    [Senate Hearing 117-826]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 117-826

                        RESTORING THE VOTING RIGHTS ACT
                       AFTER BRNOVICH AND SHELBY COUNTY

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

                                    HEARING

                                   before the

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION
                                   __________

                                 JULY 14, 2021
                                   __________

                              Serial No. J-117-28
                                   __________

             Printed for the use of the Committee on the Judiciary

                     [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov

                                   ______

                     U.S. GOVERNMENT PUBLISHING OFFICE

    54-687                    WASHINGTON : 2026

                           COMMITTEE ON THE JUDICIARY

                       RICHARD J. DURBIN, Illinois, Chair
    PATRICK J. LEAHY, Vermont            CHARLES E. GRASSLEY, Iowa, Ranking
    DIANNE FEINSTEIN, California             Member
    SHELDON WHITEHOUSE, Rhode Island     LINDSEY O. GRAHAM, South Carolina
    AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
    CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
    RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
    MAZIE K. HIRONO, Hawaii              BEN SASSE, Nebraska
    CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
    ALEX PADILLA, California             TOM COTTON, Arkansas
    JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
                                         THOM TILLIS, North Carolina
                                         MARSHA BLACKBURN, Tennessee

                 Joseph Zogby, Chief Counsel and Staff Director
          Kolan L. Davis, Republican Chief Counsel and Staff Director

                        SUBCOMMITTEE ON THE CONSTITUTION

                     RICHARD BLUMENTHAL, Connecticut, Chair

    DIANNE FEINSTEIN, California         TED CRUZ, Texas, Ranking Member
    SHELDON WHITEHOUSE, Rhode Island     JOHN CORNYN, Texas
    JON OSSOFF, Georgia                  MICHAEL S. LEE, Utah
                                         BEN SASSE, Nebraska

                    David Stoopler, Democratic Chief Counsel
                     Andrew Davis, Republican Chief Counsel

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Blumenthal, Hon. Richard.........................................     1
    Cruz, Hon. Ted...................................................     3
    Leahy, Hon. Patrick J............................................     5

                                   WITNESSES

    Cuccinelli, Kenneth..............................................     9
        Prepared statement...........................................    42
    Garza, Jose......................................................     8
        Prepared statement...........................................    49
        Responses to written questions...............................   112
    Hasen, Richard L.................................................    15
        Prepared statement...........................................    61
        Responses to written questions...............................   115
    Nelson, Janai....................................................    11
        Prepared statement...........................................    70
        Responses to written questions...............................   124
    Nobile, T. Russell...............................................    13
        Prepared statement...........................................    95

                                    APPENDIX

    Items submitted for the record...................................    41

                        RESTORING THE VOTING RIGHTS ACT
                       AFTER BRNOVICH AND SHELBY COUNTY

                                  ----------

                            WEDNESDAY, JULY 14, 2021

                                   United States Senate
                              Subcommittee on The Constitution,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 3:14 p.m., in
    Room 226, Dirksen Senate Office Building, Hon. Richard
    Blumenthal, Chair of the Subcommittee, presiding.
        Present: Senators Blumenthal [presiding], Feinstein,
    Whitehouse, Ossoff, Cruz, Cornyn, and Lee.
        Also present: Senators Leahy, Klobuchar, Hirono, and
    Padilla.

             OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,

              A U.S. SENATOR FROM THE STATE OF CONNECTICUT

        Chair Blumenthal. The Subcommittee on The Constitution will
    come to order.
        Let me first apologize to my colleagues and to the
    witnesses for my delay caused by a number of circumstances,
    including most recently a stopped subway tram. If anything go--
    can go wrong, it will go wrong. I do want to thank all of you
    for being here today.
        Yesterday, President Biden issued in effect a call to
    action, an urgent plea to protect democracy amidst an onslaught
    of State laws restricting voting rights. He declared that,
    quote, ``We are facing the most significant test of our
    democracy since the Civil War,'' end quote. We must, President
    Biden said, have quote, ``the will to save and strengthen our
    democracy.''
        During the Civil Rights Movement, the President--then-
    President Johnson made a similar call to action. In the summer
    of 1965, State troopers mercilessly attacked John Lewis and 600
    others as they crossed the bridge in Selma, Alabama in peaceful
    protest of discriminatary--discriminatory voting laws. In the
    wake of the attack and as the Nation came together to grieve,
    President Johnson called for an end to voting discrimination in
    America. Two days later, Congress announced it would take up
    that call in legislation. Just 5 months after Bloody Sunday, as
    it came to be known, the Voting Rights Act was passed by
    Congress with broad bipartisan support.
        The purpose of today's hearing is to heed President Biden's
    call. A call to action to protect our democracy, just as
    Congress heeded President Johnson's call in 1965. We're going
    to explore the real-world impact of two deeply flawed anti-
    Democratic Supreme Court decisions undermining the Voting
    Rights Act, Shelby County in 2013 and Brnovich just 2 weeks
    ago.
        This morning, I met with a number of deeply courageous
    members of the Texas House of Representatives. They shared
    their harrowing stories of the impact of the Supreme Court's
    recent decision in Texas, which has some of the most extreme
    voting restrictions in the country: efforts to purge the voting
    rolls, including efforts to purge tens of thousands of newly
    naturalized citizens eager to exercise their constitutional
    right to vote as Americans; efforts to criminalize the right to
    vote, putting people in prison for improperly filing a
    provisional ballot; efforts to limit voting hours and mail-in
    balloting, which are critical to opportunities to vote for
    communities like medical professionals, individuals serving in
    the military, and veterans.
        Sadly, there are similar stories from States across the
    country. Those stories include the threats of criminal
    prosecution and intimidate the exercise of fundamental rights.
    What so deeply impressed me about the stories I heard this
    morning from those members of the Texas Legislature, and a
    number of them are here in the audience today, is the effect on
    their exercise of rights--their exercise of rights as American
    citizens. We cannot let these attacks on democracy stand.
        Before Shelby County and Brnovich, the Voting Rights Act
    was immensely successful. The Department of Justice and
    American voters were able to use the Voting Rights Act to halt
    well over 1,000 discriminatory election rules. The Voting
    Rights Act became known as the crown jewel of the Civil Rights
    Movement. In subsequent decades, the Voting Rights Act was
    reauthorized five times, five times with bipartisan support.
        Beginning in the 1980s, the courts began to chip away at
    its protections. On July 1, the Supreme Court struck its latest
    blow gutting the power of section 2 of that Voting Rights Act
    in Brnovich v. Democratic National Committee. The 6-to-3
    partisan decision was a stunning display of judicial overreach
    and activism. The text of section 2 of the Voting Rights Act
    plainly requires the members of every racial group have equal
    voting opportunities.
        Yet the Court's decision on Brnovich is completely
    untethered from the text that Congress enacted. As Justice
    Kagan said in her powerful dissent, the majority did not like
    the statute Congress wrote so it, quote, ``wrote its own set of
    rules limiting section 2 from multiple direction,'' end of
    quote. Brnovich follows the Court's equally devastating
    partisan 5-to-4 decision in Shelby County in 2013.
        Following Shelby County, States have been free to pass
    voting restrictions without preclearance process to assess
    whether the changes are racially discriminatory. They have. In
    2021 alone, 17 States already passed 28 laws to restrict voting
    rights. Approximately 21,000 polling places nationwide that
    serve voters on election day have been eliminated since Shelby
    County, and millions of voters have been purged from the voter
    rolls.
        The Supreme Court is at a low point of legitimacy when its
    decisions undermine the institution of our democracy. In Shelby
    County and Brnovich, the Supreme Court has methodically
    undermined all the tools Congress crafted in the Voting Rights
    Act to fight against discrimination in voting.
        The right to vote is not and it should never be a partisan
    endeavor, not in this great country, the United States of
    America. If the Senate is unable to meet this moment and
    reauthorize the Voting Rights Act because of Republican
    opposition to voter protections that have been passed with
    overwhelming bipartisan support for over 50 years, we are
    forced to consider all of our options, including eliminating
    the filibuster.
        Indeed, I've long been in favor of eliminating the
    filibuster. It was one of my first votes as a Member of the
    U.S. Senate. I was 1 of only 12 that voted to eliminate the
    filibuster. I have seen over the past 10 years, one by one,
    many, many of my colleagues reached the same conclusion that
    reform is necessary because the truth is that voting rights are
    truly bipartisan. They are widely supported throughout American
    society on the left, the right, center. In the private and
    public sectors, polling shows the vast majority of voters
    support equal access to the ballot box.
        Just today, more than 160 companies have released a public
    letter of support for the John Lewis Voting Rights Advancement
    Act. Protecting the right to vote is a matter of living up to
    America's founding ideals that our Government, quote, ``derives
    its just powers from the consent of the governed,'' end quote.
        As a tsunami of voter suppression bills crashes on this
    Nation, my deepest hope is that today we can renew a bipartisan
    commitment to protecting voting rights in this country. I turn
    to the Ranking Member.

                      STATEMENT OF HON. TED CRUZ,

                 A U.S. SENATOR FROM THE STATE OF TEXAS

        Senator Cruz. Thank you, Mr. Chairman. It has long been
    said that hypocrisy is the tribute that vice pays to virtue. In
    few areas, is this more clearly true than when it comes to
    voting rights? Today we see Democrats giving long emotional
    speeches about protecting the right to vote. Today's
    congressional Democrats do not believe in the right to vote.
    They do not believe in democracy, and they are championing
    efforts to take away the right to vote from American citizens.
        The rhetoric that is being used by Joe Biden, by Chuck
    Schumer, by other Democrats, is consistently inflammatory.
    Indeed one of the phrases that they like to use today is, ``Jim
    Crow 2.0.'' Ironically and inadvertently, there's some truth to
    what they're saying because we do have legislation pending
    before Congress that would indeed be, ``Jim Crow 2.0.''
        It's worth asking what was, ``Jim Crow 1.0.'' ``Jim Crow
    1.0,'' were a series of racist laws that were written by
    Democrats, that were enforced by Democrats, whose purpose was
    to prevent the voters from ever voting Democrats out of power.
    Jim Crow was offensive. It was racist. It was bigoted. It was
    wrong. It was the Democratic party who wrote, enforced, and
    implemented it. What's ``Jim Crow 2.0.'' It's the latest
    efforts of Democrats to write laws to prevent the voters from
    voting Democrats out of power.
        Before the Senate is pending S. 1, what the authors have or
    willingly entitled the ``For the People Act'' but many are
    rightly calling it the ``Corrupt Politicians Act.'' The only
    objective of the Corrupt Politicians Act is to keep Democrats
    in power for the next hundred years, to take away the right of
    American voters to vote Democrats out of power. How does it do
    that? ``Corrupt Politicians Act'' would strike down every voter
    ID law in the country. Eighty percent of Americans support
    voter ID. Sixty percent of African Americans support voter ID.
        What would the ``Corrupt Politicians Act'' do? Repeal every
    one of those laws. Mind you, this is while Democrats are
    saying, ``We support the right to vote, so we're going to take
    away the decision made by the voters to enact voter ID laws.''
    What else does the ``Corrupt Politicians Act'' do? Twenty-nine
    States had prohibited ballot harvesting.
        Ballot harvesting is the corrupt practice where you send
    operatives to collect the ballots of others. A paid operative,
    for example, from the DNC will go into a nursing home, will
    collect hundreds of ballots from seniors, some of whom may no
    longer be competent to make a decision.
        The reason 29 States have prohibited it is that it invites
    fraud. In an unscrupulous operative, it's very simple for that
    operative with a diminished--someone with diminished capacity
    for them to vote the ballot the way they wanted to. If someone
    has the temerity to vote for the other side, the corrupt
    operative can just throw that ballot in the trash and never
    mail it in.
        If you actually cared about the integrity of elections, you
    would want to stop ballot harvesting. What does the ``Corrupt
    Politicians Act'' do? Strikes down every law that prohibits
    ballot harvesting and mandates it nationwide. If the Democrats
    who say they protect the right to vote believed it, why do they
    want to strike down what the voters chose to adopt which is
    protecting the integrity of their elections?
        The ``Corrupt Politicians Act'' automatically registers to
    vote every single person who interacts with the government in
    any way. That means if you get an unemployment check, if you
    get a welfare check, if you have a driver's license, if you go
    to a public college or university, bingo, you're automatically
    registered to vote. What is the predicted and, in fact,
    intended consequence of that? That millions of illegal
    immigrants would be automatically registered to vote.
        In fact, the ``Corrupt Politicians Act'' explicitly
    immunizes the State officials who would be registering illegal
    immigrants to vote. When you register millions of illegal
    immigrants to vote, you are stealing the right to vote from
    American citizens. That is not protecting the right to vote.
    That is stealing the right to vote.
        The ``Corrupt Politicians Act'' mandates that felons all
    across the country be allowed to vote. Because Democrats have
    made the decision that if millions of illegal immigrants and
    millions of felons and murderers and rapists and child
    molesters are voting, they believe they are likely to vote for
    Democrats.
        Just a moment ago, the Chairman said that voting rights
    legislation should not be partisan. The ``Corrupt Politicians
    Act'' is nakedly partisan. What really admits the entire joke,
    Federal Election Commission, when it was enacted in the wake of
    Watergate, it was designed to be bipartisan, three Republicans,
    three Democrats. What does the ``Corrupt Politicians Act'' do?
    Makes it partisan. Makes it three Democrats and two
    Republicans, so that Chuck Schumer would have the Federal
    elections agency as an attack dog to use as a political weapon
    not to protect integrity, not to follow the law, but to ensure
    that Democrats can never be beaten, and the voters don't have a
    right to vote.
        When Congressional Democrats talk about Shelby County and
    wanting to make every jurisdiction in America subject to DOJ
    preclearance, understand what that means. That means your State
    legislature in your home doesn't have the ability to pass laws
    concerning voting without getting an unelected bureaucrat in
    the Department of Justice to sign off on it first.
        Mind you, this is after Joe Biden is nominated and Senate
    Democrats have confirmed extreme partisans to the Department of
    Justice. Kristen Clarke, who is a left-wing radical activist,
    would be in charge of voting laws all across the country with
    the ability to stop any elected legislature from passing laws
    concerning voting.
        I ask you if you actually believe the rhetoric from
    Democrats that you wanted to protect the right to vote, why the
    hell would you say you can't vote in the State legislatures
    unless an unelected Democrat who's not accountable to the
    people says it's okay?
        This is not about the right to vote. We heard some
    stringent rhetoric about the Supreme Court's Brnovich decision.
    I'll tell you, I was proud to lead an amicus brief for 11
    Senators in the Brnovich case. State of Arizona quite
    reasonably prohibited ballot harvesting because ballot
    harvesting invites fraud and is corrupt. The Supreme Court, by
    vote of 6-to-3, agreed with the position that I advocated on
    behalf of 11 Senators that States have the authority to protect
    the integrity of their election. We should protect everyone's
    right to vote.
        I will note, by the way, the civil rights decision--
    legislation that has been adopted, the Civil Rights Act of
    1964, a significantly greater percentage of Republicans voted
    for it than did Democrats. Eighty-two percent of Republicans in
    the Senate voted for the Civil Rights Act of 1964; sixty-nine
    percent of Democrats did.
        We should protect the right to vote, and that means not
    striking down commonsense voter integrity laws. That means not
    subjecting elected State legislatures to oversight by unelected
    bureaucrats. That means protecting the right to vote for
    everyone regardless of race, regardless of ethnicity. One of
    the ways you protect the right to vote is enacting commonsense
    protections to stop that right from being stolen.
    Unfortunately, congressional Democrats are not interested in
    doing that.
        Chair Blumenthal. Thank you, Senator Cruz. I understand
    some of the other Members of the Committee may want to make an
    opening statement. Senator Leahy is recognized.

