[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
THE NEED TO ENHANCE THE VOTING
RIGHTS ACT: PRACTICE-BASED COVERAGE
=======================================================================
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
__________
TUESDAY, JULY 27, 2021
__________
Serial No. 117-37
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
48-118 WASHINGTON : 2022
COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY McBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
PERRY APELBAUM, Majority Staff Director and Chief Counsel
CHRISTOPHER HIXON, Minority Staff Director
------
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
AND CIVIL LIBERTIES
STEVE COHEN, Tennessee, Chair
DEBORAH ROSS, North Carolina, Vice-Chair
JAMIE RASKIN, Maryland MIKE JOHNSON, Louisiana, Ranking
HENRY C. ``HANK'' JOHNSON, Jr., Member
Georgia TOM McCLINTOCK, California
SYLVIA R. GARCIA, Texas CHIP ROY, Texas
CORI BUSH, Missouri MICHELLE FISCHBACH, Minnesota
SHEILA JACKSON LEE, Texas BURGESS OWENS, Utah
JAMES PARK, Chief Counsel
C O N T E N T S
----------
Tuesday, July 27, 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................................................... 1
The Honorable Mike Johnson, Ranking Member of the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties from the
State of Louisiana............................................. 3
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 5
WITNESSES
Thomas A. Saenz, President and General Counsel, Mexican American
Legal Defense and Educational Fund
Oral Testimony................................................. 7
Prepared Testimony............................................. 9
John C. Yang, President and Executive Director, Asian Americans
Advancing Justice
Oral Testimony................................................. 77
Prepared Testimony............................................. 80
Luis Ricardo Fraga, Rev. Donald P. McNeill, C.S.C., Professor of
Transformative Latino Leadership, Joseph and Elizabeth Robbie
Professor of Political Science, Director, Institute for Latino
Studies, University of Notre Dame
Oral Testimony................................................. 102
Prepared Testimony............................................. 104
Bernard L. Fraga, Associate Professor, Department of Political
Science, Emory College of Arts and Sciences
Oral Testimony................................................. 146
Prepared Testimony............................................. 148
T. Russell Nobile, Senior Attorney, Judicial Watch, Inc.
Oral Testimony................................................. 176
Prepared Testimony............................................. 178
Bryan P. Tyson, Partner, Taylor English Duma LLP
Oral Testimony................................................. 196
Prepared Testimony............................................. 198
Franita Tolson, Vice Dean for Faculty and Academic Affairs and
Professor of Law, USC Gould School of Law
Oral Testimony................................................. 217
Prepared Testimony............................................. 220
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE RECORD
An article entitled, ``The Texas Election Bill Contains a New
Obstacle to Voting That Almost No One Is Talking About,'' Texas
Monthly, submitted by the Honorable Sylvia R. Garcia, a Member
of the Subcommittee on the Constitution, Civil Rights, and
Civil Liberties from the State of Texas for the record......... 254
QUESTIONS AND ANSWERS FOR THE RECORD
Response to questions from Thomas A. Saenz, President and General
Counsel MALDEF, submitted by the Honorable Jerrold Nadler,
Chair of the Committee on the Judiciary from the State of New
York for the record............................................ 264
THE NEED TO ENHANCE THE VOTING
RIGHTS ACT: PRACTICE-BASED COVERAGE
----------
Tuesday, July 27, 2021
U.S. House of Representatives
Subcommittee on the Constitution, Civil Rights,
and Civil Liberties
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to call, at 3:24 p.m., in Room
2141, Rayburn House Office Building, Hon. Steve Cohen [Chair of
the Subcommittee] presiding.
Members present: Representatives Nadler, Cohen, Raskin,
Ross, Johnson of Georgia, Garcia, Bush, Jackson Lee, Johnson of
Louisiana, and McClintock.
Staff present: Moh Sharma, Director of Member Services and
Outreach & Policy Advisor; Jordan Dashow, Professional Staff
Member; Ceirra Fontenot, Chief Clerk; John Williams,
Parliamentarian and Senior Counsel; Gabriel Barnett, Staff
Assistant; Merrick Nelson, Digital Director; James Park, Chief
Counsel; Will Emmons, Professional Staff Member/Legislative
Aide; Betsy Ferguson, Minority Senior Counsel; Caroline Nabity,
Minority Counsel; and Kiley Bidelman, Minority Clerk.
Mr. Cohen. The Committee on the Judiciary Subcommittee on
the Constitution, Civil Rights, and Civil Liberties will come
to order.
Without objection, the Chair is authorized to declare a
recess of the Subcommittee at any time.
I welcome everyone to today's hearing on the Need to
Enhance the Voting Rights Act Practice-Based Coverage.
Remind all Members we have established an email address and
distribution list dedicated to circulating exhibits, motions,
other written materials Members might want to offer. Like to
submit materials, send then to email that has already been
shared with you and we will distribute them to the Members and
staff as quickly as possible.
Finally, I would ask all Members and Witnesses, both those
appearing in person and those appearing virtually, remotely, to
mute your microphones when you are not speaking. This will help
prevent feedback and other technical issues. You may un-mute
yourself any time you seek recognition.
I will now recognize myself for an opening statement.
As part of the Subcommittee's longstanding efforts to
revitalize the Voting Rights Act preclearance provisions,
today's hearing will focus on known practices coverage.
Known practice coverage is also called practice-based
coverage. It is a form of preclearance coverage that applies to
certain voting law changes that have historically been
associated with racial discrimination. H.R. 4, the John R.
Lewis Voting Rights Act, from the 116th Congress contained such
a practice-based coverage formula.
Practice-based preclearance is a necessary complement to
the traditional geographic coverage formula of the Voting
Rights Act addressing a gap potentially left by the traditional
formula.
As we will hear from some of our Witnesses today, drawing
from historical evidence there's a strong relationship between
certain voting laws and policy such as strict voter
identification requirements, the consolidation or relocation of
polling locations, and changes to district or jurisdictional
boundaries, and voting discrimination based on race, color, or
language minority status.
Moreover, historical evidence demonstrates that when the
percentage of the minority racial or ethnic population of a
State or county reaches a certain tipping point, there is an
increased likelihood the jurisdiction will engage in a voting
right violation.
That is, in areas where there is an emerging minority group
that at some point grows large enough to threaten the existing
White-dominated power structure of the jurisdiction the risk is
greatly heightened that the White-dominated power structure
will respond by trying to suppress the ability of the Members
of the emerging minority group to vote, or as Machiavelli said,
``Power is not given; it's taken.''
This can be true even in jurisdictions that may not have a
long history of engaging in voting rights violations and
therefore would not be subject to preclearance under the
traditional geographic coverage formula.
I light of the lessons drawn from the foregoing historical
evidence H.R. 4 contained a practice-based preclearance formula
that account for certain practices with an historical
association with race discrimination and voting while focusing
this type of preclearance regime on those jurisdictions where
the minority voting age population may be high enough to raise
a substantial risk that the jurisdiction would engage in voting
rights violations.
Our hearings over the last two years provide an ample
record to support the conclusion that certain practices like
polling closures, redistricting that reduces minority
representation, strict voter ID requirements, and reducing the
availability of non-English language voter materials resulting
in making minority citizens worse off with respect to their
voting rights. These are among the covered practices under H.R.
4.
Practice-based preclearance has the added potential benefit
of applying to States and localities nationwide. In this way it
avoids picking and choosing a strategic set of jurisdictions to
be subject to preclearance and is responsive to the Supreme
Court's concern about ensuring the equal sovereignty of the
States that this Court expressed when striking down the VRA's
former geographic coverage formula in Shelby County v. Holder.
While a practice-based coverage formula would be novel,
Congress has broad constitutional authority to act.
The 14th and 15th Amendments give Congress explicit
legislative power to enforce voting rights and equal protection
against purposeful race discrimination. These amendments form
the basis of Congress' authority to pass the VRA, including its
preclearance provisions in the first place. The Voting Rights
Act was first challenged the first year after its enactment.
The Supreme Court in South Carolina v. Katzenbach upheld the
preclearance provision and its coverage formula holding that
congressional authority to enforce the 15th amendment as broad
and comprehensive and that implementing legislation must pass
only a test of minimum rationality. This broad understanding of
Congress' authority under the 15th amendment remains the law.
To the extent any of the covered practices affect Federal
elections, the elections clause, which confers ultimate
authority on Congress to regulate the time, place, or manner of
progression of elections further bolsters Congress' authority
to implement a practice-based preclearance regime.
The decision in Shelby County leaves undisturbed the broad
understanding of Congress' authority under the reconstruction
amendments and the elections clause to protect minority
citizens against denial or abridgement of the right to vote on
account of race, color, or language minority status. The record
that the Subcommittee has built over the last two years
continues to build with this hearing, provides ample support
for a practice-based preclearance regime.
I thank our Witnesses for being here. I look forward to
their testimony.
It is now my pleasure to recognize the Ranking Member of
the Subcommittee, the gentleman from Louisiana, Mr. Johnson,
for his opening statement.
Mr. Johnson of Louisiana. Thank you, Mr. Chair.
This is the Subcommittee's fifth hearing and as many months
regarding the Voting Rights Act. Voting rights is an important
topic, no one disputes that, but we are wondering when we will
take up other important issues under the jurisdiction of this
Subcommittee.
So, today's hearing will focus specifically on the
practice-based coverage provision in H.R. 4. I am going to put
this very simply: This overly-broad and constitutionally-
suspect Democratic proposal aims to outlaw common sense voter
integrity measures.
Under the practice-based coverage regime every State and
political subdivision would have to preclear certain election
practices including changes to voter identification
requirements and simple changes to voter registration list
maintenance processes. This is a draconian step. Let us just be
honest here, it is a clear attempt to federalize elections.
As I have noted here many times before, the election clause
of the U.S. Constitution gives State legislatures the authority
to prescribe, quote, ``the times, places, and manner of holding
elections.''
