target mail-in and
    absentee voting.
        Let me just remind everybody that five States in our
    country have mail-in voting for every voter in all their
    elections, and it started back in Oregon over two decades ago.
        They have targeted mail-in voting and absentee voting,
    increasing the risk of faulty voter purges and opposed stricter
    voter ID requirements.
        We are not going to go into some of the laws that discuss
    giving powers to State legislative groups to overrule election
    commissions, because that is just an overall abridgement of
    voting rights and not necessarily based on race or speech or
    color. That is simply politics.
        At a minimum, these measures disproportionately impact
    racial and language minority citizens in ways that could result
    in those citizens being denied the right to vote.
        Just last month, the Texas legislature began a special
    session to pass a new omnibus voting measure that would
    restrict voting access by creating new ID requirements for
    voting by mail and clamp down on new voting rules instituted by
    Harris County, the home of Houston, Texas, the State's most
    populous county and its most populous city, and one of its most
    diverse regions. Those laws in Harris County were designed to
    increase voter access.
        The Texas Senate passed its version of its bill just 4 days
    ago. In the absence of preclearance, plaintiffs have been
    forced on rely on litigation under section 2 of the Voting
    Rights Act, which applies nationwide and prohibits voting rules
    that results in the denial or abridgement of the right to vote
    based on race, color, or language minority status to confront
    these challenges.
        Yet, the Supreme Court Supreme Court in its recent
    decision, just July 1, a little over a month ago in Brnovich v.
    The Democratic National Committee, significantly curtailed the
    ability of Plaintiffs to succeed in claims alleging vote denial
    under section 2 and burdening yet another of the Act's
    important enforcement tools.
        In the face of this sustained onslaught against voting
    rights by the States and localities and the erosion of the
    Voting Rights Act by the Supreme Court, Congress must act, and
    we have the power to do so.
        Our authority to stop race discrimination voting remains
    expansive even in the terms of the Shelby County decision and
    the Brnovich decisions. The 14th and 15th Amendments to the
    Constitution, two of the three Civil War Amendments, give
    Congress explicit legislative power to enforce voting rights
    and equal protection against purposeful race discrimination.
        So, by acting, we are doing what the Constitution in its
    most far-sighted fashion after the Civil War said we needed to
    do to make us a more perfect union. Those amendments form the
    basis of Congress' authority to pass the Voting Rights Act in
    the first place.
        When the Voting Rights Act VRA was first challenged just a
    year after its enactment, after Everett Dirksen and Republicans
    had the higher percentage of people voting for voting rights
    than Democrats, the Supreme Court, in South Carolina v.
    Katzenbach, upheld the preclearance provision and its coverage
    formula, holding the congressional authority to enforce the
    15th amendment was broad and comprehensive and that
    implementing legislation needed only to be plainly adapted to a
    legitimate end.
        This rationality test is highly deferential to Congress,
    and notably, Shelby County did not disturb this essential hold.
        I also note that the elections clause, which confers
    ultimate authority on Congress to regulate the time, place, or
    manner of congressional elections further bolsters Congress'
    constitutional authority to protect voting rights in its
    Federal elections, our elections.
        Congress' broad power under this law does not implicate
    that federalism concerns expressed by the court in Shelby
    County. It is important that any new voting rights legislation
    include a new geographic coverage formula that responds to the
    court's concerns in Shelby County. We are charged to do that.
        It should also include a legislative response to the
    Brnovich decision and other measures, such as a practice-based
    coverage formula, reforms to the available scope of enforcement
    actions under the Voting Rights Act, greater notice and
    transparency requirements and expanded authority for bail-in
    preclearance, and the use of Federal election observers.
        I thank Attorney General for Civil Rights, Kristen Clarke,
    and all of our Witnesses on the second panel for being here
    today and eagerly await their testimony. Ms. Clarke will be our
    first panel, but now I recognize the Ranking Member of the
    Subcommittee, the gentleman from Louisiana, my friend, Mr.
    Johnson, for his opening statement.
        Mr. Johnson, you are recognized.
        Mr. Johnson of Louisiana. Thank you, Mr. Chair. Before I
    begin, I think all of us on the Judiciary Committee and every
    Member of Congress must first address the outrageous foreign
    policy and national security disaster that has taken place over
    the weekend.
        The American people awoke this morning to another
    incomprehensible and utterly avoidable disaster created by the
    obviously incompetent Biden Administration. The President is
    clearly in far over his head.
        After 20 years, trillions of dollars and thousands of
    American lives were spent standing up Afghanistan's army and
    government, the country has been ceded back to the Taliban in
    less than a week to a disastrously executed Biden drawdown.
        Afghans who helped the United States over the years are
    being killed along with their families. People are hanging on
    to the side of B-52s as they evacuate for fear of their lives
    under Taliban rule.
        There should be top-to-bottom accountability at the
    Pentagon and within the Administration for this disaster. That
    this stunning failure has been met with silence from President
    Biden calls into serious question his ability to carry out his
    duties as Commander in Chief.
        While he vacations at Camp David, America's stature in the
    world has just taken another massive step backwards. It is
    shameful and it is dangerous, and I hope every one of us will
    acknowledge that publicly. The American people deserve and
    demand better.
        This morning, we engage, even as all that is going on, in
    what is your now sixth hearing that this Subcommittee has held
    on voting rights since April. So, let's go through these
    motions once again.
        Today, we will have more discussion on legislative reforms
    to the VRA. At the Subcommittee's prior hearings, our witnesses
    have already discussed, ad nauseam, many of the proposed
    reforms. As recently as 2 weeks ago, we discussed the overly
    broad and constitutionally suspect practice-based coverage
    provision that would require every State and political
    subdivision to preclear certain election practices.
        In June, the Subcommittee held a hearing on other proposed
    changes to the VRA, such as provisions that would create a new
    extraordinary legal standard for courts to grant injunctive
    relief in VRA-related actions and impose burdensome reporting
    requirements on States and localities.
        Today, our Democrat colleagues would like to continue the
    conversation about how the Federal Government and partisan
    bureaucrats here in DC should exert control over State election
    laws.
        In 1965, Congress passed the Voting Rights Act to overcome
    State resistance and barriers that prevented minorities from
    exercising their right, the right that is guaranteed to vote by
    the 15th Amendment.
        As we have discussed at all the prior hearings, in 2013,
    the Supreme Court held, in Shelby County v. Holder, that
    continuing to require States to preclear election law changes
    based upon conduct from decades ago, was an unconstitutional
    invasion of State sovereignty.
        Specifically, the court noted that, quote, ``the conditions
    that originally justified these measures no longer characterize
    voting in the covered jurisdictions,'' unquote.
        We should applaud the court's decision in Shelby County,
    because it acknowledges and recognizes we have come a long,
    long way from one of the most shameful chapters in this
    country's history.
        However, instead of recognizing that progress this country
    has made, our Democrat colleagues seek to propagate legislation
    that would amount to an unconstitutional Federal power grab
    over local election laws.
        For example, H.R. 4, as passed last Congress, would create
    a new section 4B coverage formula. That new formula would allow
    a court to retain jurisdiction over a State or a political
    subdivision for 10 years if a certain amount of voting rights
    violations have occurred any time in the previous 25 years.
        Under that new coverage formula, a State or political
    subdivision can rack up voting rights violations without a
    finding of intentional discrimination at all.
        Instead, settlement agreements and consent degrees, in
    addition to court orders and objections by the attorney
    general, will suffice to trigger Federal coverage.
        This new triggering mechanism is troubling, considering the
    politicization and partisan polarization of the Department of
    Justice Civil Rights Division.
        As one of our witnesses today, Hans von Spakovsky, has
    noted, the Department has, quote, ``a history of filing
    unwarranted objections under section 5 based on its bias in
    favor of liberal advocacy groups.''
        H.R. 4's new coverage formula will incentivize advocacy
    groups to file a plethora of objections, creating meritless
    litigation to trigger coverage. One of our prior Republican
    witnesses noted the formula, quote, ``creates something akin to
    the heckler's veto, to the loudest private interest groups,''
    unquote.
        Liberal advocacy groups and Democrats want Federal
    bureaucrats to have control over election Administration. Now,
    it appears States will not even be able to re-adopt voting
    procedures that were in place before the pandemic without input
    from the Justice Department.
        On July 28, the DOJ issued new guidance regarding State
    efforts to remove temporary emergency voting procedures
    implemented last year during the unprecedented pandemic.
        The Biden Administration's new guidance bizarrely suggests
    that States may not return to voting laws and procedures that
    existed before the pandemic, saying those laws and procedures
    may not, quote, ``be presumptively lawful,'' unquote.
        In 2020 State and local governments were tasked with safely
    administering elections during a once-in-a-lifetime pandemic.
    It was a once-in-a-lifetime event. Many States adopted
    temporary voting procedures to reduce public health risk,
    despite prominent health officials saying that in-person voting
    was safe.
        With this new guidance, the Department takes the position
    that these temporary emergency measures, some of which were
    passed without their States' legislature's approval, in a
    blatantly unconstitutional violation of article 2, are the new
    baseline from which to judge compliance with the VRA.
        This is contrary to Congress' intention in passing of
    legislation and a clear example of the left weaponizing the DOJ
    to do its bidding.
        I implore the Department and my colleagues on the other
    side of the aisle to remember, it is easier for eligible
    Americans to vote than ever before in America's history. I look
    forward to the hearing, and these witnesses today will re-hash
    the same territory once again.
        Thank you, and I yield back.
        Mr. Cohen. Thank you, Mr. Johnson. I would now like to
    recognize the Chair of the Full Committee, the gentleman from
    New York State, who has a long history of championing voting
    rights, having chaired this Subcommittee before he became the
    Full Chair, Mr. Nadler, of New York City.
        Chair Nadler. Thank you, Mr. Chair. I thank you for
    convening this important hearing at a critical moment in the
    life of our Nation, when our democracy itself is under greater
    threat than it has been in decades because of the sustained
    assault on the right to vote in States and localities across
    the country.
        The Voting Rights Act of 1965 is rightly regarded by many
    as among the most sacred texts of our Nation's civic religion.
    It was in many ways among Congress' crowning achievements, but
    the Act was really the result of the sacrifices made by many
    Americans, including our late beloved colleague, John Lewis,
    who shed their blood or even died to guarantee all citizens the
    right to vote.
        The institutions of government, including this one in which
    we have the honor of serving, are more truly representative of
    our country because of the vigorous enforcement of the Voting
    Rights Act.
        Over the course of this year, and during the last Congress,
    this Subcommittee has held a series of hearings documenting, in
    exhaustive detail, the myriad ways that the right to vote, the
    most fundamental right in a democracy, remains under threat for
    too many Americans.
        We have also examined the consequences of the Supreme
    Court's 2013 Shelby County v. Holder decision, as well as last
    month's decision in Brnovich v. Democratic National Committee,
    both of which dealt serious blows to the enforcement of the
    Voting Rights Act.
        I appreciate this opportunity to continue our consideration
    of how we can restore the VRA to its full vitality and protect
    its most precious right.
        Prior to Shelby County, the Voting Rights Act had been an
    unqualified success. It helped to reduce discriminatory
    barriers to voting, and it expanded electoral opportunities for
    people of color to Federal, State, and local offices, thereby
    opening the political process to every American.
        Despite decades of evidence of the act's success, however,
    the Supreme Court in Shelby County substituted its own judgment
    for that of Congress in rejecting Congress' conclusion that a
    substantial record of continued discrimination in voting
    supported the act's reauthorization.
        This decision effectively gutted the Voting Rights Act's
    most important enforcement mechanism, in section 5's
    preclearance provision. Specifically, it struck down the
    formula for determining which States and localities should be
    subject to preclearance, effectively rendering the preclearance
    provision inoperative, there is no longer a basis for
    subjecting jurisdictions to its requirements.
        Before the Voting Rights Act, States and localities
    implemented a host of voter suppression laws, secure in the
    knowledge that it could take many years before the Justice
    Department could successfully challenge them in court, if at
    all.
        As soon as one law was overturned, another would be
    enacted, setting up a discriminatory game of whack-a-mole.
    Section 5 broke this legal log jam by requiring States and
    localities with a history of discrimination against racial and
    ethnic minority voters to submit changes to their voting laws
    to the Justice Department for approval or to seek declaratory
    judgment in court prior to taking effect.
        In the absence of preclearance, predictively the game of
    whack-a-mole has returned with a vengeance. Within 24 hours of
    the Shelby County decision, both Texas's Attorney General and
    North Carolina's General Assembly announced that they would
    reinstitute Draconian voter ID laws.
        Both States' laws were later held in Federal courts to be
    intentionally racially discriminatory. During the years between
    their enactment and the court's final decision, many elections
    were conducted while the laws remained in place.
        Since the Shelby County decision, and indeed just since the
    2020 election, we have seen a dramatic rise in the number of
    voter suppression measures being proposed or enacted.
    Unnecessarily strict voter ID laws, significant scale backs to
    early voting periods, sharp restrictions on absentee ballots,
    and laws that make it harder to restore the voting rights of
    formerly incarcerated individuals are just a small sample of
    recent voting changes that have a disproportionate impact on
    minority voters.
        According to a July 22nd, 2021, Brennan Center for Justice
    report, as of July 14th, 18 States have enacted 30 laws that
    restrict the right to vote since the beginning of the year.
        As of August 9th, the nonpartisan organization, Voting
    Rights Alliance is tracking 473 anti-voter bills in the States.
        Of the States that have already enacted new restrictive
    voting laws, one particularly egregious example that stands out
    in Congress is Georgia's SB 202. This law proposes numerous new
    burdens on voting, including onerous identification
    requirements to absentee voting, restrictions on early voting,
    and most notoriously, it even imposes criminal penalties for
    offering food or water to voters waiting in line to vote.
        An effort to pass a similarly sweeping and egregious bill
    is currently under way in Texas. While some Texas State
    legislators, through their ingenuity and courage, have managed
    to temporarily halt that effort, the ultimate responsibility
    lies with us in Congress to fix the Voting Rights Act to ensure
    that such bills never become law.
        In the absence of preclearance, victims of voting
    discrimination have been forced to turn to litigation under
    section 2, which applies nationwide, and which prohibits a
    voting process or requirement that results in the denial or
    abridgement of the right to vote.
        Yet, the Supreme Court in the Brnovich decision has now
    seriously eroded section 2 as well, as least as it applies to
    vote denial claims. 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 these claims under these new factors, lower
    courts could narrow a plaintiff's ability to challenge
    discriminatory yet facially neutral voting practices, the very
    practices that Congress broadened the scope of section 2 to
    confront.
        In her 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, and 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. Legislation to revitalize
    the Voting Rights Act must include a new dynamic coverage
    formula that is broad enough to accurately capture the extent
    of ongoing voter discrimination and the current need for
    preclearance, while being tailored enough to address the
    court's stated federalism concerns as expressed in Shelby
    County.
        Such legislation must also restore a broad understanding of
    section 2 as applied to vote denial claims and consider other
    reforms to the act, such as provisions to expand judicial
    authority, to bail-in jurisdictions into preclearance, provide
    greater notice and transparency, enhance the ability to assign
    Federal election observers, and facilitate plaintiff's ability
    to obtain preclearance injunctions.
        I thank Chair Cohen for holding this important hearing to
    help us examine these critical issues. I look forward to
    hearing from our esteemed witnesses, including Assistant
    Attorney General for Civil Rights, Kristen Clarke, and I yield
    back the balance of my time.
        Mr. Cohen. Thank you, Mr. Nadler. It is now my pleasure to
    recognize a fellow Member of the distinguished August class of
    2006, the Ranking Member of the Full Committee, Mr. Jordan,
    from Ohio.
        Mr. Jordan. Thank you, Mr. Chair.
        The United States of America is the greatest country in the
    history of the world. There is no question that our country has
    done more to advance the cause of liberty and democracy than
    any other Nation ever. As our Constitution says in its
    preamble, we are always striving for a more perfect union.
        Yes, our country has not always been perfect, and we must
    acknowledge and learn from our failures. The Democrats would
    have you believe that we have facing some sort of crisis that
    requires rapidly changing how we run our Nation's elections.
    The facts just don't support their arguments as I hope we will
    hear today.
        This is the Subcommittee's sixth hearing on H.R. 4, a bill
    that the Democrats have yet to re-introduce in this Congress.
    Even though this bill hasn't been introduced, the Majority
    Leader announced that the House may vote on it as early as next
    week.
        So, this is likely the last time the Committee will have a
    chance to talk about the legislation, and we don't even know
    what is actually in the bill.
        In 1965, Congress passed the Voting Rights Act to overcome
    State resistance and barriers that prevented some minorities
    from exercising their right to vote, guaranteed by the 15th
    amendment. As originally passed by Congress, the VRA, included
    an extraordinary departure from the principles of Federalism to
    combat the, quote, ``exceptional conditions during a dark time
    in our Nation's history.''
        Despite what some Democrats say, the United States has come
    a long way since then. In 2013, in Shelby County v. Holder, the
    Supreme Court struck down the VRA's coverage formula, as
    outdated. The exceptional conditions from 1965 no longer
    existed to justify subjecting States to preclearance approval
    from the Federal Government, as the Ranking Member of the
    Subcommittee said earlier.
        The court's decision in Shelby acknowledged the progress
    this Nation has made since 1960, and thankfully America today
    is not the same as America was in the 1960s. We should all
    applaud this progress.
        Despite the strides our great country has taken, Democrats
    like to claim that the Supreme Court has gutted the VRA, and
    they say that that is why it is urgent to pass H.R. 4, but the
    facts just don't back that up.
        What the Democrats fail to acknowledge is that the court's
    decision in Shelby County did not strike down all of the VRA,
    not even close. Sections 2 and 3C remain an effective tool to
    root out intentional discrimination where it might exist. H.R.
    4 isn't legislation designed to fix Shelby County. It is
    legislation designed to radically change how we run elections
    and to politicize enforcement of the Voting Rights Act.
        There is no need to amend the VRA and divide certain
    provisions such as the section 4B coverage formula that
    unconstitutionally and unjustifiably encroach on State
    sovereignty.
        Also, in another brazen attempt to grab power from State
    control and give it to partisan bureaucrats in Washington H.R.
    4 seeks to institute a practice-based preclearance provision.
    This provision would not just apply to States with histories of
    illegal discrimination. It would apply to every State and
    political subdivision in the entire country.
        In other words, every local county or city would have to
    get approval from unelected people in the Justice Department
    before changing its election process. That is some scary stuff.
        This provision is also designed to target popular voting
    integrity measures, like voter ID laws, which polling shows
    most Americans strongly support.
        Americans deserve free, fair, and accurate elections. Every
    legal vote should count, something these voter integrity
    measures would help to ensure. To justify the unconstitutional
    Federal overreach of the H.R. 4, Democrats argue that States
    have enacted allegedly suppressive voting laws.
        Democrats ignore one glaring fact, however. It is easier
    today for eligible Americans to vote than ever before in our
    Nation's history. It is interesting that Democrats always
    target Republican-led States like Georgia and Texas for
    allegedly suppressing the vote when these States actually have
    more expansive election procedures than Democrat-run States.
        Georgia, for example, has 17 days of early voting,
    President Biden's home State of Delaware only has ten. Georgia
    has no-excuse absentee voting. Delaware requires an excuse for
    absentee voting. You don't hear Democrats complaining about
    Delaware, and you don't see the Biden Administration bringing
    suit against Delaware in Federal court.
        The Biden Administration's Justice Department has
    unfortunately politicized enforcement of the Voting Rights Act,
    and to see how, look no further than the guidance issued by
    Attorney General Garland last month.
        In 2020, many States adopted temporary voting procedures to
    reduce public health risks during a once-in-a-lifetime
    pandemic. Recognizing the temporary nature of these voting
    procedures, in 2020, Attorney General William Barr directed the
    civil rights division to adopt a VRA enforcement policy that
    would, quote, ``presume it lawful for a State to revert to
    election laws or procedures it had before the pandemic.''
        On February 3rd, 2021, the Biden Administration abruptly
    rescinded Attorney General's Barr's guidance, and on July 28th,
    Attorney General Garland issued new guidance. The new guidance
    said that the State election laws and procedures that existed
    prior to the pandemic may not be presumptively lawful.
        So, if a State had a lawful election procedure prior to the
    pandemic, then changed it to something else and now wants to
    change it back, the Biden DOJ said it can't do that. With this
    new guidance, the Department takes the position that the
    temporary emergency measures implemented during the pandemic
    are the new baseline from which to judge compliance with the
    Voting Rights Act, contrary to Congress' intention in passing
    the legislation.
        Congressman Johnson and I sent a letter to Attorney General
    Garland last Thursday strongly urging him to rescind this
    guidance. We hope we will get a full response from the Attorney
    General before the House votes on H.R. 4.
        Even more dangerous, H.R. 4 expands the role of the Justice
    Department in election Administration. As Attorney General
    Garland's actions have shown, the Biden Administration intends
    to politicize enforcement of the Voting Rights Act. We cannot
    trust them with these new authorities.
        Our Constitution, the backbone of our country, is clear,
    that States have the primary authority to administer elections,
    even Federal elections.
        H.R. 4, along with the Biden DOJ's politicized enforcement
    of the Voting Rights Act is a radical effort to Federalize
    elections. It is not supported by the law. It is not supported
    by the facts. It is a power grab, pure and simple.
        Mr. Chair, thank you. I yield back.
        Mr. Cohen. Thank you, Mr. Jordan.
        We now welcome our witnesses on both panels and thank them
    for participating in today's hearing. I will introduce each of
    the witnesses, and after each introduction, will recognize that
    witness for his or her oral testimony.
        At the conclusion of the first panel, we will have
    questions of General Clarke, and after the conclusion of the
    second panel, we will have questions of all the panelists.
        Each of your written statements will be entered into the
    record in its entirety. Accordingly, I ask you to summarize
    your statement in 5 minutes, your testimony. To help stay
    within the time, there is a timer in the Zoom view that should
    be visible on your screen.
        When you get to 4 minutes, you need to be starting to wrap
    up. When you get to 5 minutes, you should be finished.
        Before proceeding with your testimony, I would like to
    remind all the witnesses that you have a legal obligation to
    provide truthful testimony in answers to this Subcommittee and
    that any false statement you may make today, may subject you to
    prosecution under you section 1001 of title 18 of the United
    States Code.
        The sole witness on our first panel today is the Honorable
    Kristen Clarke. Ms. Clarke is the Assistant Attorney General
    for the civil rights division of the United States Department
    of Justice. In that role, she leads the Department's efforts to
    enforce a broad array of Federal civil rights laws, including
    the Voting Rights Act of 1965.
        Assistant Attorney General Clarke is a long-time civil
    rights lawyer, having begun her career as a trial lawyer in the
    civil rights division through the Department of Justice's
    Honors Program.
        In 2006, she joined the venerable NAACP Legal Defense and
    Education Fund where she helped lead the organization's work in
    voting rights and election law.
        In 2015, she was named the President and Executive Director
    of the Esteemed Lawyers' Committee for Civil Rights Under Civil
    Law. Assistant Attorney General Clarke received her JD from
    Columbia Law School and her BA from Harvard.
        Assistant Attorney General Clarke, you are recognized for 5
    minutes.