              OPENING STATEMENT OF HON. PATRICK J. LEAHY,

                A U.S. SENATOR FROM THE STATE OF VERMONT

        Senator Leahy. Thank you, Senator. I thought now we have
    heard the rhetoric, let's go to the reality. I look at my
    State, which has some of the most open voting anywhere both in
    how you can qualify and who can vote. We do everything possible
    for open voting, times of voting, mail-in voting.
        Does this get a partisan result? Last year, we elected a
    Republican as Governor, a Democrat as Lieutenant Governor. It
    goes back and forth. In my--it's also the only State that's
    elected only one Democrat to the U.S. Senate, the only State in
    union, that's me.
        I have no problems with the--with the way we do it, but we
    also have one of the highest percentages of voter turnout of
    any State in the Union, because people know they can vote,
    they're encouraged to vote, and they'll be able to vote, old,
    young, no matter what their nationality, they can vote.
        It really frustrates me when I see so many States who seem
    to be doing everything possible to limit the ability of people
    to vote, except for the particular ones they want. Mr.
    Chairman, I thank you for holding this hearing about what we
    have to do to restore the Voting Rights Act in response to the
    Supreme Court's sustained effort to cripple it.
        The VRA, as one of its party's greatest legislative
    achievements, has enjoyed overwhelming bipartisan support,
    Democrats and Republicans alike, for entirely--virtually its
    entire existence. As an affront to the world of Congress, the
    two very partisan decisions have gutted the landmark law making
    our democracy accessible to millions who have wrongfully been
    shut out from it, and these decisions want to shut them out
    again.
        In some ways, the Brnovich decision a few weeks ago didn't
    surprise me. It involved the same playbook as the disastrous
    Shelby County decision of 2013, where a partisan majority of
    the court replaced Congress's clear bipartisan will with its
    own and gutted section 5 of the Voting Rights Act. Like Shelby
    County, the Brnovich decision ignored the well-established
    intent of Congress and invented seemingly out of thin air new
    hurdles around section 2 of the VRA effectively strangling it.
        Let's get clear. Gutting section 5 and section 2 of the VRA
    is not some exercise in judicial nibblings around the margins
    of the VRA to somehow just improve a few little things. Section
    5 and section 2 are the vital organs of the law. Section 5
    empowers the Justice Department to stop discriminatory changes
    to voting procedures from taking effect, something that was
    supported by both Republicans and Democrats in the past, no
    matter which party held the Presidency. Section 2 empowers
    ordinary Americans to seek redress in court against voting
    changes discriminating against minority voters.
        The partisan majority of the Supreme Court knew exactly
    what it was doing by nullifying section 5 and section 2 of the
    Act. Without them, the VRA is on life support. We the people
    are left with very few ways to protect our precious right to
    vote.
        Of course, the Brnovich decision could not have come in a
    worse moment. Empowered by the Shelby County decision, fueled
    by the former President's big lie that the 2020 election was
    stolen from him, dozens of States have rushed to enact border
    suppression laws. With each passing week, literally, tens of
    thousands of Americans are having their right to vote chipped
    away. It's already a fire alarm far from America's voting
    rights before the Brnovich decision. With the Brnovich
    decision, it took away one of the last remaining tools to power
    the place. VRA's section 2 have effectively declared open
    season to suppress American's voting right with impurity.
        I don't think we should sit idly by about this. Those who
    argue that restoring the VRA is a partisan exercise could use a
    little history lesson. Since its original enactment in 1965,
    the VRA and its core provisions have been reauthorized
    repeatedly five times, five times with overwhelmingly
    Republican and Democratic votes in Congress. Presidents Nixon,
    Reagan, George W. Bush all signed VRA reauthorization into law
    touting the profound importance of the landmark law for our
    democracy. I voted to reauthorize it four times throughout my
    service in the Senate, and I stood there with both Democrats
    and Republicans on the floor of the Senate doing that.
        In fact, I went back to see how many Republicans voted the
    same way I did, and how many Democrats. Here's what I found.
    The most recent voting rights--VRA reauthorization was in 2006.
    The vote was 98-to-0. I repeat that, 98-to-0. I think it's
    pretty clear that every Republican, every Democrat on the
    Senate floor voted for it. You have a lot of Republican
    Senators still serving today who voted yes.
        I just suggest everybody check their facts before arguing
    that restoring this is a partisan effort; it's not. What is a
    partisan effort is the Court's decision in Shelby County and
    Brnovich. Let's get to work. I authored and long championed the
    bipartisan John Lewis Voting Rights Advancement Act. I pushed
    an Act while my right might finally restore the Voting Rights
    Act. I hope our Republican friends will join us in
    reauthorizing that and vote as they did before. I'll put my
    whole statement in record. Mr. Chairman, I appreciate your
    courtesy in letting me pop in and out. I was in an intelligence
    matter that I couldn't leave. Thank you.
        Chair Blumenthal. Thanks, Senator Leahy. I'm going to
    introduce the witnesses.
        Jose Garza, who joins us remotely, has more than 40 years
    of experience practicing law, dealing almost exclusively with
    Federal law. His practice areas focus mainly on governmental
    entities and Federal litigation, including 1st and 14th
    Amendment issues, redistricting Federal voting rights, and
    civil rights. Mr. Garza recently retired as the litigation
    director for Texas RioGrande Legal Aid, Inc., and is currently
    voting rights counsel for the Mexican American Legislative
    Caucus in private practice as the Law Office of Jose Garza. Mr.
    Garza has represented Latino voters in voting rights
    litigation, including statewide redistricting cases.
        Mr. Ken Cuccinelli. Ken Cuccinelli is a lawyer,
    conservative politician, and national chairman of the Election
    Transparency Initiative, a coalition formed in 2021 to restore
    confidence in elections and eliminate proposed reforms by
    Democrats. Mr. Cuccinelli served in the Trump administration as
    the Acting Director of U.S. Citizenship and Immigration
    Services, and then as the Acting Deputy Secretary for the
    Department of Homeland Security.
        Janai Nelson is associate director-counsel of the NAACP
    Legal Defense and Education Fund. A renowned scholar of voting
    rights and election law, Nelson continues to produce cutting-
    edge scholarship on domestic and competent--comparative
    election law, race, and democratic theory. She received a BA
    from New York University and a JD from UCLA School of Law. Upon
    graduating from law school, Ms. Nelson clerked on the Northern
    District of Illinois and the eighth circuit.
        Russ Nobile is senior attorney with Judicial Watch, a
    conservative nonpartisan education foundation whose mission is
    to promote transparency and integrity in government, politics,
    and law. Prior to joining Judicial Watch, he was a lawyer in
    private practice who focused on government litigation,
    regulatory matters, and commercial litigation. He is an active
    member of the Federalist Society for Law and Public Policy
    Studies and was appointed to the United States Election
    Assistance Commission's Board of Advisors.
        Professor Richard Hasen is Chancellor's professor of law
    and public--political science at the University of California,
    Irvine. He is a nationally recognized expert in election law
    and campaign finance regulation. He writes as well in the areas
    of legislation, statutory interpretation, remedies, and torts.
    He holds a BA degree with the highest honors from UC Berkeley,
    and JD/MA and PhD in political science from UCLA. After law
    school, he clerked on the ninth circuit and worked as a civil
    appellate lawyer in private practice.
        We will begin by my swearing in the witnesses as is our
    custom on the Judiciary Committee and then proceed to opening
    statements. If you would please rise.
        [Witnesses are sworn in.]
        Chair Blumenthal. Thank you. Mr. Garza, if we could begin
    with you, and I know you are testifying remotely as are Ms.
    Nelson and Mr. Hasen.

                   STATEMENT OF JOSE GARZA, ATTORNEY,

              LAW OFFICE OF JOSE GARZA, SAN ANTONIO, TEXAS

        Mr. Garza [continuing]. Blumenthal, Ranking Member Cruz,
    thank you so much for allowing me to come before the Committee
    and testify on these important issues.
        What I'd like to do this afternoon is focus on the impact
    of these changes of these laws on my clients. I think it's
    important to start, for instance, with the impact of Shelby
    County in 2013, with the decision in Shelby County. Taking out
    section 5 of the Voting Rights Act, the voter ID law in Texas
    became enforceable and was immediately enforced. A lawsuit was
    filed on behalf of poor minority Texans.
        I also represented MALC in that case. In the process of
    going forward with that case, we secured after testimony and
    discovery decisions declaring that the statute the way it was
    written at that time discriminated against Latino, African-
    American, and elderly voters. The district court enjoined the
    enforcement of that law. The State of Texas appealed that law
    to that decision to the fifth circuit and secured a stay.
        One of our clients was Margarito Lara. Margarito Lara was
    an elderly, extremely poor Texan from the Valley of Texas. He
    testified before the court, and the court cited to his
    testimony regarding the difficulty that he and his family had
    financially, extreme poverty, and the burden that it would take
    for him to secure a new birth certificate to be able to secure
    the ID that was required by the State. That was part of the
    evidence that was presented.
        In interviews with us, Mr. Lara and the other plaintiffs
    that we presented to the court, talked about the importance of
    voting to those individuals, talked about going on election day
    to the local polling site where everyone knew each other, where
    he was greeted with people that knew him, and the pride that he
    took in going to cast his ballot on election day.
        There was an election that was scheduled right after the
    decision came out, and Mr. Lara was scheduled to vote with the
    injunction that the court had entered. However, with the stay,
    he was unable to vote in that election. That was the first
    election in his long life that he ever missed. We did secure
    eventually a positive decision from the fifth circuit who found
    that the voter ID law, in fact, violated section 2 of the
    Voting Rights Act. Unfortunately, before the decision became
    final, and before a proper remedy could be imposed, Mr. Lara
    passed away.
        Here we have in real life, a gentleman who was a veteran
    who enjoyed voting as a function of his citizenship more than
    anything else. He missed the last election of his life because
    the law that had been found to discriminate against minorities
    under section 5 and blocked by section 5 was allowed to go
    forward because of the Shelby County decision. Even after the
    district court determined that it violated section 2 was
    allowed to go forward again by a stay of that order from the
    fifth circuit.
        The assault on minority votings that I've witnessed in my
    40 years of litigation continues today with restrictive voting
    laws that are being proposed in the Texas legislature limiting
    the time for voting that has no purpose except to limit the
    number of people who can vote. Thank you.
        [The prepared statement of Mr. Garza appears as a
    submission for the record.]
        Chair Blumenthal. Thanks, Mr. Garza. Mr. Cuccinelli. Could
    you turn on your microphone, please?

