[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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