Voting is a fundamental right in the United States and the
15th amendment requires the States to ensure voting is
accessible and available to every American. Congress passed the
Voting Rights Act in 1965 to overcome State resistance and
barriers that prevented minorities from exercising their right
to vote as is guaranteed by the 15th Amendment.
This was during the Jim Crow era. As Chief Justice John
Roberts stated in Shelby County, in that opinion that we talk
about so often in here, the, quote, ``exceptional conditions at
the time justified the, quote, `extraordinary departure from
the traditional course of relations between the States and the
Federal government.' '' That was at that time.
In the same opinion the Court found the Voting Rights Act
coverage formula to be outdated finding that, quote, ``the
conditions that originally justified these measures no longer
characterize voting in the covered jurisdictions,'' unquote.
If the record today does not support a new coverage formula
it most certainly does not support the sweeping practice-based
coverage preclearance provision found in H.R. 4.
One of our Witnesses today, Mr. Russ Nobile, aptly
concluded that if a nationwide registration--if nationwide
registration disparities did not justify nationwide
preclearance coverage when the Voting Rights Act was originally
enacted, it is very difficult to see what data from today
supports imposing it now. This legislation is just another
example of a politically-motivated power grab that will enable
partisan Federal bureaucrats to control State election laws.
We will likely hear from the other side of the aisle this
practice-based coverage provision is needed because States have
come up with innovative ways to, quote, ``suppress minority
voters.'' That is all we hear about today. That is a false and
patently absurd argument.
Today it is easier for eligible Americans to vote than ever
before in our nation's history. To be clear, Republicans want
every legally-cast ballot to count, but the only way to make
sure legal votes carry the weight they deserve is to prevent
casting of illegal votes.
One common sense way for States to do this is through voter
ID laws, but under practice-based preclearance states in
political subdivisions would have to go to Biden's Justice
Department or the courts to enact a simple voter ID law.
Mandatory voter ID is an election integrity proposal that is
very popular across the Nation because it follows logic and
common sense. A recent Monmouth poll found the overwhelming
majority of Americans, 81 percent, support voter identification
laws including 62 percent of Democrats who participated in the
poll.
Furthermore, 34 States currently have some form of voter ID
law on the books, and this includes many liberal States with
provisions nearly identical to the ones Democrats are
criticizing in the State of Georgia.
H.R. 4 is wildly out of step with the facts, and the
grounds, and with public opinion, and we should be considering
ways to empower States to secure their elections rather than
subjecting them to the whims of President Biden's radical
bureaucrats.
I do thank your Witnesses for appearing today. We look
forward to your testimony. I see we have students or interns
here; we are glad you're here as well.
Thank you, Mr. Chair. I yield back.
Mr. Cohen. Thank you, Mr. Johnson.
Mr. Nadler has an opening statement, and Mr. Nadler is
coming in just a second.
While we are waiting for Mr. Nadler, could you name us some
of those bureaucrats?
Mr. Johnson of Louisiana. Yes, I can. How much time will
you yield? It's the apparatus, Mr. Chair.
Mr. Cohen. The Chair of the Full Committee, Mr. Nadler of
New York, is recognized for his opening statement.
Chair Nadler. Thank you, Mr. Chair. Mr. Chair, over the
last few years the Subcommittee has focused much of its
consideration of voting rights on the critical question of how
Congress can revitalize the Voting Rights Act's section 5,
Geographic-Based Preclearance Regime. This remains the central
challenge before us. Today's hearing gives us the opportunity
to consider how requiring practice-based preclearance could
serve as an additional means of achieving this end.
The Supreme Court's decision eight years ago in Shelby
County v. Holder gutted the Act's geographic coverage formula
which determined which jurisdictions would be subject to
preclearance. In striking it down the Court effectively
rendered the preclearance provision inoperative. As has been
documented by several of the Witnesses who have appeared
previously before the Subcommittee there remains a current need
to remedy ongoing and widespread discrimination against
minority citizens in voting.
Voter discrimination did not simply disappear with the
enactment of the Voting Rights Act. Indeed, discriminatory
voting practices evolved in response to the Voting Rights Act,
a process that has only accelerated over the past eight years
since the Shelby County decision.
Thanks to the Voting Rights Act overtly discriminatory
devices like the literacy test or poll taxes of the Jim Crow
era are now gone. In their place jurisdictions have sought to
enact less-overtly discriminatory voting practices that
nonetheless target minority voters with surgical precision.
These seemingly neutral voting practices in fact suppress
minority voters resulting in the denial of their right to an
equal opportunity to participate in the electoral process and
to elect the candidate of their choice.
The currently defunct section 5 preclearance coverage
formula is geography-based; that is, it applies to
jurisdictions with a history of voter discrimination. Updated
geographic coverage formula that applies to jurisdictions with
a documented history of voting rights violations would likely
subject to preclearance many of the jurisdictions responsible
for this new wave of voter suppression laws. As we will hear
from our Witnesses today this may not be enough to remedy the
discrimination endemic to this new age of voter suppression
brought on by the Shelby County decision.
As our Witnesses will describe many jurisdictions with
significant emerging minority populations do not have a
documented history of voting rights violations, yet these
jurisdictions engage in certain specific practices with a
proven historical association with discrimination such as
changing their electoral systems from single-member districts
to at-large elections to limit the growing political influence
of minority voters.
One drawback of the history-based geographic formula is
that it would not subject jurisdictions like these to
preclearance even though these specific practices result in
discrimination against minority voters. A practice-based
preclearance regime could address this gap in coverage by
subjecting any jurisdiction that engaging in these specific
practices to preclearance nationwide.
Indeed, I would note that H.R. 4, the aptly-named John R.
Lewis Voting Rights Act, which passed the House last Congress,
contains both geography-based and practices-based coverage
formulas.
I would also point out that such a practice-based
preclearance regime would be in keeping with the Supreme
Court's reasoning in Shelby County which struck down the
current coverage formula party because in the Court's view the
old coverage formula did not sufficiently justify the VRA's
unequal treatment of the States. A practice-based coverage
regime would avoid that constitutional concern by treating
every jurisdiction equally nationwide.
Moreover, as our Witnesses today will testify, even under
the Court's decision in Shelby County Congress still retains
broad authority under the 14th and 15th Amendments, as well as
the often overlooked elections clause to pass a preclearance
regime that reflects current conditions.
As we consider ways to reinvigorate the Voting Rights Act
it is important to remember that the VRA reflects Congress'
recognition that voting discrimination presents a unique harm
that requires a powerful remedy. Decades of history since the
Reconstruction era has taught us that despite our nation's
progress threats to minority voting rights remain ever-present.
The VRA's purpose has always been to thwart these
constantly-evolving threats to the right to vote and Congress
has amended the VRA on several occasions in the decades since
its enactment to further adapt it to that purpose.
The current attack on voting rights demands that Congress
again take action to ensure that the Voting Rights Act
continues to protect every American's right to vote.
I thank Chair Cohen for holding today's hearing as it is
another step toward that important goal. I look forward to the
testimony from our Witnesses and I yield back the balance of my
time.
Mr. Cohen. Thank you, Mr. Nadler.
Mr. Jordan does not have a statement, so we'll go the
Witnesses. We welcome our Witnesses and thank them for
participating in today's hearing.
I will now introduce each of the Witnesses and after each
introduction will recognize that Witness for his or her oral
testimony. Please note that each of your written statements
will be entered into the record in its entirety. Summary your
testimony in five minutes. Most of you know the lights: The
green, the yellow. You have all been with us before; you are
veterans. To help stay within limits you have got your lights.
For our Witnesses testifying remotely there is a timer in the
Zoom view that should be visible on your screen.
Before proceeding to testimony, I remind you to tell the
truth, nothing but the truth, the whole truth. If you don't
tell the truth, then you are in big trouble. If you give a
false statement, you could be subject to prosecution under
section 1001 of title 18 of the United States Code, so be sure
and tell the truth.
Our first Witness is Mr. Thomas Saenz. Mr. Saenz is the
President and General Counsel of the Mexican-American Legal
Defense and Education Fund, otherwise known as MALDEF, a
position he has held since August 2009.
Prior to that he served as counsel for then-Los Angeles
Mayor Antonio Villaraigosa.
Prior to that Mr. Saenz was a litigator for MALDEF for 12
years, and for 8 years he taught civil rights litigation as an
adjunct lecturer at University of Southern California Law
School.
He achieved his J.D. degree with honors from Yale,
undergraduate degree summa cum laude from Yale, later served as
a law clerk to the Honorable Harry Hupp of the U.S. District
Court of the Central District of California, the Honorable
Steven Reinhardt of the 9th Circuit in California.
I believe you were with us in Houston. Were you at Houston
with us?
Mr. Saenz. No.
Mr. Cohen. It was somebody else from MALDEF then. You have
been with us before. You are now recognized for five minutes.
STATEMENT OF THOMAS SAENZ
Mr. Saenz. Thank you, Mr. Chair, Ranking Member, Members of
the Committee. I am the President and General Counsel of
MALDEF. Throughout MALDEF's 53-year history we have engaged in
litigation on behalf of voting rights. Since 1975 that
litigation has primarily been under the Voting Rights Act,
since in 1975 it was extended to protect the Latino community
throughout the United States.
Based on that long experience, protecting the voting rights
of Latinos in the country, I can tell you that practice-based
coverage is a much needed, essential complement to geographic
coverage particularly for the Latino community given our
ongoing and projected growth.
Practice-based coverage is a complement. As you've stated,
Mr. Chair, to the geographic formula each of them performs a
different but essential role in ensuring that nationwide we can
guarantee that voting rights are protected from intentional
suppression and from suppression that has discriminatory
effects. Each of them plays a role by ensuring that we are
nationwide guaranteeing the right to vote provided in the 14th
and 15th Amendment.