                 STATEMENT OF KEN CUCCINELLI, NATIONAL

                    CHAIRMAN, ELECTION TRANSPARENCY

                    INITIATIVE, NOKESVILLE, VIRGINIA

        Mr. Cuccinelli. Thank you for inviting me here today. I'm
    Ken Cuccinelli. I previously served as the attorney general of
    Virginia, and currently serve as the national chairman of the
    Election Transparency Initiative where we work every day to
    help improve the transparency, security, accessibility, and
    accountability of elections in every State, so every American,
    regardless of party or race, has confidence in the outcome of
    every election.
        To begin with, as States seek to address the shortcomings
    in their own election systems, it would help to get beyond the
    hyperbolic and libelous rhetoric that each and every rule or
    procedure is not only an onerous restriction but is allegedly
    knee-jerkingly racist, particularly given that in America today
    it is easier to vote than ever before.
        Imagine an election with no rules. Just a table with a
    stack of empty ballots. Nobody's watching the table. Nobody's
    dispensing the ballots. Anyone who comes along can fill out a
    ballot. Since no one is watching as many as they choose, drop
    those ballots into a drop box. For good measure, we'll mail a
    blank ballot to every single name listed on our outdated poll
    book and let anyone return those ballots to unsecured drop
    boxes.
        No one would trust the outcome of that supposedly
    unrestricted voting process. We need rules, time, place, and
    manner rules. Only citizens can vote, a reasonable rule.
    Citizens have to register, and registrars have to keep poll
    books up to date, a reasonable rule. One ballot per registered
    voter, a reasonable rule. Enforceable transparencies required
    so everyone can see the election is clean and secure from start
    to finish every step of the way, a reasonable rule. Ensure each
    voter is who they say they are, a reasonable rule.
        The Carter-Baker Commission recommended it, and
    overwhelming majorities of Americans support it. Nevertheless,
    voter ID has been particularly politicized by the radical left
    propaganda machine. Yet despite 6 months of media-assisted
    assaults on the basic commonsense need for voter ID, the
    American people have been unmoved in their overwhelming support
    for this basic election integrity measure. It might explain why
    some very high-profile propounders of the false quote, ``voter
    ID is racist,'' unquote, propaganda, like Stacey Abrams, have
    suddenly flip-flopped to get on the right side of the polling.
        On the basic mechanics of how elections should be best run,
    when you take the discussion out of the overcharged political
    atmosphere of the day, Americans tend to agree on what it takes
    to run good elections. We've seen that one doesn't need fraud
    to shake confidence in an election.
        Does anyone remember Bush v. Gore? In 2000, Florida's
    election system was held up before the world as a sad joke.
    Incompetence, election breakdowns, untrustworthy ballots and
    machines, haphazard and inconsistent rules. Americans'
    confidence was shaken.
        In 2000, the left was screaming its lack of confidence in
    our elections. Again in 2016. Again in 2018. Highly regarded
    pollster Scott Rasmussen wrote an article this year, in which
    he recorded that while 31 percent of Americans lack confidence
    that America swore in the correct person as President following
    the election of 2020, 26 percent held the same view after the
    election of 2016. There is not much overlap between those two
    groups.
        Here in the U.S. Senate, you can learn from Florida. How
    the people of Florida respond to the shocking revelation of
    just how poor their election system was in 2000, they set about
    fixing it. They fixed their laws and procedures, and in many
    parts of the State, they improved the quality of their
    personnel. States can and are working to upgrade and improve
    their election systems. It's important that Washington not step
    in to dictate its own one-size-fits-all approach that is really
    more about control of elections by one party than achieving the
    confidence of the American people in the outcome of our
    elections.
        The first and most important thing the Senate can do is
    stick with the Voting Rights Act in its current form to fight
    actual discrimination where it occurs, as noted in Brnovich,
    and not go beyond it to a partisan Federal takeover of our
    elections. One need only look back at Florida 20 years after
    Bush v. Gore. When much of the country suffered election
    breakdowns in their States, Florida, the third-largest State
    and the largest swing State, smoothly tallied its votes with no
    significant complaints from either side. Citizens can have
    confidence in their elections but only if the Federal
    Government doesn't force them to eliminate basic rules of fair
    and accurate elections, as is proposed with S. 1 and is rumored
    with the next round of the John Lewis bill. Thank you.
        [The prepared statement of Mr. Cuccinelli appears as a
    submission for the record.]
        Chair Blumenthal. Thank you very much. I apologize that I
    omitted among your qualifications that you are a former
    attorney general, which is particularly egregious for one who
    was----
        Mr. Cuccinelli. Yes.
        Chair Blumenthal [continuing]. A former attorney general
    myself. I, well, apologize.
        Mr. Cuccinelli. I appreciate that.
        Chair Blumenthal. We have another attorney general, a
    former attorney general on the dais here.
        We're in the middle of votes right now, and I'm going to
    ask Senator Cornyn to preside while I go vote, and Senator Cruz
    will be voting as well. In order, they will be Ms. Nelson, Dr.
    Nobile, and Professor Hasen. We'll be back, I would hope, by
    the time you're done. I know the testimony is excellent; I've
    read it. I look forward to the questions. Thank you.

                  STATEMENT OF JANAI NELSON, ASSOCIATE

               DIRECTOR-COUNSEL, NAACP LEGAL DEFENSE AND

                EDUCATION FUND, INC., NEW YORK, NEW YORK

        Ms. Nelson. Thank you, Chair Blumenthal and Cornyn, and
    Committee Members. My name is Janai Nelson. I am the associate
    director-counsel of the NAACP Legal Defense Fund founded by
    Thurgood Marshall and leading the fight to defend the voting
    rights of Black citizens for over 80 years.
        Our country's ongoing and sordid history of racial
    discrimination in voting is threatening the future and
    functioning of our multiracial, multiethnic democracy. Since
    the infamous 2013 Shelby County decision disabled section 5,
    voter suppression against Black voters and other marginalized
    groups has metastasized at alarming rates.
        The Court's recent decision in the consolidated Brnovich
    cases threaten section 2, a singular force of national reach
    that immunizes the right to vote from laws based on
    discriminatory intent or that produced discriminatory results
    on account of race. The Brnovich decision improperly and
    illogically departs from the plain text of section 2. It
    ignores precedent and severely curtails the broad application
    Congress intended.
        As Justice Kagan stated in dissent, the new guideposts
    proposed by the Court's conservative majority are quote,
    ``mostly made-up factors at odds with section 2 itself and
    mostly inhabit a law-free zone,'' end quote. In other words,
    Brnovich's guideposts are unmoored from both text and truth.
    For example, the majority discounts the expressed text of
    section 2, which requires an equal opportunity to vote, and
    instead asks whether a State's entire system of voting is
    sufficiently open to all, contrary to any prior interpretation
    of section 2 and to several of the factors that originated in
    this very body, aptly called the Senate factors, which have
    guided section 2 litigation for decades.
        Another guidepost invites courts to compare a challenged
    voting restriction to burdens in 1982, nearly 40 years ago,
    when Congress amended section 2 to correct the Court's previous
    misreading of the statute in City of Mobile v. Bolden. This
    arbitrary benchmark flouts the text and purpose of section 2,
    which is to prohibit unequal voting opportunities between
    present-day racial groups not to impose 1982 as a reference
    point for evaluating current laws.
        Another Brnovich guidepost suggests Government actors can
    disproportionately burden the voting rights of historically
    disenfranchised racial groups, so long as governments raise a
    theoretical even if unsubstantiated interest in combating
    mythical voter fraud. This guidepost threatens to return our
    Nation to the time when States adopted facially neutral voting
    laws under the pretense of the purity of the ballot, but with
    the intent of excluding Black voters from the political
    process. Not only does this guidepost find no support in the
    VRA's text, it has no basis in the factual record. Arizona
    could not point to any voter fraud to justify its challenge
    laws. A study of the 834 million ballots cast in elections
    between 2000 and 2014 found only 35 credible allegations of in-
    person voter fraud.
        By contrast, there are voluminous examples of proliferating
    racial discrimination in voting during the same period. In
    short, this unscrupulous decision disregards the purpose of
    section 2, and it erects an indefensible barrier for plaintiffs
    simply because the majority of the Court fundamentally
    disagrees with Congress's use of its enforcement powers to
    legislate broadly to protect the right to vote from racial
    discrimination. It's nothing short of an attempt to rewrite and
    weaken section 2 resulting in incalculable costs to our
    democracy.
        Since the disabling of section 5, section 2 has been the
    primary defense against discriminatory vote denial and
    abridgment. In 2020 alone, LDF filed five cases under section 2
    and has filed two more this year. In the first 5 years
    following Shelby, an unprecedented 61 lawsuits were filed under
    section 2. It's been 8 years since the Chief Justice expressly
    invited Congress to update section 5's preclearance formula to
    reflect modern conditions. Brnovich has now issued its own
    tacit invitation for Congress to act, and it is within
    Congress's power no less today than it was in 1982 to reject
    the Supreme Court's latest misreading of section 2 and issue
    bold legislation to protect the right to vote.
        In a week where Texas Senate legislators took the rare
    measure of leaving a special session to protest a
    discriminatory voter suppression bill and beseech the Federal
    Government to intervene, the urgent need for congressional
    action to update the Voting Rights Act with a clear and
    unequivocal mandate to protect the right to vote from partisan
    excess and the corrosive stain of racial discrimination could
    not be more pronounced.
        As we approach the first anniversary of the passing of the
    late Congressman, civil rights stalwart, and voting rights
    martyr John Lewis, I urge you to do everything in your power to
    protect the right to vote, which he described as precious,
    almost sacred, and the most powerful, nonviolent tool we have
    in a democracy. Thank you.
        [The prepared statement of Ms. Nelson appears as a
    submission for the record.]
        Senator Cornyn [presiding]. Thank you very much. Mr.
    Nobile. Did I pronounce that correctly?
        Mr. Nobile. Correct, Senator.
        Senator Cornyn. Thank you. Please proceed.

                    STATEMENT OF T. RUSSELL NOBILE,

                 SENIOR ATTORNEY, JUDICIAL WATCH, INC.,

                         GULFPORT, MISSISSIPPI

        Mr. Nobile. Thank you, Senator Cornyn. Thank you, Ranking
    Member Blumenthal--Ranking Member Cruz and Senator Blumenthal,
    if they were here. My name is Russ Nobile, and I'd like to take
    a moment, just a little privilege here with the introduction
    that got left off is that I actually have enforced section 2
    and section 5 in hundreds of cases all over the country. Before
    I went to private practice, I was a trial attorney at the
    Department of Justice, which is enforcing the two statutes that
    are actually in question today.
        I've already submitted my testimony, my written testimony,
    and I've previously testified before the House. I'm going to
    try not to repeat myself, repeat the things that I've
    previously put in the record. There was one thing I would like
    to emphasize from my written testimony, and that's the new
    standing that's going to be given to the attorney general under
    the proposed John Lewis act. That is going to be a sea change
    for the Department of Justice. There's virtually no limit on
    it. I would really urge and caution the Senate to look at that
    seriously. I have scoured the internet. I read this stuff
    vigorously. I've yet to find a single explanation from anyone
    as to why the attorney general after 200 and something years
    needs to suddenly start weighing in in 14th Amendment cases.
        As you began looking in trying to devise how to respond to
    the Shelby County and Brnovich cases, I would, you know, stress
    that both cases present distinct questions and have distinct
    risk and opportunities there. Some of the discussion sort of
    blends the two cases together, but they're two distinct cases
    bringing two distinct opinions.
        Over the last 15 years, you've basically seen two trends in
    election law. You've seen one trend with basically this growing
    sort of what I now realize is critical race theory
    interpretation to Voting Rights Act. Then also, you have this,
    you know, explosion of vote denial cases that you didn't have
    until approximately 2008. Vote denial cases--well, until
    recently, I never really thought about how to characterize some
    of these troubling interpretations of the Voting Rights Act.
    Now, having seen and read more materials, I understand where
    they emanate from. In fact, you know, the people I've
    previously worked with, they--you know, they would promote
    these theories. Of course, I was there happy to explain why
    they probably weren't supported by the law.
        To be sure, the people that did support these that I worked
    most closest with, they were sincere and hoping to enforce the
    law to improve racial relations. That isn't the case for
    everyone there. I firmly believe that whether you're coming up
    with these avant-garde interpretations of the Voting Rights Act
    either in good faith or bad faith, they both undermine the
    Voting Rights Act and undermine the ability to enforce civil
    rights laws in America.
        A good example of this mindset was the Department's
    handling of the 2011 redistricting case in Texas, which I
    actually was a member of the trial team on. As you may recall,
    Texas opted to file for preclearance in the district court in
    Washington, DC, and there was a trial there, over 3 or 4 of the
    districting plans, depending on which complaints you're looking
    at. At the outset, the department needed to determine which
    districts qualify for section 5 protection. As part of that, as
    part of its public positions the department took, I practices--
    I was part of the case. I want to be careful to not to disclose
    any privileges--but as part of the public positions they took,
    they lumped together Asians, Blacks, and Latinos into a non-
    white district that was essentially a tripartite coalition
    district. What do these groups have in common? They voted
    Democrat. That was the only thing they had in common.
        In the primary--in the general elections, in elections in
    other cases--I mean, in other offices, they did not vote
    together, but they got lumped together. By doing that, you
    basically turn a section 5 district into an ideological
    district. It's not a racial district. It's not a protected
    district based on people that are being cracked or split or
    packed. You turn it into an ideological district. Of course--
    and one of the things that gets lost in that discussion, of
    course, is that minorities are not fungible homogenized groups
    that can be lumped together based on the fact that they're
    white.
        Coalition theories only subsumes the individual--civil
    rights laws often subsume the individuals, but coalition
    district subsumes the entire groups of races, and you basically
    mix everyone together just based on who they ideologically
    support. At some point, the VRA--VRA ceases to protect
    minorities and just becomes an ideological protection business.
    In the instance--in that case, it was created to protect a
    Democratic tripartite coalition district.
        The other trend that it's proliferating is the vote denial
    cases, which Brnovich has touched on. I'm running out of time
    here, so I want to make sure I hit everything. The provisions
    in Arizona--if the Senate doesn't--if the Committee doesn't--
    doesn't object, I'd like some extra time to maybe finish my
    comments on vote denial claims, which the Brnovich case
    addresses. That's a new standard under section 2 that had
    never--there was no previously standard for vote denial cases
    until Brnovich came about. Of course, Brnovich involved
    regulations that controlled who could handle a ballot and where
    you voted. Those are regulations that have actually been around
    for quite some time.
        [The prepared statement of Mr. Nobile appears as a
    submission for the record.]
        Senator Cornyn. Thank you very much. I'll start in--since
    the Chairman and Ranking Member--oh, I'm sorry. We have
    another. Excuse me, Professor Hasen, I apologize. Since we're
    doing this in a hybrid fashion, I didn't realize we hadn't
    gotten to you. Please go ahead.