               TESTIMONY OF THE HONORABLE KRISTEN CLARKE

        Ms. Clarke. Chair Cohen, Ranking Member Johnson, and the
    Members of the Subcommittee on the Constitution, Civil Rights,
    and Civil Liberties, my name is Kristen Clarke, and I serve as
    Assistant Attorney General for the civil rights division of the
    U.S. Department of Justice. I want to thank you for the
    opportunity to testify today on the Department's work to
    implement and enforce the Voting Rights Act of 1965, and the
    need to revitalize and restore the act.
        The Voting Rights Act is, as President Johnson said, one of
    the most monumental laws in the entire history of American
    freedom. It is a law that has helped to truly transform
    American democracy.
        However, the progress that we have made is fragile, as we
    watch the current resurgence in attacks on voting rights. We
    have seen cuts to early voting periods, new and burdensome
    restrictions to register or vote, racially gerrymandered
    redistricting plans, polling sites eliminated or consolidated
    in communities of color, eligible voters purged from the rolls,
    restrictions on civic groups seeking to help voters participate
    in the process, and more.
        I am here today to sound an alarm. In 2013, the Supreme
    Court's decision in Shelby County v. Holder suspended the
    preclearance process, the Justice Department's single most
    powerful and effective fool for protecting the right to vote.
        The Department's ability to protect the right to vote has
    been eroded as a result. For the Justice Department,
    restoration of the VRA is a matter of great urgency.
        Before Shelby County, the preclearance process enabled the
    Department to swiftly review and block the implementation of
    discriminatory and unconstitutional voting practices in covered
    jurisdictions.
        While section 5 was in place, the Justice Department
    blocked over 3,000 voting changes, helping to protect the
    rights of millions of citizens.
        Evidence of discriminatory purpose, intentional
    discrimination, was found in over 60 percent of voting changes
    blocked by section 5.
        In addition to blocking discrimination, the deterrent
    effect of the preclearance requirement is undeniable. The
    Shelby County ruling has given a green light to jurisdictions
    to now adopt voting restrictions. Today these laws can only be
    challenged through long, protracted resource-intensive case-by-
    case litigation.
        The Department knows well the burden that comes with the
    case-by-case approach by way of cases that we brought recently
    in States like Texas and North Carolina. This gives to
    jurisdictions what the Supreme Court memorably called, quote,
    ``the advantage of time and inertia.'' Before Shelby County
    jurisdictions had to meet their burden of proof by
    demonstrating that these rules were not adopted with a
    discriminatory purpose and would not worsen the position of
    minority voters.
        Today discriminatory laws are allowed to take root
    immediately, impacting voters and corrupting the electoral
    process.
        We are on the cusp of another potentially transformational
    moment. Redistricting is about to commence. Virtually every
    jurisdiction that elects its Members, from districts from State
    legislatures to county commissions, school boards, and town
    councils will be required to redraw district boundaries.
        New 2020 Census numbers show the U.S. is becoming an
    increasingly diverse Nation with population growth attributable
    to increases in the number of people of color.
        Absent congressional action, this redistricting cycle will
    be the first without the full protections of the Voting Rights
    Act. Without preclearance, the Justice Department will not have
    access to maps and other restricting-related information for
    many jurisdictions where there is reason for concern.
        Even though this kind of information is necessary to assess
    where voting rights are being restricted and to help inform how
    the Department directs its limited enforcement resources. In
    1965, Congress enacted, and in 1975, 1982, and 2006,
    reauthorized a statute that provided the strong medicine needed
    to remedy voting discrimination and enforce our Constitution's
    commitment to ensuring that no citizen's right to vote would be
    abridged on account of race or color.
        Congress has broad enforcement powers and must Act now to
    restore the Voting Rights Act, to prevent us from backsliding
    into a Nation where millions of citizens, particularly citizens
    of color, find it difficult to register, cast their ballot, and
    elect candidates of choice.
        We look forward to working with this Congress to revise
    this bedrock civil rights law. The Justice Department stands
    ready to support Congress in protecting the voting rights of
    all eligible Americans. Thank you.
        [The statement of Ms. Clarke follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Documents submitted by the Honorable Kristen Clarke,
    Assistant Attorney General for Civil Rights, U.S. Department of
    Justice:

    Exhibit 1: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-ClarkeK-20210816-SD001.pdf
    Exhibit 2: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-ClarkeK-20210816-SD002.pdf
    Exhibit 3: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-ClarkeK-20210816-SD003.pdf
    Exhibit 4: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-ClarkeK-20210816-SD004.pdf
    Exhibit 5: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-ClarkeK-20210816-SD005.pdf
    Exhibit 6: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-ClarkeK-20210816-SD006.pdf
        Mr. Cohen. Thank you. We appreciate it. We will now start
    questioning, and I will begin, as is customary, and I will
    recognize myself for 5 minutes.
        Ms. Clarke, why is section 5 preclearance so crucial to
    combatting discriminatory voting practices, and do you see a
    connection between the Supreme Court's decision in Shelby
    County v. Holder and the sustained attack on voting rights that
    we have seen since that decision over the past 8 years.
        Ms. Clarke. Oh, thank you, Chair Cohen. Section 5 of the
    Voting Rights Act was truly the heart of the act. This is a
    bedrock provision that provided a unique tool to deal with the
    problem of voting discrimination.
        In the course of our section 5 preclearance process at the
    Justice Department, we were able to block over 3,000--over
    3,000--discriminatory voting changes that would have otherwise
    taken root.
        This prophylactic remedy is without parallel, and section 2
    of the Voting Rights Act is no substitute for the important
    protections that have been provided through the preclearance
    process. So, we have lost something.
        Chair Cohen, since the court's ruling in 2013, we have seen
    States move swiftly to reinstitute discriminatory changes. We
    saw it on the day that the court issued its ruling in Texas
    when it moved forward with a discriminatory voter ID law that
    had been previously blocked by section 5.
        We saw it in North Carolina, when the State moved forward
    with an omnibus bill that turned the clock back on voting
    rights in multiple respects, and in a form in which the Fourth
    Circuit ultimately described as being carried out with almost
    surgical precision. So, we have lost something, and this matter
    before Congress is an urgent one.
        We need the section 5 preclearance process back in full
    force and effective. Without it, the Justice Department has
    lost its most important tool for safeguarding voting rights in
    our country.
        Mr. Cohen. Thank you, General Clarke. Section 5 stands out,
    I would rate it, if you had to go on a scale of one to ten of
    importance, it is a nine. Section 2 may be a two. Section 2 was
    also damaged in the Brnovich v. Democratic National Committee
    ruling that denied litigation--is a vote on denial litigation
    alleging vote denial claims, and it remains to be seen how that
    will affect section 2, in general.
        The consensus from many of our prior witnesses who we have
    had in prior hearings is that it will make it more difficult to
    bring such claims. Do you agree with this assessment that
    section 2 has been damaged and its ability to bring claims in
    the future?
        Ms. Clarke. Thank you, Chair. The Justice Department is
    continuing to look closely at the Brnovich rulemaking. We
    observed that the last time that Congress amended section 2 was
    in 1982. It may be helpful for Congress to use this moment to
    clarify the factors that litigants should use to establish a
    section 2 claim, the factors that courts should rely upon.
        Section 2 remains a very important tool that applies
    nationwide, as you observed, for confronting voting
    discrimination, and we urge Congress to think about ways in
    which to clarify how section 2 should be applied by courts and
    by litigants.
        Mr. Cohen. Let me ask you this at that point, the
    guideposts that were announced by the court in Brnovich--and
    they did announce them--had no textual basis and were contrary
    to the intent of the 82 amendments to section 2 that you
    mentioned of the Voting Rights Act, which Congress passed to
    ensure that the Act eliminated discriminatory voting practices
    in all their forms.
        What approach would you suggest Congress take to clarify
    the scope of section 2 now that the Brnovich decision has been
    issued?
        Ms. Clarke. Well, Chair, the Justice Department recognizes
    that that choice is ultimately one for Congress to make, but we
    would urge Congress to look closely at the ruling in Brnovich,
    to look at the ways in which factors identified by the court
    may run contrary to the factors that Congress intended courts
    to consider when evaluating section 2 claims.
        We have decades of case law interpreting section 2, and so
    this may be one moment where Congress seizes the moment to make
    clear those factors that it wants courts to look at and to
    clarify any confusion of gray area that may have resulted from
    the Brnovich ruling.
        Mr. Cohen. Thank you, General Clarke. Some have said this
    is a Federal takeover of the State's authority to regulate
    elections. Would the changes--Alabama used to say, you count
    the number of beans in a jar, where you had to repeat the
    Shakespeare or something like that before you could get a right
    to vote. Would those have been, challenging those, a Federal
    takeover, quote, ``of election laws,'' unquote or would that
    simply have been preserving voting rights?
        Ms. Clarke. The latter, Chair. I will say from the Justice
    Department's long experience, implementing section 5, that the
    Department has always worked cooperatively with jurisdictions.
    It reviewed changes swiftly. At the most, it took 60 days to
    review and come up with a determination.
        There have been States that have made plain their view that
    participating in the section 5 preclearance process was one
    that they were able to carry out with ease. So, we don't deem
    this a Federal takeover. We deem this a way of complementing
    Congress' considered judgment that we need the Voting Rights
    Act to ferret out discrimination and unconstitutional practices
    that may otherwise infect the electoral process in our country.
        Mr. Cohen. Thank you, Ms. Clarke, and my time is over. I
    now yield to the Ranking Member from Louisiana, Mr. Johnson.
        Mr. Johnson of Louisiana. Thank you, Mr. Chair.
        Ms. Clarke, on July 28th, the DOJ issued new guidance
    regarding States' efforts to remove their temporary emergency
    voting procedures that they implemented last year during the
    unprecedented COVID-19 pandemic. Did you help draft that July
    28th guidance?
        Ms. Clarke. Yes, Ranking Member Johnson. I participated
    along with other career colleagues inside the Department.
        Mr. Johnson of Louisiana. So, since the Department no
    longer presumes that the State election Administration
    procedures that were in place before the pandemic are lawful,
    will the DOJ review how States adopted those temporary
    emergency election procedures during COVID-19 and whether the
    manner in which those temporary emergency election procedures
    were adopted was lawful?
        Ms. Clarke. Thank you, Ranking Member Johnson. As the
    Attorney General has made clear, protecting, and safeguarding
    the right to vote is an important priority for the department.
        Right now, we are looking across the country at States that
    are making changes to their voting practices and rules. The
    point that the language that you have seized on simply States
    that in a State or jurisdiction decides to turn the clock back
    and revert back to an old practice, that we will want to look
    at that with fresh eyes and understand what motivated the
    decision to revert back to a prior rule.
        Was the decision one infected with discriminatory purpose,
    or intended to make it harder for particular groups to vote?
    So, there is no presumption of validity when jurisdictions
    decide to turn the clock back.
        Mr. Johnson of Louisiana. It just seems like a terribly
    subjective determination on the DOJ's part at a time when
    everything is super, hyper politicized, and it opens a
    Pandora's box for a lot of problems.
        Let's talk about it objectively, though, and article 2,
    section 1, clause 2 of the Constitution, obviously it says very
    clearly, State legislatures are entrusted with the integrity of
    our unique election system, and they are given the exclusive
    authority to direct the manner of appointing presidential
    electors for the electoral college.
        So, as the Supreme Court affirmed in McPherson v. Blacker,
    that power is, quote, ``placed absolutely and wholly with the
    legislatures, and it can never be taken away nor abdicated,''
    unquote. So, every State's legislature, of course, in
    accordance with that, has long established, detailed rules and
    procedures to determine their electors.
        In the months preceding the 2020 Presidential election,
    those rules and procedures were changed in some States, not by
    the legislatures, but by a variety of other officials--
    governors, Secretaries of State, election officials, judges,
    and private parties.
        So, does the Department plan to review that since it is, on
    its face, an obviously clear violation of the plain language of
    article II?
        Ms. Clarke. Thank you, Ranking Member. We are committed to
    ensuring that every eligible American has voice in our
    democracy and can access the ballot box. The elections clause
    of the Constitution also gives Congress the power to impact, in
    short, access to Federal elections. So, that elections clause
    power, along with the enforcement powers that this body has by
    way of the 14th and 15th Amendment, truly give this
    Subcommittee and Members of the House, the power to Act now, to
    ensure that no official, no jurisdiction undertakes action that
    could make it harder for people to vote, especially
    historically marginalized people.
        Mr. Johnson of Louisiana. Let me interrupt you just for a
    second time. I understand what you are talking about forward,
    reviewing what happens now. I am talking about what happened
    last year. Is the DOJ interested in that at all, the fact that
    is a blatant, on its face, violation of article II of the
    Constitution, or are you just going to go and look at what you
    choose to look at? I mean, that is a serious question.
        Ms. Clarke. Well, we conduct very localized examinations of
    the voting rules in many States across the country. There is no
    presumption of validity. We are going to conduct an intense
    appraisal of the facts on the ground to understand if a
    particular law or change violates Federal law, Federal laws
    that the Justice Department has jurisdiction to enforce.
        Mr. Johnson of Louisiana. Okay. Real quick, the data from
    recent elections and the DOJ enforcement activity following
    Shelby County suggests that there is no need to amend the VRA.
    Are you aware that the Census Bureau data concludes that
    African Americans in Georgia registered to vote and voted in
    elections at a higher rate than African Americans in the
    Democrat-controlled States of Illinois, New York, and
    California?
        Ms. Clarke. Thank you, Ranking Member. I think those
    registration rates are in important data point for this
    Subcommittee to study. I think it is also important to look at
    conditions on the ground. That is what Justice Roberts urged
    Congress to do. When we look at the current conditions, we see
    that there are in many places voters of color, Black voters,
    Latino voters, and others who are subjected to long lines,
    voters who have difficulty accessing polling sites because
    polling sites are being shut down in their particular
    communities.
        So, looking comprehensively at the facts, is what can help
    Congress undertake what the court asks, and that is really
    truly looking at current conditions.
        Mr. Johnson of Louisiana. I am out of time, but let's all
    note that Arizona has a higher voter turnout for minority
    groups than California. I yield back.
        Mr. Cohen. Thank you, Mr. Johnson.
        Now, to recognize the Chair for 5 minutes, Mr. Nadler.
        Chair Nadler. Thank you, Mr. Chair.
        Attorney General Clarke, when the Supreme Court struck down
    section 4B of the Voting Rights Act in Shelby County, the court
    explicitly invited Congress to rewrite a new geographic-based
    coverage formula. What constitutional guidance should Congress
    draw from the Shelby County decision as it considers a path to
    devise a geographic-based coverage formula to meet current
    needs?
        Ms. Clarke. Thank you, Chair Nadler. I think that the work
    that this body has been doing since 2019, the various hearings
    that have been held in Congress, the field hearings, this
    hearing today, are all rising to the task that the court has
    asked Congress to undertake, really studying carefully and
    thoroughly and comprehensively current conditions across the
    country.
        It is our view at the Justice Department that careful
    analysis will yield a picture about where problems are starkest
    and greatest in our country, about the kinds of policies and
    barriers and restrictions that jurisdictions are resorting to
    most frequently make it harder for voters of color to vote.
        So, this work that is underway right now is incredibly
    important in doing what Justice Roberts asked Congress to do.
        Chair Nadler. Thank you. In the Department's experience, is
    section 2 litigation an adequate substitute for section 5
    preclear-
    ance?
        Ms. Clarke. Absolutely not, Chair Nadler. These cases are
    incredibly time-intensive and resource-intensive. Just by way
    of example, in North Carolina, the State spent over $10.5
    million defending its discriminatory voting law that came under
    challenge following Shelby.
        The State of Texas spent over three and a half million
    dollars. Section 2 is no substitute for the important, swift,
    pre-emptive review that was provided by way of the section 5
    preclearance process.
        Chair Nadler. We have heard testimony from witnesses that
    an overlooked consequence of the Shelby County decision is that
    it has impaired the DOJ's ability to appoint Federal observers
    and that the Department has come to rely on Federal monitors
    who do not have the same authority to require local officials
    to grant access to the elections process. Do you agree with
    this assessment, and why or why not?
        Ms. Clarke. We do. For the Justice Department, the Federal
    observer program has been a critical tool in how we carry out
    our work of ensuring that all voters have access to the ballot.
    Federal observers were deployed by the Office of Personnel
    Management. These were independent, fair, neutral eyes on the
    ground in places where there may have been reports about voter
    intimidation or other election-day efforts to make it harder
    for people to access the ballot box.
        So, part of what we hope will come out of this process is
    restoration of the Department's ability to deploy Federal
    observers to communities where they may be needed.
        Chair Nadler. Thank you. One last question, does the
    Supreme Court's Shelby County decision tell us anything about
    what kind of evidence the court will accept that demonstrates
    current needs if and when it reviews a new coverage formula?
        Ms. Clarke. Well, again, Chair Nadler, I think that this
    work that has started in 2019 and continues today, shows that
    Congress is leaving no stone unturned in understanding what the
    problems are today, in understanding what the current, present-
    day conditions are.
        As this work continues and as this effort kind of moves
    through the Senate, it will be plain to the courts that
    Congress has answered the call of ensuring that any post-Shelby
    remedy is a remedy that is responsive to the current conditions
    in the country.
        Chair Nadler. Thank you. Lastly, what geographic coverage
    formula would you recommend to meet the current need, and why
    would it be constitutional?
        Ms. Clarke. Well, Chair Nadler, the Justice Department's
    view is that this is ultimately a call for Congress to make,
    and the Justice Department is proud to aid Congress'
    understanding of current conditions.
        I understand that there has been both a geographic coverage
    provision that has been discussed and that there has been a
    practice-based preclearance proposal that aims to look at the
    particular kinds of voting restrictions and rules that tend to
    be resorted to as ways to make it harder for voters of color to
    access the ballot box.
        Whatever Congress ultimately decides, we know it must be a
    record that justify--it must be a remedy that is justified by
    the record that you are developing. So, the Department is proud
    to be here helping Congress to kind of understand what that
    current picture looks like.
        Chair Nadler. Thank you. My time is expired. I yield back.
        Mr. Cohen. Thank you, Mr. Nadler.
        I now recognize the gentleman from Ohio with the nice
    orange tie, Mr. Jordan.
        Mr. Jordan. Thank you, Mr. Chair.
        Ms. Clarke, let me get this straight. I want to go to where
    the Ranking Member was. If States attempt to revert to the
    election law prior to COVID, you are going to come after them,
    but you are not going to look at the actual changes they made
    to the election law, changes I think were done in
    unconstitutional fashion in many States, you are not going to
    look at that issue?
        Ms. Clarke. Thank you. So, Congressman, we are not coming
    after any jurisdiction, but we are looking closely to
    understand why lawmakers are instituting new changes to the
    rules. If, for example, we learn that a State was motivated by
    a desire to make it harder for Native American voters to access
    the ballot, motivated by a desire to make it harder for Black
    voters to access early voting, motivated by a desire to make it
    harder for Latino voters to access vote by mail, but those may
    be important facts that rise to the level of a potential
    violation of section 2 of the Voting Rights Act or another
    Federal voting rights law.
        Mr. Jordan. Let me give you an example. Prior to the 2020
    election, Pennsylvania election law said that the election ends
    at 8:00 p.m. on Tuesday. That is what the legislature passed.
    That is what had been signed by the governor. That was, in
    fact, the election law.
        Democrats in Pennsylvania went to the partisan Supreme
    Court, State Supreme Court, and sued in the State Supreme
    Court, and the State Supreme Court said election law doesn't
    end at 8:00 p.m. Tuesday even though that is what the law said.
    They said, no, now the election goes until 5:00 p.m. Friday.
        It is a total end-run around the legislature, which as Mr.
    Johnson pointed out, we all know the time, place, and manner of
    election law is determined by State legislatures. So, are you
    going to look at that fact? Are you going to examine, was that
    done in a constitutional--manner consistent with the
    Constitution? Are you going to look at that, for example?
        Ms. Clarke. Well, I am not familiar with the situation in
    Pennsylvania, but we are looking across the country to
    understand why lawmakers are changing the rules.
        Our sole goal is not partisan but to make sure that those
    changes are not motivated by--
        Mr. Jordan. Okay. So, this is a specific question. Will you
    look at changes made to election law prior to the 2020
    election, will you look at that, or are you only looking at
    States who are going to revert back to where they were prior to
    the 2020 election?
        Ms. Clarke. We are looking across the country at existing
    laws, new laws, and laws that have been put on the books
    recently that are now being taken away. The sole goal is to
    ensure that all eligible Americans have access to the ballot
    and that they have access that is free from--
        Mr. Jordan. I share that goal. I think everyone on this
    Committee here, everyone at this hearing shares that goal. We
    also are concerned about making sure election law is done in a
    constitutionally proper manner and proper fashion.
        It sure looks to me like in Pennsylvania, as an example, it
    wasn't, because when the State legislature passes an election
    law that says the election ends at 8:00 p.m. Tuesday, but then
    the State Supreme Court says, ``Forget what they said, we are
    going to now extend the election 3 days,'' that never went
    through the legislature, and they extended the election 3 days.
        The same thing happened, frankly, with mail-in ballots.
    Election law in Pennsylvania says that there is supposed to be
    signature verification for every ballot, but the secretary of
    State--again, not going through the legislature--said, ``You
    know what? We are not going to have signature verification for
    the mail-in ballots in Pennsylvania.''
        Almost 42-point-some millions of those ballots never had
    signature verification. Are you going to look at those changes,
    too, and say that is not consistent with the Constitution?
        Ms. Clarke. So, Congressman, I want to assure you that some
    of these voting changes that you may be referencing may not
    trigger a violation of Federal voting rights laws.
        The Justice Department does not undertake its work in a
    partisan manner. Our sole focus is ensuring that lawmakers are
    not acting with a discriminatory motive or acting in a way that
    will have a discriminatory effect on protected minority groups.
    That is it.
        Mr. Jordan. All right.
        Thank you, Mr. Chair. I yield back.
        Mr. Cohen. Thank you, Mr. Jordan.
        I would like to ask for unanimous consent to submit into
    the record an op-ed by the Council of Economic Advisers
    entitled ``The Importance of Protecting Voting Rights for Voter
    Turnout and Economic Well-Being.'' Without objection. Thank
    you.
        I would also like to enter into the record the 2021 report
    of the House Administration Committee and the Subcommittee on
    Elections on ``Voting in America: Ensuring Free and Fair Access
    to the Ballot.'' Without objection, so done.
        [The information follows:]