Practice-based coverage is essential to the Latino
community because of our ongoing growth and dispersion
throughout the country. The simple fact is that section 2
litigation under the Voting Rights Act, whether it's engaged by
the Department of Justice or by private parties, is incredibly
costly and time-consuming.
The very name of the applicable court test, totality of the
circumstances, gives a sense of how costly and time-consuming
such litigation can be. If we were left with section 2 as the
only or primary means of addressing vote suppression in this
country, we would fail as a Nation in guaranteeing the voting
rights under our constitution. This is why we must supplement
section 2 litigation with preclearance.
Preclearance has been justly recognized as the most
powerful civil rights enforcement tool in our history, but it
should also be recognized as an early and important form of
alternative dispute resolution incorporated in Federal law.
Like all good ADR, it saves time and money.
I should note that the primary benefit of those savings has
been to cover jurisdictions themselves because if those
jurisdictions faced successful section 2 litigation, they would
not only have to absorb their own costs of defense because of
cost shifting and fee shifting; they would have to absorb the
costs of the plaintiffs as well. That means that the primary
savings from preclearance has and will continue to pertain to
the covered jurisdictions themselves.
Preclearance as ADR means that it can be invoked to address
significant threats to voting rights across the country. You
described it as a tipping point, Mr. Chair, and that is what
the Latino community faces today and in the future. As our
community grows, we will reach critical mass in jurisdiction
after jurisdiction across the country, hundreds of them at a
time.
Now, many of those jurisdictions will react appropriately
to the growth in the Latino population and not take steps to
suppress votes, but too many of them will perceive a threat to
those currently in power by the growth of the Latino community
and will engage in vote suppression measures. We have to as a
Nation be able to address those threats effectively.
We cannot address so many threats across the country with a
growing Latino community reaching that tipping point in
hundreds of jurisdictions successfully if section 2 is the only
tool available. That is why preclearance is essential as we
face this future where not just the Latino community, but other
communities reach critical mass and are perceived as a threat
in jurisdiction after jurisdiction.
The fact is that the ADR preclearance ensures that we can
as a Nation effectively not just prevent this vote suppression
from occurring, but provide a clear message to other
jurisdictions that it is not worth their taking a gamble of
engaging in vote suppression hoping that they won't be targeted
for litigation under section 2. The availability of
preclearance ensures that they will understand that's not a
gamble worth taking, so it will also deter vote suppression in
other circumstances.
In closing, I assert what I have said publicly about this
all along: Geographic coverage and practice-based coverage go
together. If you want to address successfully vote suppressors
across the country and prevent them from engaging in vote
suppression you have to target not just the serial vote
suppressors as a geographic coverage formula does, those with
an established history of voting rights violations, but also
the copycat vote suppressors, those new jurisdictions that have
crossed that tipping point and react to that tipping point by
engaging in vote suppression measures long-established in other
jurisdictions to violate voting rights. Thank you.
[The statement of Mr. Saenz follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir.
Our next Witness is Mr. John. C. Yang. Mr. Yang is
President and Executive Director of Asian Americans Advancing
Justice, otherwise known as AAJC, which seeks to advance to the
civil and human rights of Asian Americans and to build and
promote a fair and equitable society for all through policy
advocacy, education, and litigation.
He is a long-time leader in the Asian American Pacific
Islander community, having founded the Asian Pacific American
Legal Resource Center in 1997 and served as President of the
National Asian Pacific American Bar Association. Also, served
in the Obama Administration as a senior advisor for trade and
strategic initiatives at the Commerce Department. Earlier this
year he testified before this Subcommittee at our hearing on
anti-Asian Discrimination and Violence and that ended up
helping produce good legislation.
We thank you.
Mr. Yang received his J.D. with honors from GW Law School
here. He served as editor of the George Washington Law Review
and is a Member of the Moot Court Board. He received his B.A.
from Washington University in St. Louis, Missouri.
Mr. Yang, you are recognized for five minutes.
STATEMENT OF JOHN YANG
Mr. Yang. Thank you, Mr. Chair Cohen.
Thank you, Ranking Member Johnson, as well as the other
Members of this Subcommittee.
My name is John Yang. I'm the President and executive
director of Asian Americans Advancing Justice, AAJC. The
mission of our organization is to advance the civil and human
rights of Asian Americans and to promote a fair and equitable
society for all.
I appreciate this opportunity to testify before you on this
issue of importance to Asian Americans. Practice-based
preclearance in conjunction with the restored coverage formula
is critical to modernizing the Voting Rights Act to reflect the
emerging political voice of the Asian American voters.
In targeting those practices that have been used throughout
history to silence the political voice of minority communities
just when they are beginning to reach critical mass and when
they could begin to impact the outcome of elections practice-
based preclearance will ensure that the practice being proposed
is not discriminatory and harmful to the minority community.
These issues have special relevance for the Asian American
community. According to the 2010 census Asian Americans are the
nation's fastest growing community with a growth rate of 46
percent between 2000 and 2010. At that time, we number about
17.3 million Asian Americans in the United States. Now, after
the 2020 sentence--census we are approximately 23 million of
the American population.
While the Asian American population has increased
exponentially in the last 50 years, our community also has been
part of the American fabric for centuries, whether as railroad
workers and building the transcontinental railroad, whether as
Japanese American soldiers in the most decorated World War II
U.S. combat regiment, whether it is working on farms or on the
front line as health care workers during COVID-19.
Nevertheless, Asian Americans are still perceived as
outsiders, foreigners, and aliens. Indeed, we have seen this
exponential rise in anti-Asian hate over the last 18 months
because of the scapegoating of Asian Americans as foreign,
disease-carrying, and somehow a threat to America.
Because of this view of Asian Americans as the foreigner we
have been denied rights held by U.S. citizens including the
ability to vote for most of the country's existence until
significant changes were made in 1940s and then with the
culmination of the Immigration and Nationality Act of 1965.
Prior to such reforms Asian Americans were excluded from civic
participation often driven by that fear of the other and the
potential threat to the political livelihood of those in power.
This is not only a problem with the past, but it is one
that rears its ugly head in the present day and one that is
poised to become even bigger because of the demographic shifts
that I have mentioned above.
Asian Americans are becoming more politically visible, more
politically viable in new jurisdictions throughout the country
including in unlikely places such as North Carolina, Georgia,
Nevada, and Arizona.
With this growth is an increase in racial abuse against
Asian American candidates and efforts to erect barriers to the
ballot for Asian American voters. For example, during a 2009
Texas State House of Representative hearing a legislator
suggested that Asian American voters adopt names that are
easier for Americans to deal with to avoid difficulties imposed
on them by voter identification laws. This statement among
other things cast Asian Americans apart from other Americans
simply because of names that may sound foreign to those
individuals.
Similarly, in a 2004 primary election in Alabama supports
of a White incumbent facing a Vietnamese American opponent
challenged the eligibility of only Asian Americans at the polls
by falsely accusing them of not being U.S. citizens or city
residents or having felony convictions. The losing incumbent's
rationale was if they couldn't speak good English, they
possibly weren't American citizens. DOJ's investigation found
the challenged racially-motivated and prohibited interference
from the challengers during the general election.
As the testimony from others demonstrate today practice-
based preclearance focuses on those practices that have been
shown to be used to silence the political voice of a growing
and emerging community of color. These practices include voter
identification laws, withdrawal of multilingual support, and
the reduction of polling places.
The U.S. Census Bureau forecasts that while the number of
Asian American immigrants will grow between now and 2040 the
proportion of Asian Americans who are immigrants will decrease
and there will be a very high naturalization rate of--and an
increase in U.S-born Asian Americans in the coming years.
Voter participation rates in the Asian American community
is growing steadily and very quickly, and indeed its political
visibility will only increase. It is precisely for these
reasons that restoring and strengthening the Voting Rights Act
is a top priority for our organization. Thank you very much.
[The statement of Mr. Yang follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Yang. What State was that said
that--the question about if you can't speak English you
shouldn't be able to--good English you shouldn't be able to
vote?
Mr. Yang. That was in Alabama that they used those terms.
Mr. Cohen. Oh, wow.
Mr. Yang. Good English.
Mr. Cohen. That's kind of ironic.
Our next Witness is Mrs. Luis--well, we are on--I guess we
are going to the remote, is that right?
Our next Witness is Luis Fraga. He is the Reverend Donald
P. McNeill Professor of Transformative Latino Leadership,
Joseph and Elizabeth Robbie Professor of Political Science,
Director of the Institute for Latino Studies and fellow with
the Institute for Educational Initiatives at the University of
Notre Dame.
His primary interests are in American politics where he
specializes in Latino politics, voting rights, immigration, and
education. He has published 6 books, 40 articles in scholarly
journals and edited volumes. His most recently co-edited book
is Latinos and the 2016 Election: Latino Resistance in the
Election of Donald Trump, published in 2020. Prior to teaching
at Notre Dame, he taught at Stanford for 16 years.
Professor Fraga received his Ph.D. and M.A. from Rice and
his A.B. cum laude from Harvard.
Professor Fraga, you are recognized for five minutes.
You need to turn on your--we cannot hear you.
STATEMENT OF LUIS RICARDO FRAGA
Mr. Luis Fraga. Maybe if I turn on microphone, that will
work.
Mr. Cohen. That always works.
Mr. Luis Fraga. Thank you, Mr. Chair, Ranking Member of the
Committee, and other Members of the Committee.
There is a long history of voter suppression, including
vote dilution and voter disenfranchisement, in the history of
the United States. At times, there were specific groups that
were the targets of these efforts, including immigrants,
African Americans, Latinos, Asian Americans, Native Americans,
other language minorities, and women. Other times, such
targeting occurred behind the required payment of property
taxes, poll taxes, literacy tests, or convictions for a felony.
What is significant about these efforts is that they were
in almost every instance enacted by efforts designed to
maintain groups in power by excluding others. Those groups were
most often White males.
