[Senate Hearing 117-854]
[From the U.S. Government Publishing Office]




                            ------                                
                                                         S.  Hrg. 117-854

                     PROTECTING A PRECIOUS, ALMOST
                    SACRED RIGHT: THE JOHN R. LEWIS
                     VOTING RIGHTS ADVANCEMENT ACT

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                            OCTOBER 6, 2021

                               ----------                              

                          Serial No. J-117-40

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         Printed for the use of the Committee on the Judiciary


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

              PROTECTING A PRECIOUS, ALMOST SACRED RIGHT:

            THE JOHN R. LEWIS VOTING RIGHTS ADVANCEMENT ACT
            
            
            
            
            
            
            
            







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                                                        S. Hrg. 117-854
                                                        
                                                        
                                                        
                                                        
                                                        
                                                        
 
                     PROTECTING A PRECIOUS, ALMOST
                    SACRED RIGHT: THE JOHN R. LEWIS
                     VOTING RIGHTS ADVANCEMENT ACT

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 6, 2021

                               __________

                          Serial No. J-117-40

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

         
         
         


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

             U.S. GOVERNMENT PUBLISHING OFFICE 
 55-045          WASHINGTON : 2024
          
                            
                            
                            
                            
                            
                            
                            
                            
                            
                            
                            
                            
                       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
                            C O N T E N T S

                              ----------                              

                       OCTOBER 6, 2021, 2:00 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     5
Cruz, Hon. Ted, a U.S. Senator from the State of Texas...........     6

                               WITNESSES

Witness List.....................................................    49
Clarke, Kristen, Assistant Attorney General, Civil Rights 
  Division, Deparment of Justice, Washington, DC.................     8
    prepared statement...........................................    50
Cuccinelli, Hon. Ken, national chairman, Election Transparency 
  Initiative, Nokesville, Virginia...............................    34
    prepared statement...........................................    77
Greenbaum, Jon, chief counsel and senior deputy director, 
  Lawyers' Committee for Civil Rights Under Law, Washington, DC..    32
    prepared statement...........................................    91
Rokita, Hon. Todd, attorney general, State of Indiana, 
  Indianapolis, Indiana..........................................    35
    prepared statement...........................................   140
Weiser, Wendy, vice president democracy program, Brennan Center 
  for Justice, New York, New York................................    31
    prepared statement...........................................   148

                               QUESTIONS

Questions submitted to Hon. Kristen Clarke by:
    Senator Blackburn............................................   170
Questions submitted to Hon. Ken Cuccinelli by:...................
    Senator Blackburn............................................   171
Questions submitted to Jon. M. Greenbaum by:.....................
    Senator Blackburn............................................   172
Questions submitted to Hon. Todd Rokita by:......................
    Senator Blackburn............................................   173
Questions submitted to Wendy R. Weiser by:.......................
    Senator Blackburn............................................   174

                                ANSWERS

Responses were not received from Hon. Kristen Clarke to Senator 
  Blackburn questions.
Responses of Hon. Ken Cuccinelli to questions submitted by:
    Senator Blackburn............................................   175
Responses of Jon M. Greenbaum to questions submitted by:
    Senator Blackburn............................................   176
Responses of Hon. Todd Rokita to questions submitted by:
    Senator Blackburn............................................   178
Responses of Wendy R. Weiser to questions submitted by:
    Senator Blackburn............................................   179

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

2021 Report on Voting Rights in California.......................   185
Concerned Women for America Legislative Action Committee, October 
  5, 2021........................................................   227
Current Conditions of Voting Rights Discrimination, October 4, 
  2021...........................................................   287
Democratic National Committee (DNC) by Ed Gillespie, July 1, 2004   182
Honest Elections Project, August 18, 2021........................   236
Honest Elections Project, State by State Guide to Voting Laws....   356
John Lewis Voting Rights Advancement Act.........................   421
North Carolina Lieutenant Governor Mark Robinson, October 6, 2021   284
Republican National Committee by Ed Gillespie, June 15, 2004.....   180
State of Indiana, Office of the Attorney General, Todd Rokita, 
  September 13, 2021.............................................   229
Texas House of Representatives, October 6, 2021..................   415
Written Testimony of NAACP Legal Defense and Educational Fund, 
  Inc. (LDF).....................................................   238


                     PROTECTING A PRECIOUS, ALMOST



                    SACRED RIGHT: THE JOHN R. LEWIS



                     VOTING RIGHTS ADVANCEMENT ACT

                              ----------                              


                       WEDNESDAY, OCTOBER 6, 2021

                               United States Senate
                                 Committee on the Judiciary
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:00 p.m., in 
Room G50, Dirksen Senate Office Building, Hon. Richard J. 
Durbin, Chair of the Committee, presiding.
    Present: Senators Durbin [presiding], Leahy, Klobuchar, 
Coons, Blumenthal, Hirono, Padilla, Ossoff, Grassley, Lee, 
Cruz, Hawley, and Blackburn.

          OPENING STATEMENT OF HON. RICHARD J. DURBIN,

           A U.S. SENATOR FROM THE STATE OF ILLINOIS

    Chair Durbin. Good afternoon. The hearing of the Senate 
Judiciary Committee on ``Protecting a Precious, Almost Sacred 
Right: The John R. Lewis Voting Rights Act--Advancement Act'' 
will come to order. Today, this is the fourth hearing on 
protecting the right to vote, which we introduced yesterday. 
Before we begin, I'd like to turn to a video to put this 
legislation in historic perspective.
    [Video presentation.]
    Right now, public officials across the country are carrying 
out a process known as redistricting. It's happening in my 
State and virtually every other state: every 10 years, 
following the decennial census. At this moment, State 
legislatures, county commissions, town councils are redrawing 
the lines that'll help determine who the American people elect 
to represent them in Congress and in their State capitals.
    That means for the first time since the days before Dr. 
King's March on Washington, congressional, State, and local 
government legislative districts will be drawn without the key 
protections of the Voting Rights Act because, in 2013, the 
Supreme Court issued its 5-to-4 decision, Shelby County v. 
Holder, that essentially nullified a key provision of the 
Voting Rights Act of 1965, Section 5.
    That Section 5 required localities with records of 
discrimination against voters of color through racist policies 
like poll taxes and literary tests to ensure any changes to the 
voting rules were vetted by the Justice Department before they 
could be enforced. This requirement is known simply as 
``preclearance,'' and it applied to redistricting. That 
preclearance requirement, the guarantee of accountability to 
the voters and adherence to the law, was eliminated by the 
Supreme Court in Shelby.
    As today's witness, Assistant Attorney General Kristen 
Clarke, has explained, in the absence of a preclearance 
requirement, jurisdictions have less incentive to involve 
community contacts in the elections process and the process of 
considering and adopting voting changes. Losing this avenue of 
participation is particularly harmful for minority voters. 
Americans have every reason to be concerned about the lack of 
transparency in this year's redistricting. Without full 
protections of the Voting Rights Act, State legislators could 
redraw districts in ways that unlawfully diminish the power of 
voters of color.
    The truth is, State lawmakers have already taken 
unprecedented steps to silence the voices of American voters. 
This year alone, legislators throughout the country have 
introduced more than 425 bills with provisions to make it 
harder for people, particularly people of color, to vote. 
Nineteen states have gone on to enact 33 of these laws. Some of 
them set new limits on voting by mail. Others cut hours on 
polling locations. All of them are designed to achieve the same 
outcome: new barriers to the ballot box. The proponents of 
these laws claim they are designed to help prevent so-called 
voter fraud, but facts show that claims of voter fraud are 
nothing more than grist for the mill of the big lie.
    Remember when the former President insisted he actually won 
the election last year? He's still at it. That election was 
branded by his Department of Homeland Security as the most 
secure in American history. Earlier this month, a team of 
Republican-backed, quote, ``cyber ninjas''--that's what they 
call themselves--completed a months-long audit. They collected 
millions of dollars from right-wing organizations to fund this 
undertaking. This was going to be a months-long audit of the 
2020 election results in Arizona, to prove once and for all 
that Donald Trump finally won.
    What did they find? More votes for Joe Biden and fewer 
votes for Donald Trump. Despite this overwhelming evidence, the 
myth of voter fraud persists. Sadly, it's being weaponized by 
those who hope to advance their own political ambitions by 
discrediting our electoral process. If State legislators and 
others are going to defame and diminish our democracy, we in 
the Congress have a duty to defend it. With the John Lewis 
Voting Rights Advancement Act, the Senate has an opportunity to 
reinvigorate one of the most important pieces of legislation in 
American history.
    I've been here a few years. I can actually remember, and 
I'll bet Senator Leahy could, too. This was a big bipartisan 
issue. Over the years, Democrats and Republicans voted the same 
way on the Voting Rights Act. In the words of Senator Mitch 
McConnell when he voted for it once, quote, ``This is a piece 
of legislation which has worked.'' I think he's right. Let's 
keep it working.
    In our Nation, there is no freedom more fundamental than 
the right to vote. As our old friend John Lewis said before his 
passing, ``It's the most powerful nonviolent tool we have. Our 
democracy is strongest when every eligible voter votes.''
    I'll now turn to Senator Leahy, the lead sponsor of the 
John--I'm sorry. First, it looks like I'm going to turn to my 
friend Senator Chuck Grassley, and then Patrick Leahy. Senator 
Grassley, I'm sorry.