                            MR. COHEN FOR THE RECORD

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

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        A report entitled ``Voting in America: Ensuring Free and
    Fair Access to the Ballot,'' House Administration Committee and
    the Subcommittee on Elections, submitted by the Honorable Steve
    Cohen, Chair of the Subcommittee on the Constitution, Civil
    Rights, and Civil Liberties from the State of Tennessee:
    https://docs.house.gov/meetings/JU/JU10/20210816/114010/HHRG-
    117-JU10-20210816-SD102.pdf
        Mr. Cohen. I now recognize Mr. Raskin for 5 minutes.
        Mr. Raskin, you are muted, or you are mute.
        Mr. Raskin. Thank you very much, Mr. Chair. I appreciate
    your calling this hearing.
        Ms. Clarke, I want to ask you about the potential
    enhancement of bail-in jurisdiction.
        In light of the Department's prior experience administering
    the preclearance regime, what is your opinion about the
    necessity of amending section 3(c) to permit courts to bail in
    jurisdictions for violations of the Voting Rights Act in
    addition to cases where there have been violations of the 14th
    and 15th Amendments?
        Ms. Clarke. Thank you for that question, Congressman.
        The bail-in and bail-out provisions of the Voting Rights
    Act are important features of the statute. They allow a way for
    jurisdictions that may have long and recent histories of voting
    discrimination to be brought into the preclearance process.
        Likewise, bail out allows for jurisdictions that have a
    clean bill of health for 10 years to be removed or exempt from
    the preclearance process. We know that there are scores of
    jurisdiction that availed themselves of the opportunity to bail
    out when we had the preclearance process in place.
        Overall, I think that the bail-in and bail-out features of
    preclearance make clear that Congress designed a very carefully
    tailored statute that allows for expansion, allows for
    restriction based on the records of those jurisdictions.
        I encourage Congress to look at those provisions and see if
    there are ways to perhaps make it even easier for jurisdictions
    to bail out--or, alternatively, easier to bring jurisdictions,
    in particularly, those that engage in present day
    discrimination when it comes to voting rights.
        Mr. Raskin. Yes.
        I have heard now from several of my colleagues on the other
    side of the aisle about this claim that the State of
    Pennsylvania somehow violated the U.S. Constitution in the 2020
    election and that other States had done that before.
        My understanding was that 62 different Federal and State
    courts rejected categorically this claim that there was some
    violation of article II of the Constitution taking place.
        As I understand their line of questioning as directed to
    you, they are basically saying, would you look at somebody's
    Voting Rights Act claim that, for example, the extension of
    hours violated the Voting Rights Act? Is there any reason you
    wouldn't look at that to determine whether there was an
    invidious intent or an invidious effect under the Voting Rights
    Act?
        Ms. Clarke. Thank you.
        Again, protecting the right to vote is an important
    priority for the Justice Department. It is something that
    Attorney General Garland has made clear repeatedly.
        As we look at the picture across the country, our review is
    a narrow one. It is focused solely on understanding whether
    jurisdictions are changing the rules, adopting new restrictions
    in ways that harm protected minority groups, groups who deserve
    the right to be able to access the ballot free from
    discrimination.
        This is not a partisan exercise. It is a very limited
    review and limited jurisdictional role that the Justice
    Department has.
        Mr. Raskin. Yeah. No courts have ever found that there was
    either a constitutional or a statutory problem with the kinds
    of changes that they are talking about from the 2020 election,
    much less that there was a violation of the Voting Rights Act.
    It is interesting that they began by proclaiming their fealty
    to federalism, but they are attacking voting practices in
    particular States, as in Pennsylvania.
        I want to thank you for your service, and I want to thank
    you for very carefully threading the needle to help us come up
    with a statute that will stand the test of time and vindicate
    our overwhelming constitutional interest in making sure
    everybody gets the right to vote.
        I yield back to you, Mr. Chair.
        Mr. Cohen. Thank you, Mr. Raskin.
        Our next questioner will be Mr. McClintock of California.
        Is he not on?
        He is not on. We will go to--is Mr. Roy available?
        Ms. Fischbach?
        Mr. Owens?
        Ms. Ross of North Carolina, you are recognized.
        Technical difficulties.
        Ms. Ross. No. We have got it, Mr. Chair. Sorry. I was being
    very good about mute.
        Thank you, Mr. Chair, for having this hearing.
        Thank you, Ms. Clarke, for your testimony. It is very
    important for our deliberations as we bring the next John Lewis
    Voting Rights Act forward.
        The rise in voter suppression laws across the country has
    revealed critical gaps in the Voting Rights Act and its ability
    to protect the right to vote and to allow affected parties to
    obtain timely relief under the claims that they pursue, and we
    have certainly seen this in my home State of North Carolina.
        I want to bring up the Thornburg v. Gingles case, which did
    come from North Carolina, where the Supreme Court outlined a
    nonexhaustive list of factors that a court should consider in
    vote dilution section 2 cases.
        In any legislative response to the Brnovich decision, do
    you think it is important for Congress to explicitly clarify
    that section 2(b) continues to apply to vote dilution claims
    and that courts must apply the Gingles decision to those
    claims? If so, please tell me why.
        Ms. Clarke. Thank you for that question, Congresswoman.
        So, the Justice Department thinks that it would be valuable
    for Congress to look carefully at the Brnovich ruling and the
    factors set forth in the opinion to see whether there is a
    divergence between the factors that this body had intended
    courts and litigants to consider in section 2 cases.
        Clarity can be very helpful for the Justice Department and
    for other litigants that pursue section 2 cases going forward.
        That said, the Brnovich ruling leaves section 2 intact, and
    it remains an important tool that we are using to safeguard
    voting rights across the country.
        Ms. Ross. Thank you very much for that answer.
        We have also heard testimony this Congress that the lower
    courts' overreliance on the so-called Purcell Principle has
    made it inordinately difficult for section 2 plaintiffs to
    obtain equitable relief in cases involving late-breaking
    changes to voting procedures.
        Should Congress consider amending the VRA to address
    Purcell? If so, how?
        Ms. Clarke. Well, again, Congresswoman, Congress bears
    broad enforcement powers under section 2 of the 15th Amendment,
    section 5 of the 14th Amendment, the Elections Clause, which
    gives Congress the power to speak to the time, place, and
    manner by which voters can access the ballot in Federal
    elections.
        So, all three of these provisions truly give Congress the
    power to provide clarity about how it intends section 2 to be
    used.
        So, my answer to your question is, yes, this is an area
    that we would encourage Congress to look at and explore
    further.
        Ms. Ross. As a follow-up to that question, do you think it
    is particularly important for us to look at this principle in
    light of the upcoming redistricting that we will be doing based
    on the Census results?
        Ms. Clarke. Yes, Congresswoman. The Supreme Court has urged
    Congress to look at current conditions.
        We know over the course of the past decade--over the course
    of the past few decades--that redistricting is a moment where
    we see discrimination rear its ugly head. We have seen racially
    gerrymandered plans. We have seen efforts to pack minority
    voters into districts in ways that harm their ability to access
    the ballot. We have seen tracking of minority voters across
    districts.
        So, there is a track record here, and I think that the
    upcoming redistricting cycle underscores the urgency of
    Congress resolving this issue now, of speaking to the Shelby
    Court ruling now and ensuring that we have the full protections
    of the Act back in place before the upcoming decennial
    redistricting cycle gets fully underway.
        Ms. Ross. Thank you very much.
        Mr. Chair, I yield back.
        Mr. Cohen. Thank you, Ms. Ross.
        I now recognize the gentleman from Georgia, the man that
    ranks exactly next to me but just a little bit behind me in
    seniority, Mr. Hank Johnson.
        Mr. Johnson of Georgia. Thank you, Mr. Chair.
        During previous hearings on the VRA this Congress, we have
    heard testimony documenting the fact that section 2 litigation
    is a lengthy process, often taking 2--5 years to completion.
        By the time a section 2 plaintiff has an enforceable
    judgment, and the challenged voting practice is blocked or
    rescinded, multiple election cycles for Federal, State, and
    local office will have occurred. The result is that untold
    numbers of minority voters can be disenfranchised while
    multiple elections are held under laws that are later found to
    be discriminatory.
        The courts can't strike down the results of an election
    later found to have been conducted in violation of the Voting
    Rights Act.
        Ms. Clarke, would you agree that lengthy but successful
    section 2 litigation over the course of multiple election
    cycles without a final disposition results in grave harm to
    individual constitutional rights and to the public interest?
        If you believe that to be the case, should Congress
    consider amending the standard for obtaining preliminary
    injunction relief to ensure that grave harm is prevented? If
    so, what changes would you recommend?
        Ms. Clarke. Thank you, Congressman.
        As I have noted earlier, section 2, indeed, is no
    substitute for the important prophylactic protections that have
    been provided by section 5.
        In South Carolina v. Katzenbach, the Supreme Court talked
    about shifting the advantage of time and inertia away from
    jurisdictions, and we need Congress to Act now.
        As you have observed, the costs and burdens tied to section
    2 really make it difficult for section 2 to serve as a
    substitute for section 5. Section 5 has been a checkpoint on
    democracy.
        You raised the question of whether we should think about
    amending the preliminary injunction standard for section 2, but
    the Justice Department would urge Congress to really keep
    section 5 under its microscope and keep the Shelby County
    ruling front and center as it conducts its review and figure
    out how we can replace section 5 or put back in a remedy that
    restores some of those important preemptive protections that
    have been provided by section 5.
        Mr. Johnson of Georgia. Thank you.
        Currently, the Voting Rights Act only permits the Attorney
    General to institute an action for preventive relief, including
    injunctive relief, for a limited set of violations or potential
    violations.
        Does this hinder the Department's ability to protect
    minority voters before a discriminatory practice goes into
    effect? If so, how should Congress consider expanding the scope
    of section 2 to provide the Department with the necessary tools
    it needs to prevent a discriminatory practice before it
    disenfranchises voters, notwithstanding, of course, section 5,
    but section 2?
        Ms. Clarke. Thank you, Congressman.
        If I understood your question correctly, you were talking
    about some of the unique powers that the Justice Department
    holds under the Voting Rights Act and whether that
    disadvantages others. That may be a better--
        Mr. Johnson of Georgia. Well, no. My question is, with the
    limited relief, including injunctive relief, that the Attorney
    General must prevent voting rights violations under section 2
    from being ongoing while elections are being conducted, do you
    believe that Congress should consider expanding the scope of
    section 2 to provide the Department of Justice with the tools
    necessary to prevent that discriminatory practice or those
    practices from occurring while elections are being held?
        Ms. Clarke. Yeah. Thank you, Congressman.
        We want the opportunity to look at that question carefully.
    It is my understanding that the constitutionality of section 2
    is not in question. This is a nationwide provision that in its
    current form and shape has served as one important tool for
    safeguarding voting rights.
        The Brnovich ruling raises a question about whether
    Congress might clarify the factors that courts are supposed to
    consider in determining the validity of a section 2 claim.
        Section 5 is the true focus of the work that is underway,
    and so that is the area that the Department has been focused
    on. We look forward to supporting this Congress in undertaking
    work to figure out a way to replace and restore the important
    protections that have been provided by that unique section 5
    preclearance process.
        Mr. Johnson of Georgia. Thank you. I yield back.
        Mr. Cohen. Thank you, Mr. Johnson.
        Ms. Garcia from the great State of Texas and the County of
    Harris.
        Ms. Garcia. Thank you, Mr. Chair, for bringing us together
    for this very, very important hearing. Too bad it is just
    number six. I wish it was a lucky seven and we could still have
    one more before we mark up this bill.
        Thank you, Madam Assistant Attorney General. First, I
    really want to congratulate you on your historic nomination and
    position as the head of the Civil Rights Division. It makes me
    proud to know that you are the first woman, and of course,
    particularly, the first woman of color. So much success. It is
    great to have you with us today. Thank you for all the work you
    have done in the past in this area.
        Time and time again, this Committee has shown the American
    people why it is so essential to pass both H.R. 1, the For the
    People Act, and the John Lewis Voting Rights Advancement Act,
    especially during this critical moment when Republican-led
    State legislatures--including my very own State of Texas, sadly
    enough--who have launched all-out assaults to restrict voting
    rights around the country.
        That is why I am proud to have joined many of my colleagues
    in sending a letter that was led by Members of my class, and
    particularly Representative Escobar, who sits on the Judiciary
    Committee. We sent a letter to the Biden Administration and
    leadership urging the need to immediately pass H.R. 1 and H.R.
    4.
        With time running out, the American people need Congress to
    Act and address the threats these efforts present to our
    democracy. We must Act to protect the vote, we must Act to
    expand the vote, and we must Act to make sure that our children
    have the benefit of the right to vote.
        With that in mind, Madam Attorney General, I wanted to ask
    you questions particularly to the recent numbers that were
    released just last week which show that the first time since
    1790 the White population has decreased, and that the largest
    and most steady gains were among the Latino population. Our
    Nation is moving closer and closer to becoming a true multi-
    racial, multi-
    ethnic society without a clear racial majority.
        Do you think this is the kind of condition, do you think
    this is the kind of reflection of the changing demographics in
    our States that require us to Act and Act swiftly on the Voting
    Rights Act?
        Ms. Clarke. Thank you for that question, Congresswoman.
        So, what the Justice Department has seen historically is
    that demographic change can prompt discriminatory voting
    changes.
        One example of this would be out of Kilmichael,
    Mississippi, where, following the results of a new Census, data
    showed that the numbers of Black population, the numbers of
    Black voters in a particular community had grown substantially.
    There were a number of Black voters who opted to run for seats
    on the council, and the town voted to cancel, decided to cancel
    the election once this happened.
        That decision was a change that impacted voting. The
    Justice Department during the Bush Administration reviewed that
    decision to cancel the election and decided to block the change
    because it was very clear that the decision to cancel the
    election was motivated by a discriminatory intent.
        The election ultimately went forward, and the town, for the
    first time, elected a majority of Blacks to the council and to
    the mayoral seat.
        It is an example of the powerful way in which the section 5
    preclearance operates. It operates in communities both large
    and small, communities that may not be on the radar,
    communities that may be responding to demographic change, the
    kind of demographic change that we see continuing with the
    results of the recent Census data.
        To me, this underscores the urgency of the moment and the
    urgent need for Congress to Act now as jurisdictions gear up
    for the next round of decennial redistricting. No doubt this
    new round of Census data may prompt the kind of discriminatory
    changes that we have seen in the past.
        Ms. Garcia. You said that section 5 was the heart of the
    Voting Rights Act. Do you think we are on a Code Blue? I mean,
    it is urgent, we must act. I mean, we must Act to ensure that
    voting rights are protected around the country and the
    territories?
        Ms. Clarke. Absolutely. It has been 8 years since the
    Shelby ruling. Restoration of the Voting Rights Act is an
    important priority for the Justice Department, and we look
    forward to working with you until the very end to help
    understand what the current conditions are and to help fashion
    a remedy that is responsive to the problems that we are up
    against today.
        Ms. Garcia. Thank you, Madam Assistant Attorney General.
    Again, congratulations on your selection.
        Mr. Chair, I yield back.
        Mr. Cohen. Thank you, Ms. Garcia.
        Now we go to another outstanding Member from Houston,
    Texas, where they not only sing but they dance, Sheila Jackson
    Lee.
        Ms. Jackson Lee. Mr. Chair, I am honored, and I am honored
    for this very historic and important hearing. I wish we were in
    the other body with 7-10 minutes for each of us. I know, Mr.
    Chair, that is not the case.
        Let me welcome the Assistant Attorney General and thank her
    for her leadership and her expertise.
        In the midst, Attorney General, of the fights around
    critical race theory, the new Census that, for the first time,
    would not have the protection of the 1965 Voting Rights Act,
    and the increasing diversity in this country, and people making
    this a race question, I believe that this is more crucial than
    ever before. When I say that, opponents making the question of
    the voting rights about race.
        It is not about race. It is about voting rights. It is not
    about Black people only or Hispanic only. It is about voting
    rights. I am saddened by my dear colleagues who have made this
    a race question. I rebuke that.
        The reason why I do, I would ask unanimous consent to put
    into the record, 1965, 1970, 1975, 1982, 1982 again, and 2006,
    of the record that shows that every vote on the reauthorization
    and the authorization of the Voting Rights Act was bipartisan
    in huge numbers, Republicans and Democrats, Whites and Blacks,
    Hispanics, African Americans, and other diverse persons in the
    United States Congress. I ask unanimous consent.
        Mr. Cohen. In the spirit of Jim Sensenbrenner, it will be,
    without objection, done.
        Ms. Jackson Lee. With unanimous consent, I wish to put into
    the record ``Warrants served to Texas Democrats, but holdout
    continues,'' my colleagues, brave colleagues who are fighting
    against voter suppression, and ``Analysis: It is Harder to Vote
    in Texas Than Any Other State.'' We are 49th. It is harder than
    49 other States as evidenced by research in academic
    institutions.
        I ask unanimous consent for that as well, Mr. Chair.
        Mr. Cohen. Without objection, it shall be entered into the
    record.
        [The information follows:]