It is also important to understand that, when successful
efforts were pursued to fully enfranchise a previously excluded
group, those who perceived themselves to have lost or who now
had to share power often worked actively to reverse that
enfranchisement. Success, in other words, has rarely been
maintained. Retrenchment and reaction have often led to
backsliding that required even greater efforts to overcome
policies and practices of dilution and disenfranchisement.
In the report that I submitted to the Committee I discuss a
history of the presence of efforts at voter suppression, with a
special emphasis on both dilution and disenfranchisement in the
history of the United States. This is done to provide
analytical background to more comprehensively understand the
continuing need for governments--national, State, and local--to
actively work to overcome laws, policies, and practices that
suppress voters' capacities to cast a meaningful vote and to
cast a vote at all.
This history can also be used to understand that current
efforts that lead to voter suppression build, and often
replicate, what has been done in the nation's past. One can say
that historical legacy may, in fact, not be a legacy of the
past, but, rather, a current manifestation of that past legacy.
It is also the case that judicial endorsement of the
expansion of voting rights has been uneven and oftentimes not
long-lasting. For example, the Supreme Court in Shaw v. Reno in
1993 and Shelby County v. Holder in 2013 changed Court
precedent most recently.
What is learned from the history of the United States is
that, without a clear, strong commitment on the part of the
Federal government, one cannot depend on State and local
jurisdictions to protect the voting rights of racial, ethnic,
language minority, and other historically marginalized voters.
This history must be remembered, as Congress considers
amending section 4 of the Voting Rights Act, to focus on
practices that lead to disenfranchisement and vote dilution
throughout the country. Such practices, as we know, can be
overt as well as subtle. Whatever clarity can be provided by
the rewriting of section 4 will work to enhance the likelihood
that all voters will have an equal chance to vote and to cast a
meaningful vote. Only then will one of the most fundamental
ideals of American democracy have the chance to be realized.
Thank you, Mr. Chair.
[The statement of Mr. Luis Fraga follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Professor. Is it Fraga?
Mr. Luis Fraga. Fraga, yes.
Mr. Cohen. Yes, I got it right this time. Thank you.
Mr. Luis Fraga. You are very welcome.
Mr. Cohen. Sorry about the first time.
Is our next Witness related to you, Professor Fraga?
Mr. Luis Fraga. He is my son.
Mr. Cohen. Good work.
Our next Witness is Bernard Fraga, Associate Professor of
political science at Emory University. His research interests
are in the areas of American electoral politics, racial/ethnic
politics, and political behavior. Broadly, he studies how group
identities in the electoral context impact individual political
behavior. His methodology tends towards the statistical
analysis of observational data, associated voter registration
records, and election results. He also conducts research on
election law and electoral institutions in the United States.
He teaches graduate and undergraduate courses on American
elections, racial/ethnic politics in the United States, and
political science research methods. Professor Fraga received
his PhD and MA--it says here, ``AM''; I guess they called it an
``AM'' instead of an ``MA''--from Harvard University and his BA
from Stanford University.
Professor, you win ``the good son'' award. You are
recognized for 5 minutes.
STATEMENT OF BERNARD L. FRAGA
Mr. Bernard Fraga. Thank you so much, Chair Cohen and
Ranking Member Johnson, and other distinguished Members of the
Vommittee. It is an honor to testify before you today.
My name is Bernard Fraga, and I am an associate professor
of political science at Emory University in Atlanta, Georgia.
I was asked to provide testimony regarding the need to
enhance the Voting Rights Act via election-practice-based
coverage. My peer-reviewed research focuses on the quantitative
analysis of elections in the United States, including the
assessment of racial, ethnic, and other demographic differences
in voter turnout, office-seeking, and election outcomes in both
contemporary and historical contexts.
Now, when I teach my graduate and undergraduate students
about American elections, one of the first things that I note
is that State and local election laws, and, in particular, the
presence or absence of Federal oversight of such laws, can have
a dramatic impact on whose voices are heard in American
democracy.
Nothing indicates the important role the Federal
government, especially Congress, can play in enhancing our
electoral process better than the Voting Rights Act of 1965.
However, a powerful tool of the Act for combating efforts to
restrict the right to vote was rendered inactive after the
Shelby County v. Holder decision in 2013. In that decision, the
preclearance provisions of the Voting Rights Act were ruled
inoperable because the coverage formula was deemed
unconstitutional. Chief Justice Roberts noted that, while,
quote, ``voting discrimination still exists, no one doubts
that,'' unquote, Congress needed to, quote, ``draft another
formula based on current conditions.''
Now, in preparation for today's testimony, and with an eye
towards drafting such a formula, I analyzed historical,
theoretical, and empirical evidence regarding where and when
voting rights violations were most likely to occur. This
included using a database of thousands of voting rights laws
nationwide and detailed demographic data on States and counties
over the past four decades.
In my analysis, I found the following:
First, historical evidence clearly indicates that in States
and counties with a larger minority population percentage,
efforts to limit the electoral participation of racial/ethnic
minority citizens are substantial and persist, absent Federal
intervention. This is true even when looking within the Deep
South during the height of Jim Crow. Counties with a larger
Black population were the last holdouts to allowing Black
citizens to register, as we saw in dramatic fashion on Bloody
Sunday. I found a similar pattern in heavily Latino and Native
American areas of the Southwest. This is exactly why the Voting
Rights Act was so important and remains so important today.
Second, since passage of the Voting Rights Act, suits
alleging violations of minority voting rights are more common
in States and counties with sizable racial/ethnic minority
populations, as compared to States or counties with smaller
minority population shares. Just to give you a sense of the
numbers here, roughly two-thirds of counties where a minority
group makes up more than 20 percent of the voting-age
population have had at least one voting rights-related lawsuit
filed against them since 1982. This is about four times the
rate we see in counties with a smaller minority population
share.
Finally, when combined with a practice-based approach to
preclearance, limiting this preclearance to areas where at
least two racial/ethnic groups make up 20 percent or more of
the States' or counties' population balances the tradeoff
between protecting rights, on the one hand, and creating
additional requirements for election officials, on the other
hand. Jurisdictions meeting this population criteria are more
likely than not to have had at least one violation of voting
rights in recent decades.
In my professional opinion, therefore, this population-
limited approach to practice-based preclearance would ensure
the most just and most efficient allocation of Federal legal
resources possible to protect voting rights. This formula would
also meet Chief Justice Roberts's call for a formula imposing
current burdens based on current needs and current conditions.
In closing, I urge the Committee to reinvigorate the Voting
Rights Act and renew the promise of voting rights for all
Americans. Thank you very much, and I look forward to your
questions.
[The statement of Mr. Bernard Fraga follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. You are welcome, Professor.
Our next Witness is Mr. T. Russell Nobile--is that correct?
Nobile. Mr. Nobile is a senior attorney with Judicial Watch,
Inc. From 2005-2012, he served as a trial attorney in the Civil
Rights Division of the U.S. Department of Justice, including
five years in the Division's Voting Section. He also previously
was the legislative assistant for a Member of the House
Financial Services Committee. Mr. Nobile received his JD from
Mississippi College School of Law and his BA from the
University of Mississippi. He served as a law clerk in the
Supreme Court of Mississippi.
You are recognized for 5 minutes, sir.
STATEMENT OF T. RUSSELL NOBILE
Mr. Nobile. Thank you. Good afternoon, Chair Cohen and
Ranking Member Johnson, and other Members of the Subcommittee.
Thank you for having me here today to testify.
H.R. 4 includes two separate preclearance coverage
provisions, each requiring separate and independent
justifications. That is, H.R. 4's practice-based coverage
cannot rest on the same generalized showings that will be
assembled in support of H.R. 4's new section 5 geographic
coverage formula. One needed showing in that will be that the
current racial disparities in voting are materially worse than
those from 1965 and that such disparities justify a new
practice-based coverage. This will be a difficult task.
A future review by the Supreme Court will focus on minority
ballot access and whether the DOJ can effectively combat
discrimination in 2021 via litigation. Current data shows that
racial disparities in voting have been dramatically reduced or
eliminated in many States across the country. Considering that
Black registration and turnout exceeds White in some section 5
jurisdictions, proponents will have a difficult time showing
that 2021 disparities necessitate a 1965 remedy.
The argument that H.R. 4 conserves DOJ resources fairs no
better. DOJ's own data shows that most of the practices covered
by H.R. 4 have only led to 14 lawsuits in the last 10 years,
hardly a rate that strains Department resources.
Many reports circulating in support of H.R. 4 includes
inflated enforcement statistics that often lump together counts
of private enforcement actions as proof of rampant
discrimination, but the Supreme Court does not view private
suits the same as it does DOJ suits. In general, private
discrimination lawsuits are a poor measure for determining the
amount of discrimination occurring and can be misleading.
The problem for H.R. 4 proponents is clear. Despite
relentless claims of suppression by the media and academia, the
data shows that minority registration and turnout continue to
improve, in many instances eliminating meaningful disparities
in many States. This undeniable trend has led to shifting voter
suppression narratives over the last year, showing that H.R. 4
proponents are still searching for a theory to explain their
opposition to State laws they simply just don't like. H.R. 4 is
a remedy in search of a problem.
Just in the last three months, there has been dramatic
shifts, and they have been significant. For example, shortly
after a public poll showed that 80 percent of Americans support
voter ID, the Majority Whip publicly stated that he has always
supported voter ID. This is obviously a paradigm shift to
anyone that follows election law policy.
Another recent shift involves the Postal Service. For the
last 10-plus years, there has been a public campaign to promote
in States vote-by-mail electoral systems, despite obvious
security risk. The primary argument in support of these systems
is that the use of the Postal Service will increase franchise.
Yet, just three weeks ago, in her Brnovich dissent, Justice
Kagan found that requiring Native American voters to use the
Postal Service could lead to disenfranchisement.