             STATEMENT OF HON. CHARLES E. GRASSLEY,

             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. H.R. 4 was crafted in the memory of the 
late Congressman John L.--John Lewis, and it's about voting 
rights that he fought for and appropriately honored for. The 
unfortunate reality is that this hearing is another attack on 
the Supreme Court, and this bill is yet another attempt at 
Federal takeover of State and local elections. It wrestles 
control of elections away from the State and into the hands of 
the Biden-Harris Department of Justice and partisan lawyers 
backed by dark-money groups.
    Before discussing the matter at hand, I want to say that we 
are grateful to have a number of extraordinary busy State 
officials, and former State and Federal officials we heard from 
who were eager to testify against this bill. This was even more 
impressive for this hearing, given that the second panel was 
unsettled until just last Friday. We truly appreciate all their 
efforts and their outreach.
    Revising and reviewing this bill, I can see why so many 
experts were willing to rearrange their schedules. This bill is 
a disaster. It penalizes states for voter ID laws, which an 
overwhelming majority of Americans support. Even Democrats 
claimed to support ID laws earlier this year. It fundamentally 
changes who is responsible for elections in America, replacing 
States with the Federal Government. Why change what has worked 
for 240 years and which the Constitution is very clear that the 
manner of holding elections is up to State legislatures?
    This is the fourth hearing regarding voting rights in the 
U.S. Senate this Congress. We had a Subcommittee hearing two 
weeks ago on the same topic, but this did not seem like a 
process designed to learn more from the experts and State 
officials responsible for running elections. It seemed rushed 
so that we could say that we had another hearing.
    Look at this bill's history. This bill has been proposed, 
in various names and with slightly different provisions, all 
the way back to 2015. It was proposed in direct response to the 
Supreme Court's 2013 decision, Shelby County. That case 
recognized that the landscape in America looked very different 
in 2013 than in 1965, when the Voting Rights Act was passed, 
and the Supreme Court concluded that Congress couldn't keep 
requiring states to preclear with the Federal Government 
election law changes based on data going back to 1965.
    Fast-forward, then, 8 years, and the Supreme Court again 
issued a decision, this time, the Brnovich v. Democratic 
National Committee. This case, the Supreme Court set forth a 
list of substantive guideposts to determine whether, 
considering the totality of the circumstances, changes to 
voting rules are lawful under Section 2 of the Voting Rights 
Act.
    Unsurprisingly, Democrats immediately set about revising 
this bill to overrule the Supreme Court's commonsense decision. 
The latest version doesn't just revive the preclearance 
procedures in place before Shelby County. It massively expands 
preclearance.
    Democrats also want to erase the very reasonable factors 
that the Court outlined in Brnovich to guide lower courts as 
they look at the totality of circumstances for changes to 
voting laws. H.R. 4 replaces those Supreme Court guideposts 
with a list of undefined and far more vague factors, such as 
difficulty complying with voting requirements. These factors 
don't provide any legal clarity. What they do provide is 
enormous opportunity for mischief by Democrat lawyers. If 
activist lawyers, backed by an unending flow of dark money, can 
find a few violations under this amorphous standard, then a 
State is subject to preclearance. That gives DOJ control over 
jurisdiction for a period of 10 years.
    As written, H.R. 4 would also give the Department of 
Justice the power to retroactively look back at a 
jurisdiction--determine whether, in the past 25 years, the 
jurisdiction has sufficient number of violations to warrant 
imposing preclearance right now. Preclearance worked wonders in 
1965. It was needed to ensure the vote for minority communities 
that were denied the right to vote by poll taxes and literacy 
tests. Those laws have, thankfully, been erased from the books. 
We have recently had record turnout for minority voters. Why 
are we expanding preclearance in 2021?
    Do we really want the Department of Justice exerting this 
level of control over our States? This is the same DOJ that 
only yesterday distributed a memorandum vaguely threatening to 
use the FBI to investigate parents protesting school teaching 
Critical Race Theory in the classroom if those protests, quote, 
unquote, ``intimidate'' school board members. Do we really want 
to give partisan activists--who claim that paying for postage 
stamps to mail in a ballot is a poll tax--the ability to 
subject a State to burdensome Federal regulations and 
oversight? Do we really want to give Democratic operatives 
unfettered power to bring States under preclearance with 
lawsuits--lawsuits resting on vague notions of, quote, unquote, 
``violations''?
    To that end, I hope to hear from Attorney General Rokita, 
who was previously Indiana's Secretary of State, why it's so 
important for States to manage their own elections and why 
Federalized election laws are bad for election integrity and, 
most importantly, voter participation. I hope to hear from Hon. 
Ken Cuccinelli, who was the Attorney General of the 
Commonwealth of Virginia when preclearance was outlawed, the 
impact of imposing preclearance procedures would have moving 
forward.
    Before I wrap up, I'd like to take a moment to introduce, 
for the record, two written statements that I believe warrant 
recognition.
    Lieutenant Governor Mark Robinson's described the flaws in 
H.R. 4 and noted that, quote, ``this legislation is nothing 
more than an attempt to ensure that one party control the 
machinery of our government in perpetuity, by mandating an 
unconstitutional Federal takeover of elections in our 
country'', end of quote. I also appreciate that a legal advisor 
to the bipartisan Carter-Baker Commission, Thor Hearne, noted 
that H.R. 4 is, quote, ``the antithesis of the Carter-Baker 
Commissions' bipartisan recommendations for election reform'', 
end of quote. We would be wise to heed their concerns with 
regard to H.R. 4.
    [The information appears as a submission for the record.]
    Sadly, my Democrat friends seem to disagree. They're 
pushing H.R. 4 to take away the ability of States to establish 
their own voting rules. We should all agree that participating 
in American democracy at the ballot box is a fundamental right. 
It's a right that we should want to protect and not outsource 
to political operatives and DOJ and activist outside groups. 
Thank you.
    Chair Durbin. Thanks, Senator Grassley. Senator Leahy.

              STATEMENT OF HON. PATRICK J. LEAHY,

            A U.S. SENATOR FROM THE STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman. I know that my 
friend, Iowa Senator Grassley was talking about H.R. 4, but I 
would note that we're here to discuss my bill, S. 4, which has 
dramatic changes from the bill he was talking about. It's the 
John Lewis Voting Rights Advancement Act. I've championed this 
for years. The Voting Rights Advancement Act, as you've noted, 
Mr. Chairman, has been bipartisan for many years, just like all 
the efforts to restore the Voting Rights Act before it. I hope 
it continues to get bipartisan support, as it has always had.
    Like the evolving decisions from the Court that impact the 
Voting Rights Act, well, then, this legislation also must 
evolve to address emerging concerns. It may be surprising to 
some, when they hear the rhetoric, to learn that the Voting 
Rights Act--improving and strengthening and reauthorizing it--
has been an overwhelming bipartisan effort for decades. We seem 
to be in an era of toxic partisanship, and I hope that will not 
obscure what has for decades united us across party lines. 
Republican and Democratic Members of this Committee voted in 
support of reauthorizing the Voting Rights Act in 2006.
    In fact, it wasn't long ago we stood side by side to 
unanimously approve the 2006 reauthorization of the Voting 
Rights Act. We even stood together, with the House and Senate 
Members, Republicans and Democrats alike, on the steps of the 
Capitol. You have about as broad a spectrum of ideologies among 
the Republicans and Democrats in that picture as you can 
imagine.
    I wonder what's changed in such a short time. The belief 
that protecting our right to vote is bigger than party or 
politics. That's not novel or new. In my State of Vermont, we 
fight to make sure everybody has a chance to vote. It's a 
belief that a system of self-government, a government of, by, 
and for the people, is one that is worth preserving for 
generations to come.
    That's why the John Lewis Voting Rights Act that's here--it 
seeks to ensure that Americans of all parties, all races, all 
backgrounds, have their right to vote protected. It's not, nor 
has it ever been, an effort to empower one party over the 
other. You know, we insist on all people being able to vote in 
Vermont. It's not for one party or the other. In the last 
election, we elected a Republican Governor. We elected a 
Democrat Lieutenant Governor. It's not about a Federal takeover 
of elections. It's not about empowering fraudulent voting. It's 
about empowering citizens to fulfill their constitutional duty 
and exercise their legal right to vote. We, as elected 
representatives of the people, ought to be able to agree that 
that's a right worth protecting.
    The legislation I introduced yesterday is the culmination 
of many months of negotiation, both here in the Senate and the 
House, and consultation with the Department of Justice, and I 
couldn't help but think that's the sort of process Congressman 
Lewis would have embraced. The Supreme Court's Shelby County 
decision decreed that Congress has to build a fulsome record of 
current voting conditions and then premise any legislation 
restoring the Voting Rights Act on that record. We've 
methodically, for years, done just that.
    What does that record show? It demonstrates action from 
Congress is needed and demanded to defend against efforts to 
restrict the right to vote in States across the country. The 
House answered that call. They passed a bold version of the 
John Lewis VRAA, this summer. We did our part by introducing a 
Senate version that stayed true to the goals of the House-
backed legislation and incorporated input we've received 
through the ongoing bipartisan conversation.
    This shouldn't be a partisan issue. It never has been, not 
in all my years here in the Senate. I'll continue to work in 
good faith with Senators of both parties to find common ground. 
Remember, we have one thing that goes beyond Democrats or 
Republicans, and that's protecting our precious right to vote. 
That's what gives democracy its name. That's more important 
than any party.
    Every one of us should recognize the sacrifices of people 
like our friend and hero John Lewis. The question is, are we 
willing to live up to his example, put aside our differences, 
and do what's right for democracy? I know we can. The question 
is, do we have the will to try? I hope we do. Thank you, Mr. 
Chairman.
    Chair Durbin. Thanks, Senator Leahy. Senator Cruz.