                     STATEMENT OF RICHARD L. HASEN,

                   CHANCELLOR'S PROFESSOR OF LAW AND

                    POLITICAL SCIENCE, UNIVERSITY OF

                 CALIFORNIA, IRVINE, IRVINE, CALIFORNIA

        Professor Hasen. No problem. Thank you very much. Chair
    Blumenthal, Ranking Member Cruz, and the Members of the
    Subcommittee thank you for this opportunity to appear before
    you today to speak about the Supreme Court's recent decision in
    Brnovich v. Democratic National Committee, a case which
    eviscerated section 2 of the Voting Rights Act outside the
    context of redistricting.
        The opinion by Justice Samuel Alito for a sixth Justice
    conservative Majority is unmoored to the text of the statute
    ignores the relevant history of the Voting Rights Act and
    toward Congress's intent. Let me begin with some history. A key
    component of the Act that Congress passed in 1965 called
    section 5 required States and localities with a history of
    racial discrimination voting to ask either the U.S. Department
    of Justice or a three-judge court in Washington, DC for
    permission to change any voting rule.
        This preclearance requirement required these jurisdictions
    to show that minority voters were not made worse off by the
    change. Congress intended to prevent States from passing new
    restrictive rules when court struck down old ones. The idea
    behind preclearance was to prevent backsliding to worse
    conditions for voting, a concept that came to be known as non-
    retrogression.
        Section 5 helped a great deal until the Supreme Court's
    2013 Shelby County decision held it was no longer
    constitutional because it infringed on an invented State right
    to equal sovereignty. Although section 5 was effective in
    stopping new bad voting laws, it did not deal with
    discriminatory voting laws already on the books. In the years
    after the passage of the National Voting Rights Act, some
    litigants tried to use section 2 of the Act to attack
    restrictive voting rules.
        At first, the Supreme Court allowed this, but in the 1980
    City of Mobile v. Bolden case, the Court held that such
    challenges require proof of intentional discrimination.
    Congress disagreed with that interpretation and passed a
    revised section 2. This revision rejected the intent standard
    and embraced the disparate impact standard. It was enough to
    show that the political processes leading to the nomination and
    election in a State or political subdivision are not equally
    open to participation of members of the protected class and
    that its members have less opportunity than other members of
    the electorate to participate in the political process and to
    elect representatives of their choice.
        The 1982 amendment created a broad statute in which
    Congress told courts to look at the totality of the
    circumstances, including socioeconomic conditions which could
    make minority voters face extra barriers to voting, as well as
    the tenuousness of supposed neutral justifications that States
    could advance for passing restrictive voting rules. Although
    the Supreme Court interpreted section 2 in redistricting cases,
    until Brnovich, it had never interpreted the issue in vote
    denial cases in which a State or locality makes it harder for
    minority voters to register and vote.
        Lower courts had read section 2 to set forth a tough
    standard for overturning the State law but one that could be
    met in appropriate cases. For example, the fifth circuit, one
    of the country's most conservative courts, held in an en banc
    ruling that Texas' very strict voter identification law indeed
    violated section 2. Then when Texas amended its law in response
    to the lawsuit to make it less onerous, the fifth circuit held
    it no longer violated section 2.
        Brnovich ignored section 2's comparative focus on less than
    burdens for minority voters, rather than focus on the totality
    of the circumstances test written into the law and conduct a
    local functional inquiry, as explained in the key 1982 Senate
    report accompanying the passage of the Voting Rights Act
    amendments. Brnovich offered non-binding so-called guideposts
    for decision. Issuing textualism, Brnovich creates an ad hoc
    test meant less as guideposts and more as roadblocks for voting
    rights of plaintiffs, giving States defending restrictive
    voting laws numerous ways to defeat section 2 claims.
        One guidepost rolls the clock back to 1982 holding that if
    a voting practice was not common in the year when Congress
    amended section 2, it is likely not a violation for the State
    to eliminate the practice, even if it would just really impact
    minority voters. Nothing in section 2's text, history, or
    precedent supports the 1982 benchmark when early voting was
    scarce and voter registration difficult.
        This is, in fact, the opposite of the non-retrogression
    principle applied in section 5 cases. Non-retrogression
    principle kept States from making voting worse. Brnovich
    encourages rolling back to the standards set in 1982 as a
    baseline. The Brnovich guideposts naming the strength of the
    State's interest in voting turns the totality of the
    circumstances' tenuousness standard on its head.
        Under tenuousness, if a State passed the voting law
    claiming it was necessary to protect voting fraud, that State
    would actually have to prove that this was the real
    justification and not a pretext for discrimination. As Justice
    Kagan explained in her dissent, throughout American history,
    election officials have asserted anti-fraud interests using--in
    using voter suppression laws. The Brnovich guideposts in
    practice is exactly the opposite. The Court repeatedly says
    restrictive voting laws could not be justified by concern over
    voter fraud, even if a State could not point to any fraud in
    its State.
        The matter is even worse, because in Brnovich and
    elsewhere, the Court has made it hard to win voting suits by
    relying on racially discriminatory intent of a State
    legislature in passing voting rules. Congress should reverse
    the statutory decision through carefully crafted legislation,
    just as Congress has done in the past, approving voting rights
    renewals and extensions by broad bipartisan majorities,
    including by a 98-to-0 vote in the Senate on the 2006
    legislation. Legislation will have to consider the scope of
    Congress's power, especially because the statements in Brnovich
    appears like a threat to find new voting legislation
    unconstitutional.
        Thank you for your time. I look forward to the opportunity
    to answer questions.
        [The prepared statement of Professor Hasen appears as a
    submission for the record.]
        Chair Blumenthal [presiding]. Thank you very much,
    Professor Hasen.
        You know, I want to begin perhaps by asking you about the
    Chief Justice's role, because I know that you're familiar with
    the history here. In 1982, John Roberts was a young attorney
    and special assistant in President Reagan's Department of
    Justice. It was the same year that Congress was debating
    amending section 2 to correct a problematic Supreme Court
    decision, City of Mobile v. Bolden. In City of Mobile, the
    Supreme Court held that voters challenging voting restrictions
    under section 2 must meet the onerous burden of showing that
    the law was adopted with a discriminatory purpose. It was
    insufficient, according to the Court's decision, to show that
    it had discriminatory impact.
        In 1982, John Roberts wrote, I think it was, about 25 memos
    to the attorney general, which are in the public archives,
    advocating against an effects test, as it was known.
    Ultimately, though, his plan failed in 1982. The Court agreed
    with City of Mobile and passed a revised section 2. It made
    clear that plaintiffs could challenge voting restrictions by
    showing they had discriminatory impact.
        Professor Hasen, in what sense is the Court's decision in
    Brnovich a vindication of then attorney, now Chief Justice
    Roberts' policy preferences which Congress rejected outright in
    revising section 2 in 1982?
        Professor Hasen. Thank you for the question, Senator. I do
    believe that John Roberts from the 1980s and through his
    history on the court has shown a kind of hostility toward broad
    protections for racial and ethnic minorities under the Voting
    Rights Act. As you said, back in the 1980s, he was the point
    person for the Reagan administration. It was clear that
    Congress was going to reauthorize section 5 of the Voting
    Rights Act. The big fight was over what the language of section
    2 of the Voting Rights Act was going to be. There was big
    pressure to overturn the statutory decision in the City of
    Mobile, which had effectively rendered section 2 meaningless as
    a standard.
        Congress, and especially the Senate in its Senate report,
    went out of its way to create a functional, localized totality
    of the circumstances test to try and figure out, are minority
    voters being deprived of the same opportunity as other voters
    to participate in the political process? John Roberts fought
    against that. He said in--and he lost that battle. Congress
    passed a very broad section 2 in 2009 in the Northwest Austin
    case. Then, in 2013, in the Shelby County case, he showed his
    hostility to broad voting rights protections eventually leading
    the Court in striking down the preclearance provision.
        In Brnovich, although he wasn't the author of the decision,
    he has essentially gotten what he wanted in 1982 just many
    decades later, which is a return to something like the intent
    test. Although section 2 is not completely eviscerated, the
    burdens, the roadblocks that the Court has put in front of
    minority plaintiffs should not be underestimated.
        Chair Blumenthal. Thank you. Mr. Garza, I would like to ask
    you about the extraordinary events taking place in Texas, but I
    want to preface it by quoting an exchange that took place in
    the Supreme Court hearing on Brnovich between Justice Barrett
    and Michael Carvin, who represented the Arizona Republican
    Party. Question by Justice Barrett was, quote, ``What is the
    interests of the Arizona RNC in keeping out of precinct ballot
    rules on the books?'' Michael Carvin's answer was, ``Because it
    puts us, the Republican party, at a disadvantage relative to
    Democrats. Politics is a zero-sum game.'' Politics is a zero-
    sum game in that event, and in that case, the pretty obvious
    acknowledgment was that the goal was in effect suppression of
    votes.
        My question to you is, in Texas, for a second time in the
    last 3 months, Democrats in the State legislature walked out to
    prevent passage of a voter suppression bill put forward by a
    Republican majority. Several of those representatives, as I
    mentioned earlier, visited me in my office this morning. Their
    proposed legislation has a number of provision, including
    limiting early voting hours, ID requirements, and other limits
    on vote-by-mail. In your experience, how would enacting laws
    like this one affect the minority communities, communities of
    color in Texas, people like the clients you've represented
    throughout your career?
        Mr. Garza. To begin with, the stated purpose for enacting
    these provisions is to avoid voter fraud. There's been no
    evidence associated with that. Instead, there has been evidence
    that--where the measures that are being limited and restricted
    by these proposals have been enacted by local election
    officials. Like for instance, opening up the timeframe for
    people to be able to vote, that that has increased voter
    turnout especially among populations of color.
        It's pretty--there doesn't seem to be a nonpartisan
    grounding for the purpose behind these provisions. They will
    have an adverse impact on minority voters that they will make
    it harder to vote. That seems to be their purpose. That seems
    to be consistent with the history in Texas where voting is more
    considered a privilege than a right. I've seen over and over
    again election processes and election rules being interpreted
    and used in a manner that adversely impacts voters of color.
        Chair Blumenthal. Thank you. I'll turn to the Ranking
    Member for his questions.
        Senator Cruz. Thank you, Mr. Chairman. Mr. Cuccinelli, good
    to see you again. Sixty-four percent of voters, including a
    majority of Black and Hispanic voters, want to strengthen
    voting safeguards that prevent fraud. That's what your
    organization is dedicated to doing. If the ``Corrupt
    Politicians Act'' were to pass, it would strike down every
    voter ID law in the country.
        Mr. Cuccinelli. Yes.
        Senator Cruz. Would that protect the right to vote?
        Mr. Cuccinelli. No, it undermines it.
        Senator Cruz. How does it----
        Mr. Cuccinelli. It undermines confidence in the outcome of
    elections as well, which is also a problem. I mean, this is a
    lawyers Committee, so I'll use a court analogy. It is not
    enough that our justice system produce the highest degree of
    accurate outcomes possible. Just outcomes, it must be
    understood and viewed to produce those outcomes, so that
    America can have confidence in its justice system.
        The same is true of our election system. It not only needs
    to work correctly, by which we mean producing an accurate vote
    count of legally eligible voters, but it also needs to be
    clearly seen to do so by winners and losers, so that we can
    have confidence in the outcome of our elections. I rattled off
    several, 2016, 2018, and now the discussion following 2020 in
    some places. This is--it's worked on both sides, have had the
    concern. There have been good reasons for it over the years. I
    would just say, you know, the reference to fraud--and since
    it's Texas, the current attorney general of Texas, Senator,
    respectfully, you know, spoke recently about 500 plus different
    voter fraud prosecutions in Texas. It isn't that it doesn't
    exist----
        Senator Cruz. How is that possible? Democrats tell us that
    voter fraud never occurs in any circumstance anywhere in the
    universe.
        Mr. Cuccinelli. Of course, it has and the Congress and the
    House reran an election in 2019. Because of it, it goes both
    ways. That was Republican operative committing fraud in that
    race in North Carolina. This is not singular, but protection of
    voting seems to be sacrificed----
        Senator Cruz. That race was also ballot harvesting, was not
    it?
        Mr. Cuccinelli. It was, yes. Absentee votes are
    particularly and have always been known to be particularly
    vulnerable to fraudulent tactics.
        Senator Cruz. Twenty-nine States prohibit ballot
    harvesting. The Corrupt Politicians Act that Senate Democrats
    are pushing would strike down every one of those laws. Would
    striking down the restrictions on ballot harvesting, would that
    protect the right to vote?
        Mr. Cuccinelli. Absolutely not. It undermines both the
    right and the confidence in the outcome of elections. It does
    double harm.
        Senator Cruz. We have also seen lots of overwrought
    rhetoric about the Texas election integrity law, about the
    Georgia election integrity law. Indeed, we had just a few
    minutes ago House Democrats from the Texas legislature who fled
    the State of Texas who are not doing their jobs, who are hiding
    out here in Washington and engaged in a political stunt. What
    is interesting about the attacks on that legislation is they're
    strikingly missing specifics. For example, the Texas election
    integrity law that is being debated right now requires voter ID
    for mail-in ballots. Does that protect the right to vote?
        Mr. Cuccinelli. Absolutely. I would note that it equalizes
    the protection of in-person voting as well, something that's
    happening in other parts of the country with the growth of
    mail-in voting.
        Senator Cruz. The Texas law that's also being debated
    prohibits officials from mailing unrequested mail-in ballots,
    from just taking everyone on the rolls and mailing them all
    ballots even if they didn't ask for one?
        Mr. Cuccinelli. That's correct.
        Senator Cruz. Is that a provision that protects the right
    to vote?
        Mr. Cuccinelli. Absolutely. I'll give you a Northeast
    example, in Connecticut, where their secretary of state mailed
    out ballots to everyone on the voter rolls, their outdated
    rolls in the primary and general election, and hundreds of
    thousands of those 3.6 million, if I remember my numbers
    correctly, of those ballots were returned with the supposed
    voter not at that residence. That's an enormous error rate to
    just lob a blank opportunities to participate at clearly
    ineligible residences and voters.
        Senator Cruz. The Texas law that's being debated right now
    also mandates cameras and live streaming inside central count
    and early vote ballot board meetings and mandates signature