A third shift also comes out of Arizona. During last
November's election, many ignored or mocked concerns about
ballot chain of custody and the handling of uncounted ballots
during the Georgia certification process. Yet, just last month,
the DOJ wrote to Arizona alleging that improper handling and
inadequate chain-of-custody controls of already counted ballots
in the audit potentially would intimidate voters.
There are a lot of reports being circulated to explain
voter suppression in 2021, but the world did not need 10,000-
word reports to explain Jim Crow suppression in 1965. Everyone
in this hearing, I believe, knows what Jim Crow involved. It
was state-sponsored oppression of its citizens, and in several
instances much worse. For that reason, it is mystifying that
some smear reasonable, common-sense election regulations as Jim
Crow 2.0. Such glib comments suggest that speakers neither
understand Jim Crow 1.0, nor election regulations. Jim Crow is
not a brand; it is not a software update. It is a dark period
in our history that is invoked often to inflame passions.
Efforts to label common-sense election integrity
regulations as Jim Crow suggests that some see they are losing
the rhetorical battles on election regulation. Ballot access
data provides clear hope. Despite relentless voter suppression
claims over the last 15 years, minority registration and
turnout has continued to increase while racial disparities have
dramatically decreased.
Thank you very much for inviting me to testify, and I will
look forward to answering your questions.
[The statement of Mr. Nobile follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, sir.
Our next Witness is Mr. Bryan Tyson. Mr. Tyson is a partner
in the law firm of Taylor English Duma in Atlanta, Georgia. He
primarily represents governments, candidates, and companies in
election and campaign finance matters. He previously advised
the Georgia General Assembly during its 2011 redistricting
process and was appointed as Special Assistant Attorney General
to assist in securing Federal approval of all three
redistricting plans adopted by the legislature during that
special session. He also previously served as Policy Aide to
former Congressman Lynn Westmoreland of Georgia. He received
his JD magna cum laude from Oak Brook College of Law.
Mr. Tyson, you are recognized for 5 minutes.
STATEMENT OF BRYAN P. TYSON
Mr. Tyson. Thank you, Mr. Chair, Ranking Member Johnson,
Members of the Committee. It is a privilege to be with you
today to discuss the provisions of practice-based coverage.
I don't come to this as an academic; I come to this as a
practitioner. I have worked both as an expert and a litigator
in redistricting, election Administration, and Voting Rights
Act cases for right at 20 years. So, what I wanted to do today
is share with you a practitioner's perspective on these
practice-based components of preclearance and identify several
issues for you.
I have to give the disclaimer as well that, although I and
my law firm represent a number of governmental clients in
Voting Rights Act and election litigation, I am speaking today
in my personal capacity, based on my perspective and experience
and not on behalf of a client.
So, first, I think we all recognize that the Voting Rights
Act of 1965 is one of the most significant pieces of
legislation enacted by Congress to secure the voting rights of
minority voters across the country, and without the Voting
Rights Act and the kind of special provisions that were
included for a special time in our nation's history, a very
dark time in our nation's history, we might not have ever
effectively protected the right to vote for minority voters.
So, the question today for the Committee, and what you are
looking at, is whether and what additional protections are
needed beyond what still remains in force of the Voting Rights
Act. After Shelby County, the Voting Rights Act retained
significant force. Jurisdictions that engage in intentional
racial discrimination can be brought, under the preclearance
regime under section 3, by a court. Jurisdictions that reduce
or dilute minority voting strength in violation of section 2
face litigation with a strong incentive for plaintiffs that was
referenced earlier--full recovery of attorney and expert fees.
Those of us in Georgia have seen there is no shortage of
individuals and groups who are willing to litigate about
election Administrations, especially in our State.
In contrast, what we have in H.R. 4's practice-based
coverage is the idea that elections should be federalized by
injecting the Federal government into these intensely local
questions of election Administration because it covers
practices that are extremely broad.
So, in my prepared remarks, I reference the difficulties
and burdens around the preclearance process. I think, again, as
the Committee considers placing the types of obligations on
jurisdictions, the burden and difficulty of submitting for
preclearance is a major factor in that.
For the specific practices the Committee is considering,
both the redistricting and the jurisdictional boundary
practices take particular racial numbers at which preclearance
is required, but, again, these are areas where section 2 more
than addresses that need. That is especially true when the
redistricting section is written in such a way that it is not
nearly tailored at all; it is extremely broad in terms of which
jurisdictions it will capture--almost every redistricting
undertaken by most jurisdictions in the country.
Then, there are several practices in the proposed
legislation that are singled out with an apparent partisan
lens. For example, the documentation or qualifications to vote
has no racial category limitation. So, any provision adding
photo ID, for example, is covered, despite the fact--this was
referenced earlier--that large majorities of voters of all
races and political parties support photo identification laws.
Changes to list maintenance are similar. List maintenance
is required by Federal law. So, this legislation is,
apparently, seeking to freeze in place whatever a State is
currently doing in its list maintenance process. We litigated
list maintenance in Georgia--challenges under both the NVRA and
challenges under the constitutional burden on the right to
vote. Our process in Georgia was upheld in those challenges.
There is no reason to think that similar challenges to list
maintenance would need an extraordinary burden of preclearance
and couldn't be handled through the normal course of
litigation.
Finally, the provisions for changing voting locations and
opportunities to vote is incredibly broad. Decisions about
voting locations and voting hours in Georgia are charged
primarily to local election officials. State officials play no
role in those decisions.
These types of limitations would also capture a lot of
innocent conduct. Counties sometimes close polling places
because of budget considerations or disability access issues.
This would subject those types of decisions to preclearance.
The continued increases in early voting that we see across the
country, likewise, reduce the strain on election day polling
sites and mitigate the need to have kind of a case-by-case
review of these.
So, protecting voting rights is critically important, but
H.R. 4, as it currently has the practice-based provisions, will
ultimately undermine the purposes of the Voting Rights Act. It
includes a number of provisions that will adversely affect the
ability of States and local jurisdictions to effectively
operate elections, codifies this Federal takeover of elections,
and opens the door to the partisan use of the preclearance
process, instead of protecting voting rights.
So, as we will discuss, existing law covers the areas that
are covered by the practice-based coverage components of the
bill, and there are not extraordinary circumstances which
require this massive Federal intervention.
I look forward to answering your questions and appreciate
the time today. Thank you.
[The statement of Mr. Tyson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Mr. Tyson.
Our final Witness is Franita Tolson. She is Vice Dean for
Faculty and Academic Affairs and Professor of Law at the
University of Southern California Gould School of Law, where
she teaches a course on con law and election law. She has
written on a wide range of topics, including partisan
gerrymandering, campaign finance reform, the Elections Clause
of the Voting Rights Act of 1965, and the 14th and 15th
Amendments. Her research also has appeared in leading law
reviews, including Boston University Law Review, the Vanderbilt
Law Review, the Alabama Law Review, the Notre Dame Law Review,
and not in the top 15 of football schools, the University of
Pennsylvania Law Review Online. Professor Tolson received her
JD from the University of Chicago Law School, where she served
as a member of the University of Chicago Law Review. She has a
BA cum laude from Truman State University. She served as law
clerk for the Honorable Ann Claire Williams of the United
States Court of Appeals for the 7th Circuit and the Honorable
Ruben Castillo of the Northern District of Illinois.
Professor Tolson, you are recognized for 5 minutes.
STATEMENT OF FRANITA TOLSON
Ms. Tolson. Thank you, Chair Cohen. To the Chair and
Ranking Member Johnson, as well as the distinguished Members of
the Subcommittee, thank you for the opportunity to appear and
speak about the practice-based coverage provision of H.R. 4.
It is beyond dispute that voting rights are under assault,
and this provision is a necessary step towards restoring the
protections of the Voting Rights Act. The Supreme Court's
decision in Shelby County v. Holder hobbled the preclearance
regime that would have prevented a number of States from
passing these new voting restrictions by requiring them to
submit these changes to the Federal government for approval
before they could take effect. Importantly, the Shelby County
decision tried to paint pervasive voting discrimination as a
relic of time long past, ignoring that legislators often fall
back on certain practices to diminish the political power of
minority communities.
By singling out certain electoral schemes that
disenfranchise and/or minimize minority political power,
practice-based preclearance updates the provisions that would
trigger Federal oversight of State electoral systems--from the
long-eradicated practices like the polls tax and literacy
tests, heavily criticized by the Shelby County Court, to
techniques that have been consistently used, and importantly,
are still being used by States to disenfranchise minority
voters. Shelby County notwithstanding, Congress retains
substantial authority under the 14th and 15th Amendments, as
well as the Elections Clause, to pass the practice-based
preclearance provision of H.R. 4.
Notably, the Shelby County Court enabled the 14th and 16th
Amendments to require Congress to establish a pattern of
intentionally discriminatory action on the part of the States
as a prerequisite for reauthorizing the original coverage
formula of section 4(b). This view misrepresents prior case
law.
Initially, the Supreme Court broadly interpreted Congress'
power to enforce the 15th amendment in both South Carolina v.
Katzenbach and City of Rome v. United States, which rejected
the argument that Congress' enforcement power under the 15th
amendment was limited to remedying only intentional racial
discrimination, and read that authority to be as broad as the
necessary and proper clause of article I.
Similar to the 15th Amendment, the Court had also described
Congress' enforcement power under section 5 of the 14th
amendment as broader than the judicial power to define the
substantive scope of section 1 of the Amendment, but the Court
narrowed this authority in a case called City of Boerne v.
Flores. According to City of Boerne, Congress' enforcement
power is limited to remedial fixes and does not include the
ability to make substantive changes to the scope of the 14th
Amendment.
There are two important takeaways from City of Boerne as it
pertains to Congress' authority to protect the right to vote
under the 14th and 15th Amendments.