              OPENING STATEMENT OF HON. TED CRUZ,

             A U.S. SENATOR FROM THE STATE OF TEXAS

    Senator Cruz. Thank you, Mr. Chairman. The hearings that 
Democrats decide to hold demonstrate their priorities, what 
they care about. We have a crisis raging on our southern border 
right now because of Joe Biden's lawless and open border 
policies. The head of the Biden Department of Homeland Security 
is informing its staff to prepare for up to 400,000 illegal 
immigrants crossing this month, and yet the Senate Judiciary 
Committee has not had a single hearing on the crisis on our 
southern border.
    Over two million illegal immigrants streaming into America. 
Democrats don't care. Hundreds of thousands of kids in cages. 
Democrats don't care. Every Democrat on this Committee went on 
TV, on and on about kids in cages, kids in cages. You now know 
what they were saying they didn't believe because if they 
believed it, there are more kids in more cages that are more 
full now than there ever were, and not a Democrat on this 
Committee cares.
    Hundreds of thousands of illegal immigrants with COVID. 
Democrats don't care. Children, by the thousands, being 
physically and sexually abused by human traffickers. Democrats 
don't care. Drugs streaming across our border. Democrats don't 
care. Young women being trapped in sexual slavery by human 
traffickers. Democrats don't care.
    What do they care about? This illustrates what they care 
about. Democrats have one priority, and that is power. Staying 
in power. That's why Democrats have had four hearings on 
amnesty. They look at two million illegal immigrants, and they 
think, ``Ooh, future Democratic voters. Let's give them all 
amnesty.'' Never mind the abuses that happen. This is about 
power for our Democratic friends.
    But you know what? There's something they've had more 
hearings on than amnesty, and that is the Federal takeover of 
election law and the Democratic power grab. There is nothing 
that is a higher priority for Democrats than staying in power. 
The Corrupt Politicians Act was so brazenly political, it was 
such a naked power grab, that Democrats have abandoned it when 
they realized they couldn't defend it with a straight face.
    This is their fallback provision. Senator Leahy mentioned 
his version of the bill in the Senate. That was filed at 12:45 
last night--is when Committee Members were notified of it. 
There are a lot of terrible provisions in the bill, but let me 
just cover two, briefly. Department of Justice preclearance for 
everyone Democrats don't like and Department of Justice 
preclearance for everything Democrats don't like.
    Here's how it would work. Every State and local government 
across the country would have to submit certain voting changes. 
What voting changes? Anything like imposing voter ID on 
elections or preventing ballot harvesting, to Kristen Clarke 
and Vanita Gupta, two partisan activists who haven't been shy 
about their hatred of voter integrity laws, before those 
changes can go into effect.
    All right, spoiler alert. If it is a law protecting the 
integrity of the election, if it's a voter ID law, if it's 
prohibiting balloted harvesting, the partisan activists at the 
Department of Justice are going to object, because they've been 
explicit they oppose all those laws. Similarly, any State and 
local government that the Democrats don't like, they have to 
submit every voting change to the same partisan activists.
    Let me give you an example of how crazy this is, just by 
analogy. Can you imagine if Republicans proposed a law that 
said that States like California and New York and Illinois have 
to submit every law or policy affecting religious liberty or 
affecting firearms to a brand-new division of the Department of 
Justice staffed almost entirely by activists who have been 
fighting in favor of religious liberty and in favor of the 
Second Amendment their entire time, and if these activists 
objected to the California or New York law, then the States 
couldn't implement it? That would be absurd. That's what the 
Democrats have done. And, ironically, the Democrats claim 
they're protecting the right to vote.
    This bill is an assault on the right to vote. Why? Number 
one, ballot integrity acts like VOTER ID Acts prevent voter 
fraud. Sadly, Democrats have looked at the bipartisan Carter-
Baker provision, shared by former Democratic President Jimmy 
Carter, and just about every recommendation on how to prevent 
voter fraud they've turned on its head, and said, ``We want 
more fraud because fraud benefits Democrats.''
    Second, the laws that they want unelected bureaucrats to 
strike down are laws adopted by democratically elected 
legislatures in the States. You don't get to claim, as Senate 
Democrats do, that you favor democracy when you propose 
measures to stop democracy. Democracy means the voters decide. 
This bill is an assault on democracy, because it says, ``We 
don't care that 29 million people in the State of Texas decide, 
'We want voter ID,' in accordance with the views of 80 percent 
of Americans. We don't care.'' One unelected bureaucrat at the 
Department of Justice who happens to be a radical left-wing 
Democratic activist has the power to say, ``To hell with 
democracy. We're striking down laws passed by democratically 
elected legislatures.'' This is a power grab, it's cynical, and 
it's wrong.
    Chair Durbin. We will now turn to the first panel. On our 
first panel, we welcome the Assistant Attorney General for 
Civil Rights, Kristen Clarke, back to the Committee. Assistant 
Attorney General Clarke is a lifelong civil rights lawyer, 
spent her entire career in public service. At the Justice 
Department, she oversees Federal civil rights enforcement 
efforts and works to uphold civil and constitutional rights. 
She first began her career as a trial lawyer in the Civil 
Rights Division. Before her confirmation to her current role, 
she served as president and executive director of the Lawyers' 
Committee for Civil Rights Under the Law.
    Let me lay out the mechanics for the rest of the hearing. 
After we swear in the Assistant Attorney General, she'll have 
five minutes for an opening statement, then rounds of 
questions. I hope each Senator will abide by our standard, to 
try to keep their questions to five minutes or less, as we have 
some roll-call votes which will call some Senators out of the 
Committee from time to time.
    Following that, we will switch to our second panel, and 
Senator Ossoff will take over presiding. We will once again 
have 5-minute opening statements from each witness and 5 
minutes of questions per Senator.
    Assistant Attorney General Clarke, could you please stand, 
to be sworn in?
    [Witness is sworn in.]
    Chair Durbin. Let the record reflect that she answered in 
the affirmative. Please proceed with your opening statement.