    verification proceedings cameras in large counties. Does that
    protect the right to vote as well?
        Mr. Cuccinelli. Having oversight by citizens definitely
    protects the right to vote. In my experience as an attorney
    general, when you provide that kind of transparency in a wide
    variety of circumstances, not just elections, you can talk
    about it in the sex offender registries. When they know they're
    being watched, they behave better. It's an excellent tactic.
        Senator Cruz. Mr. Nobile, we have heard some overwrought
    rhetoric about the Supreme Court's decision in Brnovich, which
    was a 6-to-3 decision. It wasn't 5-to-4. It was 6-to-3. We have
    heard Democrats on this Committee suggesting that decision was
    outrageous. It was far too broad. It was contrary to law. Mr.
    Nobile, am I correct that the Biden Department of Justice filed
    a letter with the Supreme Court in Brnovich in which the Biden
    Department of Justice reviewed its prior brief in that case and
    said, and I quote, ``The Department has now concluded that
    although it does not disagree with the conclusion in that
    brief, that neither Arizona measure violates section 2's result
    test''? The Biden DOJ explicitly agreed that Arizona's law
    prohibiting ballot harvesting did not violate the Voting Rights
    Act. Is that right?
        Mr. Nobile. That's correct, Senator.
        Senator Cruz. Explain to me how it is that Democrats are
    saying, ``This is a horrible radical right-wing crazy
    conclusion that upholding the Arizona law can't be done
    consistent with the Voting Rights Act.'' Is the Biden
    Department of Justice some crazy right-wing radical group?
        Mr. Nobile. Probably not, but time will tell.
        Senator Cruz. I feel confident we can predict that they are
    not, and yet it seems the rhetoric we're getting from our
    Democratic colleagues does not match reality. Mr. Chairman, I
    ask unanimous consent that the letter filed by the Biden
    Department of Justice in the Brnovich case explicitly agreeing
    that the Arizona laws should up--withstand scrutiny under the
    Voting Rights Act. I ask that that be entered into the record
    of this hearing.
        Chair Blumenthal. Without objection.
        [The information appears as a submission for the record.]
        Senator Cruz. Thank you.
        Chair Blumenthal. Senator Hirono.
        Senator Hirono. Thank you, Mr. Chairman. For Professor
    Hasen. In the Brnovich opinion, Justice Alito claims to be
    applying section 2's totality of circumstances requirement.
    However, he then introduces what he calls ``guideposts'' that
    should apply to application of the law, things like the size of
    the burden imposed by a challenged voting rule and the degree
    to which a voting rule departs from what it was standard
    practice when section 2 was amended in 1982. What impact are
    these guide points going to have on the ability to successfully
    bring claims under section 2 of the Voting Rights Act?
        Professor Hasen. Thank you for that question, Senator. I do
    believe that these five guideposts are going to make it
    significantly more difficult for either the Department of
    Justice or private plaintiffs to win their suits. It's
    important to understand that these guideposts were, as Justice
    Kagan said in her dissent, really law-free and not moored at
    all. Like, if you're trying to figure out what did Congress
    mean when it passed section 2's revised version 1982, we know
    exactly what Congress means because Congress in the Senate
    report--and that very influential Senate report gave a list of
    I believe it was 13 factors to consider.
        Justice Alito didn't draw from those factors, even though
    all of the lower courts that had considered this question
    beforehand had done so. He made up these factors out of whole
    cloth, and they then pretended less as guideposts and more as
    kinds of roadblocks or defenses that States can put up if they
    try and pass restrictive voting laws. I think the really key
    point to understand is that for a Court that says that it's
    committed to textualism, that it's committed to figuring out
    what the words meant at the time, we know what these words
    meant. This was a Court that was not doing that. It was looking
    to try to roll the clock back and make it significantly harder
    for voting rights plaintiffs to win in these lawsuits.
        Senator Hirono. These guide points are--excuse me--not
    found anywhere in the text of section 2?
        Professor Hasen. That's correct.
        Senator Hirono. That this is why Justice Kagan has called
    it extratextual. It sounds as though when the Court does this,
    and especially Justice Alito, who tends to send out signals
    like this which results in more losses that are brought by
    people who they expect when it gets to the Supreme Court will
    be decided in their favor. When the Court does this, are they
    not writing law themselves?
        Professor Hasen. I think, you know, it's a semantic
    question as to when courts write law versus interpret law, but
    what I think we can say is that--the Court did not give a fair
    interpretation of what section 2 means. In fact, it's even
    worse. Two Justices, Justice Gorsuch and Thomas, suggested in a
    concurring opinion that private plaintiffs cannot even bring
    suit under section 2, which is completely contrary to how we've
    understood it for four decades. On top of that, Justice Alito
    made it even harder to bring claims claiming intentional racial
    discrimination under section 2. It really has made it
    significantly harder. It's not at all connected to either the
    text or the history or the precedents and how the lower courts
    have uniformly understood what section 2 meant before this
    case.
        Senator Hirono. For you, Professor Hasen and Ms. Nelson,
    and Mr. Garza, it is very clear that after Shelby County, some
    13 States immediately passed what we would call voter
    suppression laws. Over 400 of these kinds of laws are being
    considered or enacted in various States. What should we expect
    to see now that the Supreme Court has significantly weakened
    section 2 of the Voting Rights Act itself? Why is it so
    important that we enact the John Lewis Voting Rights
    Advancement Act and the For the People Act in the midst of
    hundreds of voter suppression bills that are being enacted and
    considered in some 40 plus States? Professor Hasen? Ms. Nelson?
    Mr. Garza?
        Professor Hasen. I wasn't sure if that was directed to me.
    I'll just say briefly that the most important thing I thought
    that Congress could do in terms of the voter rights act was to
    restore preclearance, which is what the John Lewis Voting
    Rights Advancement Act does. It's now clear after Brnovich that
    Congress has much more to do in terms of revitalizing section 2
    and telling the Court as Congress had to tell the Supreme Court
    in 1982 that it got section 2 wrong, that it misunderstood what
    it meant, that imposed too onerous a burden, that it needs to
    reverse that and impose a standard that is actually one that
    can be enforced and protect minority plaintiffs across the
    country.
        Senator Hirono. Do the other two panelists want to weigh
    in? I would like to hear your views, in spite of the fact that
    my time is running out. I hope the Chair will allow the other
    two witnesses to comment.
        Ms. Nelson. Yes, I'm happy to respond. Section 2 and
    section 5 worked in tandem to protect our democracy from the
    worst threats that emanate from the history of racialized voter
    suppression in this country. Section 5 was a prophylactic
    measure that helped to prevent discrimination before it began,
    and section 2 was the sweeper. Even the discrimination that got
    through section 5 or that emanated from jurisdictions that were
    not covered by section 5, were able to be attacked and
    challenged in court through section 2. As a result of the
    Brnovich case, there's now an even more formidable barrier to
    those challenges than existed before. We know that section 2
    was never a replacement for section 5.
        Litigation under section 2 is costly. It's protracted. As
    Mr. Garza, with whom I've litigated the Texas voter ID case
    noted, elections come and go and voters lose the ability to
    cast their fundamental ballots in elections with no recourse
    when we rely solely on section 2. We have a section 2 that is
    even more difficult to enforce. We need the For the People Act
    and the Voting Rights Advancement Act to restore the full
    robust protections of the Voting Rights Act and to set National
    standards or basic ways in which Americans can cast their
    ballots and have faith that they will be counted on an equal
    basis.
        Senator Hirono. Mr. Garza, would you like to add anything?
        Mr. Garza. I would echo what Professor Hasen and Ms. Nelson
    indicated. I would also point out----
        Senator Hirono. Your mic.
        Mr. Garza. I'm sorry. I would also point out that there
    already has been an avalanche of voting changes that are being
    proposed in response to these modifications of the Voting
    Rights Act by judicial decree.
        Senator Hirono. Yes.
        Mr. Garza. You know, this last decision by the Supreme
    Court is just the culmination of a number of cases that have
    weakened the impact of section 2 and the ability of plaintiffs
    to bring section 2 cases.
        Senator Hirono. The Chair has left. I'd like to call on
    Senator Cornyn. Would you like to ask your questions?
        Senator Cornyn. Thank you. Let me issue a newsflash.
    Lawyers disagree about a Supreme Court decision. It happens all
    the time. Every time the Court issues a decision, lawyers have
    different opinions about the correctness of the analysis and
    the outcome. As former Justice Jackson said, the Supreme Court
    is not right--excuse me, it's not final because it's right.
    It's right because it's final. Under our system, the Supreme
    Court's the last word on interpreting our Constitution and
    laws.
        I want to just ask Mr. Cuccinelli and Mr. Nobile a few
    questions. You know, a lot of discussion about the Shelby
    County case in 2013, but I was here in 2006 when we
    reauthorized the Voting Rights Act, I think one of the most
    important pieces of legislation ever passed by the U.S.
    Congress. The beauty of the Voting Rights Act is it actually
    worked, as demonstrated in Chief Justice Roberts' opinion. The
    gap between minority voting participation and white voting
    majority participation shrunk to almost zero. In fact, in 2020,
    in Texas, we had 66 percent of registered voters cast their
    ballot. Historic numbers of Hispanic and African-American
    voters participated in the election, which leads me to the
    conclusion that anybody who wanted to cast a ballot, who was
    legally qualified to do so, had ample opportunity to do so, and
    they did so in a very robust fashion.
        Mr. Cuccinelli, in the Shelby County case, Chief Justice
    Roberts called this preclearance requirement of State voting
    law changes an extraordinary remedy under the Constitution
    because as he pointed out, the Constitution itself embraces
    this notion of equal sovereignty among the States and the
    Federal Government. Obviously, the Federal Government under the
    supremacy clause has the authority to pass laws like section 2
    of the Voting Rights Act, which remains applicable to the
    entire country in all the States. Section 5 was very different.
    It gave the Federal Government the authority to preclear or not
    changes in State voting laws without frankly offering any real
    justification, other than they disagreed with it.
        This, as I said, was termed an extraordinary remedy. The
    problem that Cong--the Supreme Court identified was that
    Congress did not update the 40-year-old formula for which
    States would be affected by the preclearance requirement. If it
    had, it would have reflected this--basically, no real
    difference between minority voting in 2000--in 2015, I guess,
    it was than between--no difference between Black, Hispanic, and
    Anglo voting in that year.
        My conclusion is the Voting Rights Act worked pretty darn
    well. In order to gain this system, Congress did not update
    that formula and used a 40-year-old formula which did not
    reflect the current reality. It also did not apply uniformly
    across the States. Different States were--and different
    counties even were subject to different requirements.
        Congress retains the authority to update section 4 to
    reflect the current reality, but the fact of the matter is, if
    Congress did update the formula to reflect the current reality,
    there would be no justification as Chief Justice Roberts'
    opinion indicates for this extraordinary remedy of
    preclearance.
        Do you agree with my interpretation? Would you like to
    correct it or clarify it?
        Mr. Cuccinelli. No, I do agree, and I'd like to embellish
    it a little bit. I mean, the Chairman used a descriptive
    example from the South in the Voting Rights--I'm sorry, civil
    rights era that culminated in the Voting Rights Act. It simply
    doesn't exist in America any longer. Chief Justice Roberts said
    that explicitly in the Shelby County case, the Voting Rights
    Act works. The preclearance, I'm going to use the past tense,
    worked.
        The tests, like literacy tests, that existed, the hurdles,
    poll taxes, put in place in some of the States that were
    covered by preclearance were wiped out, were eliminated. The--
    and barriers to registration and participation were wiped out,
    were eliminated. Did it take time for Black citizens in those
    States to register up to the level of the rest of the country?
    Yes. That happened decades ago. Including before 2006, by the
    way.
        We've had over 60 percent voter participation in every
    Presidential election since 2004. I think you have to go back
    decades before 2004 to find that same accomplishment.
        It worked. That was recognized in Shelby County. One of the
    reasons Shelby County and Brnovich are correct is simply
    because the Supreme Court was dealing with facts and not
    hysteria, which we're hearing an awful lot of, in condemning
    these cases.
        Senator Cornyn. If Shelby County didn't change the racial
    participation of Hispanics and minorities--and obviously since
    2013, there hasn't been a preclearance requirement even for the
    States that were previously affected, it seems to me that this
    is no longer about race or voter suppression, but more about
    political power.
        Senator Cruz did a good job of explaining this one, and its
    various attempts to hijack the State election laws. I think one
    thing he left out is the fact that taxpayers would be required
    to finance elections of candidates that they disagree with on
    the policies, I think on a 6-to-1 basis. For every dollar a
    candidate raises, the Federal taxpayer will be required to pay
    into that election campaign $6 and finance the election of a
    candidate they ardently disagree with.
        Let me ask just one last question about these so-called
    voter suppression laws. In Texas, Mr. Nobile, we have 17 days
    of early in-person voting. In Connecticut, the Chairman's
    State, they have zero days of early in-person voting. Do you
    believe Connecticut is suppressing minority voting by having
    zero days of early voting as opposed to the 17 days that are
    available in Texas or is there some other explanation?
        Mr. Nobile. Let me put it broadly. If they were redoing the
    coverage formula for section 5, New England would be patient
    zero. Massachusetts, Connecticut, all the data shows that this
    racial disparities and turnout and registration is worse there
    than almost anywhere else in the country.
        Senator Cruz [presiding]. Thank you, Mr. Nobile. Senator
    Klobuchar is, as I understand it, next remotely.
        Senator Klobuchar. Very good. Thank you very much. Thank
    you to all of you for being here. My State has the highest
    voter turnout in the country persistently, and we have elected
    Democratic Governors, Republican Governors, and Jesse Ventura.
        I guess one of the things I've learned from that is what's
    most important is that people vote and they feel like they are
    part of the democracy. What really concerns me about these
    efforts which are blatant attempts to limit the freedom to vote
    is they're literally messing around with the foundation of our
    country.
        I guess I would start with you, Mr. Garza, because I met
    today with a number of the Texas legislators along with Senator
    Warnock and Senator Merkley because Senator Merkley and I lead
    the For the People bill. Which provisions of the legislation
    that is now being considered in Texas are you most concerned
    with?
        Mr. Garza. It's a bad bill all the way around. There are
    prohibitions limiting the timeframe for when people can vote. I
    think that's concerning. There are--you know, there was a