First, Shelby County never determined whether City of
Boerne's rationale also applies to the 15th Amendment, leaving
in place Congress' broad authority to enforce that provision as
articulated in City of Rome and Katzenbach.
Second, while the Court's decision in City of Boerne
sharply circumscribed Congress' ability to enforce the 14th
Amendment, it remains true after the decision that intentional
discrimination is not a necessary prerequisite to a 14th
amendment violation. In Harper v. Virginia State Board of
Elections, the Court held that the equal protection clause of
the 14th amendment protects a fundamental right to vote that is
distinct from the 15th Amendment's provision on racial
discrimination in voting. The 14th amendment separately
authorizes Congress to target practices, either discriminatory
or non-discriminatory, that undermine the fundamental right to
vote in local, State, and Federal elections.
Congress also has broad authority to enact practice-based
preclearance pursuit to the Elections Clause, which empowers
States to choose the time, places, and manner of Federal
elections, but, importantly, reserves to Congress the power to
make or alter State electoral schemes. The Court, in assessing
the constitutionality of the coverage formula of section 4(b)
in Shelby County, ignored how the Elections Clause, as a
potential source of authority for the Voting Rights Act,
mitigated the federalism concerns raised by the statute. Under
the clause, Congress has the authority to alter State law,
where appropriate; make law completely independent of the
State's legal regime and commandeer State officials to
implement Federal law. This structure permits Congress to enact
the complete code for Federal elections, which is an invaluable
source of authority, particularly if States have jeopardized
the health and vitality of Federal elections in some way.
Indeed, the practice-based preclearance provision isolates
those practices that States have historically used to abridge
or deny the right to vote, and it does so without singling out
any particular jurisdiction or geographic area. Congress' power
under the 14th and 15th Amendments, as well as the Elections
Clause, provides sufficient authorization for H.R. 4 because
those provisions empower Congress to enact legislation seeking
to prevent local, State, and Federal election regulations that
abridge or deny the right to vote or that have a racially
discriminatory impact.
Thank you. I welcome your questions.
[The statement of Ms. Tolson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. Thank you, Ms. Tolson.
We now go to the question period of 5 minutes each to ask
questions, and I will recognize myself for 5 minutes.
Let me start with Mr. Yank. You have read Shelby v. Holder
and you have read the more recent case with Brnovich. What
would you advise this Committee to do to come up with a law, a
voting rights amendment, that will withstand a Supreme Court
challenge?
Mr. Yang. Well, certainly, by holding these hearings is
very important to establish the record of discrimination, of
the need for the known practices coverage that we are talking
about here today.
One thing that I would also offer is that the question here
is not whether there is less discrimination than when the
Voting Rights Act was passed in 1965, but whether there is
discrimination that still needs to be addressed. Again, that is
why the need for an extensive record, the hearings that you are
holding, is relevant to what we are doing today.
Mr. Cohen. The hearings, obviously, and we need to have a
record. Do you think there is any geographic designations that
we could come up with that would satisfy the Justices?
Mr. Yang. I think I would actually defer to Mr. Saenz to
talk a little bit more in-depth about that, but certainly--
Mr. Cohen. He is nodding. So, we obviously want to respond.
Mr. Yang. Right. That is right.
But, certainly, we can. I think this is also where it is
important to have what we have been talking about in terms of
complementary coverage with both the preclearance, the no
practices coverage, as long as the geographic coverage.
Mr. Cohen. Professor?
Mr. Saenz. Yes, I think you can come up with a geographic
coverage formula that would pass muster. The Shelby County
majority, as you know, expressed concerns about equal
sovereignty and about federalism, and they expressed concerns
that the coverage formula that had existed for so long when the
case came to them did not reflect current conditions. I think
it is clear, if you have a formula, a geographic formula, that
is based on adjudications of voting rights violations in that
specific jurisdiction, that is a reflection of current
conditions. It is also the kind of violation, as we see with
section 3, where a court can order bail in. It is also the kind
of violation that warrants the intrusion on federalism that the
majority was concerned about in Shelby County, and it is also
respectful of equal sovereignty because every State that
engages in the number of violations provided in the legislation
that you enact would be subject to preclearance, whether they
are in any region of the country.
Mr. Cohen. Thank you.
Professor Tolson, Congress, as a matter of longstanding
constitutional interpretation, should have broad authorities to
assure all Americans are guaranteed equal opportunity to vote
free from discrimination in all ways. We have seen a number of
decisions from the Supreme Court--Shelby v. Holder the first--
that seemed to go out of their way to try to limit that broad
authority, even while leaving those broad precedents
undisturbed. In light of this, how confident can we be that
this current Supreme Court would uphold a practice-based
coverage formula, based on existing precedents interpreting the
Reconstruction Amendments in the Elections Clause?
Ms. Tolson. Thank you, Chair.
I don't think anything is certain, but you can definitely
make it harder for them. Because one thing that we have to stop
doing is lumping the 14th and 15th Amendments together. I think
when we do that, it sort of blurs the lines between what
Congress can and cannot do.
Another thing Congress can do is be explicit about the
sources of authority that it is relying on. That way, when the
record goes before the Justices, they have to be clear in
articulating why the new coverage formula is unconstitutional.
So, for example, let me give you a sense of what this
means. The Shelby County decision seems to indicate that the
record has to show intentional discrimination on the part of
the States for it to be sufficient to justify the coverage
formula. That is only part of the story, if you are relying on
the 15th Amendment. The 14th amendment also protects a
fundamental right to vote, which means that the record can show
abridgment or denials of the right to vote, even in the absence
of intentional discrimination.
Even more importantly, the Elections Clause doesn't require
either, right? Congress can make or alter State law, and they
can do so without any justification, especially where States
have jeopardized the health and wellness of Federal elections.
So, that is a much different record than a record that was
before the Court in 2013.
Mr. Cohen. Thank you.
Professor Fraga, the senior, the father, what can history
and demographics teach us about the likelihood that certain
jurisdictions will turn to voter suppression efforts,
particularly in places where jurisdiction may not otherwise
have a long history of having engaged in voting rights
violations?
Mr. Luis Fraga. Part of what I was trying to get across,
Mr. Chair, was that this history of voter suppression and
efforts like the implementation of at-large elections have
occurred in many different parts of the country, targeted at
different groups and at different times.
So, what I am trying to get across in that consideration,
in response to your question, is that it is very important that
there be continued vigilance because every time that that
vigilance has been removed, every time that enforcement efforts
to protect voting rights have been removed, every single time
in the history of our country there has been an equivalent
movement to try to limit the voting rights of particular
segments of our population. That vigilance I see as being
possible and absolutely necessary when we reconsider the nature
of section 4.
Mr. Cohen. Thank you, sir.
I now recognize Mr. Johnson for 5 minutes.
Mr. Johnson of Louisiana. I thank the Chair and thank all
the Witnesses again.
Let me begin with Mr. Nobile. I just want to ask you a very
simple question because there seems to be a lot of confusion
about this and debate in the country. Depending on which news
program you watch, you may have a different opinion. You are an
expert on it. Is there widespread voter suppression in this
country today?
Mr. Nobile. No.
Mr. Johnson of Louisiana. Explain that a little bit more. I
know you did in your testimony, but we have to repeat it over
and over.
Mr. Nobile. Yes, yes. I mean, look, in Shelby and the
cases, you have to look at the actual ballot access data, and
turnout and registration are told most of the story, right? I
mean, Justice Kagan, in her dissent last week, or three weeks
ago, said something to the effect of, if people don't turn out,
so be it. Justice Kagan is 100 percent right in her dissent.
Unfortunately, that is not how a lot of the advocates feel.
They feel like, if there is not a turnout, then there must be
some problem. Problems with turnout are sometimes, or usually,
completely unrelated to regulations and time, place, and manner
regulations.
Mr. Johnson of Louisiana. The intent of the legislature or
the officials in charge, right?
Mr. Nobile. Correct.
Mr. Johnson of Louisiana. Why is the Administration, do you
think, highlighting Georgia and Texas as examples of States
pushing so-called voter suppression and not other States? I
don't know, say those run by Democrats that have had virtually
identical laws on the books for many years.
Mr. Nobile. I mean, I haven't done a full survey, but I
suspect, if you go back for the last 30 years and look at every
purple State, you will see all the claims arising there. So,
States where they feel like they can flip is going to be where
resources are poured into. That is why private suits are not
really that helpful in determining local discrimination. It is
really just who has got the most money and who has the most
lawyers willing to bring a section 2 case? Honestly, that is
not a very high bar. There is lots of money out there. There is
lots of lawyers willing to take a section 2 case, and that is
going to really determine where the most cases are brought.
Mr. Johnson of Louisiana. So, it looks like a brazen
political agenda, does it not?
Mr. Nobile. Yes, I mean, it is you want to get your vote
out. You want to drive up your base. I mean, you want to show
people that you are fighting in there for their votes. So, it
is trying to get people to turn out and trying to get support
generated in whatever State or region or municipality that you
are trying to flip.
Mr. Johnson of Louisiana. Very good.
My colleague, Representative Owens, said in a previous
hearing here that it is offensive to those who actually lived
through the Jim Crow era to equate today's voting measures to
that. As you summarized, I thought, really well, Jim Crow is
not a mere brand or a slogan. I think it is just thrown around
today, and people don't understand the import of that.
Mr. Nobile. It is really, I mean honestly--I mean I am not
here to give a moral lesson on anything--but it is really
shocking that Jim Crow gets thrown around the way it does. I
mean, everyone knows what Jim Crow is. It is a dark part of our
history. I mean, I have brought civil rights cases. I brought
the case involving Prairie View A&M students in Waller County,
Texas. I have brought cases on behalf of minority plaintiffs.
It quite troubling the way that just gets thrown because, I
mean, it is a dark time in our history, and you wouldn't do
that with other things. I am not going to draw parallels from
international history, but we are all aware of them, and you
wouldn't throw those around to try to inflame people's passions
or to try to win your rhetorical argument.