             STATEMENT OF KRISTEN CLARKE, ASSISTANT

            ATTORNEY GENERAL, CIVIL RIGHTS DIVISION,

             DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Assistant Attorney General Clarke. Chairman Durbin, Ranking 
Member Grassley, and Members of the Senate Judiciary Committee, 
my name is Kristen Clarke, and I serve as the Assistant 
Attorney General for the Civil Rights Division of the U.S. 
Department of Justice. Thank you for the opportunity to testify 
on the Department's work to implement and enforce the Voting 
Rights Act and the need to revitalize and restore the Act.
    The Voting Rights Act is, as President Johnson said, one of 
the most monumental laws in the entire history of American 
freedom. It is a law that has helped to truly transform 
American democracy. However, the progress we have made is 
fragile. Recently, there's been a resurgence in attacks on 
voting rights, including cuts to early voting periods, 
burdensome restrictions to register or vote, racially 
gerrymandered redistricting plans, polling sites eliminated or 
consolidated in communities of color, eligible voters purged 
from the rolls, and more.
    I am here today to sound an alarm. For the Justice 
Department, restoring and strengthening the Voting Rights Act 
is a matter of great urgency. The Supreme Court's 2013 Shelby 
County v. Holder ruling suspended the preclearance process, 
eliminating the Justice Department's single most powerful and 
effective tool for protecting the right to vote. Before Shelby, 
the preclearance process enabled the Department to swiftly 
block the implementation of many discriminatory and 
unconstitutional voting practices. Through Section 5, the 
Department blocked over 3,000 voting changes, helping protect 
the rights of millions of citizens. In over 60 percent of 
blocked voting changes, there was evidence of intentional 
discrimination. We also know that the preclearance requirement 
deterred many jurisdictions from adopting discriminatory 
changes in the first place.
    Too many jurisdictions have viewed the Shelby ruling as an 
invitation to adopt rules that disadvantage minority voters. 
Today, jurisdictions that want to restrict voting rights have 
what the Supreme Court memorably described ``the advantage of 
time and inertia.'' These new laws can be challenged only 
through long, protracted, resource-intensive, case-by-case 
litigation which we have pursued in states like Texas and North 
Carolina.
    We are on the cusp of another potentially transformational 
moment. A new redistricting cycle has commenced. 2020 census 
numbers show the U.S. has become an increasingly diverse 
nation, with population growth attributable to increases in the 
number of people of color. Absent congressional action, this 
redistricting cycle would be the first in half a century 
without the full protections of the Voting Rights Act, and 
jurisdictions may be poised to dilute the increased minority 
voting strength that has resulted from these natural 
demographic changes. Without preclearance, the Justice 
Department will have limited tools to obtain documents and to 
assess where voting rights are being restricted, thereby 
hampering enforcement efforts.
    The John Lewis Voting Rights Advancement Act addresses 
several of the barriers I've referenced which are impeding the 
Department's efforts to protect American citizens' right to 
vote. First, the Act responds to the elimination of the 
preclearance coverage formula by updating the relevant 
criteria, so that Section 5 coverage is tied to current conduct 
by jurisdictions. Second, the bill provides greater clarity 
regarding the appropriate legal standard in Section 2 vote 
denial cases. Third, the legislation gives the Department 
authority to compel the production of documents and materials 
relevant to investigations of potential voting rights 
violations. Fourth, the bill places new measures to safeguard 
the rights of Native American and Alaskan Native voters.
    In 1965, Congress enacted, and in 1975, 1982, and 2006, 
reauthorized, a statute that provided the strong medicine 
needed to remedy voting discrimination and to enforce our 
Constitution's commitment to ensuring that no citizen's right 
to vote would be abridged on account of race or color. Congress 
must act now to restore the Voting Rights Act, to prevent us 
from backsliding into a nation where millions of citizens, 
particularly citizens of color, find it difficult to register, 
cast their ballot, and elect candidates of their choice. The 
Justice Department welcomes this opportunity to work with 
Congress to revive this bedrock civil rights law. Thank you.
    [The prepared statement of Assistant Attorney General 
Clarke appears as submission for the record.]
    Chair Durbin. Thanks, General Clarke. Let me start the 
questioning. Texas is the largest legislature--pardon me, the 
latest legislature this year to attack the right to vote based 
on the lie of widespread voter fraud. Last month, Texas 
Governor Abbott signed S.B. 1 into law. It banned--it banned 
voting opportunities that made voting more accessible, 
particularly during the pandemic, such as drive-through voting 
and 24-hour voting options. It increased access for partisan 
poll watchers. It prohibited local election officials from 
proactively distributing applications to request mail-in 
ballots.
    The legislation also restricts the state's vote-by-mail 
access, including new ID requirements for absentee voters. 
These voting restrictions come after voters of color used all 
of these same options at historic levels in the last election. 
Supporters of the bill--and we've heard it this afternoon in 
the Committee--claim you've got to do it. It's the only way to 
stop voter fraud.
    The Texas attorney general spent 22,000 hours looking for 
evidence of fraud. You'd think they really would've made their 
case. What they found to try to justify S.B. 1 was the 
following. Only 16 potential cases of fraud out of 17 million 
registered voters. You remember what happened in Arizona. $5.7 
million spent on the Ninja Turtles who were going through all 
these ballots, and the net result was more votes for Biden, 
fewer votes for Trump. This notion of voter fraud is a ruse, as 
far as I'm concerned. Where there is fraud and waste, we should 
oppose it, whatever party is trying to make an excuse for it, 
but in this case, there is no basis for it.
    I would like to ask you to put into perspective for just a 
moment--we know the discrimination based on voting throughout 
history. It's a horrible chapter, more than one chapter, in our 
Nation's history, when it comes to civil rights after the Civil 
War. The question today is, does it take on a different context 
in light of the big lie; in light of the argument of the 
previous President that he, in fact, won the last election, 
though there's no evidence of that; and the attempt to 
discredit our electoral voting process?
    Assistant Attorney General Clarke. Thank you for the 
question, Chairman. The Justice Department believes that 
elections in our country should be open, fair, and free from 
fraud. We have observed that claims of fraud are exceedingly 
rare. Should the Justice Department encounter evidence of 
fraud, the Department stands ready to investigate that fraud.
    What the Justice Department has observed is that voting 
discrimination is widespread. It is a current day problem 
across our country, in Texas, and in many other parts of the 
country. The Justice Department spent several years tackling 
the State's voter ID law. We know that the State of Texas spend 
about $3.5 million defending that law. The Justice Department 
is here to make the case for restoring the preclearance 
provision so that we can ensure that elections are free, open, 
and fair across our country.
    Chair Durbin. It seems, when you read Shelby County and 
Brnovich, that the argument being made by the Supreme Court is, 
sure, it was a problem in the old days, but it's just no longer 
a problem that would require preclearance. Yet, you look back 
not that far in history, a three-judge panel in 2016 examining 
a 2013--2013 North Carolina voting law that required strict 
voter ID and limited early voting, the judges wrote, quote 
``targeted African Americans with almost surgical precision.'' 
This was no coincidence, the Court found, noting that before 
enacting the law, the legislature request data on the use, by 
race, of a number of voting practices. Upon receipt of the race 
data, the general assembly enacted legislation that restricted 
voting and registration in five different ways, all of which 
disproportionately affect African Americans. That's 8 years 
ago.
    The question I have for you, is there evidence now, what 
we're seeing in the States, of recurrence of this theme?
    Assistant Attorney General Clarke. Yes. In the Department's 
view, voting discrimination is a current day problem. The 
Justice Department has found that Section 2 litigation which it 
brought in the States that you reference, North Carolina and 
Texas, have proven to be an inadequate substitute for the 
important protections that had long been provided by Section 5. 
The advantage with Section 5 is that it blocks these 
discriminatory laws from ever taking root in our electoral 
process. While the Department had Section 5 in place, the 
Department blocked 3,000 discriminatory voting changes, about 
60 percent of them having evidence of intentional 
discrimination. Our hope is that these hearings will lead to a 
restoration of what has been one of the most important and 
powerful tools for the Department to do its work of 
safeguarding the right to vote in our country.
    Chair Durbin. Thank you. Senator Grassley.
    Senator Grassley. Yes. General Clarke, I'm going to quote 
some polls that you probably know exist, but I'm going to quote 
them anyway. Monmouth, 84 percent of non-white respondents said 
that they supported requiring photo ID. Sixty-two percent of 
the Democrats said they supported requiring photo ID. That 
number rose to 87 percent among Independents, 91 percent among 
Republicans.
    Two questions for you. How do you square prevailing public 
sentiment with your comments that photo ID is a burdensome 
proof of citizenship required and, your words, a ``bag of 
tricks'' to suppress Black votes?
    Assistant Attorney General Clarke. Thank you, Ranking 
Member Grassley. The Department does not believe that voter ID 
laws, on their face, are unlawful. The Department carries out 
its work by looking at the particular photo ID law that may 
have been adopted in a particular State. It looks at data, with 
the support of experts, to determine who has access to the 
particular forms of ID that are deemed qualifying under a 
particular law. We follow the facts and apply the law.
    Photo ID laws are not, on their face, invalid. It really 
depends on where that photo ID law has been instituted. It 
depends on the form of the ID and the kinds of ID that may be 
permissible on that law, and whether or not there are 
disparities in who has access to the particular category of IDs 
called for by a law.
    Senator Grassley. The overwhelming majority of Americans, 
as according to these polls, support ID requirements. Do you 
think most Americans support voter suppression? Because you 
said it would suppress Black votes.
    Assistant Attorney General Clarke. The Department believes 
that our elections should be free from discrimination. 
Particular photo ID laws or purge programs or decisions to shut 
down polling sites may have a discriminatory impact on minority 
voters. What we have found in the course of our work at the 
Department is that these are fact-specific, fact-intensive, and 
context-specific inquiries, Senator. These kinds of analyses 
are conducted by the career employees at the Department who 
will look at a particular law, a particular photo ID law, to 
determine whether or not it runs afoul of the Voting Rights Act 
or the Constitution.
    Senator Grassley. You gave me a Department answer, and 
that's appropriate, but my question is whether you think these 
ID requirements--that because Americans say they're for them, 
and you say they're a way of suppressing Black votes, you think 
Americans support voter suppression?
    Assistant Attorney General Clarke. Senator, I think that 
these polls are helpful, but the Department conducts its work 
by looking at the facts----
    Senator Grassley. Okay. Let----