                         MS. JACKSON LEE FOR THE RECORD

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    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Ms. Jackson Lee. Madam Attorney General, I will give you
    two questions that I know that you will realize my time.
        The Shelby County case impaired the ability of the DOJ to
    employ Federal observers, having relegated us to using local
    observers.
        Would you indicate how important that question of Federal
    observers, but how that impairs you, and whether that
    assessment is correct so that Federal observers should be
    restored? Number one.
        Number two, under the Brnovich case, tragically undermined
    section 2, we seem to have the ability to put in a bifurcated
    test under section 2, one that would deal with assessing voter
    dilution, like the redistricting, and one that would deal with
    voter denial claims, such as voter ID. Would you then answer
    how important that perspective would be?
        My last point would be--and I am down to 1.50, almost--is
    the importance of prospective Federal hearings, field hearings
    that could ultimately be put into the record as we move
    forward, both in this body and in the other body.
        Thank you, Attorney General. Observers, section 2, and the
    hearing. Thank you so very much.
        Ms. Clarke. Thank you, Congresswoman.
        So, on the first point, the Federal observer program has
    been an important tool in the Justice Department's work to
    ensure that all eligible voters, especially voters of color,
    are able to access the ballot free from discrimination.
        The Justice Department had routinely received reports about
    voter intimidation efforts or other tactics aimed at making it
    harder for voters of color to vote, and the deployment of
    Federal observers by way of the Office of Personnel Management
    allowed the Department to put independent eyes and ears on the
    ground in those communities.
        Those are people who could document and tabulate what was
    happening. Those are people whose mere presence often helped to
    neutralize situations that otherwise may have unfolded on the
    ground.
        So, we are very hopeful that this process will help to
    restore the ability of DOJ to deploy observers, Federal
    observers, going forward.
        Ms. Jackson Lee. Thank you. Section 2 question, yes.
        Ms. Clarke. With respect to section 2, as Congress well
    knows, it has broad enforcement authority under the
    Reconstruction Amendments, but there are also broad powers
    vested in this body by way of the Elections Clause, which gives
    this body the ability to ensure access in Federal elections, to
    institute legislation concerning the time, place, and manner by
    which voters can access Federal elections.
        So, we urge Congress to lean on and use its broad
    enforcement powers to ensure access to the ballot box.
        Ms. Jackson Lee. Field hearings?
        Ms. Clarke. Field hearings Congresswoman, are another way
    to further complement the work that you are doing right now.
    Bringing Members together to kind of debate what is the
    appropriate remedy to address the problem is key.
        Particularly given the pandemic, getting on the ground and
    giving voters on the ground the opportunity to present to you
    the story about what they are seeing and what they are
    experiencing when it comes to voting discrimination could be an
    important way to further complement the record that you are
    developing.
        Ms. Jackson Lee. Thank you.
        Thank you, Mr. Chair.
        Thank you, Assistant Attorney General.
        Mr. Cohen. Thank you.
        Ms. Garcia, did you have your hand raised for some reason?
        Ms. Garcia. Yes, sir. I would like to ask unanimous consent
    to enter for the record the letter I referenced, that was
    signed by about 15 Members, to President Biden and leadership
    to Act on the Voting Rights Act and H.R. 1 immediately.
        Mr. Cohen. Without objection, it will be done.
        [The information follows:]

                           MS. GARCIA FOR THE RECORD

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

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Ms. Garcia. Thank you.
        Mr. Cohen. [Audio malfunction.]
        Ms. Garcia. Mr. Chair, we can't hear you.
        Mr. Cohen. That was good. You win the prize. It was a test.
        Ms. Garcia. I am paying attention. I win the prize.
        Mr. Cohen. Thank you. You do.
        General Clarke, I want to thank you for your service to our
    Nation and your testimony today, which was very helpful as we
    compile a record to propose a bill at some time in the future.
    With that, you are dismissed and appreciated for your work, and
    go back to protecting our country, and we will go on to the
    second panel.
        Ms. Clarke. Chair, thank you for the opportunity to testify
    today. Very grateful.
        Mr. Cohen. You are welcome.
        Mr. Cohen. Now, we are at the time for our second panel. We
    will call up our witnesses for the second panel, and we will
    give them a few seconds to come up on these virtual panel. They
    are all appearing. There they are. I think we are all together.
    Great.
        Our first witness on the second panel is Mr. Wade
    Henderson. Is Mr. Henderson on yet? He is? Great.
        Mr. Wade Henderson is an institution. He is one of the,
    like, you are looking for the Three Wise Men, and he is one of
    them. He is the interim President and CEO of the Leadership
    Conference for Civil and Human Rights, having previously led
    that organization for more than 20 years. The Leadership
    Conference is a coalition of more than 200 civil and human
    rights organizations.
        He is a graduate of Howard University--a little earlier
    than Vice-President Kamala Harris was a graduate, and of the
    Rutgers University School of Law.
        Mr. Henderson, you are recognized for 5 minutes.
        You have to unmute. Mr. Henderson, you need to unmute.
        Wade, nod if you can hear me. You can hear me. Now, you
    need to unmute yourself so I can hear you.
        Mr. Henderson. I am sorry, Mr. Chair.
        Mr. Cohen. There you go.
        Mr. Henderson. I thought I was muted by the Committee.
        Mr. Cohen. More than likely. That has happened to me, too.
    You are recognized now, and you are unmuted.

                      TESTIMONY OF WADE HENDERSON

        Mr. Henderson. Well, thank you, Mr. Chair. Good morning,
    Ranking Member Johnson and Members of the Subcommittee. Thank
    you for the opportunity to testify today. We deeply appreciate
    your leadership in highlighting the ongoing crisis of racial
    and other discrimination in our voting system and the urgency
    in fulfilling the promise for our democracy.
        The House Judiciary Committee has taken seriously both its
    authority and obligation to restore the Voting Rights Act after
    the devastating decision in Shelby County v. Holder unleashed a
    torrent of voting discrimination that continues to this day.
    Today, I offer critical evidence in support of the John Lewis
    Voting Rights Advancement Act.
        The Court in Shelby County held that the formula for
    imposing preclearance upon States and jurisdictions was, quote,
    ``decades old and outdated,'' unquote. The Court instructed
    that Congress could update such a formula based on, quote,
    ``current conditions,'' unquote, in voting.
        Through several State reports commissioned by The
    Leadership Conference and prepared by our partner civil rights
    organizations and allies, we are introducing current conditions
    of racial discrimination in voting. We offer reports
    documenting recent voting discrimination in 10 States and plan
    to introduce additional reports while the record remains open.
        These reports powerfully demonstrate that Congress has an
    urgent imperative to restore the Voting Rights Act. They reveal
    that voting discrimination after Shelby County is pervasive,
    persistent, and adaptive.
        We include the voter restrictions passed this year after
    the historic voter turnout in 2020 elections, but also include
    other recent history of these States. This is the current
    discrimination on which Congress must update the preclearance
    formula and then make several additional amendments to the
    Voting Rights Act so voters of color everywhere can fully
    participate in the political process.
        Here is just a sample of what our reports contain.
        In North Carolina, before the Shelby County ink was dry,
    lawmakers introduced a monster anti-voter bill that the Fourth
    Circuit struck down for targeting African Americans, quote,
    ``with almost surgical precision,'' unquote.
        Not to be outdone, Texas began enforcing its own photo ID
    law previously blocked by the Justice Department and later
    found by Federal courts to have been motivated by an
    unconstitutional discriminatory purpose.
        In South Carolina, lawmakers adopted a strict photo ID law
    but then amended it to address its discriminatory impact after
    an objection was interposed by the Justice Department, leading
    a court to say, quote, ``One cannot doubt the vital function
    that section 5 of the Voting Rights Act has played here,''
    unquote.
        In Alabama, lawmakers packed Black voters into majority
    Black districts, thereby diluting their vote. The Supreme Court
    remanded the case on the ground that, quote, ``evidence that
    race motivated the drawing of the particular district lines,''
    unquote, and a three-judge court found the legislature was
    improperly motivated by race.
        For Alaska, we submit a well-developed record of
    discrimination against the State's Indigenous peoples, which
    include denying that the 15th Amendment's protections apply to
    Native voters, providing less information to Native voters
    because they are Native, and failing to offer language
    assistance despite court orders requiring it.
        In Louisiana, just this year, the Justice Department
    challenged the at-large method of electing aldermen in the city
    of West Monroe. Although Black residents comprise nearly 30
    percent of the voting age population, no Black candidate has
    ever been elected.
        In Mississippi, where the first lawsuit under the original
    Voting Rights Act was filed, the Fifth Circuit found that
    Calhoun County's redistricting plan, quote, ``diluted minority
    voting strength,'' unquote, in violation of the Voting Rights
    Act.
        Just months ago, in Virginia, a Federal judge enjoined an
    at-large system for electing city council Members, recognizing
    that its discriminatory effects reflect the broader culture of
    racial discrimination in the city and the State that continues
    to impact voters of color today.
        Just this year, Florida placed restrictions on the ability
    of organizations to assist with voter registration, a bedrock
    activity for many groups whose mission is to enhance
    participation among voters of color.
        Last, but not least, in Georgia, a Federal court found that
    Sumter County's reversion to at-large voting for school board
    elections was a, quote, ``severe infringement of Black voters'
    right to vote,'' unquote.
        In the wake of the historic 2020 election, which produced
    the State's first Black U.S. Senator, the legislature passed
    even more discriminatory restrictions, eliciting eight
    different lawsuits, including one filed by the Department of
    Justice.
        Earlier this month, we celebrated the 56th anniversary of
    the Voting Rights Act. Contrary to Chief Justice Roberts'
    pronouncement in Shelby County, our country has not changed
    fundamentally. Voting discrimination today continues to
    constitute a stain on our democracy.
        We implore Congress to swiftly pass the John Lewis Voting
    Rights Advancement Act. The future of our democracy hangs in
    the balance.
        Thank you, Mr. Chair.
        [The statement of Mr. Henderson follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Documents submitted by Wade Henderson, Interim President
    and CEO, The Leadership Conference on Civil and Human Rights:

    Exhibit 1a: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-HendersonW-20210816-SD009 .pdf
    Exhibit 1b: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-HendersonW-20210816-SD020 .pdf
    Exhibit 2: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-HendersonW-20210816-SD010 .pdf
    Exhibit 3: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-HendersonW-20210816-SD011 .pdf
    Exhibit 4: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-HendersonW-20210816-SD021 .pdf
    Exhibit 5: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-HendersonW-20210816-SD013 .pdf
    Exhibit 6: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-HendersonW-20210816-SD014 .pdf
    Exhibit 7: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-HendersonW-20210816-SD015 .pdf
    Exhibit 8: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-HendersonW-20210816-SD016 .pdf
    Exhibit 9: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-HendersonW-20210816-SD017 .pdf
    Exhibit 10: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-Wstate-HendersonW-20210816-SD018 .pdf
        Mr. Cohen. Thank you, Mr. Henderson.
        We had a brief technical problem, but we are back. I need
    to start my video. We are back.
        Thank you, Ms. Ross, for being in the on-deck circle. You
    may be needed again.
        Our next witness is Mr. James Peyton McCrary. Mr. McCrary
    is a professorial lecturer in law at the George Washington
    University Law School, previously serving as historian in the
    Civil Rights Division in the Department of Justice. He received
    his Ph.D. from Princeton and his undergraduate and master's
    degrees from Penn.
        Mr. McCrary, you are recognized for 5 minutes.