    misstatement made about how local election--elective officials
    are prohibited from sending ballots to voters. Actually,
    they're prohibited from sending applications or mail-in
    ballots.
        There are--those actions are criminalized. That there are
    efforts that intimidate local election officials from trying to
    help people vote, assist people in voting. I think those are--
    --
        Senator Klobuchar. Is it also the fact, that if you have
    more than three people that you're taking to the polls, you
    have to sign some kind of statement or affidavit?
        Mr. Garza. Yes. There are restrictions on assisting voters
    to the polls. Assisting voters at the polls. So, those----
        Senator Klobuchar. Also defining your disability? Is that--
    there's something in there on that?
        Mr. Garza. Yes. Additional affidavits that need to be filed
    by voters. I think all of the things that are included in the
    bill are things that have been tested and have an increased
    voter participation. There is no evidence of voter fraud
    regarding these matters. There are--there is evidence of
    increased voter participation. Those are the things that are
    being limited.
        Senator Klobuchar. All right. Thank you. Ms. Nelson, just
    along these lines that so we've identified a lot of these
    issues. Georgia has passed a law that is kind of unbelievable
    in some of its provisions. How does the For the People Act--we
    know that John Lewis Act will help in one important way with
    identifying those policies and States that engage in
    discriminatory conduct in going forward which is one of the
    issues that would be forward-looking. They'd have to come
    before the Justice Department to--for approval, but--the For
    the People Act is actually firmly grounded in the Constitution.
    It's a provision in the Constitution that has never been
    doubted, that says the Congress can make and alter provisions
    governing Federal elections. That's one of the things that
    interest me so much about the bill.
        Could you talk about some of the important protections in
    this. How it would just simply create some basic national
    standards for voting instead of this mess, including how we
    count the ballots after with some states. Including some blue
    States waiting and not even starting counting them until after
    the election's over and then everyone is kept in suspense for
    weeks. Anyway, go ahead.
        Ms. Nelson. Sure. The For the People Act is a very
    comprehensive and extensive piece of legislation that equalizes
    voting across all of the States. Senator Cornyn made the point
    for me in many ways by pointing out that there's early voting
    in Texas and none in Connecticut.
        I think we've learned over the course of several decades
    that expanding opportunities for eligible Americans to vote
    only enhances our democracy. It only invites more people to
    exercise a fundamental constitutional right. It's something
    that we should all be encouraging.
        The For the People Act does that by creating a baseline of
    two weeks of early voting across the country. It also creates a
    program of automatic voter registration, so that only eligible
    Americans will be automatically registered. It takes the onus
    off of everyday American staff to have to register themselves.
    Unlike what Senator Cruz said earlier, it doesn't allow people
    who are not eligible to vote to be registered. It limits it
    only to those eligible Americans, which is a benefit for all
    Americans.
        It also includes same-day registration, as well as online
    registration, and includes a number of other provisions
    including welcoming returning citizens back into our electorate
    after they have served their time.
        These are all democracy expanding provisions that, we now
    know, 67 percent of voters support. Unlike much of the rhetoric
    we've heard today, the principles of the For the People Act are
    overwhelmingly supported by the American electorate. That
    includes 56 percent of Republican voters, 68 percent of
    Independent voters, and 77 percent of Democratic voters.
        This shows that this law is not a partisan issue. It's not
    a partisan--it's not partisan propaganda. It is an American
    issue, and it strengthens our democracy across the board.
        Senator Klobuchar. I would note your point about people
    voting after they've completed their sentences or prison
    sentences. Florida, while electing Republican statewide,
    actually voted overwhelmingly, I think it was 65 percent, to
    allow people who had completed their prison sentences to vote.
        I think one of the points we want to make here, and that I
    made as Chair of the Rules Committee, is that--that you have
    just done. This--there is significant bipartisan support as we
    saw during the pandemic for people voting safely in the way
    that they would prefer.
        That's the core of this bill. That's why I know we will
    eventually be successful. Thank you very much, all of you.
        Senator Cruz. Thank you, Senator Klobuchar. Senator Lee.
        Senator Lee. Mr. Cuccinelli, you served as the Attorney
    General of the State of Virginia both before the Shelby case
    and after the Shelby case. What can you tell us about your
    experience with the section 5 preclearance process prior to the
    Shelby decision, and then your experience complying with
    section 2 in Virginia after the Shelby decision was rendered?
        Mr. Cuccinelli. Of course, there's always the sort of, at
    least, theoretically unreconcilable dichotomy where section 2
    legitimately demands that race not be taken into account in
    establishing voting laws and procedures. Then section 5 which
    demands that preclearance States take race into account in, for
    instance, redistricting and in particular.
        After Shelby County, a couple of the small number of DOJ
    section 2 cases caught preclearance States, Texas was one, in a
    situation where they--under Shelby County, they weren't
    supposed to have taken race into account yet----
        Senator Lee. They had to.
        Mr. Cuccinelli. It was explicitly done. It was a catch-22
    at that time. That's gone away for the next set of
    redistricting, of course. The burdens of doing this, of
    complying with preclearance for those who haven't participated
    in it, are pretty extraordinary with over 10,000 election
    districts in this country.
        If you move the polling place that you vote at--and I don't
    mean you, you Senator--if your State moves your polling place
    here in Virginia, where I was, from the firehouse to the
    schoolhouse, you had to get Federal permission.
        If you moved it from the cafeteria to the gym, you had to
    get Federal permission.
        Senator Lee. Why?
        Mr. Cuccinelli. We have about----
        Senator Lee. Why did that require preclearance?
        Mr. Cuccinelli. Everything required preclearance. Every--
    there is literally no detail of your election system too small
    to be demanded to be precleared by the Federal Government. Of
    course, it's partially a deterrent to making any changes.
        Evolution of State systems under that circumstance is just
    slower than it would otherwise be. That's just speaking to a
    good government perspective of running us--running the State
    well.
        Senator Lee. Okay. As I read H.R. 4, I read it to require
    preclearance for States based on mere allegations.
        Mr. Cuccinelli. Yes.
        Senator Lee. Not proof of voter discrimination.
        Mr. Cuccinelli. Yes.
        Senator Lee. If that's the case, then potentially every
    jurisdiction, every voting jurisdiction in America could be
    subject to preclearance. Is that right?
        Mr. Cuccinelli. That seems to be the point, especially with
    a 25-year look back.
        Senator Lee. Wouldn't that dramatically exacerbate the
    problems that you face as attorney general pre-Shelby?
        Mr. Cuccinelli. They'd exist for every State pretty quickly
    because----
        Senator Lee. For every State?
        Mr. Cuccinelli. All it takes is allegations, as you note,
    by the Attorney General or settlements. The easy way to get a
    State in to preclearance under the circumstances in--under H.R.
    4 is to sue small election jurisdictions which can't afford to
    litigate, settle in ways that aren't disadvantageous to them,
    and that settlement counts as one of the strikes against that
    State and that locality for bringing it into preclearance with
    15 of those over 25 years, which is easy enough to file that
    many suits, then that State is in preclearance. It had nothing
    to do, nothing to do with disparities and discrimination based
    on race or any other reason.
        Senator Lee. Mr. Nobile, is there any data that suggests
    combating State-enforced voter discrimination cannot be
    accomplished on a case-by-case basis under section 2 of the
    Voting Rights Act?
        Mr. Nobile. No. I mean, I think that's pretty much what the
    Voting Rights Act suggests, right? I mean, you had section 5,
    and then when section 5 went away when it was initially
    enacted, you always had the permanent provision of section 2.
        Senator Lee. Was your experience in the Voting Rights
    Section of the Department of Justice consistent with what Mr.
    Cuccinelli described pre-Shelby and post-Shelby?
        Mr. Nobile. Yes, it gets very granular. I mean, you know,
    the Supreme Court has intervened a few times and told the
    section how far that goes. In one of the cases, in Alabama, the
    name is escaping me at this point, they sued over--or an
    advocacy group sued over, you know, budgetary changes. It gets
    that intimate into what a jurisdiction does.
        That--that was set aside as not a section 5 change, but
    that should give you some insight into how granular they'll
    get.
        Senator Lee. Now that we've accepted the fact that
    potentially every jurisdiction in America could be subject to
    preclearance.
        Mr. Nobile. I would that H.R. 4 has two forms of
    preclearance, right. They've got the national version and then
    the traditional version, and that gets sometimes mixed up. It's
    got national coverage for election integrity measures, and a
    new triggering mechanisms for traditional section 5. Everyone's
    getting covered regardless. Then some people may be covered by
    both.
        Senator Lee. They might be covered in both respects. What--
    in your opinion what--what are the section 2 violations that
    are so rampant that are so pervasive as to warrant
    preclearance? Is there anything analogous to the conditions we
    saw with the initial enactment of the Voting Rights Act and the
    application of section 5? Anything like that?
        Mr. Nobile. Not currently. I mean, of course, as Mr.
    Cuccinelli mentioned, I mean, settlements are very thin
    mechanism for triggering mechanism. I've represented small
    jurisdictions and represented the State of Mississippi and some
    Voting Rights Act cases. I mean, those things can cost $100,000
    to $1 million. There's all sorts of non-substantive basis for
    settling these cases that don't involve a consent decree, that
    don't involve a prima facie showing in Federal court.
        Senator Lee. Are Department of Justice attorneys--or did
    you see Department of Justice attorneys communicate with
    outside groups when making decisions of whether to bring any of
    these cases?
        Mr. Nobile. Yes, I mean, they would always go solicit
    information or insight or views from advocacy groups in section
    5. I mean, you know, some of the other stuff that the--you
    know, the influences, honestly, they know how to do it. I mean,
    they've been doing it for a while, and they have personal
    relationships with all these people. They will pick up the
    phone and call them. Then, you know, there'll be expedited for
    all your processing and things like that. I think a lot of it
    was spelled out in the OIG Report from 2013, of which I was
    there, and I can corroborate virtually everything in it.
        Senator Lee. In your view, is the Voting Rights Section
    sufficiently nonpartisan that you could say that they could
    make these decisions without any appearance or reality of being
    outcome-driven or politically motivated?
        Mr. Nobile. I mean, it's not nonpartisan. I mean, it's
    just--as a practical matter, it's just not. Can they set that
    aside? There are some people in that Section that are
    pathologically incapable of setting aside their views.
        Senator Lee. Okay.
        Chair Blumenthal [presiding]. Senator Lee, we're going to
    have a second round.
        Senator Lee. Great. Thank you.
        Chair Blumenthal. I just want to enable Senator Padilla to
    go, and then I'll call you back with the Ranking Member's
    permission. Senator Padilla.
        Senator Padilla. Thank you, Mr. Chair. I know our time is
    limited and the hours long but wanted to, at minimum, get in
    one question directed at Professor Hasen. Professor, Justice
    Alito, like many of my Republican colleagues have--like many of
    my Republican colleagues has held himself out to be a champion
    of textualist judicial philosophy.
        The basic premise of the philosophy is that judges should
    start with the words of the statute as they would be understood
    at the time they were written. If they are clear, go no
    further. Any additional analysis would step beyond the role of
    a judge, and it's considered quote, ``inappropriate and
    judicial activism.''
        In writing the Brnovich, majority opinion, Justice Alito
    abandoned textualism altogether to reach a conclusion that is
    entirely divorced from the actual text of the Voting Rights
    Act.
        His analysis laid bare that for the conservative majority
    of the Supreme Court textualism only applies where it is
    convenient to reaching the desired case outcome. Professor, can
    you explain how Justice Alito's opinion in Brnovich effectively
    ignores the text of section 202 of the Voting Rights Act?
        Professor Hasen. Thank you, Senator. The first thing I
    would say is that Justice Kagan's opinion in the dissent is, I
    think, a much more faithful textualist interpretation of what
    the words of the act actually say in the context in which they
    were written.
        Justice Alito has not been as strong of a textualist
    consistently, as some of the other conservative Justices. When
    you think of Justices, Gorsuch and Thomas especially, they
    signed on to this opinion. This was the 6-to-3 opinion. The 6
    conservative Justices, including the 3 Justices appointed by
    President Trump, have been strong supporters of textualism.
        Justice Kavanaugh wrote an article in the Harvard Law
    Review embracing textualism, and yet this opinion abandons
    textualism. They came up with these guideposts that have
    absolutely no connection to the text of the statute or to--even
    to precedent which is something that textualist will often look
    to or to just the earlier versions of section 2.
        Again, this part of the Act was rewritten in 1982 because
    the Supreme Court got it wrong in 1980 in the City of Mobile v.
    Bolden case when the Court said that section 2 did not cover
    discriminatory results.
        Congress clearly put it back in and any honest textualist
    would understand that this was an effects test that would ask,
    as Justice Kagan explains in her dissent--the first question
    is, are minority voters treated worse? If you can say that
    they're treated worse in any voting law, that's what this
    should go for--what should be targeted, that.
        What Justice Alito did was smoke and mirrors to just make
    it easier for States to defeat section 2 claims in this area.
        Senator Padilla. Okay. I have one quick question for all
    five of the witnesses. It's a simple yes or no question that I
    ask that you each respect my question with the simple yes or no
    response.
        The preface of the question is this, when I was in high
    school government class, I remember our teacher teaching us
    that our democracy works best when as many eligible people
    participate. Did my high school teacher get it right? Yes or
    no? Professor Hasen?
        Professor Hasen. Yes.
        Senator Padilla. Ms. Nelson.
        Ms. Nelson. Yes.
        Senator Padilla. Mr. Garza.
        Mr. Garza. Yes.
        Senator Padilla. Mr. Cuccinelli.
        Mr. Cuccinelli. Yes, and with confidence and transparency.
        Senator Padilla. Mr. Nobile.
        Mr. Nobile. Yes.
        Senator Padilla. Thank you. I mean, it seems like a simple
    concept. I ask it, for the record, because I've heard far too
    often, not just from several of my Republican colleagues this
    year, but for many years from Republican leaders including
    election officials across the country, this supposed philosophy
    of all we want to do is make it easier to vote, but harder to
    cheat.
        The data suggests we've gotten the harder to cheat down
    pretty good. Every study, every investigation, has not only
    documented but quantified voter fraud in America is
    exceedingly, exceedingly rare.