    Assistant Attorney General Clarke [continuing]. And 
applying the law.
    Senator Grassley. Let me go on to another question. The 
Department of Justice recently filed a lawsuit against 
Georgia's election reforms. Will the Department of Justice 
bring enforcement action against New York for only allowing 10 
days of in-person voting, or Delaware for never permitting 
early in-person voting? If you say no to that, if you don't 
plan to bring an action, then how can you challenge Georgia's 
Senate Vote Bill 202, which has more lenient provisions than 
both New York and Delaware?
    Assistant Attorney General Clarke. Senator, I can't comment 
on pending investigations and if any such investigation exists, 
but what I can tell you is that the Department is committed to 
protecting the right to vote in every corner of our country. In 
New York, for example, we recently resolved a matter involving 
a county that ran afoul of the National Voter Registration Act 
and the Help America Vote Act. We're committed to eliminating 
discrimination, root and branch, wherever it rears its head 
across our country.
    Senator Grassley. I was very gratified to see that the 2020 
Presidential election, despite the pandemic, quote, ``featured 
the largest increase in voters between two Presidential 
elections on the record, with 17 million more people voting 
than in 2016'', end of quote. Additionally, in 2020, non-
Hispanic Blacks had a higher voting turnout than in 2016, 63 
percent, as compared to 60 percent. It would seem to me that we 
should be encouraging these high turnouts without restrictions. 
What, about these statistics, justify the imposition of 
preclearance?
    Assistant Attorney General Clarke. Thank you, Senator. The 
statistics that you share certainly reflect a story of 
progress. What the Department has found is that in particular 
communities across our country, voting discrimination remains a 
real and ongoing problem. We saw this in Texas, in North 
Carolina, where the Department was engaged in longstanding 
Section 2 litigation against discriminatory measures in those 
places. We saw this recently in New York, in the matter that I 
referenced involving violations of HAVA and the NVRA. We saw 
this in New Jersey, where we recently resolved a statewide NVRA 
claim. While there has been progress, we know that voting 
discrimination remains alive and well in many local, State, and 
other jurisdictions across the country, and Section 5 has 
proven to be an important tool to identify and block voting 
discrimination.
    Senator Leahy. [Presiding.] Thank you. I have a couple of 
questions, and as you know, some of us have been running in and 
out.
    Senator Blackburn. Mr. Chairman, do we have an order, so 
that we will know when we're in the queue? Senator Blackburn, 
here.
    Senator Leahy. No, I know who you are. We've met before. 
Yes.
    Senator Blackburn. No, I was just asking if----
    Senator Leahy. Well, the----
    Senator Blackburn [continuing]. We have an order in the 
queue.
    Senator Leahy. The Republican side would----
    Senator Blackburn. Okay.
    Senator Leahy [continuing]. Determine who----
    Senator Blackburn. You got----
    Senator Leahy [continuing]. They're supposed to----
    Senator Blackburn. Okay. Thanks.
    Senator Leahy [continuing]. Have, and if we go by order of 
arrival, of course, Senator Durbin and I and Senator Grassley 
are the three here ahead of everybody else, but what--so, if we 
could start my time over again?
    Assistant Attorney General Clarke, I am glad you're here. I 
think this is important that we all be here. As the lead 
sponsor of the John Lewis Voting Rights Act, I'm alarmed by the 
toxic and partisan rhetoric around restoring the Voting Rights 
Act. As a child, I remember going with my parents, when they 
would go to vote, and they told me, ``This is a sacred right. 
Everybody should have it.''
    For decades, since I've been here in the Senate, 
Republicans and Democrats come--came together to strengthen 
this landmark law, and so I can't understand the partisan 
rancor that's going around with it now. Why is it so important 
for Americans of all parties, all backgrounds, to believe that 
this issue should unite us, not divide us?
    Assistant Attorney General Clarke. Thank you for that 
question, Senator. The right to vote is one of the most central 
rights in American democracy, and we know that the Voting 
Rights Act has enjoyed tremendous bipartisan support throughout 
the years, during its authorization in 1965, during subsequent 
reauthorizations in 1970, 1982, and 2006. I am recalling the 
statement that President Bush made when he signed the bill into 
law in 2006. He observed that he was renewing a bill that 
helped to bring a community on the margins into the life of 
American democracy.
    The Justice Department knows that partisanship has no place 
when it's come to enforcement of the Voting Rights Act. This 
work has been about ensuring that all Americans enjoy equal 
access to the ballot, regardless of race; that all Americans 
enjoy an electoral process that is free from discrimination. 
The Justice Department welcomes this opportunity to work with 
Congress now to restore a law that truly has proven to be one 
of the most effective laws ever passed by Congress.
    Senator Leahy. For those of us--and I know you do, and I do 
believe that everybody should have the right to vote, 
Republicans, Democrats, Independents, whoever they are, if 
we're going to preserve a democracy. Some would say this is a--
and some have claimed, even from this Committee, that there's 
some kind of nefarious attempt by Democrats to usurp States' 
rights and sovereignty. If so, I would--nobody in my State 
would allow me to vote for it. Nothing could be further from 
the truth.
    Can you explain in simple terms why the John Lewis Voting 
Rights Advancement Act is a balanced approach and that 
safeguards are included in the legislation to ensure that 
States have ample opportunity to assert their rights and defend 
their procedures?
    Assistant Attorney General Clarke. The Department has 
observed a number of important features about this bill. It 
makes bailout easier, so that jurisdictions that have a clean 
record and a clean bill of health can exempt themselves from 
the preclearance obligation. We observed that there are States, 
throughout time, such as North Carolina and Mississippi, that 
joined an amicus brief in the Shelby case, who indicated they 
enjoyed the benefits of preclearance, that they appreciated the 
flexibility and latitude that the process provided.
    The career employees at the Justice Department who handle 
the preclearance process have had good working relationships 
with local and State election officials. Jurisdictions also 
have the option of bypassing the Justice Department and going 
to the courts for judicial review instead. There's been a long 
history of good collaboration between the Justice Department 
and local and State jurisdictions in administering the 
preclearance process. This is a process that has, at the end of 
the day, helped to block voting discrimination and has helped 
to rid discrimination from our electoral process.
    Senator Leahy. Thank you. I hope we can continue to work 
together on this, to make sure we can find a path to enactment. 
I'm including in the record now the House Judiciary Committee's 
record addressing voting rights and the Voting Rights Act of 
the Senate Judiciary Committee record, and without objection 
that will be included.
    [The information appears as submission for the record.]
    Continue to work with us, because I was thrilled to be 
standing with leading--if I could have that photograph back, 
just for a moment, and then I'll yield the floor. I was 
thrilled to be standing with leading Republicans and Democrats 
when we last signed this bill, in saying, ``See, it's for 
America. It's not for either political party. It's for 
America.'' And that's what we want.
    To answer Senator Blackburn's question, actually, Senator, 
I'm told Senator Lee will be recognized and then Senator 
Klobuchar. Senator Lee.
    Senator Lee. Thank you, Mr. Chairman. Ms. Clarke, let's 
talk for a minute about what States can do. Does California 
have the authority, and should it have the authority, to adopt 
more stringent air quality standards than the Federal standards 
in place without receiving preclearance from the United States 
Government?
    Assistant Attorney General Clarke. Senator, this is not an 
area that I work in. I suppose, but this is not an area that I 
work in.
    Senator Lee. What about areas that are protected by the 
Bill of Rights? Let's suppose that a State wants to pass laws 
dealing with COVID-19 that might have the impact of restricting 
religious freedom by, for example, restricting the number of 
people who may congregate in a church or otherwise. Should laws 
like that have to first receive preclearance before they can be 
enacted by a State?
    Assistant Attorney General Clarke. Senator, I'm here to 
talk about the right to vote, which falls to the 14th and 15th 
Amendments, and Congress has broad----
    Senator Lee. Thank you.
    Assistant Attorney General Clarke [continuing]. Powers to--
--
    Senator Lee. Sure. Sure.
    Assistant Attorney General Clarke [continuing]. Enforce----
    Senator Lee. I assume you'd also agree that, through the 
14th Amendment, Congress also has broad powers to protect other 
fundamental individual rights, including religious freedom. 
What about the Second Amendment? What about gun laws? Should a 
State be required to receive preclearance from Federal 
officials before adopting gun restrictions?
    Assistant Attorney General Clarke. This is not an area that 
I work in, in the Civil Rights Division, but I do know that the 
right to vote is unique. It's special, and it's something that 
the Supreme Court has routinely said that Congress has broad 
enforcement powers under the 14th and 15th Amendments to 
protect.
    Senator Lee. Sure. Those broad powers also extend to other 
rights that people have. You know, I think that it's important 
for us to remember that our Nation is built on this principle 
of respect for the sovereign entities that our States are and 
for the ability of each sovereign State, for the people, 
through their elected representatives, to be able to adopt laws 
that they deem fit, because of course the sovereigns in our 
republic are, in fact, the people. The people have yielded some 
of their sovereignty up to the States. In other areas, they've 
yielded it to the Federal sovereign.
    The Supreme Court of the United States has made this very 
clear in a number of cases over the years, including the 
Supreme Court ruling in the Shelby County case, in which the 
Supreme Court of the United States said, quote, ``The Federal 
Government does not have a general right to review and veto 
State enactments before they go into effect.'' In fact, the 
founding fathers considered--and expressly, decidedly 
rejected--giving the Federal Government the power to provide 
what they referred to as a negative, or a veto, over any and 
all State laws.
    We don't advocate for preclearance even in areas 
surrounding our constitutional rights and the constitutional 
rights belonging to individuals. If the laws passed by a State 
happen to violate the Constitution, we do, of course, have a 
procedure in place for challenging those. They go to the 
Federal judiciary. The parties can litigate those after, of 
course, the constitutional arguments are made to the 
legislative body considering them. If they fail there, they can 
raise them with the judiciary after they become law.
    We've got to be very careful that we don't neglect this 
principle of federalism in our lawmaking processes, and we 
can't do this here. We can't sacrifice this principle, even for 
rights that we consider important, because the sovereignty of 
the people is also important. But there again, if the States do 
something unconstitutional, their enactments can be deemed 
unconstitutional, and the enforcement of those laws and their 
implementation can be enjoined.
    Unfortunately, we've had a number of politicians, including 
some progressives, who aren't satisfied with merely dictating 
voting procedures to the states. In fact, then-Senator Kamala 
Harris, in 2019, proposed using preclearance to usurp State 
control over regulations involving health, safety, and welfare 
situations arising in the context of abortion.