                   TESTIMONY OF JAMES PEYTON McCRARY

        Mr. McCrary. Chair Cohen, Vice-Chair Ross, Ranking Member
    Johnson, and distinguished Members, thank you for inviting me
    to testify before you today.
        Although I am retired from 20 years of full-time university
    teaching and 26 years of government service in the Department
    of Justice, I still co-teach a course on voting rights law each
    fall at the George Washington University Law School, where
    adjunct faculty there are titled professorial lecturer in law.
        My testimony today is offered in my personal capacity as a
    historian, not as a representative of any organization.
        My testimony focuses on empirical evidence identifying the
    jurisdictions that would be covered by a new form of Federal
    preclearance of voting changes, which I understand is being
    contemplated by this Chamber.
        Representatives of the Brennan Center for Justice and The
    Leadership Conference Education Fund retained me as a
    consultant to investigate the geographic provisions in the John
    Lewis Voting Rights Advancement Act passed by the House of
    Representatives in December 2019 as H.R. 4.
        The VRAA seeks to restore the preclearance provisions of
    the 1965 Voting Rights Act by revising the coverage formula
    invalidated by the Supreme Court in Shelby County v. Holder.
    Preclear-ance refers to the process of receiving prior Federal
    approval before implementing any change affecting voting.
        I have identified the jurisdictions that I believe would be
    subject to preclearance should the 2019 version of the John
    Lewis Act become law using research methods I have employed
    over the last four decades. The period under review in the VRAA
    is the last 25 years.
        My conclusions could change if the Congress alters the
    review period. Entire States could be covered under the VRA.
    Even if the entire State is not subject to preclearance, any
    individual political subdivision could be covered if the record
    of voting rights violations in that subdivision fits the
    criteria set out in the John Lewis bill.
        An entire State would be subject to preclearance if either
    15 or more voting rights violations occurred within the State
    during the previous 25 years or if 10 or more violations
    occurred in the State, at least one of which was committed by
    the State itself.
        In noncovered States, any individual political subdivision
    would be covered if it had three or more violations during the
    previous 25 years.
        Under the current version of H.R. 4, violations include (a)
    final judgments of a voting rights violation by the Federal
    courts; (b) objections to voting changes by the Attorney
    General; and (c) a consent decree or other settlement causing a
    favorable change for minority voting rights, such as consent
    decrees protecting language-minority citizens.
        While I am not testifying as to any approach Congress
    should take, I note that changes to the formula could lead to
    different conclusions than those I have reached in my study.
        As a university professor in the 1980s, I served as an
    expert witness in numerous voting rights cases in the South.
    Beginning in 1990, I joined the Civil Rights Division of the
    Department of Justice as a social science analyst, retiring in
    December of 2016.
        My responsibilities in the Civil Rights Division included
    the planning, direction, coordination, and performance of
    historical research and empirical analysis for voting rights
    litigation, including the identification of appropriate expert
    witnesses to appear for the government at trial.
        Since retiring from government service, I have served as an
    expert in several voting rights cases brought by private
    plaintiffs. The record of my scholarly publications over the
    last 43 years is set forth in the curriculum vitae attached to
    my testimony, and my written testimony explains the methodology
    employed in my investigation.
        The eight States that, according to my analysis, are most
    likely to be subject to preclearance of voting changes under
    the current formula are Alabama, Florida, Georgia, Louisiana,
    Mississippi, North Carolina, South Carolina, and Texas. Exhibit
    1 to my testimony identifies the violations in each of those
    States.
        Several of these States could drop out of coverage,
    depending on how Congress revises the bill. Those States are
    Alabama, Florida, North Carolina, and South Carolina. Each is
    close to the minimum threshold set forth in the bill, so minor
    changes in what counts as a violation could make a difference.
        Changes to the definition of violations or shortening the
    review period could remove some States from preclearance
    coverage. For example, if the review period were shortened to
    20 years, I calculate that only Georgia, Louisiana,
    Mississippi, and Texas would likely remain covered.
        Several States that appear currently not to be covered
    could be nevertheless covered if certain changes in the
    preclearance formula were made. Those States I address in
    exhibit 2 to my testimony.
        In my calculation, Virginia currently has only eight
    violations. Changes in the formula could cause Virginia to meet
    the threshold of 10 violations, however, because two of the
    eight violations I have identified were enacted by the State.
    New York and California are each between 10 and 15 violations,
    but none were committed by the State.
        Mr. Cohen. Professor, we are going to have to--I think my
    timer says your 5 minutes is up. If it is not, I am sorry, and
    if it is, we need to wrap up.
        Mr. McCrary. Thank you.
        The bill you are considering can play a key role in
    confronting current efforts to limit voter registration and
    voting by minority citizens as well as diluting minority voting
    strength. Based on my 41 years of experience in voting rights
    litigation, I believe that strengthening enforcement of the
    Voting Rights Act is a critical need for our democracy.
        Thank you.
        [The statement of Mr. McCrary follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, sir.
        Our next witness is Ms. Wendy Weiser. Ms. Weiser is vice
    president, democracy, at the Brennan Center for Justice at NYU
    Law School. She focuses on voting rights and elections, money
    in politics and ethics, redistricting representation,
    government dysfunction, Rule of law, fair courts, and all other
    things that are good and fair and just and sweet in America.
        She received both her B.A. and her J.D. from Yale. Boola
    Boola.
        Ms. Weiser, you are now recognized for 5 minutes.

                      TESTIMONY OF WENDY R. WEISER

        Ms. Weiser. Thank you, Chair Cohen, Ranking Member Johnson,
    and Members of the Subcommittee.
        In Shelby County v. Holder, the Supreme Court gutted the
    most powerful and successful provision of the Voting Rights
    Act--its preclearance requirement, because it found that the
    formula Congress used to determine which States should be
    covered by preclearance was outdated.
        At the same time, the Court invited Congress to craft an
    updated formula, one grounded in current conditions and needs
    and targeting jurisdictions where discrimination is
    sufficiently pervasive and persistent to justify preclearance.
    That is precisely what this Congress has done and is now
    sharpening in the John Lewis Voting Rights Advancement Act.
        I will make three points.
        First, as many have already noted, our country is
    emphatically currently facing extensive and persistent race
    discrimination in voting, the extraordinary conditions that
    make preclearance both necessary and constitutionally
    justified. This Committee has already collected reams of
    evidence on the subject, and through my written testimony I add
    four new publications to the record.
        One key finding I would like to highlight: Turnout among
    non-White voters is now substantially lower than that among
    White voters and it has been for at least 25 years. In the 2020
    election, despite record overall turnout, roughly 71 percent of
    White voters cast ballots compared to only 58.5 percent of non-
    White voters.
        In the States likely to be covered under the VRAA, the
    racial turnout gap is even starker. In virtually every one of
    those States, the White-Black turnout gap has grown
    dramatically since Shelby County.
        In other words, contrary to what the Supreme Court observed
    in Shelby County, the turnout gap has not, in fact, closed for
    Black voters--that was anomalous--and for other minorities it
    never had.
        Second, targeted geographic coverage remains a necessary
    and appropriate way to root out intractable discrimination in
    voting.
        Even though discrimination is now widespread, the evidence
    before this Committee overwhelmingly shows that it is much more
    prevalent and tenacious in some places than in others.
        Third, the geographic coverage formula that Congress is
    contemplating is eminently sensible, fair, and constitutional.
    It has been modernized and designed with precision to respond
    to the Supreme Court's concerns in Shelby County.
        To ensure that it rationally targets illegal
    discrimination, the formula relies on the best evidence of
    discrimination, documented violations of laws prohibiting race
    discrimination in voting.
        To ensure that it targets States with a pattern of
    persistent discrimination, the formula captures only those
    States that meet a high numeric threshold of violations over
    time: As we have heard, either 10 violations, if at least one
    of them is Statewide, or 15 total violations over the prior 25
    years.
        To ensure that it targets States where discrimination is
    current, the formula is not frozen in time but rather rolls
    forward so that coverage always turns on modern considerations.
        The bill also limits the duration of preclearance coverage
    to 10 years so that jurisdictions without recent violations
    automatically roll out of coverage and jurisdictions without
    recent violations can easily bail out before then as well.
        In short, the formula is effectively designed to identify
    those places where voting discrimination is recent, widespread,
    and persistent. As a factual matter, based on Professor
    McCrary's research and the record before this committee, the
    formula succeeds in accomplishing that aim based on the
    jurisdictions that are covered. These are precisely the
    circumstances when preclearance is most needed and most legally
    justified.
        So, in conclusion, as Justice Kagan observed in her recent
    dissent in the Brnovich case, ``this is a perilous moment for
    the Nation's commitment to equal citizenship, an era of voting
    rights retrenchment.''
        The scale of the current problem of voting discrimination
    and vote suppression is enormous, and it is about to get much
    bigger as States and localities across the country begin their
    redistricting. It is a problem that only Congress can solve by
    passing the John Lewis Voting Rights Advancement Act and the
    For the People Act.
        Thank you.
        [The statement of Ms. Weiser follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, Ms. Weiser.
        Our next witness is Maureen Riordan. Ms. Riordan is a
    litigation counsel for the Public Interest Legal Foundation.
    She joined that group in 2021 after serving 20 years as an
    attorney in the Civil Rights Division of the Department of
    Justice. During the Trump Administration, she became Senior
    Counsel to the Assistant Attorney General for Civil Rights.
        She received her J.D. from St. Mary's, her B.S. from Seton
    Hall.
        Ms. Riordan, you are recognized, and welcome back.

                      TESTIMONY OF MAUREEN RIORDAN

        Ms. Riordan. Thank you. Good afternoon or morning, Mr.
    Chair, Ranking Members, and Members of the Subcommittee. Thank
    you again for your invitation to speak with you.
        I am an attorney currently with the Public Interest Legal
    Foundation. It is a nonpartisan charity that is devoted to
    promoting election integrity and preserving the constitutional
    mandate that States administer their own elections.
        As you said, for over 20 years, I served in the Civil
    Rights Division, 18 of those years as a Voting section
    attorney, as well as senior counsel to the AG for Civil Rights.
        From 2000 until the Supreme Court's decision in Shelby
    County v. Holder, my primary responsibility was to review
    changes that were submitted for section 5 preclearance.
        In my June 2021 testimony, I shared with you first-hand
    observations of the unethical conduct that occurred on a daily
    basis within the section.
        This conduct included instances of twisted racialism,
    blatant political violations of the Hatch Act, the leaking of
    protected work product to media sources, targeting of African
    American colleagues not deemed to have acted ``Black enough,''
    disdain for the equal protection of civil rights laws for all
    Americans, and the impermissible collaboration with many of the
    advocacy groups scheduled to testify today.
        You don't have to take my word for it. You can read the DOJ
    Inspector General's report on this point and the letter from
    the Justice Department to Representative Sensenbrenner.
        The fact is that the Voting section attorneys have been
    sanctioned millions of dollars for bad behavior in section 5
    enforcement. When you finish reading the report from the
    Inspector General, you will rightfully wonder if it is a good
    idea to give this office so much power over every election.
        Section 5 was a temporary provision for a reason that no
    longer exists, and the Supreme Court made clear in Shelby that
    only certain conditions would ever justify a formula for
    section 5 coverage today.
        Some of the touchstones listed by the Court are blatantly
    discriminatory evasions of Federal decrees, a lack of minority
    office holding, and voting discrimination on a pervasive scale.
        Federal intrusion into the powers reserved by the
    Constitution to the States must relate to empirical
    circumstances if they presently exist. In Shelby, the Court
    rejected the defense notion that the preclearance requirement
    of section 5 would be constitutional into the future when there
    is never any evidence of an unconstitutional action by a State,
    yet that is exactly what Congress is attempting to do through
    H.R. 4.
        As proposed, H.R. 4 would subject jurisdictions to the
    rigors of section 5 for violations of the act, section 5
    violations, section 2 violations, and consent decrees. It
    reaches back years ago--25 years, to be exact--for findings
    that would trigger coverage. I would ask all of us here on the
    panel to go back 25 years and ask yourselves if you think that
    was recent. I do not believe that it is.
        Section 2 findings that used the ``disparate impact''
    theory that the Supreme Court now says were not justified in
    the Brnovich case would also trigger preclearance.
        The use of section 5 previous objections to trigger
    coverage singles out again only those States that were
    previously subjected to section 5 preclearance.
        Those that were never subjected to section 5 have no
    section 5 history. As Mr. McCrary testified, those States would
    be Alabama, Florida, Georgia, Louisiana, Mississippi, North and
    South Carolina, and Texas. This is exactly the targeting of
    certain States that the Court in Shelby found to be
    unconstitutional.
        Now, section 2 of the Voting Rights Act forbids intentional
    discrimination and processes that result in a discriminatory
    electoral outcome and in its infancy was mostly confined to
    vote dilution. Since 2013, which of course was the year that
    the Shelby case was decided, plaintiffs began filing section 2
    vote denial claims against electoral procedures such as voter
    ID requirements, trying to persuade the courts to reduce the
    standard of evidence required for a section 2 violation.
        However, based upon this misuse of section 2, there was a
    split in the circuit courts, and that gave the Supreme Court in
    the Brnovich case an opportunity to enunciate a true
    constitutional standard for courts to evaluate these claims.
        Although many of my colleagues might not like the result in
    Brnovich, it was their improper use of section 2 as a
    replacement for section 5 that necessitated the Brnovich
    decision. If you look at the disparate impact theory, it is
    almost identical to the retrogression theory enunciated in
    section 5.
        There are permanent provisions of the Voting Rights Act
    today that provide the tools necessary for the Department to
    root out intentional--
        Mr. Cohen. Thank you, Ms. Riordan. Your time is up. If you
    want to close, you have got 5 seconds.
        Ms. Riordan. Sure.
        These tools target current discrimination and are
    consistent with allowable Federal oversight that was enunciated
    in Shelby.
        Thank you.
        [The statement of Ms. Riordan follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. You are welcome.
        Our next witness is Tom Saenz. Mr. Saenz is President and
    General Counsel of the Mexican American Legal Defense and
    Education Fund, the acronym MALDEF, a position he has held
    since August of 2009. He was also with MALDEF for 12 years and
    for 8 years he taught civil rights litigation as an adjunct
    professor at the University of Southern California School of
    Law.
        He received his B.A. and his undergraduate degree both from
    Yale, both with honors.
        We are honored to have you. You are recognized for 5
    minutes.

                      TESTIMONY OF THOMAS A. SAENZ

        Mr. Saenz. Thank you, Mr. Chair, Ranking Member, and
    Members of the Subcommittee. I am President and general counsel
    of MALDEF, which for 53 years has worked to promote the civil
    rights of all Latinos living in the United States.
        An essential part of pursuing that mission has always been
    seeking to protect the voting rights of Latinos in this
    country. As a result, MALDEF has ample experience in enforcing
    the Voting Rights Act, section 2, section 5, and section 203.
        We have done well over 100 cases under the Voting Rights
    Act. I have to say that as often as not that has been against
    the critically important State of Texas or one of its
    subdivisions.
        Our experience tells us that it is imperative that Congress
    Act to restore the use of preclearance as a vigorous tool in
    enforcing the voting rights of Latinos in this country.
        As you will readily understand, given last week's news from
    the Census Bureau indicating the incredible vote of the Latino
    community, and in particular, the Latino voting community
    across the country, where more than half of this country's
    total population growth in the last decade emanated from the
    Latino community, you can understand why we anticipate extreme
    challenges in enforcing voting rights for Latinos throughout
    the country in years to come.
        The simple fact is rapid and significant demographic change
    ongoing in this country means that too many jurisdictions will
    hit a tipping point, as you, Mr. Chair, characterized it, where
    they will perceive the growth in the Latino vote as a threat to
    those currently in power.
        That necessitates a tool that is efficient and effective in
    preventing those who hit that tipping point from reacting by
    seeking to restrict the voting rights of ascendant minority
    voting groups, including in particular the Latino community.
        It is essential that we again use preclearance effectively
    to address this challenge.
        Now, there are some who have previously expressed the view
    or the preference that the Supreme Court should strike down the
    entirety of the preclearance regime. As in Shelby County it did
    not do that. It struck down a coverage formula and invited the
    reintroduction of preclearance through a new and invigorated
    coverage formula.
        Today, I urge that Congress move forward in enacting a two-
    part coverage formula, one that includes geographic coverage
    for those jurisdictions, including many in and including the
    State itself of Texas, which the Latino community, as I
    mentioned previously, has often had to challenge in its
    attempts to restrict the right to vote of Latinos and other
    minority voters.
        That geographic coverage ensures that those who have been
    recalcitrant--and often crafty--in seeking to prevent
    minorities from exercising their right to vote would be subject
    to a very effective and efficient preclearance process to
    determine whether those new proposals can comply with the
    Voting Rights Act.
        I urge the Congress to also include the complementary
    practice-based coverage on which this Subcommittee voted a few
    weeks ago. This would permit ensuring that new jurisdictions,
    without having had the opportunity to acquire a history of
    violating voting rights but that adopt practices that history
    shows have frequently been used in the past in other
    jurisdictions precisely to stem the growth of minority voting
    power, would also be subject to preclearance.
        I have stated previously MALDEF's extensive experience
    tells us conclusively that section 2, while critically
    important, is not an adequate substitute by itself for the use
    of preclearance. Section 2 litigation is expensive. It is time
    consuming. It too often cannot put in place a remedy prior to
    the occurrence of one or more elections despite challenged
    voting changes being in place for those elections.
        Preclearance is critically important as a device for
    alternative dispute resolution, or ADR. Like all good ADR, it
    ensures that our Federal courts are not inundated with too many
    cases under the Voting Rights Act by putting in place an
    efficient alternative decisionmaker in the preclearance
    process.
        It is one of the great ironies that political forces that
    support ADR, mandatory ADR, and other circumstances have failed
    to embrace it sooner. I embrace it and urge Congress to
    recognize how important ADR in the form of preclearance is to
    ensuring that challenges presented by rapidly changing
    demography and the reaction to unprecedented participation in
    the last election in the form of new attempts to suppress the
    vote can be answered effectively and efficiently under our
    Constitution.
        Thank you.
        [The statement of Mr. Saenz follows:]

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        Mr. Cohen. Thank you.
        Our next witness is Ms. Sophia Lin Lakin. She is the Deputy
    Director of the ACLU Voting Rights Project--and if my fingers
    can do me better than this, there we go--and assists the
    planning, strategy, and supervision of the ACLU's voting rights
    litigation nationwide, including service as the lead counsel on
    the ACLU's Federal lawsuit challenging multiple provisions of
    Georgia's new law, SB 202.
        Ms. Lakin received her J.D. from Stanford. She received an
    M.S. and a B.A. from Stanford. She is a true Stanford Cardinal.
        Ms. Lakin, you are recognized.

