[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





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               Available via: http://judiciary.house.gov  
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                       COMMITTEE ON THE JUDICIARY

                    JERROLD NADLER, New York, Chair
                MADELEINE DEAN, Pennsylvania, Vice-Chair

ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
    Georgia                          KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
KAREN BASS, California               MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
ERIC SWALWELL, California            W. GREG STEUBE, Florida
TED LIEU, California                 TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
LUCY McBATH, Georgia                 BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri

       PERRY APELBAUM, Majority Staff Director and Chief Counsel
              CHRISTOPHER HIXON, Minority Staff Director 
                                 ------                                

            SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS,
                          AND CIVIL LIBERTIES

                     STEVE COHEN, Tennessee, Chair
                DEBORAH ROSS, North Carolina, Vice-Chair

JAMIE RASKIN, Maryland               MIKE JOHNSON, Louisiana, Ranking 
HENRY C. ``HANK'' JOHNSON, Jr.,          Member
    Georgia                          TOM McCLINTOCK, California
SYLVIA R. GARCIA, Texas              CHIP ROY, Texas
CORI BUSH, Missouri                  MICHELLE FISCHBACH, Minnesota
SHEILA JACKSON LEE, Texas            BURGESS OWENS, Utah

                       JAMES PARK, Chief Counsel  
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                       
                            C O N T E N T S

                              ----------                              

                         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:]
  
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    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:]

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    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:]

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    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:]

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    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:]

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    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:]


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    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

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    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

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