    Ms. Clarke, when I hear from you, your remarks and your 
testimony--and one of the things that I hear from you is that 
the average American's concern about the integrity of our 
elections is somehow based in racism. Fortunately, the facts 
don't support that premise. Progressives have tried to label 
any integrity election protection procedure, such as the laws 
that have been passed, for example, in Georgia of late, as 
somehow amounting to racist voter suppression, and yet these 
provisions have strong support from voters across the political 
spectrum, including among minority voters. Can you tell me, Ms. 
Clarke, what exactly is racist about requiring a person to 
provide a voter ID when participating in the precious, sacred, 
constitutionally protected process of voting?
    Assistant Attorney General Clarke. Thank you, Senator. The 
inquiry is whether or not a particular law is discriminatory, 
and we won't know that until we actually look at the facts. We 
look at the particular law at issue, and we look at where is it 
being applied, and are there racial disparities in terms of who 
has access to, example, to the limited forms of ID that might 
be called for by a law? I think the inquiry is about 
discriminatory effect and discriminatory purpose.
    Senator Leahy. I would note that the Senator's gone 
considerably over his time. I didn't want to interrupt him, 
but----
    Senator Klobuchar. Yes.
    Senator Leahy [continuing]. I'll turn to Senator Klobuchar. 
I do that because we're having votes going on, and people are 
trying to go back and forth.
    Senator Lee. Thank you, Mr. Chair.
    Senator Leahy. Senator Klobuchar.
    Senator Klobuchar. Thank you, Mr. Chair. Thank you very 
much for being here today, Ms. Clarke. I just want to get some 
basic facts, here. In the Supreme Court's 5-4 decision in 
Shelby County v. Holder, the majority wrote that when Congress 
establishes a process for preclearance, it must do so in a 
way--and this is the Court decision--that makes sense in light 
of current conditions. It cannot rely simply on the past.
    How do the updates to the Voting Rights Act in the John 
Lewis bill respond to the Supreme Court's critique, and do you 
agree that it's relevant to our evaluation of current 
conditions that this year alone over 400 bills have been 
introduced across the country to roll back voting rights, and 
at least 31 of them have been signed into law?
    Assistant Attorney General Clarke. Thank you, Senator. The 
bill does a number of things. It tethers the preclearance 
formula to current conditions, which as you note, is the 
instruction from the Supreme Court in the Shelby ruling. I also 
deem these hearings that Congress has been conducting since at 
least 2019 to be important because they've provided an 
opportunity for Congress to hear about those current conditions 
on the ground across the country.
    The rule--bill also provides stronger protections for 
Native American and Alaskan Native voters, which is important, 
and does a number of other things including clarifying the 
standards to be applied in Section 2 vote denial cases and 
more.
    Senator Klobuchar. Thank you very much. Do you agree, and I 
know you're familiar with the Freedom to Vote Act. We know the 
John Lewis Bill--let me just step back--will stop States with a 
history of racial discrimination from rolling back voting 
rights in the future. It would also counteract some of the laws 
that States have already passed through a new provision in 
section two that would apply to changes in voting laws made 
this year.
    Do you agree that in order to protect Americans' right to 
vote, Congress must pass both the John Lewis Bill and the 
Freedom to Vote Act, which as you know, is a negotiation 
Senator Manchin, and myself, and Senator Padilla, on this 
Committee, Senator Warnock, Senator Merkley, Senator Kaine and 
King, and Senator Schumer put together.
    Assistant Attorney General Clarke. Thank you, Senator. The 
Department is here to speak to the importance of the John Lewis 
Voting Rights Advancement Act today and welcomes the 
opportunity to work with Congress on other ways and other bills 
that might strengthen voting rights in our country.
    Senator Klobuchar. All right. I was listening to Senator 
Lee's questions, and it made me think of my own real-world 
experience here going down to Georgia. I took the Rules 
Committee, which I Chair, to Georgia for a field hearing, our 
first one in decades, about its new voting law, which includes 
egregious previsions, which is why major companies have come 
out against it, like reducing the number and availability of 
ballot drop boxes, putting new limits on early voting, allowing 
politicians to fire local election officials, changing the time 
of the runoff to 28 days and then not allowing for any weekend 
voting during that time period. Making voters put their 
birthdate on the outside of the envelope. That's the internal 
envelope instead of the day they cast the ballot, which is 
meant to sew confusion. Not allowing for registration during 
the runoff period.
    What is the impact of laws like the one in Georgia on voter 
participation, especially among voters of color in both urban 
and rural areas?
    Assistant Attorney General Clarke. Senator, the Department 
has pending litigation against the State of Georgia, and so I 
can't comment on pending litigation. What I can say is that the 
case-by-case work that the Department has been engaged in has 
not been an adequate substitute for the important work that 
we've been able to do when we had Section 5 in place, blocking 
thousands of discriminatory voting changes from ever taking 
root in the country.
    Senator Klobuchar. Very good. Finally, Congressman John 
Lewis called voting, ``the most powerful nonviolent tool we 
have to create a more perfect union,'' and that's how I see it. 
I have a State that has the highest voter turnout nearly every 
single election, including the last one. Honestly, Mr. 
Chairman, with voting laws that allow for things like same-day 
registration, we have elected Democratic Governors like our 
Governor Tim Walz, Republican Governors like Tim Pawlenty, and 
independent Governors like Jesse Ventura.
    I just see the difference. It's not what party gets 
elected. The changes that people feel like they're part of the 
franchise, and that we're making it easier for them to vote. 
Why is it important, Ms. Clarke, to strengthen and restore the 
Voting Rights Act, particularly after several Supreme Court 
decisions have rolled back the Justice Department's ability to 
enforce the law's protection?
    Assistant Attorney General Clarke. Senator, the right to 
vote is one of the most important Civil Rights in our country. 
It is the right from which other Civil Rights are derived. It 
speaks to principles that lie at the heart of our Constitution. 
We know that the Constitution vests this body with broad powers 
under the 14th and 15th Amendment to ensure that our elections 
are free from racial discrimination. We welcome this 
opportunity to work with you and other Members of the Committee 
to achieve that goal.
    Senator Klobuchar. Thank you very much.
    Chair Durbin. [Presiding.] Senator Blackburn.
    Senator Blackburn. Thank you, Mr. Chairman. Ms. Clarke, 
you're in charge of policing the Civil Rights Division at the 
Federal level. Does it raise civil rights concerns when the 
Government attempts to intimidate citizens who are exercising 
their First Amendment freedom of speech?
    Assistant Attorney General Clarke. Thank you, Senator. We 
do not want intimidation in our society.
    Senator Blackburn. It would concern you if there was an 
exercise against an individual's free speech, correct?
    Assistant Attorney General Clarke. The First Amendment is 
important, and we also do not want a society with intimidation.
    Senator Blackburn. Did President Biden promise to keep the 
DOJ apolitical?
    Assistant Attorney General Clarke. He has. Attorney General 
Garland has made clear his commitment to ensuring that 
partisanship will not impact our enforcement work.
    Senator Blackburn. Okay. Yes or no. Did the Teachers Union 
write a letter to DOJ asking you to use the Patriot Act to 
target concerned parents who voice their opposition to the 
indoctrination of their children, yes or no?
    Assistant Attorney General Clarke. This is not a matter 
that the Civil Rights Division handled. I'm aware of the 
memorandum issued by the Attorney General, which speaks to 
threats and intimidation that some school officials have 
experienced in our country, and that's not activity protected 
by the First Amendment.
    Senator Blackburn. You're saying a parent going to a school 
board and expressing their dismay with CRT, or with the mask 
mandate, is not protected speech. Is that what you're saying?
    Assistant Attorney General Clarke. I believe the Attorney 
General's memorandum deals with threats and intimidation and 
harassment.
    Senator Blackburn. Okay. Let me ask you this then. Did DOJ 
issue the directive to the FBI to target parents in direct 
response to this letter from the Teachers Union, yes or no?
    Assistant Attorney General Clarke. Again, this is not a 
matter that the Division handled, but what I can tell you is 
that the Attorney General said that, quote, ``Threats against 
public servants are not only illegal, they run counter to our 
Nation's core values.''
    Senator Blackburn. Do you believe it's appropriate to treat 
parents as domestic terrorists for daring to ask elected school 
board members questions about what is being taught to their 
children?
    Assistant Attorney General Clarke. Senator, while this is 
not a matter that the Civil Rights Division handled, this is a 
memorandum issued by the Attorney General. I know that the 
Department is committed to ensuring robust civil discourse.
    Senator Blackburn. Do you see any difference in somebody 
being a concerned parent and going to a school board meeting 
and asking questions, and then that individual being labeled a 
domestic terrorist, and this being carried out by the FBI and 
the DOJ? Is that not a problem or a concern to you?
    Assistant Attorney General Clarke. The Attorney General's 
memorandum is focused on threats, on intimidation, harassment--
--
    Senator Blackburn. Do you see parents as a threat?
    Assistant Attorney General Clarke. I don't.
    Senator Blackburn. Do you see parents asking questions as a 
threat? Does DOJ see parents asking questions as a threat? 
Because we've seen reports from teachers, parents, and other 
members of a private Facebook group in Loudoun County, Virginia 
that have been accused of compiling a list of names of district 
parents who oppose Critical Race Theory in order to track, 
hack, and dox them, or even intimidate them into self-
censorship. Should these teachers and other members of this 
private Facebook group be pursued by the FBI as domestic 
terrorists as well?
    Assistant Attorney General Clarke. Senator, free speech is 
a hallmark value.
    Senator Blackburn. It's free speech for teachers that want 
to track parents, but it's not free speech for parents that 
want to show up at a school board meeting and make their 
displeasure known and engage in public discourse because those 
parents, taxpayers, are paying the bill for that.
    Let me ask you this. Attorney General Garland. I've seen 
reports of his family connection to Panorama Education over 
data harvesting and holding data on students and having 
contracts with school boards. We've had quite a bit of 
discussion about Facebook and the way they market and data mine 
children as young as 8 years old. Are you aware of that?
    Assistant Attorney General Clarke. This is not an issue 
that the Civil Rights Division works on, but I'm generally 
aware.
    Senator Blackburn. Okay. You all work in stovepipes is what 
you're telling me, and that you have no knowledge or 
information about what is being done to parents and how they 
are being labeled, and this directive for the FBI to go and 
investigate parents who are standing up for what their children 
are being subjected to in some public school systems. Thank 
you, Mr. Chairman.
    Chair Durbin. Thank you, Senator Blackburn. For the sake of 
everyone here, circumstances on the floor are fluid, and 
there's negotiations and conversations back and forth at the 
leadership level. The Democrat leader is asking for a caucus 
immediately after the end of this first roll call, which will 