                     TESTIMONY OF SOPHIA LIN LAKIN

        Ms. Lakin. Chair Cohen, Ranking Member Johnson, and Members
    of the Subcommittee, thank you for the opportunity to testify
    today. My name is Sophia Lakin, and I am the deputy director of
    the ACLU's Voting Rights Project.
        The VRA is one of the most successful pieces of civil
    rights legislation in our history. Eight years ago, in Shelby
    County v. Holder, the Supreme Court gutted the VRA's most
    powerful provision, the section 5 preclearance system. My
    colleagues have testified powerfully about the importance of
    restoring the system.
        After Shelby, the principal means to protect against
    discrimination in voting is section 2 of the VRA, which
    authorizes challenges that can be brought only after a law has
    been passed or a policy implemented. Section 2 itself has been
    under attack in recent years in at least three ways.
        First, the Supreme Court in Shelby based its ruling, in
    part, on the assumption that plaintiffs would be able to obtain
    preliminary relief before an election to guard against
    elections going forward under regimes that are later struck
    down as discriminatory.
        The theoretical availability of such relief has proven to
    be inadequate. The current standard for obtaining a preliminary
    injunction, including a showing of a likelihood of success on
    the merits, is a particularly high bar to relief in voting
    cases, given their complexity and fact-intensive nature.
        These cases also take multiple years to litigate, which
    means many elections, involving hundreds of elected officials,
    can take place under regimes that are later found to be
    discriminatory, an irrevocable taint on our democracy that we
    have, unfortunately, seen play out many times.
        My prior written testimony describes 15 cases in which
    voting rights plaintiffs who ultimately succeeded were unable
    to obtain preliminary relief while their cases were pending,
    with numerous elections taking place, millions of voters
    casting ballots, and hundreds of elected officials taking
    office under regimes courts ultimately find are discriminatory
    or are abandoned.
        Second, this problem has only worsened due to the
    metastasizing of the so-called Purcell Principle. This is the
    idea that courts should be cautious changing election rules if
    an election is imminent.
        What began as a commonsense warning to consider potential
    voter confusion and administrative burdens now operates as
    almost a per se bar against intervening as an election draws
    near.
        The use of Purcell to block relief has exploded in recent
    years, from 6 times in 2012, to 11 in 2016, to 58 in 2020, and
    the doctrine is continuing to expand well beyond the
    commonsense warning in the Supreme Court decision that is the
    Purcell doctrine's namesake.
        Purcell is invoked today even when there is no risk of
    voter confusion, little to no administrative burden, and where
    plaintiffs have acted as quickly as they can, or there are
    unforeseen emergencies, like an unprecedented pandemic. It has
    taken over the analysis of whether to order relief even when
    there has been a strong finding that the election Rule being
    challenged likely violates the Constitution or the VRA.
        Worse yet, all too frequently Purcell is wielded
    inconsistently, in one direction only, to undermine efforts to
    ensure that discriminatory practices are blocked before they
    can taint an election. My written testimony for today and
    earlier this summer highlight numerous examples.
        Left unchecked, Purcell threatens to kneecap voting rights
    litigation nationwide.
        Third, compounding all these challenges, the Supreme
    Court's recent decision in Brnovich v. Democratic National
    Committee has further undermined section 2 as the robust weapon
    to combat voting discrimination this body intended it to be.
        The decision raises the bar for voting rights plaintiffs to
    show an actionable burden on voters while at the same time
    dramatically lowers the bar for government defendants, allowing
    the mere specter of voter fraud, without any evidence, to
    justify discriminatory practices.
        Fortunately, for all these issues Congress has the power to
    Act to protect voting rights. Congress has the clear authority
    to set standards for the issuance of preliminary relief and
    injunctions in voting rights cases and the clear ability to
    correct the misinterpretation of the VRA contained within
    Brnovich.
        Not only does Congress have the power to act, but it also
    has the responsibility. Racial discrimination in voting
    continues to threaten the health of our democracy. Section 2 is
    an important and necessary tool to combat that threat, and its
    continuing vitality is critical.
        Thank you.
        [The statement of Ms. Lakin follows:]

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        Mr. Cohen. Thank you, Ms. Lakin.
        Our next witness is Hans von Spakovsky. Mr. von Spakovsky
    is the mMnager of the Election Law Reform Initiative and Senior
    Legal Fellow at the Meese Center for Legal and Judicial Studies
    at the Heritage Foundation. He previously worked for the
    Justice Department as Counsel to the Assistant Attorney General
    for Civil Rights, providing help with the Voting Rights Act and
    Help America Vote Act of 2002, and served on President Trump's
    Presidential Advisory Commission on Election Integrity.
        He received his law degree from Vanderbilt University
    School of Law--arguably the finest law school in the South, in
    Memphis, arguably the second-best law school in the State of
    Tennessee, and his undergraduate degree from MIT.
        Mr. von Spakovsky, you are recognized for 5 minutes.

                   TESTIMONY OF HANS A. von SPAKOVSKY

        Mr. von Spakovsky. Thank you, Mr. Chair. I do want to say I
    am testifying today in my personal capacity, based on my own
    research, and not on behalf of the Heritage Foundation.
        The answer to the question of whether there is a need for
    legislative reforms to the Voting Rights Act is a
    straightforward ``no.'' After the Supreme Court's correct
    decision in Shelby County, the Voting Rights Act, through its
    various provisions, including section 2, remains a very
    powerful statute whose remedies are more than sufficient to
    protect all Americans.
        With the latest guidance from the Court on the proper
    application of section 2 in the Brnovich case, the Justice
    Department and private parties have the legal means at their
    disposal to stop those increasingly rare instances of voting
    discrimination when they occur.
        The claim that there is a wave of voter suppression going
    on across the country that requires expansion of the VRA is
    simply false. Efforts to enhance the integrity of the election
    process through reforms, such as voter ID requirements and
    improvements in the accuracy of Statewide voter registration
    lists, are not voter suppression and, frankly, protect all
    voters, no matter what their color or ethnic background.
        This is evidenced by steady increases in registration and
    turnout in States that have implemented such reforms, as well
    as the enforcement record of the Justice Department, which has
    seen a steady decrease in the number of enforcement cases due
    to a decreasing number of violations of Federal law even after
    the Shelby County decision.
        During the entire 8 years of the Obama Administration, the
    Civil Rights Division filed only four cases to enforce section
    2. The Trump Administration filed two section 2 enforcement
    cases. Thus, there was no upsurge in section 2 cases after the
    Shelby County decision. In fact, the Obama Administration filed
    far fewer section 2 enforcement cases than the Bush
    Administration.
        That record does not support the claim that there are
    widespread, unlawful voter suppression actions being taken
    against minority voters.
        The Census Bureau's 2020 election survey also clearly
    demonstrates that there was no wave of voter suppression
    keeping Americans from registering or voting that requires
    amending the VRA and expanding the power of the Justice
    Department.
        Instead, the Census Bureau reports that the turnout in last
    year's election was 66.8 percent, just short of the record
    turnout of 67.7 percent in the 1992 elections. In fact, the
    turnout was higher than the turnout in President Barack Obama's
    first election, which was reported by the Census Bureau at 63.6
    percent.
        The Census survey shows there was higher turnout among all
    races in 2020 when compared to the 2016 election. Black
    Americans turned out at 63 percent compared to only 60 percent
    in 2016; 59 percent of Asian Americans voted in 2020, a 10-
    percentage point increase from 2016; and the Census Bureau
    reports that voter registration in 2020 reached 72 percent,
    which is higher than the 70 percent who were registered in 2016
    after 8 years of the Obama-Biden Administration. Not only that,
    but voter registration in 2020 was higher than in the 2000,
    2004, 2008, and 2012 elections.
        The Hispanic share of the vote was just behind that of
    Black Americans, who had 12 percent of the total vote in 2020,
    the same percentage of the total vote by Black Americans in the
    2016 election at the end of the Obama-Biden Administration.
        The bottom line of the Census Bureau survey is that
    Americans are easily registering, and they are turning out to
    vote when they are interested in the candidates who are running
    for office. In fact, in an election year in which we were
    dealing with an unprecedented shutdown of the country due to a
    pandemic, we had, according to the Census Bureau, quote, ``the
    highest voter turnout of the 21st century.''
        The proposed amendments are almost certainly
    unconstitutional because they don't satisfy what the Supreme
    Court said is required to justify continuing, much less
    expanding, the preclearance requirement.
        As the Court made clear, any requirement that States obtain
    Federal pre-approval of any proposed election changes could be
    imposed only if Congress can show blatantly discriminatory
    evasions of Federal court decrees, lack of minority office
    holding, voting tests and devices, voting discrimination on a
    pervasive scale, and flagrant or rampant voting discrimination.
    None of those conditions are anywhere to be found in 2020.
        With the availability of section 3, which has not been much
    discussed here today, a judge, if presented with evidence, can
    put a particular jurisdiction under preclearance coverage and
    continue it if necessary. That makes much more sense than a
    broad, uncustomized preclearance requirement.
        Thank you.
        [The statement of Mr. von Spakovsky follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, sir, and your timing was better than
    Michael Jordan's.
        Our next witness is Jon Greenbaum. Mr. Greenbaum is the
    Chief Counsel and Senior Deputy Director for the Lawyers
    Committee for Civil Rights Under Law, where he is responsible
    for managing the Committee's work to seek racial justice and
    previously headed its Voting Rights Project. He is also the Co-
    Chair of the Voting Rights Task Force of The Leadership
    Conference on Civil and Human Rights.
        He received his J.D. from the UCLA School of Law and his
    undergraduate degree from Cal Berkeley.
        Mr. Greenbaum, you are recognized for 5 minutes.

                     TESTIMONY OF JON M. GREENBAUM

        Mr. Greenbaum. Chair Cohen, Ranking Member Johnson, and
    Members of the Subcommittee, thank you for the opportunity to
    testify today on ways in which Congress can remedy the damage
    to voting rights caused by the Supreme Court's decisions in
    Shelby County v. Holder and Brnovich v. Democratic National
    Committee.
        For my oral statement, I am going to focus on two suggested
    sets of modifications to H.R. 4, the John Lewis Voting Rights
    Advancement Act, which the House passed in 2019.
        The first set is to address the Shelby County decision
    beyond what is in H.R. 4. I recommend that the United States or
    an aggrieved party be granted the right to bring an action
    anywhere nationally if a voting change is retrogressive--in
    other words, voting changes that worsen the voting
    opportunities of persons of color. This would be in addition to
    the geographic and ``known practices'' preclearance provisions
    in H.R. 4.
        The retrogression cause of action provides an additional
    reasonable and necessary weapon in the fight against
    suppressive and discriminatory voting practices. It responds to
    current needs which are not limited to those States and
    political subdivisions that may be subject to geographic
    coverage or known practices coverage.
        To accompany the retrogression cause of action, I recommend
    expanding the existing transparency requirement in H.R. 4 that
    requires States and political subdivisions to provide notice of
    any voting changes.
        In addition, I would recommend a relatively modest waiting
    period of 30 days after jurisdictions give notice before
    changes may be implemented. The 30 days would begin after the
    administrative preclearance period where applicable. This would
    allow plaintiffs to seek preliminary relief to stop
    retrogressive voting changes before they are implemented.
        I believe that these modifications, individually and
    collectively, are constitutional under the current framework
    set forth in Shelby County that current needs for a law must
    outweigh the law's burdens.
        Regarding the current needs of voters these modifications
    would serve, we have seen a proliferation of retrogressive
    voting changes that are often difficult and time consuming to
    challenge otherwise.
        By the way, the Lawyers Committee itself, one organization,
    was involved in 50 lawsuits in 2020.
        Conversely, the constitutional burden on jurisdictions is
    modest. Retrogression is a concept that the Supreme Court has
    found to be constitutionally acceptable and permitting plans to
    prove the case of discriminatory effect is standard under civil
    rights laws. The notice and waiting provisions create little
    additional constitutional burden.
        Because the law would be national in application, the equal
    sovereignty principle set forth by the Supreme Court in Shelby
    County would not come into play.
        My second recommendation is that Congress address the
    Brnovich decision and restore vote denial ``results'' claims
    under section 2 of the Voting Rights Act to the pre-Brnovich
    standard that several courts of appeals have adopted.
        When Congress amended section 2 in 1982 to explicitly allow
    for discriminatory results claims, it did so as part of a
    legislative scheme to eradicate discrimination in voting.
        In a 1982 Senate report, Congress stated that section 2 was
    intended to capture the complex and subtle practices which may
    seem part of the everyday rough and tumble of American politics
    but are clearly the latest in a direct line of repeated efforts
    to perpetuate the results of past voting discrimination.
        In 1986, in Thornburg v. Gingles, the Supreme Court said
    that the essence of a section 2 claim is that a certain law,
    practice, or structure interacts with social and historical
    conditions to cause an inequality in the voting opportunities
    enjoyed by Black and White voters.
        Since Gingles, four different Circuit courts addressing
    vote denial cases used the foundation laid in Gingles to
    analyze these matters.
        This formulation distills section 2 liability into a two-
    part test:

              1. There must be a disparate burden on the voting
            rights of minority voters; and
              2. that burden must be caused by the challenged
            voting practice because the practice interacts with the
            social and historical conditions of racial
            discrimination.

        In answering the second question, the courts have used
    factors identified in the Senate's 1982 Committee Report.
        The Supreme Court decision in Brnovich provided guidelines
    for future treatment of section 2 vote denial ``results''
    claims that were not only new but also contrary to the decades-
    long accepted standards.
        My written testimony sets forth the various ways that the
    Brnovich decision runs contrary to Congress' intent that the
    VRA eliminate discrimination in voting and how Congress should
    go about restoring section 2 claims to the pre-Brnovich
    standard.
        The 8 years since the Supreme Court's decision in Shelby
    County v. Holder have left voters of color the most vulnerable
    to voting discrimination they have been in decades. The record
    since the Shelby County decision demonstrates what voting
    rights advocates feared: That without section 5, voting
    discrimination would increase substantially.
        The Brnovich decision, by creating new hurdles for section
    2 claimants to overcome, raises the stakes appreciably.
    Congress must act.
        Thank you for providing the opportunity to testify today. I
    look forward to your questions.
        [The statement of Mr. Greenbaum follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Cohen. Thank you, Mr. Greenbaum. As the TV show ``Beat
    the Clock,'' you are Bud Collyer.
        Our final witness is Samuel Spital. Mr. Spital is Director
    of Litigation for the NAACP Legal Defense and Education Fund.
    Prior to joining the Legal Defense Fund, he practiced over a
    decade at two national firms, working with the Legal Defense
    Fund as Co-Counsel on numerous cases involving capital
    punishment and voting rights. He also served as a Law Clerk for
    Justice John Paul Stevens, one of the great Justices in our
    Nation's history.
        Mr. Spital received his law degree and his undergraduate
    degrees from Harvard. He liked Harvard, and Harvard liked him.
        Mr. Spital, you are recognized for 5 minutes.