        What my colleagues seem to have forgotten about is the
    first part of their mantra, the easier to vote piece. I know
    this is not a hearing on the For the People Act, but as the
    former secretary of state of California having not just
    champion but successfully implemented a lot of the measures
    called for in the For the People Act policies like automatic
    voter registration, same-day voter registration, no-excuse vote
    by mail, the ability of voters to choose a voting location in
    their county most convenient to them if that is their choice,
    same-day registration, and more.
        We know that it--it's not just good for the voter in terms
    of improving ballot access, it actually--these policies taken
    together also help improve election security and protect the
    integrity of our election.
        Yes, election integrity is a concern and a responsibility.
    If we all agreed with my high school government teacher, and
    all of you said yes, government also has a role and a
    responsibility in facilitating that participation of all
    eligible voters. That what should be driving the actions of
    Congress and statehouses today. Thank you, Mr. Chair.
        Chair Blumenthal. Thanks, Senator Padilla. Senator Lee, I
    interrupted you. If the Ranking Member has no objection, I'll
    let you continue.
        Senator Lee. I'm--I'm stunned with the suggestion that was
    made by one of our colleagues moments ago with the involvement
    of one of our witnesses to the effect that Justice Alito used
    textualism and originalism as a pretext in order to uphold
    reprehensible voting practices. This simply is not true.
        Not only is it not true, but I believe that statement was
    made with reckless disregard for its truthfulness. If you're
    going to come in here and assail one of the finest jurists
    that's ever served on the highest Court of this country, you
    better be prepared for it.
        Look, you might disagree with the decision as far as a
    policy outcome. You might even disagree with the way he read
    it. I don't. He got it right. Don't come in here and say that
    because you disagree with it you think he's using it as a
    veneer, as a pretext to getting away with something
    reprehensible. That's not fair. That's not accurate. You
    cheapen this entire process when you do that.
        I hope that those who made that suggestion will apologize
    and retract what they said because it is wrong. Not just
    factually incorrect, but it's morally wrong. Don't do that.
    That's not what happened. You know that's not what happened.
        Look, we've been told repeatedly, over and over again, that
    the last election was the biggest election turnout in history.
    We've been--the most--the first electorate in history. Yet,
    feverish cries of discrimination in voting have been relentless
    and are reaching a feverish pitch, so much so that they're
    causing people to depart not only from the facts and the law
    but from basic standards of human decency in light of
    overwhelming proof that minorities are voting, and that they're
    voting in record numbers.
        I'm completely baffled by the hysteria of the left over the
    state of voting in this country. I see no evidence demanding a
    Federal takeover of elections nor do I see any authority to do
    what they are doing.
        The Constitution whether you like it or not is something
    that we've sworn an oath to uphold and protect and defend. We
    can't just treat as if it were some inconvenient truth. It is
    not. It is the law. It doesn't empower us to take over
    elections.
        Likewise, the vast majority of Americans support
    commonsense reforms to election laws. Requiring voter
    identification, banning ballot harvesting, securing drop boxes,
    and yet the left has lost its mind because the Supreme Court
    has held the commonsense reforms in Arizona do not violate the
    Voting Rights Act. They don't. The text makes that very clear.
        Certainly, it cannot be that any voting requirements are
    unacceptable and yet that's exactly what we've heard ad nauseam
    from the left since day one of this Congress. It's to the point
    that an activist DOJ has taken to harassing the States by
    bringing frivolous cases against them for trying to do what
    Americans have asked them to do. To make it easier to vote and
    harder to cheat.
        If we're told that we cannot make even these basic reforms
    to ensure the integrity of our elections, none of our votes
    mean anything and that we're all disenfranchised.
        I want every legitimate vote to count. That cannot happen
    if we refuse to allow States to make these commonsense non-
    discriminatory reforms to secure elections. That is make no
    mistake what this is about.
        Look, you can't step in and try to impose what really would
    amount to de facto nationwide preclearance standard. Expect
    that that's going to pass constitutional muster. Much as people
    were trying to characterize this as if we were living in the
    immediate post or pre--post Jim Crow era, that is not where we
    are.
        The very same practices that prompted preclearance, and the
    need for preclearance in the 1960s are not there. Section 2 is
    still in place for--when actual instances of discrimination
    take place. Those are our adequate remedies. I have yet to hear
    a single explanation from any advocate of H.R. 4 as to why
    those are inadequate.
        I have yet to see a single shred of evidence indicating
    that there are so many section 2 cases mounting and going
    unaddressed and unresolved as to warrant de facto nationwide
    preclearance. We can't let this happen. It's not
    constitutional. The arguments that we've just heard about
    Justice Alito are patently wrong and unfair. Thank you.
        Chair Blumenthal. Thank you, Senator. We have a big
    difference of opinion. I just want to go back to what the
    Supreme Court said about preclearance. Not that it was
    unconstitutional, in striking it down in Shelby County, but
    that it wasn't needed anymore.
        In fact, Chief Justice Roberts' majority opinion in Shelby
    County acknowledged that preclearance had worked. Senator
    Cornyn, I think here, just a little while ago, said
    preclearance worked. None of them said it was unconstitutional.
        Senator Lee. To be clear, that's not what I'm saying. I'm
    not saying all preclearance is and always was unconstitutional.
    I'm saying H.R. 4 is wildly unprecedented.
        Chair Blumenthal. Going back to the Supreme Court's
    opinion, Justice Roberts said, quote, ``Conditions had
    changed,'' end quote. In the South, there was no longer any
    need for it. Frankly, as late Justice Ginsburg said in dissent,
    quote, ``Throwing out preclearance when it has worked and is
    continuing to work to stop discriminatory changes, is like
    throwing away your umbrella in a rainstorm because you are not
    getting wet,'' unquote.
        We are getting wet. In fact, in the wake of Shelby County,
    numerous States rushed to pass restrictive laws. Laws that
    restricted access to the ballot that had previously been
    blocked through the preclearance process including stricter
    voter ID laws, restrictions on early and absentee voting, and
    elimination of voter registration opportunities.
        I'd like to ask Ms. Nelson, because you've litigated around
    the country, what has been your experience in the wake of the
    Shelby County decision? What have you seen?
        Ms. Nelson. In the wake of the Shelby County decision,
    we've seen a rise in voter suppression that is absolutely
    stunning. That is just an assault on the progress that the
    Voting Rights Act made over decades.
        Section 5 took away the basic filter in jurisdictions with
    a known history of racial discrimination to ensure that those
    jurisdictions would not continue to discriminate on the basis
    of race.
        We clearly do not agree with the outcome of the Shelby
    County decision. It must be reiterated that the Shelby County
    decision was very clear on the point that section 5 is
    constitutional. It struck down section 4, which is the trigger
    for section 5. Chief Justice Roberts invited Congress to update
    that formula to ensure that it reflected modern conditions.
        That is exactly what the Voting Rights Advancement Act
    does. It updates the voting rights act with modern conditions
    and questions about jurisdictions and findings, not
    allegations, actual findings of discrimination, and concessions
    of discrimination to ensure that only those jurisdictions that
    continue to discriminate on the basis of race are subject to
    Federal preclearance.
        It is constitutional. It is within Congress's enforcement
    powers under the 14th and 15th Amendments to require
    jurisdictions that engage in racial discrimination to submit
    voting changes for preclearance.
        It is simply an evaluation, a question, of whether those
    new changes will have a discriminatory impact. It's not
    punitive. It is not a finding in and of itself. It is a way for
    the Federal Government to ensure that our elections are free of
    racial discrimination.
        In the absence of section 5, we've seen countless
    violations of the Voting Rights Act the same day that the
    Shelby decision came down. The State of Alabama, the State of
    Texas resurrected voting laws that had been found to be
    discriminatory. Under section 5, they resurrected them and
    began the process of implementing them.
        Lo and behold, they had the discriminatory impact that was
    predicted. We've seen copycat legislations following the end of
    section 5. We've been litigating furiously to try to beat those
    discriminatory laws back. Litigation, as I have mentioned
    before, is not a remedy, because elections occur and elected
    officials are installed, and those--those decisions that were
    made in a context of racial discrimination cannot be undone.
        That's why it is imperative that this body move forward at
    the invitation of Chief Justice Roberts, and now at the
    invitation of the Court based on its attempt to weaken section
    2 in Brnovich that it move forward with clear legislation, that
    is a mandate to protect the right to vote, both
    prophylactically and by strengthening section 2.
        Chair Blumenthal. Thank you, I think you've made really
    very clearly the point that I think is paramount here, which is
    that our goal is to restore a preclearance process under
    section 5, to restore section 2 to what it was before it was
    eviscerated by Brnovich, and the John Lewis Voting Rights
    Advancement Act, which would accomplish those goals by amending
    the Voting Rights Act of 1965, is supported by a broad array of
    business, community leaders, and political officials.
        To that end, I want to put into the record a letter that
    has been signed by 160 such companies. Major companies in the
    country urging passage of the John Lewis Voting Rights
    Advancement Act. That concludes my questions. Do you have any
    questions, Senator Cruz?
        [The information appears as a submission for the record.]
        Senator Cruz. Thank you, Mr. Chairman. Just a moment ago,
    the Chairman said that the Brnovich decision eviscerated
    section 2 of the Voting Rights Act. Mr. Nobile, I want to
    confirm what we talked about earlier. Is it correct that the
    Biden Justice Department explicitly agreed that the Arizona
    provisions being challenged were consistent with and satisfied
    the Voting Rights Act?
        Mr. Nobile. It is correct. If I can add one point to this.
        Senator Cruz. Sure.
        Mr. Nobile. There's been a lot of talk of the five
    circumstances, of the five lodestar, that Justice Alito put in
    his section 2 opinion in Brnovich. Those things are the extent
    of any burden, the departure from a historical benchmark, the
    significant--significance of any disparity, the opportunities
    to register--the other opportunities to register and vote, and
    the significance of the State entrance.
        That is section 2101. None of that is anything new.
    Everybody that brings a section 2 case, you look at the size of
    disparity, you look at the history, you look at the burden, you
    look at the other opportunities. Every section 2 case, you do
    that.
        In a dilution case, it doesn't matter because it's a
    completely different metric. You got Gingles, you got Senate
    factors. This argument that Alito deviated from the text is
    sort of unfounded.
        Senator Cruz. Mr. Cuccinelli, can you tell this Committee
    about actual Jim Crow laws? How do they operate?
        Mr. Cuccinelli. Sure. I have to say when I hear people like
    the President of the United States throw around the notion of
    cleaning up our elections by saying it's a new Jim Crow, it's
    offensive to the real thing. It's like people claiming racism
    as an excuse, when there isn't racism, to accomplish other
    goals also diminishes occurrences of actual racism.
        Look, I'm a Virginian. I brought parts of the 1902 Virginia
    Constitution with me. Article 2, when I'd urge the Committee to
    accept this as part of the record of real Jim Crow laws.
        Article 2 is about the franchise, poll taxes, property
    requirements, literacy requirements, end-runs around literacy
    requirements so whites could get access to the vote, where
    Blacks would not. For instance, it allows those who were active
    in war for either the United States or Confederate States to be
    registered to vote regardless of all the other tests or a son
    of such person. That's called a grandfather clause. Other
    places they do the grandfather.
        Let me read to you the spirit of this Constitution in
    article 9. This is section 140. I'm going to read the whole
    thing. ``White and colored children shall not be taught in the
    same school.'' That's what's going on in the 1902 Virginia
    Constitution. That's Jim Crow laws.
        I brought with me a six-page test from 19--I want to say
    1958 in Georgia. You had to pass this test to register to vote.
    I was the head of USCIS. We gave citizenship tests for people
    to become new citizens. They were a cakewalk next to this. I
    wonder if anybody on this Committee could name every judge in
    the judicial circuit you live in. I can't. I'm--was the
    attorney general.
        That's one of the questions on here. I'd submit this for
    your record as well. This is a real Jim Crow impediment to
    people registering to vote. It's both a literacy bar and these
    kinds of tests.
        The Virginia Constitution includes tests like that. You can
    find this in California, Connecticut, Delaware. These are real
    Jim Crow laws.
        Senator Cruz. Mr. Cuccinelli, which party wrote the Jim
    Crow laws?
        Mr. Cuccinelli. Almost universally written by the Democrat
    party and one-party control, certainly in Virginia and across
    the South.
        Senator Cruz. Which party enforce the Jim Crow laws?
        Mr. Cuccinelli. The Democrat party, universally.
        Senator Cruz. Which party's elected officials benefited
    from the Jim Crow laws?
        Mr. Cuccinelli. The one-party control was maintained for
    decades and decades by the Democrat party.
        Senator Cruz. Jim Crow laws were designed to keep
    politicians from which party in office?
        Mr. Cuccinelli. The Democrat party.
        Senator Cruz. Today, Democrats are at it again. Among other
    things, they are advocating, subjecting every State election
    law to be able to be vetoed by an unelected bureaucrat at the
    Department of Justice.
        If an unelected bureaucrat at the Department of Justice can
    veto, say, a voter ID law that is adopted by the State
    legislature that is elected by the voters, is that respecting
    democracy? Is that protecting the right to vote?
        Mr. Cuccinelli. No, it's undermining democracy.
        Senator Cruz. How is it undermining democracy?
        Mr. Cuccinelli. When the will of the people, as expressed
    through their elected representatives, make policy choices in
    their sovereign State and a Federal bureaucrat rolls in with
    the power to undo that entire process, you are vetoing by an
    unelected person, the results and the will of the elected
    representatives in that State. That undermines democracy, and
    it makes elections less useful to the people.
        Senator Cruz. It's impossible to miss why it is that
    Democrats want to give unelected bureaucrats in the Department
    of Justice veto power over every State legislature in America.
    Because those unelected bureaucrats are not just principled
    nonpartisan paragons of virtue, instead, they are hard, radical
    leftist activists.
        In 2013, the Department of Justice Inspector General issued
    a scathing report detailing the politicization of the Civil
    Rights Division. The report criticized the Voting Section of
    that Division for ignoring the resumes of qualified attorneys
    and hiring a majority of lawyers from only five left-wing
    advocacy organizations including the ACLU, La Raza, and the
    NAACP.