be soon. I would like in fairness to have two last witnesses 
before we recess, both of whom have been here before this 
announcement clearly, Senator Coons and Senator Cruz. I 
recognize Senator Coons.
    Senator Coons. Thank you, Chairman Durbin, and thank you 
Attorney General Clarke. Thank you. Thank you for a lifetime of 
dedication to the Constitution, to voting, to finding a way 
where there seems to be now no way to fighting for the 
foundation of our democracy, which is the right to vote.
    I have a picture on my iPad, and I'm smiling in this 
picture. I'm with Congressman John Lewis. I'm at the foot of 
the Edmund Pettus Bridge, and I'm holding up a piece of 
legislation. It's a piece of legislation that then Chairman 
Leahy and I and our staff had worked tirelessly on over a year. 
It was to fix the hole blown in the preclearance section of the 
Voting Rights Act by the Shelby County decision, a carefully 
balanced, sensible approach toward restoring the effectiveness 
of preclearance in the modern era, the way that it is in this 
bill. In a minute, I'll just ask you to walk us through what 
that balance is that the now John Lewis Voting Rights 
Restoration Act would do.
    I have to say I'm sick at heart. I was smiling that day 
because I was so hopeful, and because I was in the presence of 
a living saint; someone who had borne the blows and given his 
own blood in a dozen places across our country, in a dozen 
instances. Set upon by howling mob when he was on a Greyhound 
bus as part of the Freedom Rides; attacked by a Klansman when 
he dared to stand up and speak for his rights; challenged by 
folks who spit on him, or beat him, or attacked him, or jailed 
him. Yet in the time I got to spend with John on five different 
pilgrimages like this, both in our country and to South Africa, 
he struck me as one of the most generous, kindhearted, 
humorous, spirted people.
    The thing that always challenged me about John was that he 
believed in America far long before America believed in him; 
that he grew up in a town that was struggling, sweltering under 
racial oppression, and he never gave up hope. I must confess 
there are moments now listening to my colleagues, and the ways 
in which they are ignoring or mischaracterizing or maligning or 
misstating the work of the Department of Justice, the intention 
of this bill that I am struggling to remain hopeful.
    I'll just say this. If John could remain hopeful, if 
Congressman Lewis could remain hopeful, oddly confident, 
supremely, even serenely at times, certain that in the end, 
democracy would win out, so must we, even at a moment when it 
seems so difficult, so even hopeless. I will challenge my 
Republican colleagues to be true to the decades-old tradition 
of this Voting Rights Act won by so much sacrifice, being 
reauthorized and reauthorized, improved and improved over 
decades from 1965 to its most recent reauthorization.
    By negotiating together and finding a way forward, we have 
right in front of us a tremendous vehicle. The John Lewis 
Voting Rights Advancement Act could be the path forward for 
that next step toward a more perfect union. If you would, we've 
heard today at this hearing objections that somehow subjecting 
certain localities to preclearance is fundamentally unfair. 
It's unfair to its citizens. It's an undue burden on their 
State sovereignty.
    My recollection was, as we first crafted it, this formula 
doesn't punish or shame any particular locality. It ensures 
voters within a jurisdiction with a demonstrated pattern of 
discrimination over 25 years are protected from a further 
erosion of their rights, and the formula permits a jurisdiction 
to emerge from preclearance after 10 years of a clean record.
    Can you just remind us briefly in the minute I've given 
you, Ms. Clarke, how that preclearance framework balances local 
government prerogatives to manage and control their electoral 
arrangements and decisions with protections for that most 
important and foundation constitutional right, the right to 
vote?
    Assistant Attorney General Clarke. Thank you, Senator. If I 
may, I just wanted to share a recollection of Congressman John 
Lewis. I recall him being on the Senate floor shaking the hands 
of many Members of this body in 2006, leading up to that 98-to-
0 vote in favor of reauthorization. I hope and believe that 
that level of bipartisan support for one of this body's most 
important Federal civil rights laws remains possible today.
    The John Lewis Voting Rights Advancement Act contains a 
number of provisions. It contains a bailout provision that 
would allow jurisdictions with a clean bill of health a way to 
exempt themselves from the preclearance obligation. Judicial 
review is available to jurisdictions that want to bypass the 
Justice Department, and instead proceed to court. There's a 
long history of good and strong collaboration between the 
Justice Department and local and State election officials.
    The Justice Department has carried out its review of voting 
laws in 60 days or less. It's done so in a transparent manner, 
publishing guidelines that walk the public and officials 
through the process that it undertakes when reviewing a voting 
law. We've heard from states like Mississippi and North 
Carolina that told the Supreme Court in the Shelby case that 
DOJ is flexible and has latitude in how they handle the Section 
5 process.
    I think this bill, again, makes clear that there is 
flexibility and latitude and respect for local and State 
jurisdictions that are administering their local law. The goal 
is simply about blocking and deterring discriminatory voting 
changes so that they would never take root in a community.
    Senator Coons. Thank you. Thank you so much for your 
testimony today, and thank you for your determined and capable 
leadership of the Civil Rights Division.
    Assistant Attorney General Clarke. Thank you.
    Senator Coons. Thank you, Mr. Chairman.
    Chair Durbin. Thanks, Senator Coons. Senator Cruz.
    Senator Cruz. Thank you, Mr. Chairman. Ms. Clarke, when you 
testified before this Committee and when Attorney General 
Garland testified before this Committee, you both promised to 
be nonpartisan and impartial. I'm sorry to say that I think 
neither of you have lived up to that promise.
    Within weeks of President Biden being sworn in, the 
Department of Justice dismissed a Civil Rights Division lawsuit 
it had against Yale University for explicit racial 
discrimination. Yale has a policy that discriminates against 
Asian Americans at admissions. It does so brazenly and openly. 
Yet, the Department of Justice decided that preventing racial 
discrimination did not fit within the purview of the Biden DOJ.
    In your defense, you were not yet there. Neither was 
Merrick Garland. That was merely the initial political 
operatives of the Biden administration doing what they believed 
was consistent with the preferences of the President.
    Just this week, after you were there, after Merrick Garland 
was there, the Department of Justice issued a memorandum to the 
FBI instructing them to mobilize against parents across the 
country, parents of school kids, who have the temerity to show 
up at school boards and express their opposition to the 
teaching of Critical Race Theory, a pernicious theory that 
divides us on racial lines, that tell school children the lie 
that America is fundamentally racist, that American is 
irredeemably racist, that all white people are racist. It 
spreads racial division. Many parents are understandably quite 
dismayed at schools that are teaching this to their children, 
sometimes as young as five. Yet the Department of Justice 
looked at that issue and decided to label the parents objecting 
to this teaching as domestic terrorists. Did you participate in 
discussions about the memo before it was issued?
    Assistant Attorney General Clarke. Senator, I can't talk 
about internal deliberations inside the Department.
    Senator Cruz. You can't talk about whether you participated 
in discussions about the memo?
    Assistant Attorney General Clarke. No, but what I can tell 
you is that the Civil Rights Division will play a role going 
forward. The Attorney General has asked the Department to 
undertake a review, and the Division will participate in that 
review to determine how Federal enforcement tools can be used 
to prosecute crimes.
    Senator Cruz. Do you believe parents objecting to the 
teaching of Critical Race Theory have civil rights in the 
democratic process?
    Assistant Attorney General Clarke. I don't follow the 
question, Senator.
    Senator Cruz. You don't understand the question, whether 
parents objecting to Critical Race Theory have civil rights?
    Assistant Attorney General Clarke. The First Amendment is a 
core value in our democracy and----
    Senator Cruz. I didn't say free speech. I said civil 
rights. School board meetings are democratic. They are 
petitioning your local government. Do they have civil rights 
that the voting rights gives a damn about?
    Assistant Attorney General Clarke. Yes, they have the right 
to express their view to challenge the school boards, to ask 
school boards----
    Senator Cruz. Is it beneficial for the Attorney General to 
label them as domestic terrorists and direct the FBI to target 
them?
    Assistant Attorney General Clarke. The Attorney General's 
memo deals with threats against public servants and says that 
threats against public servants are not only illegal, they run 
counter to our Nation's core value.
    Senator Cruz. Do you believe parents objecting at school 
boards are domestic terrorists?
    Assistant Attorney General Clarke. I don't, Senator.
    Senator Cruz. Do you believe Antifa are domestic 
terrorists?
    Assistant Attorney General Clarke. I don't have a view 
about Antifa.
    Senator Cruz. Do you believe the Black Lives Matter 
protestors who burned shops, who firebombed police cars, who 
murdered police officers, do you believe they're domestic 
terrorists?
    Assistant Attorney General Clarke. Senator, I believe that 
we live in a society where people espouse different views, but 
what we don't want are threats of violence.
    Senator Cruz. You know, Ms. Clarke, it is amazing that 
you're not willing to condemn people who are murdering police 
officers and firebombing cities because your politics aligns 
with them, but at the same time when it comes to parents at 
school boards, you're perfectly comfortable with calling a mom 
at a PTA meeting a domestic terrorist.
    Ms. Clarke, with all due respect, this demonstrates why the 
Democrat proposal to take someone with as long a partisan 
record as you have and to put you in charge of striking down 
any voting rights law in the country that you disagree with is 
nothing but a partisan power grab.
    Let me give another example, because your Division has 
operated in a purely partisan way. The Department of Justice 
dismissed the civil rights lawsuits against the State of New 
York, the State of Pennsylvania, the State of Michigan for 
those Governors' policies that sent COVID-positive patients 
into nursing homes, forced the nursing homes to take those 
patients, a political decision that resulted in tens of 
thousands of deaths. One of those Governors, Andrew Cuomo, has 
now resigned in disgrace and his staff had admitted they lied, 
underreporting the deaths that policy caused. Yet, your 
division dismissed the lawsuit against those Democratic 
Governors. How are we to see that as anything other than a 
purely partisan decision?
    Assistant Attorney General Clarke. The letters that were 
issued to officials in the matters that you reference were put 
together by career officials inside the Department.
    Senator Cruz. Career officials can't be partisan?
    Assistant Attorney General Clarke. This Department carries 
out its work free from political interference.
    Senator Cruz. Are you testifying to this Committee that 
there are no career officials in the Department of Justice who 
are partisan?
    Assistant Attorney General Clarke. Partisanship does not 
impact the way that we carry out our enforcement work.
    Senator Cruz. Except miraculously, you dismissed the 
lawsuits against Democratic Governors, even when their policies 
may have caused the deaths of tens of thousands of people. You 
also dismissed a lawsuit that was brought against a medical 
center that had a pattern of discriminating against healthcare 