                       TESTIMONY OF SAMUEL SPITAL

        Mr. Spital. Thank you very much, Chair Cohen. Good
    afternoon to Chair Cohen, Ranking Member Johnson, and the
    Members of the Committee. Thank you for inviting me to testify
    today.
        Since its founding in 1940 by Thurgood Marshall, LDF has
    been a leader in the struggle to secure and protect voting
    rights for Black Americans and other people of color in this
    country.
        Today, our Nation is at a critical juncture in that
    struggle, and we are here, in no small part, because of the two
    Supreme Court decisions that a number of other witnesses have
    talked about already which have weakened the Voting Rights Act
    of 1965.
        The Voting Rights Act of 1965 has long been recognized to
    be the most transformative of the civil rights laws passed in
    the 1960s. It has aptly been called the crown jewel of the
    civil rights movement.
        For over 30 years, as you heard Assistant Attorney General
    Clarke say, the preclearance mechanism was at the heart of that
    act, and that language is from a Supreme Court opinion
    describing the Voting Rights Act.
        What preclearance did was it required jurisdictions with
    particular histories of voting discrimination to submit
    proposed changes in their voting laws to either the Department
    of Justice or a Federal court to ensure that those changes did
    not continue to worsen discrimination against voters of color.
        Preclearance was so essential because it blocked
    discrimination before elections could be held under
    discriminatory laws and because it prevented the continuing
    evasion, the continuing circumvention of favorable decrees that
    were achieved through litigation that blocked certain kinds of
    discrimination, but then a jurisdiction would just turn around
    and circumvent that decree with some sort of new kind of
    discrimination.
        If you look at the brief that LDF filed in the Supreme
    Court in the Shelby County case, which we have submitted as an
    exhibit to my testimony, you will see example after example
    where, very recently, in the years leading up to the Shelby
    County case, section 5 continued to prevent jurisdictions from
    circumventing the successful decrees that were achieved through
    litigation, showing just how essential section 5 remains in
    modern times.
        In 2013, as we have discussed, a sharply divided Supreme
    Court decided the Shelby County case which rendered
    preclearance inoperative. In response to that decision, in
    jurisdiction after jurisdiction formerly covered by section 5,
    there was an unleashing of new kinds of voter suppression laws.
        If you look, for example, in Justice Kagan's Brnovich
    dissent, she identifies State after State, sometimes within
    days, sometimes within a few years after the Shelby County
    decision, which went to a new voter suppression law, that in
    many cases had previously been stopped by section 5.
        As devastating as the Shelby County decision has been, the
    court made clear in that decision, that Congress has the
    authority to create a new preclearance mechanism that is
    grounded in current conditions.
        After all, the 14th and 15th amendments assigned to
    Congress, not the Supreme Court, the authority to determine in
    the first instance, what measures are necessary to enforce the
    right to vote free from racial discrimination. LDF has
    testified on multiple occasions to our experiences monitoring
    elections and litigating some of these voter suppression
    measures.
        While LDF and other civil rights organizations have
    successfully responded to some of these new discriminatory
    measures with litigation, litigation is not sufficient to
    address the persistent and adaptive nature of discrimination
    against Black voters at both the State and local level.
        It is, therefore, essential that Congress restore section
    5, consistent with the court's guidance in Shelby County. H.R.
    4, as passed by the 116th Congress, would do precisely that.
    Its geographic coverage provision identifies those States and
    political subdivisions with documented, continuing patterns of
    discrimination against voters of color, thereby making clear
    that preclearance remains needed in those parts of the country.
        In addition to restoring preclearance, Congress must also
    now address the Supreme Court's recent decision in Brnovich v.
    Democratic National Committee that which curtailed the other
    key provision of the Voting Rights Act, section 2. The Brnovich
    decision is divorced from the plain text of section 2 and
    flatly inconsistent with Congress' clear and broad purpose in
    enacting and amending that law.
        Unless Congress responds by restoring the full intent, the
    intended intent of section 2, Brnovich will embolden States and
    localities to impose new voting restrictions that abridge the
    right to vote for Black voters and other voters of color. Just
    as Congress in 1982 overrode the Supreme Court's cramped
    interpretation of section 2 in the City of Mobile v. Bolden
    case, today Congress must override the Brnovich decision to
    restore the full power of the Voting Rights Act.
        In 1965, Congress passed the Voting Rights Act in response
    to the heroism of John Lewis, Amelia Boynton Robinson, Fannie
    Lou Hamer, and so many other Black organizers and activists who
    risked and, who in some cases, lost their lives to secure for
    every American the right to vote and to make real the promise
    of a multiracial democracy that had been denied for a century.
        Their accomplishments were remarkable. Today those
    accomplishments and American democracy itself are in grave
    danger. This Congress must honor the legacy of these
    extraordinary Americans and safeguard our democracy by
    establishing a new preclearance framework and restoring section
    2's prohibition on all forms of discrimination that burden,
    that abridge, that deny the right to vote, based on race or
    color. Thank you very much. I look forward to your questions.
        [The statement of Mr. Spital follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Brief for respondent-intervenors Earl Cunningham, Harry
    Jones, Albert Jones, Ernest Montgomery, Anthony Vines, and
    William Walker in Shelby County v. Eric Holder, January 25,
    2013, submitted by Samuel Spital, Director of Litigation, NAACP
    Legal Defense and Educational Fund, Inc., https://
    docs.house.gov/meetings/JU/JU10/20210816/114010/HHRG-117-JU10-
    Wstate-SpitalS-20210816-SD008.pdf
        Mr. Cohen. Thank you, Mr. Spital, and I appreciate your
    remembering and recognizing the civil rights heroes who did so
    much to bring about the right to vote. Ms. Viola Liuzzo was
    maybe missing from that. She lost her life during the Selma to
    Montgomery, Dr. King march.
        Now, we are in the time for 5-minute Rule of questions, and
    I will begin by recognizing myself for 5 minutes.
        For Ms. Lakin, I would like to ask what approach would you
    suggest Congress take to address the Court's flawed reading of
    section 2 and to further protect voters from discrimination?
        Ms. Lakin. Thank you for that question. There are a number
    of things that Congress could do to rein in Purcell, but any
    legislative response should ensure that voting rights claims
    get a full hearing while still leaving room for real cases
    where injunctive relief shouldn't be issued. It should also
    ensure that proximity to an election alone shouldn't be the
    reason to deny relief.
        This could look like defining a specific, measurable period
    in which election changes are disfavored for legitimate
    reasons. This would help to prevent the window that Purcell is
    invoked from growing even larger and even more unmoored from
    its foundations.
        Congress could also clearly State the public's interest in
    assuring free and fair access to the ballot and provide
    guidance as to how that interest should be weighed against
    administrative concerns.
        Congress could also clarify that in deciding whether to
    stay a court order issued close to an election, that the
    interest of any voters who have relied on that court order are
    taken into account and protected.
        Mr. Cohen. Ms. Lakin, let me ask--I appreciate your remarks
    on Purcell, but I was really concerned about Brnovich.
        Ms. Lakin. Oh, yes, my apologies. Brnovich ratcheted up the
    bar for plaintiffs to establish a discriminatory burden, so any
    response in our view would, at a minimum, do two things.
        First, it should make clear that any voting practice that
    interacts with historical and socio-economic factors to result
    in discrimination against voters of color, run afoul of section
    2, and that certain considerations are irrelevant to this
    analysis, such as whether the practice was common in 1982.
        Second, it should ensure that State defendants provide some
    evidence that the restrictive practice actually advances some
    particular and important government interest, rather than
    relying on unsubstantiated fears.
        There are different ways that Congress can do this.
    Congress could, for example, adopt an approach that codifies
    relevant and nonrelevant factors as General Clarke testified
    about earlier today. It could also adopt a burden-shifting
    approach modeled on the frameworks for addressing
    discrimination in title 7 or the Fair Housing Act. This could
    give guidance to courts as to what evidence a State needs to
    support and assert its interest and how to weigh that interest
    against evidence of a discriminatory result.
        Mr. Cohen. Thank you, Ms. Lakin.
        Mr. Greenbaum, section 2 precludes--should Congress just
    amend section 2 to preclude courts from considering one or of
    the more--Brnovich guideposts when considering voting denial
    claims? Do you think the courts should be required to consider,
    when evaluating vote denial claims under section 2 and why?
        Mr. Greenbaum. So, Chair Cohen, I do think that Congress is
    going to need to step in and amend section 2 to address
    Brnovich. I think what you have in front of you, just like in
    1982 Congress had a lot of decisions that it could rely on with
    respect to how to amend section 2 to provide for results
    claims. You can look at the decisions that have come down in
    various years, in various circuits, like the Fourth, Fifth, and
    Sixth Circuits that have looked at these claims and have looked
    at what factors are relevant.
        Going back to the fact of having this two-part test about
    their being a disparate burden, plaintiffs have to prove a
    disparate burden, and they have to show that burden is caused
    by a challenged voting practice within the way that practice
    interacts with social and historical conditions on racial
    discrimination.
        In all these cases, the courts, among other things, have
    looked at the Senate factors report.
        Mr. Cohen. Thank you, Mr. Greenbaum.
        Mr. Henderson, what is your response to those who would
    argue that the Voting Rights Act and specifically section 5's
    preclearance requirement is no longer necessary because
    minority voting registration and turnout are much higher than
    it was compared to where it was during the Jim Crow era, or
    what President Trump might be like and voted in higher numbers
    in 2020 to see that there wasn't a President Trump, Part 2.
    Would you agree with the late assessment of the court's
    decision that such an agreement was the equivalent of throwing
    your umbrella away in the middle of a rainstorm because you are
    not getting wet?
        Mr. Henderson. Yes, and yes about the prophylactic role
    that the section 5 of the Voting Rights Act has played. First,
    let me say that as the Census Bureau pointed out with the 2020
    analysis, our population has grown.
        The fact that we have seen a significant growth in
    population would also suggest that we would see some growth in
    voter participation based on an extended population.
        That voter participation in and of itself does not suggest,
    however, there are not problems, as the reports submitted by
    the leadership conference in the 10 States with additional
    States to follow have demonstrated.
        In each instance, there are recent and current instances of
    voter discrimination that belie the notion that indeed our
    country is operating with full equality when it comes to the
    right to vote.
        I certainly think the prophylactic role of section 5 of the
    Voting Rights Act is key to ensuring that everyone in our
    country, not just racial minorities, but others as well, enjoy
    the right to vote as was intended under the Constitution. This
    extra, additional protection is necessary and has been borne
    out, Mr. Chair, by what we have seen at the individual State
    level and that has been documented by our reports.
        Mr. Cohen. Thank you, Mr. Henderson, for all of your good
    work and you appearing today.
        Next, we will recognize the Ranking Member, Mr. Johnson,
    who is recognized for 5 minutes.
        Mr. Johnson of Louisiana. Thank you, Mr. Chair. First
    question for Mr. von Spakovsky, but thank you again for your
    expertise and for appearing before our Committee once more.
    Isn't it true that Congress' July 28 guidance regarding State
    efforts to remove the temporary assistance is now using those
    same temporary measures as the new guidance from which to judge
    compliance with VRA?
        Mr. von Spakovsky. Well, that does appear to be what their
    guidance is doing, which is not a proper interpretation of
    section 2, and notice that in the prior testimony, it was made
    very clear, for example, that they had no interest in looking
    at all the changes that were made by State government officials
    violating State laws.
        That would normally be something that the Justice
    Department, particularly the voting section, would look at,
    because when a State official that has no authority in the
    election area, changes or does not abide by a law that the
    State legislature has passed that would be something you should
    look at to see if there was potentially a discriminatory reason
    for doing that, and I don't quite understand why that is not
    something that is being examined.
        Mr. Johnson of Louisiana. Well, I would venture to guess it
    looks like selective enforcement or at least selective
    analysis, but we will let the facts speak for themselves.
        Do you think it is credible for anybody to argue that
    Congress intended for the DOJ to use temporary emergency voting
    measures adopted during a once-in-a-lifetime pandemic to judge
    compliance with the VRA?
        Mr. von Spakovsky. No, I don't think so in particular
    because the changes were made--many changes were made all over
    the country. They were done, as you say, because of a once-in-
    a-lifetime emergency measure. Going back to the rules that were
    in place before that can't be seen, I don't think, as somehow
    discriminatory. The laws that were in place at that time were
    not being investigated, were not being sued by the Justice
    Department.
        So, clearly at the time, they didn't think there was a
    problem with those rules, and now suddenly they think there
    are. That doesn't make sense from a commonsense point of view
    or from a proper interpretation of section 2.
        Mr. Johnson of Louisiana. Thank you. Just quickly,
    restating the obvious, does the DOJ have the constitutional
    authority to reinterpret the statute?
        Mr. von Spakovsky. No, I don't think so. I think they have
    got to apply Supreme Court precedent. That certainly is the way
    it has always been done at the Department. You do what the
    courts tell you, particularly the Supreme Court, when it comes
    to how you apply the statute.
        I just have to say also very quickly, I think the Brnovich
    decision correctly interpreted the law. They took the explicit
    language of section 2, the Senate factors which everyone has
    agreed on for years, is the proper way to apply it.
        In the past, because of the Thornburg v. Gingles decision,
    those Senate factors were only applied because all the cases
    that came up were vote dilution cases, really redistricting
    cases. What they did in this decision for the first time was
    say, well, here is how you take these Senate factors, and how
    here is how you apply them to a vote denial case.
        I don't see anything in the decision that is outside what
    they have previously done or outside the language of the
    statute.
        Mr. Johnson of Louisiana. Thank you so much.
        Ms. Riordan, thank you I would like to repeat and reiterate
    what we have shared before. Let me just ask you to summarize
    quickly, I am running out of time, but is the VRA still working
    today without sections 4B and 5?
        You may be muted. Check the mute button there. Sorry.
        Ms. Riordan. Okay. Sorry about that. I do believe that the
    permanent tools that are provided already with the permanent
    provisions of the Voting Rights Act are more than sufficient to
    target any type of bad State action or local jurisdiction
    action.
        Section 2, I hear a lot of complaints about section 2, that
    it is expensive, and it takes people, like a long time to come
    forward with the case because it is a civil matter.
        Bottom line is, many of the times that people have said,
    oh, well, you didn't get our preliminary injunction ahead of
    the election, for example, those particular laws that they were
    challenging actually went forward, and what it showed was that
    the increase in voter participation by non-White voters in
    North Carolina increased under the laws that they were
    attacking.
        So, it may not be perfect in every way, but it certainly
    provides the Department, as well as private plaintiffs through
    the 14th and 15th Amendment, to bring these types of actions if
    they find that a State or jurisdiction is intentionally
    discriminating against voters.
        Mr. Johnson of Louisiana. Thank you very much. I am out of
    time. I would just say that I don't think there is any perfect
    legislation. I yield back.
        Mr. Cohen. Thank you, Mr. Johnson.
        I believe next on our list will be Ms. Ross of North
    Carolina.
        Ms. Ross. Thank you, Mr. Chair, and thanks so much to all
    the witnesses for testifying. It is very, very helpful.
        Since the passage of the Voting Rights Act in 1965,
    Congress has played a fundamental role in protecting the right
    to vote. Your testimony has highlighted critical avenues for
    legislative reform that would provide proactive protections for
    vulnerable voting populations.
        Ms. Lakin, I am going to give you an opportunity to talk
    about Purcell, particularly in North Carolina, where the date
    for the primary was moved up, and it is much earlier than it
    was 10 years ago. So, Purcell will be particularly important
    for any challenge to redistricting.
        We have heard your testimony that in practice the Federal
    courts' application of Purcell principle contributes to, rather
    than reduces, confusion among voters and elected officials.
        Should the proximity of the election be a decisive factor
    for a court when determining whether to grant equitable relief
    in section 2 cases, and why or why not?
        Ms. Lakin. Thank you for that question, for the opportunity
    to weigh in here. The proximity to an election should not be
    the decisive factor in denying or granting relief in the
    context of voting rights litigation. At issue is the fact that
    you might be subjecting voters to discriminatory regime that--
    and the fact that voters who may rely on an order, who need an
    injunction where there has been a showing of the fact that that
    election Rule might be unconstitutional, very likely is
    constitutional, that violates the VRA, and that Rule may be
    subjecting voters--that Rule may be, in effect, to subject
    voters to a discriminatory regime in voting.
        So, the fact alone that of election rules happening close
    to an election shouldn't be sufficient because you should be
    taking into account all the different aspects of equities,
    including the public interest in expanding access to free and
    fair elections.
        Ms. Ross. Thank you very much. I would now like to yield
    the balance of my time to the esteemed Vice-Chair of the
    Committee, Congresswoman Dean.
        Ms. Dean. Well, thank you very much to my colleague and
    friend, Representative Ross, for yielding to me, and I thank
    both our Chair for putting on this very important hearing
    today, and thank you to the testifiers.
        For the record, I would like to just note that Mr. Jordan
    misrepresented actually the legality of the elections in
    Pennsylvania. They were found to be free and fair by all
    courts.
        Ms. Lakin, I would like to follow-up with you. You remember
    that Professor Nick Stephanopoulos who appeared at our
    Subcommittee hearing held on July 16, 2021, proposed using or
    importing the disparate impact standard used in other areas of
    civil rights law for vote denial claims. What are the pros and
    cons of that approach?
        Ms. Lakin. Thank you for that question, Representative
    Dean. There are some virtues of this kind of burden-shifting
    approach. For example, it provides some guidance to courts on
    how to weigh the different interests against each other--the
    interests that plaintiffs have in protecting voting rights, and
    the interest that the State has in terms of advancing or
    protecting elections and so forth.
        It also provides the plaintiffs an opportunity to come back
    and say, no, there is a better way, there is a less restrictive
    way to protect both interests--voting rights and the State's
    interest. So, that is one of the advantages of providing some
    tools for the courts here in a burden-shifting framework that
    is familiar, but at the same time, there is a familiar test
    that the courts have already used under section 2 in protecting
    voting rights under that framework, and codifying factors that
    are or are not relevant, restoring the section 2 two-step test
    that courts are very familiar with, also has its advantages as
    well.
        Ms. Dean. Thank you so much for that and my time is running
    short.
        Mr. Greenbaum, if I could ask you just quickly, we know
    that Congress must address the Brnovich decision narrowing
    section 2 scope. Even if we do amend it successfully to respond
    to Brnovich, to respond to the decision, would section 2
    litigation alone be enough for adequate substitute for section
    5?
        Mr. Greenbaum. No, it wouldn't be, Congresswoman Dean.
    Retrogression is a completely different issue than what section
    2 covers.
        Ms. Dean. I thank you very much. I see my time is expired.
    Again, thank you, Representative Ross, and I yield back.
        Mr. Cohen. Thank you. Our next question panelist Member
    will be the distinguished Hank Johnson from Georgia, 5 minutes.
        Mr. Johnson of Georgia. Thank you, Mr. Chair.
        Mr. Henderson, in Shelby County v. Holder, the court
    invited Congress to draft another coverage formula based on,
    quote, ``current conditions.'' Do current conditions,
    specifically the deluge of State laws making it more difficult
    to vote since the Shelby County decision, justify the need for
    a new coverage formula?
        Mr. Henderson. Thank you, Mr. Johnson, for that question,
    and the answer is yes. I certainly think the court did open the
    door to invite Congress to provide an assessment of current
    conditions that affect the right to vote.
        Under section 5 of the 14th Amendment, Congress does have
    the power to respond to issues regarding discrimination in
    voting, and the effort to quantify how these changes in State
    election laws are impacting the right to vote is certainly
    within the scope of Congress.
        Mr. Johnson of Georgia. Thank you, Mr. Henderson.
        Ms. Weiser, how does the data your organization and others
    have provided to the Subcommittee document that racial
    discrimination in voting remains a persistent, widespread
    problem, and how does it demonstrate the current need to
    protect voting rights?
        Ms. Weiser. Thank you very much for the question,
    Representative Johnson. We have actually submitted multiple
    pieces of evidence and studies that demonstrate ongoing race
    discrimination in voting, from discriminatory voter purges that
    are concentrated in jurisdictions that are likely to be covered
    by the amended Voting Rights Act, to discriminatory actions
    across the country in the 2020 election, to discriminatory
    impacts of some of the voting restrictions that are being
    introduced across the country and passed to date. So, there is
    an overwhelming--
        Mr. Johnson of Georgia. Thank you.
        Ms. Weiser. Thank you.
        Mr. Johnson of Georgia. What geographic coverage formula
    would you recommend meeting this current need, and why would it
    be constitutional?
        Ms. Weiser. Well, thank you again for that question. I
    think that the approach that this Congress has been taking in
    the John Lewis Voting Rights Advancement Act is an appropriate
    one, and it is well tailored to actually identify those
    jurisdictions where the problem is most persistent and most
    widespread, and where the remedy of discrimination is most
    needed.
        The geographic formula looks over a period of time to
    jurisdictions that have had multiple violations, and it also
    has provisions in place to make sure it also covers
    jurisdictions that are also currently discriminating on the
    basis of race.
        Mr. Johnson of Georgia. Okay. Thank you.
        Mr. McCrary, when striking down the coverage formula in
    Shelby County, Chief Justice Roberts relied largely on the
    proposition that minority voter registration and turnout has
    significantly improved in many parts of the country. Should
    Congress look at other indicators in addition to registration
    and turnout to measure the pervasiveness or persistence of race
    discrimination in the voting process?
        Mr. McCrary? You must have frozen, but while he is frozen,
    let me ask Mr. Spital, how has the public's ability to monitor
    voting changes been affected now that covered jurisdictions do
    not have to notify the attorney general of voting changes, and
    has the lack of notice impacted the ability of private
    plaintiffs to block changes through legislation?
        Mr. Spital. Thank you very much for the question,
    Congressman Johnson. Absolutely, especially at the local level,
    we see this as a real issue. So, without section 5, it is very
    difficult to be even aware of the full range of voting changes,
    potentially discriminatory voting practices, that are occurring
    at the local level, which has been a significant impediment to
    private civil rights organizations bringing litigation,
    potentially to challenge those practices.
        Mr. Johnson of Georgia. Well, let me ask you the question I
    asked Mr. McCrary. When striking down the coverage formula in
    Shelby County, Chief Justice Roberts relied largely on the
    proposition that minority voter registration has significantly
    improved in many parts of the country.
        Should Congress look at other indicators in addition to
    registration and turnout to measure the pervasiveness or
    persistence of race discrimination in the voting process?
        Mr. Spital. So, absolutely. The answer is absolutely yes. I
    do want to first note, as Ms. Weiser said earlier, if you
    actually look at turnout, the data has been going in the wrong
    direction since Shelby County. So, even on that score, it
    suggests that the court was declaring victory too soon in terms
    of improvements to turnout.
        There are so many other types of voting discrimination, so
    many ways in which a voter may have an opportunity to cast a
    ballot, but if a jurisdiction changes in a way that they change
    the method of election, and if they redistrict, there are so
    many ways that they can sort of cancel out the impact that that
    voter can have on the political process. Those are equally
    unconstitutional and absolutely the types of evidence that
    Congress should be considering as well.
        Mr. Johnson of Georgia. Thank you. With that--
        Mr. Cohen. Thank you, Mr. Johnson.
        Professor McCrary, can you hear us?
        Mr. McCrary. Yes.
        Mr. Cohen. Yeah. I think Mr. Johnson asked you a question
    and you weren't able to respond.
        Mr. Johnson, would you like to re-ask that question?
        Mr. Johnson of Georgia. Thank you, I will.
        When striking down the coverage formula in the Shelby
    County decision, Chief Justice Roberts relied largely on the
    proposition that minority voter registration and turnout has
    significantly improved in many parts of the country.
        Should Congress look at other indicators in addition to
    registration and turnout to measure the pervasiveness or
    persistence of race discrimination in the voting process?
        Mr. McCrary. Yes, Representative Johnson. I agree with what
    Mr. Spital just testified, and I would point to the geographic
    coverage formula in H.R. 4, as the House passed it in 2019, as
    an improvement over participation rates, as a way of
    identifying the appropriate jurisdictions to cover under
    preclearance. Thank you.
        Mr. Johnson of Georgia. Thank you.
        I yield back, Mr. Chair. Thank you for the consideration.
        Mr. Cohen. You are very welcome.
        Ms. Garcia, you are recognized for 5 minutes.
        Ms. Garcia. Thank you, Mr. Chair, and thank you to all the
    witnesses. Everyone had great presentations and, Mr. Chair,
    thank you for the selection of such a wide, diverse panel.
        I would like to start my question with Mr. Saenz from
    MALDEF. You noted accurately that there has been a population
    growth among Latinos different than other groups in the
    country.
        In fact, in Texas, 95 percent of the population growth that
    has led to perhaps getting two seats additional to a
    congressional delegation was 95 percent people of color,
    primarily more Latinos.
        So, in Texas, about half of all the people under 18 are
    Latino, and the numbers were changing dramatically more in the
    next decade. You have had a long history of defending and
    litigating Latino issues in our State.
        How does historical evidence demonstrate that the growth in
    population among a racial minority, or language minority group
    as Latinos, catalyze changes in the growing practices of a
    particular jurisdiction to limit their voting strength.
        Mr. Saenz. Thank you, Ms. Garcia. I think the history is
    quite clear and was presented two weeks ago by Professor
    Bernard Fraga about how this Nation is at a tipping point when
    you do get to a point of a growth in a minority voting
    community it is often when a those in power seek to deter
    further participation, and unfortunately, the State of Texas is
    an example of that. The very same predominance of minority
    population growth yielding additional seats occurred a decade
    ago, but in response to that, the Texas legislature drew
    initial lines under which none of the three new seats earned by
    the State of Texas went to minority voters.
        It took court intervention under section 2, it was four
    additional seats--to secure two of the new four seats with a
    growing population. Indeed the court, in ruling on that section
    2 case concluded that it was not only vote dilution, but it was
    intentional discrimination on the basis of race against the
    Black and Latino voters in the State of Texas.
        That is an example on a statewide basis of where this
    tipping point phenomenon has acted in the past to catalyze
    behaviors that violate voting rights.
        I simply have to add that even though that work found
    intentional discrimination and followed another court in
    Washington, DC, that concluded the same, it still exercised its
    discretion to deny preclearance coverage for the State of
    Texas. It is another indication in my view why we must step in
    with congressionally enacted coverage for preclearance.
        Ms. Garcia. Well, thank you. Mr. Chair, I yield now to our
    former Vice-Chair of our Committee, Ms. Scanlon, for my
    remaining 2 minutes to ask any questions that she may have.
        Ms. Scanlon. Thank you so much. Thank you, Congresswoman
    Garcia, for yielding your time, and I would also like to extend
    my thanks to the Chair and the Members of the Subcommittee for
    allowing me to join you today.
        Mr. Spital, I had a specific question. The VRA contains
    express authorization for the Attorney General to seek
    preventative relief, including preliminary injunctions.
        Federal courts, including the Supreme Court, have long
    accepted that the VRA provides an implied private cause of
    action. Now, recently in a brief concurring opinion in the
    Brnovich case, Justice Gorsuch expressed doubt about whether
    such a cause of action exists. Should Congress explicitly
    provide for private right of action under the VRA?
        Mr. Spital. Thank you very much for the question,
    Representative Scanlon. I think the answer is yes. I should
    make clear that I think the precedent is overwhelming that
    there is a private right of action under both section 2 and
    other aspects of the VRA, but in the abundance of caution,
    Congress should absolutely make that explicit.
        Ms. Scanlon. Thank you.
        Ms. Weiser from the Brennan Center, as a Representative
    from PA, which is north of the Mason-Dixon Line, but
    nevertheless we have seen a whole raft of legislation over the
    past decade and particularly since the last redistricting, a
    series of laws that burden the right to vote.
        Whether it is through gerrymandering, voter ID laws that
    would have disallowed voting by over half a million eligible
    voters. Why is it important to a State like Pennsylvania that
    we enact H.R. 4?
        Ms. Weiser. Well, the bill as Congress is currently
    contemplating it, would both strengthen section 5 of the Act
    and section 2. Section 2 applies nationwide, and so that would
    ensure that even if Pennsylvania is not covered for
    preclearance, the voters would still have robust protections
    against voting discrimination that they could enforce.
        That said, the dynamic coverage formula that this Congress
    is considering actually moves forward. New States that engage
    in discrimination repeatedly can become subject to preclearance
    going forward. So, that should Act as a deterrent to ongoing
    and repeated discrimination in States like Pennsylvania and
    other States around the country, where there is a new push for
    discriminatory voting changes.
        Ms. Scanlon. Thank you. I appreciate that.
        I yield back to my gracious colleague from Texas.
    Representative Garcia.
        Mr. Cohen. Ms. Scanlon, without objection, if you have
    another question, you have been kind enough to be with us and
    spend several hours.
        Ms. Scanlon. No. It is an abiding fascination of mine, this
    whole field. I would just ask then if any of the other
    panelists have anything they would like to add with respect to
    the question about whether we need to explicitly provide for a
    private right of action?
        Mr. Saenz. Congressmember, I would simply echo what you
    have heard. It is clearly established there is a private right
    of action but given the ongoing assault on voting rights that
    we have seen, I think it would be helpful to make that clear as
    Congressional intent.
        There is no question that the Department of Justice, even
    the most well-resourced Department of Justice cannot do this
    alone. Even with preclearance in place, the Department of
    Justice cannot do it alone.
        I have the great pleasure of administering a consortium of
    12 nonprofit organizations nationwide engaged in private
    enforcement of the Voting Rights Act, and I can tell you, based
    on our monthly conversations that the work that they do is
    absolutely essential.
        Mr. Cohen. Thank you. Thank you, Ms. Scanlon. You and Ms.
    Dean, for showing up, it shows your interest in the issue, and
    that is important, that people show their respect for the
    issue, regardless, by appearing, and I thank you for doing
    that, Ms. Dean as well.
        Ms. Jackson Lee, you are recognized for 5 minutes, more or
    less.
        Ms. Jackson Lee. Mr. Chair, thank you, and I would add my
    appreciation to you as well as Congresswoman Scanlon and all my
    colleagues who have.
        Mr. Chair, I wish to set for the record the current
    conservative Supreme Court that we now have, the current
    majority has simply never understood or refuses to accept the
    fundamental importance of the right to vote, free of
    discriminatory hurdles and obstacles.
        May I share the view that were it not for the 24th
    amendment, I believe this conservative majority on the court
    would subject poll taxes and literacy tests to the review
    standard enunciated in Brnovich.
        There lies the importance of following in the words of John
    Lewis, that we must get into good trouble. Today, I wear his
    pin that exemplifies and recognizes his spirit in this room
    today. ``Good trouble'' means that we are saving the democratic
    principal voting rights of all Americans.
        With that in mind, let me, as I begin, simply acknowledge
    the brave men and women in Afghanistan, our military, who is
    doing the work of this Nation in saving the lives of all those
    who are now impacted. I thank them for their service and those
    who served before.
        I spoke this morning to Representative Ron Reynolds who is
    steadfast that remaining Members of the Texas delegation that
    are continually not going into this then which is the special
    session in Texas. I want to thank them personally on the record
    for this.
        With that in mind, Mr. Henderson, the sacrifice that they
    are making, and I know the work that you have done. So, I want
    to just go right to the Shelby County opinion, and I have a
    question for Mr. Saenz and I know my time is waning.
        That deals with the addressing of the concentration in the
    jurisdiction singled out for preclearance, that Roberts asserts
    that the evil of section 5 is meant to address may no longer be
    concentrated in jurisdictions singled out for preclearance.
        Could you quickly, Mr. Henderson, answer these questions.
    Has your organization found that there is a concentration of
    voting rights violations in certain jurisdictions which justify
    geographic-based coverage?
        Has the COVID-19 crisis like in Harris County exacerbated,
    and does this illustrate the need for Congress to reinstate
    section 5? If you could remember those questions. I would like
    to let Mr. Saenz know that I have questions for him regarding
    known practices, regarding voting law changes and known
    practices, regarding the historical association discrimination.
        Mr. Saenz will be, what is the constitutional basis for
    practice-based preclearance, and how is practice-based
    preclearance responsive to the Supreme Court's concerns
    expressed in Shelby?
        Finally, as it relates to section 2, this question of
    diminution of the vote, doesn't that negatively impact
    redistricting, which Texas is getting ready to go through, and
    how important after remedies are with section 2. I fear the
    restricting that will be coming up in Texas.
        Mr. Henderson, if you would, I know my time, you will do a
    very good job quickly. Thank you for your leadership.
        Mr. Henderson. Thank you for your question. In response,
    the answer is yes to all three. Our reports have documented the
    increase in voter difficulties in States that have been covered
    by section 5. We have documented that to a great degree for
    Congress to review. I completely agree with all three of your
    questions, and I will stop there and turn it over to Mr. Saenz.
        Ms. Jackson Lee. Okay. Thank you, Mr. Henderson.
        Mr. Saenz?
        Mr. Saenz. Thank you, this responds directly to the
    federalism and all sovereignty concerns expressed in the Shelby
    County decision by ensuring that preclearance only applies to
    practices that have historically and in recent history been
    used to restrict the right to vote of minority voters,
    particularly those who are growing inside--in response to equal
    sovereignty by ensuring it applies virtually nationwide.
        There is a demographic trigger and a voter suppression
    measure. The other applies not just to specific States or
    specific regions. It applies across the country.
        With regard to your second question, certainly I share your
    concerns about redistricting. That is why the vote dilution
    cause of action under section 2 is so critical. It has, as you
    know, preserved the rights of Black and Latino voters time
    after time, decade after decade, in the State of Texas, and
    around the country. That practice-based coverage would also
    ensure that once more we have the ability to use preclearance,
    to get an initial view about whether it is being proposed in
    States like Texas would be acceptable under the Voting Rights
    Act.
        Ms. Jackson Lee. So, then finally, the importance of fixing
    section 5 and section 2, because of Brnovich, how crucial is
    that?
        Mr. Saenz. I would say it is absolutely crucial. If you
    fail to do both, then we fail to Act in the other regard away
    from the way the Congress is acting. Brnovich is an
    indication--exercise its authority of the 14th and 15th
    amendment to respond. It is dealing with vote denial the way
    the court has previously been very much like Mobile v. Bolden.
    This is an indication for Congress to Act in the vote denial
    context, as it did in 1982 in response to Mobile v. Bolden as
    you know, Congressman.
        Mr. Cohen. Thank you, and I want to thank you all our
    Members who attended today, and particularly our Witnesses who
    were spectacular. This concludes today's hearing. I want to
    thank all our Witnesses--did somebody have a request?
        Ms. Jackson Lee. Yes. I have an unanimous consent.
        Mr. Cohen. Ms. Jackson Lee?
        Ms. Jackson Lee. Thank you, Mr. Chair, I'm so sorry.
    Unanimous consent to put into the record a Texas Monthly
    article, ``Greg Abbott's Voter Suppression Methods Have Become
    More Subtle--But They're Still Transparent.'' I ask unanimous
    consent then from NBC News, `` `Racist voter suppression':
    Texas laws keep Latinos from ballot box,'' as evidenced by this
    article and groups that are helping to empower all voters to
    vote. I ask unanimous consent that these articles be placed
    into the record.
        Mr. Cohen. Without objection, so done.
        [The information follows:]