Mr. Johnson of Louisiana. I just want to disagree with you
on one point. I don't think everybody does understand what Jim
Crow really was and the dark era that it was in our nation,
because they use it so casually.
Let me go--I am running out of time. Mr. Tyson, thank you
for your testimony today.
What other provisions currently existing within the Voting
Rights Act and other Federal statutes that adequately address
States that violate the Constitution by engaging in voter
discrimination? You touched on this a little bit. It was said
just a few moments ago we have to be continually vigilant.
Can't we do that without this new legislation?
Mr. Tyson. Absolutely. I think that is one thing that we
have seen very clearly, especially in 2018, 2019, and 2020 in
Georgia. There has been no hesitancy and no lack of effort in
bringing litigation about a variety of elections practices.
That is true under the fundamental right to vote claims. That
is true under section 2. That is true under the Civil Rights
Act and other claims that were there. There are a variety of
methods to use, and we have seen that plaintiffs have not been
hesitant to use those at all ensuing when they believe that
something is going wrong with election Administration.
Mr. Johnson of Louisiana. So, if this were to pass, how do
you expect the proposed coverage formula would play out,
considering that it would require all jurisdictions to be
subject to preclearance in certain circumstances? I think more
problematic, it would allow outside groups to file enforcement
actions against States. Is that a recipe for disaster?
Mr. Tyson. I think it is, and especially the broad
definition of a voting rights violation in the current version
of the draft the Committee has. It includes things that are so
broad there will be incentives for private groups to go sue
States that they want to pull under preclearance. Then,
ultimately, again, that leads to the danger of partisan
enforcement. Voting rights are too important to be given over
to a partisan political agenda.
Mr. Johnson of Louisiana. Very good.
I am, unfortunately, out of time. I yield back.
Mr. Cohen. Thank you, Mr. Johnson.
Ms. Ross from North Carolina is recognized now for 5
minutes.
Ms. Ross. Thank you so much, Mr. Chair, and thank you so
much to our Witnesses. This has been a really great hearing.
I am from North Carolina and was a State legislator when we
expanded voting rights and a State legislator when we watched
them get shut down or attempts to get shut down. I have also
brought voting rights cases myself as a civil rights lawyer.
I want to talk briefly about racial gerrymandering in North
Carolina. In 2016, our State legislature created new
congressional maps--this was after having them struck down--
that gerrymandered the State on an implicitly racial basis. The
bill divided the campus of North Carolina Agricultural and
Technical State University, the largest HBCU in the country,
into two separate districts. The scheme diluted the votes of
thousands of young African American voters.
However, in 2020, new maps were redrawn after a long period
of litigation, and NC A&T's campus is now consolidated into one
district. Amazingly, voter turnout on campus increased
substantially in 2020, once that community of interest was
brought together.
Practices like this one that divide and diminish the power
of minority voters are known to be discriminatory in nature. We
need to remedy those violations in a way that doesn't require
years of litigation.
I would also like to remind this Committee that the
preclearance formula in the Voting Rights Act of 1965 covered
several counties in North Carolina, but not the State as a
whole. North Carolina's monster voter suppression law that
targeted African Americans with surgical precision potentially
could have been enacted even before the Shelby County decision,
because the entire State was not subject to preclearance.
That law would have restricted early voting, imposed
discriminatory voter ID requirements, repeal the same-day voter
registration at early voting sites, and even more. These are
all known practices that are being considered again in many
States today and in North Carolina and should be prevented at
the outset. I am grateful to all of you for your testimony on
the need and legal basis for known practice coverage.
My first question is for Professor Bernard Fraga. In your
written testimony, you observed that the historical record of
minority voting rights indicates periods of expansion,
contraction, and then, expansion that directly coincides with
Federal action to prevent States from de jure and de facto
racial and ethnic discrimination in voting.
Would you agree that, since the Civil War, minority voting
rights have only been protected due to active efforts by the
Federal government, and that the Voting Rights Act has been
critical to preventing a backsliding on voting rights?
Mr. Bernard Fraga. Thank you, Representative Ross.
I think that is a very, very important point to make.
Federal action is what has sustained voting rights, even
despite the 14th and 15th Amendments, right? The lack of
Federal action that we saw after the Reconstruction Period
during the Redeemer Movement, right, the lack of Congress
specifically taking action to counter some Supreme Court
decisions, and the actions of southern States, is what led to
Jim Crow.
So, when we talk about Jim Crow, and we talk about not
recognizing the history of Jim Crow, I think we are not
recognizing the origin of Jim Crow, which is a lack of Federal
action, congressional action specifically, to ensure that
African Americans--African American men at the time--maintained
the right to vote.
Ms. Ross. Thank you very much.
To your dad, Professor Fraga, in your view, are there
common historical conditions that explain why politically
dominant whites have resorted to the same voting practices to
limit the voting strength of ethnic and racial minorities at
different times and places throughout American history?
Mr. Luis Fraga. Yes, and I think the primary one is the
competitiveness of statewide elections and the way in which
this happened throughout the period before the formalization of
Jim Crow. This was the period of dilution right after over half
a million African Americans voted and elected Members to local
office and to Congress and to State office, and even two
Senators from Mississippi. The concern was, how do we make sure
that they don't get a majority and keep a majority, given the
closeness of the election?
So, a series of procedures were used--I try to outline a
number of them in my report--to make sure that the numbers
never constituted a majority. The same thing was done at State
legislative levels. The same thing was done at the city level.
It is this sense of partisan competition, if you will, the
sense of partisan competition that made the efforts race-
targeted, because of the way in which these two factors
intersect.
The parallel that I see is that there is grave concern that
the small margins that characterize election outcomes can be
affected by current voter suppression methods.
Mr. Cohen. Thank you, Professor. Thank you--
Ms. Ross. Thank you very much, and I yield back.
Mr. Cohen. Thank you, Representative Ross.
I now recognize the gentleman from California, the
thoughtful conservative, Mr. McClintock.
Mr. McClintock. Well, thank you, Mr. Chair.
Mr. Nobile, doesn't every fraudulent vote disenfranchise a
legitimate voter?
Mr. Nobile. Yes.
Mr. McClintock. Wouldn't you say that is the ultimate voter
suppression?
Mr. Nobile. It certainly dilutes. I mean, it dilutes
everyone's vote. So, yes.
Mr. McClintock. So, obviously, it is incumbent upon us to
have a process that makes fraud very difficult to commit. I
mean, obviously, we don't allow people to mail in drug tests,
for example, for obvious reasons.
Mr. Nobile. I mean, ballot stuffing is not just a
euphemism. It has actually happened. That is why people use it
as a euphemism.
Mr. McClintock. By definition, in a democracy, somebody is
always going to win, and somebody is always going to lose. The
success of democracy depends on the loser accepting the
legitimacy of an election, does it not?
Mr. Nobile. Correct.
Mr. McClintock. So, to do so--
Mr. Nobile. I would add, and the public accepting, everyone
accepting the legitimacy of the election.
Mr. McClintock. Yes, but especially the loser.
Mr. Nobile. Well, they are usually the ones that don't.
Mr. McClintock. That is the hardest pill to swallow.
So, they have got to have confidence in the integrity of
the vote. What have recent changes in election procedures done
to the public's confidence in the integrity of the vote.
Mr. Nobile. Well, I mean, I think the sustained opposition
to seemingly benign, race-neutral time and place and manner of
regulations have really sort of been troubling. I think
Georgia's trying to at least have someone monitoring, allowing
access to a drop-box for ballots during business hours makes
sense. You shouldn't have drop-boxes open 24/7.
Mr. McClintock. Well, I wonder about that because, up until
just a few years ago, our elections process was very simple. It
was accepted over many, many generations. You registered to
vote with an election's official. They were available at any
fire station or library or municipal office, but you have to go
face-to-face with somebody and swear you were who you said you
were. There was a 30-day close of registration, so that all
parties could canvass the voters. Candidates knew exactly who
they were talking to. Those who had moved or died could be
removed from the rolls.
Then, we all waited until Election Day--that is why we
called it Election Day; it was a single day after the entire
campaign had concluded, after we had heard the entire debate.
We all together, in what George Will once called ``the
communion of democracy,'' went to our local polling place. It
was usually in a neighbor's garage or a neighborhood grade
school.
We looked our neighbors in the eye as we identified
ourselves and they handed us our ballot. We brought our
children along, so that they could observe the process because
we taught them how important that was to their country.
Then, we took that ballot immediately into a curtained
booth, where nobody could cajole or pressure or plead with us,
and we cast our individual votes according to our own
conscience. We, then, gave that ballot back to our neighbor,
who immediately put it in a locked ballot box. It was all done
in a public place where all citizens from all parties could
observe it.
Then, at 8:00 p.m., when the polls closed, we knew exactly
how many votes had been cast and, by 10:00 p.m., we usually
knew who won. In a close election, it might be midnight.
Now, that has all been torn down by the left. Now, you
register to vote simultaneously with voting. It makes it
impossible for parties to canvass. Superannuated registrations
are rarely removed from the rolls.
We, then, send ballots to everybody, every name on those
rolls, followed up by ballot harvesters to collect those
ballots. There is no chain of custody from the time the ballot
is mailed until the ballot is returned. Ballots are not secret.
Family members, spouses, caregivers, friends can all--and for
that matter, party ballot harvesters--can all cajole and
pressure us. Those votes can be cast many weeks before the
debate is over.
What has that done to invite fraud, and what has that done
to undermine confidence in the integrity of the vote?
Mr. Nobile. Well, I mean, anytime you make a system more
complex, there are more problems, right? That is, essentially,
what you have done. You have had Election Day go from Election
Day to election month.
You have delivered and brought the joy of showing up at the
poll site to your house, where people can come and try to
pressure you into voting one way or the other in the form of a
harvester.
