[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

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                           Serial No. 117-39

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         Printed for the use of the Committee on the Judiciary
         
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               Available via: http://judiciary.house.gov

                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
46-516 PDF                 WASHINGTON : 2022                     
          
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                       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

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[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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    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

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    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:]
    
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    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:]
    
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    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:]
    
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    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:]
    
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    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:]
    
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    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:]
    
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    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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