                         MS. JACKSON LEE FOR THE RECORD

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        Mr. Cohen. Thank you, Ms. Jackson Lee. Once again, now we
    have concluded our hearing, and I thank all our witnesses for
    appearing today, all of whom have been important in the process
    that we have to undergo to get a voting rights law to a vote.
        Without objection, all Members have 5 legislative days to
    submit additional written questions for the witnesses or
    additional materials for the record.
        With that, once again, we are experiencing great trauma,
    our Nation and our world and Afghanistan and keep all the
    soldiers in your thoughts and prayers and all the Afghanis who
    helped us in your thoughts and prayers, and this hearing is
    adjourned.
        [Whereupon, at 1:08 p.m., the Subcommittee was adjourned.]

                                    APPENDIX

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        Items 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 ``Voter Suppression in 2020,'' Brennan Center
        for Justice: https://docs.house.gov/meetings/JU/JU10/
        20210816/114010/HHRG-117-JU10-20210816-SD204.pdf.
    A report entitled ``Racial Turnout Gap Grew in Jurisdictions
        Previously Covered by the Voting Rights Act,'' Brennan
        Center for Justice: https://docs.house.gov/meetings/JU/
        JU10/20210816/114010/HHRG-117-JU10-20210816-SD205.pdf.
    A report entitled ``Large Racial Turnout Gap Persisted in 2020
        Election,'' Brennan Center for Justice: https://
        docs.house.gov/meetings/JU/JU10/20210816/114010/HHRG-117-
        JU10-2021 0816-SD206.pdf.
    A report entitled ``Representation for Some,'' Brennan Center
        for Justice: https://docs.house.gov/meetings/JU/JU10/
        20210816/114010/HHRG-117-JU10-20210816-SD207.pdf.
    Statement of Virginia Kase Solomon, Chief Executive Officer,
        League of Women Voters of the United States: https://
        docs.house .gov/meetings/JU/JU10/20210816/114010/HHRG-117-
        JU10-20210816-SD208.pdf.
    A report entitled ``2020 Election Impact Report,'' League of
        Women Voters: https://docs.house.gov/meetings/JU/JU10/
        20210816/114010/HHRG-117-JU10-20210816-SD209.pdf.
    A letter from Marc H. Morial, President and Chief Executive
        Officer, National Urban League: https://docs.house.gov/
        meetings/JU/JU10/20210816/114010/HHRG-117-JU10-20210816-
        SD210 .pdf.
    A report entitled ``Democracy Defended,'' LDF Thurgood Marshall
        Institute: https://docs.house.gov/meetings/JU/JU10/
        20210816/114010/HHRG-117-JU10-20210816-SD211.pdf.
    A report entitled ``How Judicial Action Has Shaped the Record
        of Discrimination in Voting Rights,'' J. Morgan Kousser,
        Professor of History and Social Science Emeritus,
        California Institute of Technology: https://docs.house.gov/
        meetings/JU/JU10/20210 816/114010/HHRG-117-JU10-20210816-
        SD212.pdf.
    A report entitled ``The Legacy of Voting Discrimination and the
        Continued Need for the Voting Rights Act in Arizona,''
        submitted by The Leadership Conference on Civil and Human
        Rights: https://docs.house.gov/meetings/JU/JU10/20210816/
        114010/HHRG-117-JU10-20210816-SD213.pdf.

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                      QUESTIONS AND ANSWERS FOR THE RECORD

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