        Moreover, a recent hearing in the House, a former lawyer in
    that Division, Maureen Riordan testified just how political
    that Division was. She said she was shocked at how political
    the conduct of the lawyers were. Some of the dishonesty that
    Ms. Riordan testified to--and she said even after a court
    sanction, the DOJ Voting Section with $594,000 for collusive
    misconduct with ACLU organizations, Ms. Riordan was urged to
    continue to strategize with the ACLU and other leftist
    organizations.
        Mr. Nobile, you worked in this Section? Is that consistent
    with your experience?
        Mr. Nobile. That is.
        Senator Cruz. Can you describe the politicization that you
    saw when you worked in the Department of Justice?
        Mr. Nobile. Mind you I left there in 2012, so--or--yes,
    2012, but I was there during the time it was relevant to the
    OIG report. When the report came out it was retrospective.
    Virtually everything in that report, I can corroborate and saw.
        I mean, I know Maureen. I haven't talked to her until
    recently when she's gone out into private practice. I respect
    Maureen and everything she says. I watched her testimony, and I
    believe everything Maureen said.
        Yes, I mean, the staff has a way of sorting out people's
    political views. I mean, I don't know the people that have been
    hired since I left. I have a hard time imagining that anything
    has been able to change. It's the culture of a locker room, so
    to speak. It's tough to change that. It's pretty consistent
    with the OIG report.
        Senator Cruz. Today's hard-left is opposed to voter ID
    laws. If Democrats succeeded in giving unelected bureaucrats at
    DOJ veto power over voter ID laws, would any State in the
    country be able to pass a voter ID law?
        Mr. Cuccinelli. No.
        Senator Cruz. All right, final question Mr. Cuccinelli.
    Senator Klobuchar and one of the Democratic witnesses said that
    if the ``Corrupt Politicians Act'' were passed into law, that
    no illegal aliens would be registered to vote. Is that remotely
    credible? If not, why?
        Mr. Cuccinelli. No, it's not. The terms of the bill, the
    draft bill, clearly not only would register millions of non-
    citizens, including illegal aliens, because they get into State
    databases, and that's not nefarious. States interact with the
    people that live in their States.
        Senator Cruz. Like illegal aliens have driver's licenses in
    a lot of places.
        Mr. Cuccinelli. They do, in many States.
        Senator Cruz. Millions of illegal aliens have driver's
    licenses?
        Mr. Cuccinelli. Absolutely.
        Senator Cruz. They'd all be automatically registered or
    most of them would be automatically registered?
        Mr. Cuccinelli. Yes, and the bill doesn't say citizens. It
    says individuals in those databases. I would further note,
    Senator, that there are other provisions. One, it
    criminalizes--and the Chairman expressed his worry about using
    criminal statutes to intimidate. It intimidate State and local
    officials with new Federal criminal penalties if they ask
    questions vaguely worded. If they ask questions without
    filtering who should be----
        Senator Cruz. Does it immunize State officials who register
    illegal aliens from liability for registering illegal aliens?
        Mr. Cuccinelli. Not only that. It immunizes the illegal
    aliens from voting. There's no penalties. It removes penalties
    for anyone registered to vote this way from actually voting in
    elections, and thereby, denying other Americans the quality of
    the vote that I've heard on a bipartisan basis here today
    everyone values.
        Senator Cruz. Does allowing millions of illegal aliens to
    vote--does that protect the right to vote of American citizens?
        Mr. Cuccinelli. It utterly undermines it.
        Senator Cruz. Why?
        Mr. Cuccinelli. It may--it cancels out millions of American
    votes with--on an unpredictable basis. You don't know how many
    this is going to affect in your State. I don't know in my
    State. I do know that it will be an enormous number. I can
    think, heck, I've won a recount race for my State legislature.
        I remember going all the way back to the first State race I
    voted in. Doug Wilder won by only 6,000 votes. We've had Bob
    McDonnell won in a close race. Mark Herring, the current
    attorney general of Virginia, won by a few 100.
        The difference that would make in turning elections is
    enormous, and because it is unknowable, it would--in terms of
    the numbers, it would gut the confidence of the American people
    in the outcomes of our elections.
        Senator Cruz. Thank you.
        Chair Blumenthal. Mr. Hasen, you've heard Mr. Nobile say in
    effect that Justice Alito adhered to the wording of the
    statute. Is that your view?
        Mr. Hasen. It is absolutely not my view. Far from
    apologizing to Justice Alito, as Senator Lee suggested, I want
    to double down and say that this is an opinion that is unmoored
    to the text.
        You know, for a full explanation, you can read Justice
    Kagan's dissent, which goes on for many pages and explains
    this. Let me just give one example. One of the factors that the
    Senate recognized in its 1982 Report accompanying the revision
    of section 2 to put in the results test is--one factor that
    would show a violation of section 2 is if the State offers a
    tenuous justification for its law.
        What this means is, the States often--as Justice Kagan
    explains in her dissent, States often will use neutral-sounding
    rationales for passing laws like preventing fraud, promoting
    voter confidence, protecting the purity of a ballot box.
        What Congress decided when it passed section 2 in its
    revised form in 1982 was you've got to look and see is that a
    real justification? If a State comes forward and says, we're
    trying to prevent fraud, you put the State to the evidence and
    you say, where is the evidence of fraud that would justify this
    law. Some laws are in fact justified by preventing fraud.
        I don't think all--you know, all claims of laws as being
    anti-fraud is wrong. Sometimes that's correct. What the Senate
    report and what the section 2, the text of section 2 require,
    is asked, is this a real reason? The State has to be asked to
    put forward its evidence. Where's your evidence of fraud?
        What Justice Alito says, in one of his five so-called
    guideposts, which he tells us are not factors and, you know,
    he's not committing anything for the future, but says here are
    some things to look at. He says, the strength of the State's
    interest. He says explicitly that the State can assert an
    interest in preventing voter fraud, and then not prove that
    voter fraud is a problem. It can just rely on that as a
    pretext.
        This is what I mean that this is anti-textualism. It turns
    section 2 on its head by letting the State get a free pass, and
    at the same time, upping the burdens that apply to minority
    voters.
        If a law is only a usual burden of voting or an
    inconvenience, and even if it has a disparate impact on
    minority voters under Justice Alito's warped interpretation of
    section 2, that's not a section 2 violation. That's exactly the
    opposite of what those Senate factors say. I should say, those
    Senate factors were drawn from Supreme Court decisions,
    predating City of Mobile, including White v. Regester.
        Justice Alito is not following precedent. He's not
    following text. He's doing exactly the opposite. This is not as
    another one of the witnesses said, Voting Rights Act 101. This
    is a perversion of the Voting Rights Act. I can't say strongly
    enough every time I read the Brnovich decision, I get angrier
    and angrier about how Justice Alito has worked the
    interpretation of the Act and turned it from something that
    protects minority voters into something that protects States
    from attacks on laws that are discriminatory.
        Chair Blumenthal. Thank you. Let me ask you, in real-time,
    right now, not at the time of Jim Crow, but right now, we're
    seeing a wave--a tsunami of voter suppression laws--and let me
    just ask you the laws that have been passed by Arizona and
    Florida and Georgia and Texas, potentially, that reduce the
    hours of voting, in-person voting, are those voter suppression
    laws done by Republican legislatures or Democratic-controlled
    legislatures?
        Professor Hasen. I think if you look, today, almost all of
    the cutbacks in voting rules are being passed almost along
    party lines by Republican legislatures and by Republican
    election officials.
        Chair Blumenthal. Those laws that limit balloting hours and
    polling places or the circumstances of mail-in voting or
    absentee voting, or in the case of Harris County in Texas, 24-
    hour balloting, laws that forbid sending unsolicited
    applications for absentee ballots, not the ballots themselves.
    All of those voting suppression laws are passed along party
    lines with by and large Republican-controlled legislatures
    approving them, correct?
        Professor Hasen. Yes, that's correct.
        Chair Blumenthal. I think we have it from actually the
    lawyer representing the Arizona Republican party in the U.S.
    Supreme Court when he was asked, and I cited earlier by Justice
    Barrett, ``What is the interest of the Arizona Republican party
    in keeping out of precinct ballot rules on the books?'' By the
    way, out of precinct ballot rules, forbid votes from being
    counted when they are cast out of precinct. What's the interest
    in effect of keeping those votes from being counted?
        Michael Carvin answered, quote, ``Because it puts us, the
    Republican Party, at a disadvantage relative to Democrat.
    Politics is a zero-sum game.''
        I began with the hope that we were going to have some
    degree of bipartisanship because voting itself shouldn't be a
    partisan exercise. We ought to have bipartisan agreement that
    voting is a good thing. Every one of the witnesses, in fact,
    agreed with Senator Padilla's high school teacher that maximum
    participation in voting by eligible citizens is a good thing.
        Instead of voter suppression, we ought to be engaged in
    voter encouragement. That's not the result of these voter
    suppression laws that are enabled and embolden by Brnovich and
    Shelby County. We need the John Lewis Voting Rights Advancement
    Act to protect those rights.
        I understand the Ranking Member has something he wants to
    put in the record.
        Senator Cruz. Thank you, Mr. Chairman. Senator Lee asked me
    to introduce this for him. This is a letter from Cleta
    Mitchell, an attorney analyzing the Georgia election reform
    bill. Without objection, I'd like this letter entered into the
    record.
        Chair Blumenthal. Without objection.
        [The information appears as a submission for the record.]
        Senator Cruz. I would also--if I might ask a couple of
    questions?
        Chair Blumenthal. Sure.
        Senator Cruz. The Chairman just suggested a minute ago that
    limiting early voting was somehow voter suppression and even
    racist. Mr. Cuccinelli, do you know how many days early voting
    the State of Texas has?
        Mr. Cuccinelli. Yes, the State of Texas has 17 early days
    of voting.
        Senator Cruz. Do you know how many days of early voting
    State of Georgia has?
        Mr. Cuccinelli. Georgia has 17 days of early voting.
        Senator Cruz. Do you know how many days of early voting the
    State of Arizona has?
        Mr. Cuccinelli. 18 days of early voting.
        Senator Cruz. Okay. How about Chairman Blumenthal's home
    State of--home State of Connecticut? How many days of early
    voting?
        Mr. Cuccinelli. Zero.
        Senator Cruz. Connecticut has zero?
        Mr. Cuccinelli. Zero.
        Senator Cruz. I thought no early voting was racist voter
    suppression?
        Mr. Cuccinelli. I don't think it is. Certainly the
    allegation's been made.
        Senator Cruz. Maybe Connecticut's an outlier. How about
    Delaware, the home State of President Biden? Surely they've got
    more than these horrible States of Texas and Georgia, right?
        Mr. Cuccinelli. No early voting in Delaware.
        Senator Cruz. Zero?
        Mr. Cuccinelli. Zero.
        Senator Cruz. Like not one day?
        Mr. Cuccinelli. Not one day.
        Senator Cruz. Why are Democrats claiming no early voting is
    voter suppression when Democratic States like Connecticut and
    Delaware have zero, nada, zilch?
        Mr. Cuccinelli. Because it is politically convenient to do
    so.
        Senator Cruz. Thank you.
        Chair Blumenthal. I might just point out to the Ranking
    Member what his own residents told me earlier today. As I
    mentioned earlier, I wish he'd been there. The effects of those
    laws on their practical access to the ballot place, the
    intimidation that has taken place in Texas as a result of those
    laws.
        In Connecticut, we are moving toward expanding voting
    access through both statutes and constitutional amendments. It
    is exactly the opposite trend. Instead of constraining and
    restricting ballot access as is being threatened in the State
    of Texas, State of Connecticut is actually moving to expand
    voting rights.
        Senator Cruz. Mr. Chairman, what do you do with the fact
    that voter turnout has increased and minority voter turnout has
    increased in the States that you're demonizing right now?
        Chair Blumenthal. Voting acts--voting turnout increased
    across the country. As the Ranking Member well knows, the
    rights of individuals are not measured in the overall numbers
    of turnout. They're measured in individual access to the
    ballots. A measure that restricts in a discriminatory way that
    access to the ballot is wrong and should be held illegal. The
    purpose of the John Lewis Voting Rights Advancement Act is to
    open that kind of access.
        Mr. Cuccinelli. May, I make it----
        Senator Cruz. Is Connecticut's current law vote
    suppression, with no early voting at all?
        Chair Blumenthal. We're moving in the direction of opening
    ballot access through statutes that have been passed during
    this session of the legislature and the constitutional
    amendment that is in progress we passed overall.
        Senator Cruz. Thank you.
        Mr. Cuccinelli. If I may, on early voting----
        Chair Blumenthal. I have to say--I don't mean to interrupt.
    We have a vote that I believe--we can carry on this dialog if
    you want to take a recess. Senator Cruz, there's a vote ongoing
    and----
        Senator Cruz. We can go back or maybe let Mr. Cuccinelli
    go.
        Mr. Cuccinelli. My comment will be 30 seconds, Mr.
    Chairman.
        Chair Blumenthal. Go right ahead.
        Mr. Cuccinelli. In the NAACP v. McCrory case, 5 years ago,
    the trial court went painstakingly through the experts from the
    NAACP common cause and so forth, the petitioners in that case,
    and found their academic writings concluded outside of the
    parameters of the case that early voting either made no change
    in turnout or modestly reduced turnout.
        It was referred to as convenience voting including by some
    of the experts. It is more convenient, but it does not increase
    turnout according to the academic writings of the experts on
    the left.
        Chair Blumenthal. This hearing is adjourned. There will be
    a week and the record will be kept open for that week for
    anyone to ask questions.
        I thank the witnesses and thank my colleagues for
    participating. Thanks very much.
        [Whereupon, at 5:37 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

                                A P P E N D I X

     The American Civil Rights Union (ACRU)...........................   184
     Article from The New York Times, March 13, 1973..................   323
     Article on Early Voting and Turnout..............................   233
     Article on Election Laws, Mobilization, and Turnout: The
        Unanticipated Consequences of Election Reform.................   240
     The Connecticut Poll Tax, November 9, 2019.......................   142
     Constitution of the State of South Carolina, Ratified in
        Convention, December 4, 1895..................................   326
     The Georgia Election Reform Bill.................................   255
     Lawyers' Committee for Civil Rights Under Law, July 14, 2021.....   421
     Letter to Congress in Support of Voting Rights, July 14, 2021....   138
     Newspaper Article on Literacy Tests for Voting...................   325
     Questions and Answers Under Section 19 of 1958 Registration Law
        (Act No. 321).................................................   226
     South Carolina v. Katzenbach.....................................   259
     The State of Louisiana Literacy Test.............................   321
     The Truth About Jim Crow Information.............................   148
     Written Testimony of Athena Salman, July 14, 2021................   444

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