The Voting Rights Act, when it was originally passed, and
it still exists, actually had a carveout saying your union boss
or your union rep and your employer couldn't help you cast a
ballot. That is because, even in 1965, people knew that certain
groups would be subject to undue pressure or coerced, not
because of anything other than maybe they are poor or they need
a job or they are a minority, or they have got some reason. So,
that has all created a problem.
Mr. McClintock. Thank you.
Mr. Cohen. Thank you, Mr. McClintock.
Next, would be--Mr. Raskin is still not with us. Mr. Hank
Johnson, are you out on bail? Mr. Johnson, you are recognized
for 5 minutes.
Mr. Johnson of Georgia. I actually orchestrated an escape.
So, I am here.
[Laughter.]
I want to thank the Constitution Subcommittee of the
Judiciary Committee for having this very important hearing.
The 15th, 19th, and 26th Amendments guarantee the right to
vote, and if the right to vote is denied, those so deprived
lose the ability to preserve all other constitutionally
guaranteed rights and our country becomes a democracy in name
only.
To paraphrase Justice Kagan, never before has a statute
been as extraordinary, required more sacrifice, and done more
to advance our democracy than the Voting Rights Act. Yet, the
Supreme Court has treated this special statute worse than other
law passed by Congress, first, by eviscerating section 4, and
thus, castrating section 5. Then, in Brnovich, the Court has
sought to dismember the Voting Rights Act by applying a
tourniquet to section 2. The majority of the Court appears to
fear that the Voting Rights Act is too, quote, ``radical,'' end
quote, that it will invalidate too many State voting laws. So,
the majority, instead, wrote its own set of rules in Brnovich,
acting as both arbiter and legislator, and pretty much putting
Justice Roberts' calling balls and strikes for his own team.
Professor Tolson, do you think it is fair to characterize
the Roberts Court as hostile to the Voting Rights Act?
Ms. Tolson. I think that characterization is a fair
characterization. Shelby County often gets a lot of heat, but
when you have, really, is a series of decisions that have
undermined the scope of the Voting Rights Act, both section 2,
and prior to Shelby County, section 5. So, I think that is a
fair characterization, and this is why I urge not only this
Committee, but Congress as a whole, to be thorough with the
legislative record and be clear about the source of
congressional authority. Because I do think that the Court
itself has not viewed the Voting Rights Act favorably. So, it
is really important to be careful, but the authorization is
there. So, Congress can pass practice-based coverage as well as
the geographic formula in H.R. 4.
Mr. Johnson of Georgia. Well, given that the Court seemed
to rewrite section 2, and thus, legislate from the bench and
become a, quote, ``activist Court'' right before our eyes, what
approach would you suggest Congress take to avoid any future
flawed readings by this activist Court? Specifically, what
should we be careful about when drafting this language of known
practices coverage?
Ms. Tolson. So, with respect to the practice-based
preclearance, the current bill identifies those practices that
really six decades of experience has taught Congress are
practices that State legislators often fall back on to abridge
or deny minority voting rights, and indeed, voting rights more
generally, right? It depends on the political calculus, but
minority groups are especially vulnerable when, for example,
States redistrict, which they do every 10 years, or if a State
or a locality engages in an annexation or a de-annexation, and
so on. Like there is case law. There are examples of these
measures being used repeatedly to disenfranchise minority
communities.
In addition, the language assistance provisions of the
Voting Rights Act are still--oh, the States routinely violate
those provisions, further showing that there needs to be some
Federal intervention here to protect language minorities. So,
the evidence is there. It is squarely in front of Congress and
sort of urges and shows the need for further congressional
action here.
In terms of the Court misinterpreting the scope of the
Voting Rights Act, there clearly needs to be some section 2
fix, because the Brnovich decision, in particular, emphasizes
the State's authority over elections, but ignores the
disparities that were caused by the Arizona law, the out-of-
precinct rule as well as the ban on ballot collection.
So, by emphasizing the State over the right to vote, the
Brnovich Court really misconstrued congressional intent with
respect to the update to section 2 of the Voting Rights Act.
Mr. Johnson of Georgia. Thank you.
What should we be careful about, Mr. Bernard Fraga, in
drafting the language on the practice coverages?
Mr. Bernard Fraga. Well, I think that we clearly need the
record to be established, and that is what we are doing here
today. But we also need to make sure that we are basing it on
current conditions. So, in my report I outline the population-
limited, practice-based preclearance that says, in places where
we have history, even recent history, it is much more likely
that things like redistricting will be used to discriminate
against minority voters. Those are the places where resources
should be devoted, and attention, scrutiny, needs to be paid
going forward.
Mr. Johnson of Georgia. Thank you. My time is up, and I
appreciate it, Mr. Chair. I yield back.
Mr. Cohen. Thank you, Mr. Johnson. Good to see you.
Ms. Garcia of Texas, judge, and Congressperson, 5 minutes.
Ms. Garcia. Thank you, Mr. Chair, and thank you for putting
this group together. I feel like I should call them ``The
Magnificent Seven'' because they really did do a good job of
presenting all perspectives.
Certainly, I have known my friend, Mr. Saenz, for many
years and worked with MALDEF. So, welcome back.
Mr. Chair, this Subcommittee convenes once again to address
the need to enhance the Voting Rights Act. I, for one, think
that we could have a hearing like this every month until we get
this done, and I would have no problem with it, because we know
that the Constitution protects our right to vote. That
something that all of us should take very, very seriously.
The Constitution also provides that no State shall deny to
any person within its jurisdiction the equal protection of the
laws. That is really at play here also.
Yet, we continue to see an all-out assault on American
democracy based on lies and baseless claims. The GOP's current
efforts are not about voter security; they are, in fact, about
voter suppression.
As Congress considers advancing H.R. 4, we must ensure that
growing communities whose primary language is not English are
included and protected in the voting process. Barriers to
voting which systematically exclude minority voters will
language barriers only hinder our ability to provide equal
protection and opportunity for all.
These voter suppression tactics are visible in Texas, much
to my dismay. It is almost embarrassing to acknowledge that
Texas leads the country in voter discrimination complaints that
have been sent to the Justice Department pre-Shelby, and even
after Shelby, most of the cases that have come out with
discrimination come from Texas. In Harris County, we are a
population greater than 26 States. We speak about 145
languages, but it is getting harder and harder to get access to
the ballot. So, this is especially true every election season.
So, Mr. Saenz, you heard the Republican Witness say that
H.R. 4, the Voting Rights Act, the John Lewis Voting Rights
Act, was ``a remedy in search of a problem.'' Yet, your
organization, MALDEF, AAJC, and NALEO joined forces to conduct
a study to look at the types of changes that are made that
would be covered by the John Lewis Voting Rights Act in a
practice-based preclearance formula. Could you just discuss a
couple of examples of how to demonstrate the need?
Mr. Saenz. Sure. Unfortunately, for the reasons you have
said, these examples, more often than not, come out of Texas,
in MALDEF's experience. The first example that I would give is
one of the very first changes after the Shelby County decision
was handed down. Both came out of Texas. As you know, Texas
State leadership indicated an intent to revise the voter ID
provision to make it more difficult, and that was rendered
possible by the Shelby County decision.
What I focus on in my written testimony and today is what
the Mayor of Pasadena, Texas did. He immediately announced that
Shelby County enabled him to do what he had wanted to do for so
long, but couldn't, when he knew that it would be subject to
preclearance review. That was to shift a city council of eight
districted Members to six districted Members and two at-large
Members.
Ms. Garcia. He publicly stated his intent.
Mr. Saenz. He publicly stated his intent to Act in reaction
to Shelby County.
Ms. Garcia. Right.
Mr. Saenz. The whole purpose for doing that was because the
Latino community in that city had reached critical mass and was
on the verge of taking over a majority of the seats on the city
council. So, to prevent that, he put in place this reversion to
at-large seats. That is one of the identified practices in
known practices coverage, as you know.
Ms. Garcia. Well, thank you.
Now, to Mr. Fraga from Emory, you said in your testimony
that, absent any congressional role, us getting involved in
doing something, that the voices of a minority electorate would
not be heard. Could you tell us specifically what you were
referring to? Also, can you tell us exactly what you think or
recommend that we should do and what our role should be?
Mr. Bernard Fraga. So, it is very clear after the Shelby v.
Holder decision that Congress needs to play a role in updating
the formula and bringing preclearance back in, making it valid
once again, right? I mean, this is the charge that Congress
received from Chief Justice Roberts.
I think that what we see over time, historically, but also
in recent times, is that, when a group is growing, it threatens
the existing power structure. I don't mean threatened by
protests and other things. I mean threatening at the ballot
box. That is democracy at work. Attempts to suppress the vote
or dilute the vote are an effort to undermine democracy. I
think that is what I am referring to there as it regards
minority voters. It is that, without congressional action, it
will be easier and easier, and more common, of course, for
minority voices to be silenced, especially growing minority
groups like Latinos and Asian Americans.
Ms. Garcia. Thank you, Mr. Chair. I believe my time has run
out.
Mr. Cohen. Yes, it has. Thank you.
That concludes our questioning for the day. I want to thank
our Witnesses for appearing and for your testimony. It really
was good.
Ms. Garcia. Mr. Chair, I forgot I needed to ask for
unanimous consent to introduce a document for the record.
Mr. Cohen. So, granted.
Ms. Garcia. Thank you.
Mr. Cohen. Without objection.
[The information follows:]
MS. GARCIA FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Cohen. ``The Magnificent Seven,'' that was good. That
was good.
Without objection, all Members will have five legislative
days to submit additional written questions for the Witnesses
or additional materials for the record.
With that, the hearing is adjourned.
[Whereupon, at 4:57 p.m., the Subcommittee was adjourned.]
QUESTIONS AND ANSWERS FOR THE RECORD
=======================================================================
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[all]