providers that for conscience reasons, didn't want to implement 
abortions, even though clear Federal law protects their civil 
rights. Why did you dismiss that civil rights lawsuit in 
contravention of Federal law?
    Assistant Attorney General Clarke. General Garland has made 
clear, and I agree, that partisanship has no place in the 
enforcement work of the Justice Department.
    Senator Cruz. Except every decision you make is partisan. 
Your actions contradict those statements.
    Chair Durbin. Your time has expired. We're going to stand 
in recess, and subject to the call of the Chair, I want to 
apologize to the witnesses on both sides that this Caucus has 
been called at the last minute, and it relates to an issue, 
very timely issue of the debt ceiling. We will return, and I 
ask you to stand at ease until that opportunity presents 
itself. Committee stands in recess.
    [Whereupon the hearing was recessed and reconvened.]
    Chair Durbin. Welcome back, everybody. General Clarke, 
thank you. I see Senator Blumenthal is here, and I'm going to 
recognize you next. Committee comes to order.
    Senator Blumenthal. Thank you, Mr. Chairman. Thank you, Ms. 
Clarke, for your service. One of the chief objections we hear 
about preclearance is that it imposes substantial burdens on 
State and local policymakers and election officials to wade 
through a bureaucracy before making innocent, legitimate policy 
decisions about how to run their elections. I'm sure you've 
heard that objection numerous times. We also hear that 
preclearance empowers activists, unelected, unaccountable 
bureaucrats at DOJ to make decisions at the expense of local 
officials.
    As the leader of the Civil Rights Division, I'd like to 
give you a chance to respond to those criticisms. I know-- 
think they were raised before the break, and I'm not sure that 
you've had a chance to respond to them in detail. I'd like to 
hear you on that score.
    Assistant Attorney General Clarke. Thank you, Senator. The 
Department finds that the John Lewis Voting Rights Advancement 
Act contains a number of provisions that help ensure that the 
bill is truly focused and tailored on the current problems and 
current conditions in the country when it comes to voting 
discrimination. There is a bailout provision in the bill that 
would make it easy for jurisdictions that have had a clean bill 
of health to exempt themselves from the preclearance 
obligation. Judicial review remains available to jurisdictions 
that want to bypass the administrative process led by the 
Justice Department, and instead go to the courts. There is a 
very long and deep history of collaboration between the career 
officials who administer Section 5, and the States and 
localities that routinely makes submissions.
    The process is also fair and transparent. The Department 
has published guidelines that outline for the public how the 
Justice Department undertakes its section review obligation. 
So, in many respects, this bill is responsive to that concern, 
Senator.
    Senator Blumenthal. By the way, just so everyone 
understands, the career attorneys in the Department of Justice 
are responsible to you as the head of the Division, correct?
    Assistant Attorney General Clarke. That's correct. They've 
undertaken this work for decades across both Republican and 
Democratic administrations.
    Senator Blumenthal. They're accountable to you, and you are 
accountable to the Attorney General, who in turn reports to the 
President of the United States, who was elected by the people 
of our country.
    Assistant Attorney General Clarke. That is correct. Most 
importantly, they undertake this work free from political 
interference, and without any consideration of partisanship at 
all.
    Senator Blumenthal. As you've just said, I understand that 
any jurisdiction that wanted to avoid the Department of Justice 
could seek preclearance directly from a district court.
    Assistant Attorney General Clarke. That's correct.
    Senator Blumenthal. That's a kind of check and balance, if 
you will.
    Assistant Attorney General Clarke. That's correct, Senator.
    Senator Blumenthal. Thank you. Thanks, Mr. Chairman.
    Chair Durbin. Thank you. Senator Ossoff.
    Senator Ossoff. Thank you, Mr. Chairman. Thank you, Ms. 
Clarke, for your continued service at the Department of 
Justice.
    Mitch McConnell says the John Lewis Voting Rights 
Advancement Act is quote, ``unnecessary.'' According to him, 
``It's already illegal to discriminate in voting based on race, 
so no one's rights are threatened.'' Georgia just recently 
passed a law restricting voting access that targets voting by 
mail, just after an election where, I don't think incidentally, 
voters of color relied on absentee ballots at unprecedented 
levels, and in the case of Black and Asian voters, at higher 
rates than white voters.
    When the preclearance provisions were established in 1965, 
was it not, Ms. Clarke, precisely because ad hoc litigation 
proved too costly, time consuming, too easy to obstruct, too 
easy to delay for the Civil Rights Division to effectively 
prevent States and local jurisdictions from enacting voting 
policies that targeted voters of color?
    Assistant Attorney General Clarke. That's correct, Senator. 
In many respects, we've turned the clock back, because today we 
are left to case-by-case litigation to challenge voting 
discrimination that we continue to encounter. The case-by-case 
litigation that we bring is costly, time-intensive, resource-
intensive.
    Section 2 litigation under the Voting Rights Act has proven 
to be an inadequate substitute for the important prophylactic 
protections that had long been provided by Section 5.
    Senator Ossoff. In fact, by 1963, on the basis of the 
authorities that the Voting Rights Act of 1957 had afforded the 
Department of Justice, the Department had filed 35 suits 
challenging either discrimination or threats against 
registration applications filed by Black voters. As I believe 
you quoted in your testimony, then Attorney General Robert 
Kennedy said that those case-by-case suits were, quote, ``a 
painfully slow way of providing what is after all a fundamental 
right of citizenship, the right to vote.''
    Assistant Attorney General Clarke. That is correct, 
Senator. While we had Section 5 in place between 1965 and 2013, 
the Department blocked over 3,000 voting changes. Sixty percent 
of those changes also had evidence of intentional 
discrimination. It's a remarkable and sweeping number of 
discriminatory voting changes that would have taken root, but 
for the important protections that have been provided by 
Section 5.
    Senator Ossoff. Thank you, Ms. Clarke. Fueled by Donald 
Trump's big lie, threats against election workers skyrocketed 
during the 2020 election. In Georgia, the election workers and 
officials at all levels, including the Republican Secretary of 
State and his staff, were harassed and targeted with death 
threats, as were members of their family. Polling places around 
the State received bomb threats, from Atlanta to Jackson and 
Franklin Counties in the Northeast, to Floyd County in the 
Northwest, and Bullock in the South.
    Election workers and election officials being able to work 
free from intimidation and threats is vital to free and fair 
elections. That's why earlier this week, I introduced 
legislation, the Election Worker and Polling Place Protection 
Act, to expand and strengthen protections for election workers, 
their families, polling places, and other election 
infrastructure. I want to thank the Chairman and my colleagues 
on this Committee for swiftly including my legislation, now in 
the full text of the John R. Lewis Voting Rights Advancement 
Act.
    My question for you, Ms. Clarke, is do you expect that 
these threats against election workers and polling places may 
continue to grow in intensity and become more frequent? Why is 
it important that we strengthen Federal protections for 
election workers and polling places in the law?
    Assistant Attorney General Clarke. Thank you, Senator. 
Attorney General Garland recently convened a meeting of over 
1400 election officials across the country, a bipartisan group. 
We know that threats, harassment of poll workers and election 
officials is a real issue. We also know that these individuals 
work tirelessly to run elections in our country, and Americans 
deserve a process which is fair and open, and poll workers and 
election officials who conduct these elections in their 
communities deserve to be able to do their job free from 
harassment.
    The Attorney General has convened an Elections Threat 
Taskforce to deal with this issue, and the Department welcomes 
the provisions of this bill, which would put in place important 
protections to counter this very real threat.
    Senator Ossoff. Thank you, Madam Assistant Attorney 
General, for your testimony and your service. Mr. Chairman, I 
yield.
    Chair Durbin. Thank you, Senator. Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman. It's good to see 
you, Ms. Clarke. Thank you for the work that you're doing.
    Last week, this Committee held a hearing on the Supreme 
Court's use of the shadow docket to practically overturn Roe v. 
Wade by allowing Texas' unconstitutional abortion ban to take 
effect. Abortion isn't the only area where the Supreme Court 
has used the shadow docket to push its radical agenda.
    In the leadup to the 2020 election, the Supreme Court used 
the shadow docket time and again to restrict voters' access to 
the polls in Wisconsin, Alabama, Florida among other States, 
each time claiming it was improper for courts to protect the 
right to vote so close to an election.
    Here are three Supreme Court shadow docket rulings that 
continue, as Justice Sotomayor put it, the Court's, quote, 
``trend of condoning disenfranchisement.'' In Republican 
National Committee v. Democratic National Committee, the 
Supreme Court, in a shadow docket by a 5-to-4 vote overturned a 
district court's injunction that gave Wisconsin voters six 
extra days to receive and mail back absentee ballots, many of 
which had not been received because State authorities had been 
overwhelmed by record requests for such ballots due to the 
COVID pandemic.
    The Supreme Court did not allow Wisconsin voters those six 
extra days. It was astounding, because they were trying to use 
a deadline for returning those ballots or mailing the ballots 
that had not even been received, so that was pretty hard to 
explain in my view. The Supreme Court in a 5-to-4 ruling did 
that.
    In Merrill v. People v.--I'm sorry--People First of 
Alabama, the court stayed again by a 5-to-4 vote, a lower court 
order that sought to ensure that citizens with a high risk of 
contracting COVID-19 could safely exercise their fundamental 
right to vote. The district court preliminarily enjoined a pair 
of Alabama laws that enabled persons in these situations to be 
able to vote safely, but the Supreme Court said no. The Court's 
controversial--conservative, I'm sorry--majority stayed that 
relief, forcing high-risk voters to risk their health in order 
to vote by mail.
    In Racer v. DeSantis, the court refused to vacate a stay of 
a lower court ruling that held unconstitutional Florida's 
scheme of disenfranchising voters too poor to pay outstanding 
fines and fees. This is like a poll tax. This was the shadow 
ruling that Justice Sotomayor said it continues the trend of 
condoning disenfranchisement.
    We know that there are some 523 anti-voter bills that have 
been introduced in some 47 States this year alone. Ms. Clarke, 
can you think of any time when it's more important to protect 
voting rights than in the leadup to an election in an 
environment where hundreds of voter suppression bills are being 
introduced and where the Supreme Court is continuing its trend 
to disenfranchise voters? Would you like to talk a little bit 
about what we're facing and the importance of the kind of 
legislation we're contemplating?
    Assistant Attorney General Clarke. Thank you, Senator. The 
Department has observed that since 2013, something has changed. 
The Supreme Court issued its Shelby ruling, and we've started 
to see States and localities interpret the ruling as 
essentially a green light to move forward with discriminatory 
voting measures. The Department has brought litigation in Texas 
and North Carolina, and currently has pending litigation in 
Georgia. This case-by-case approach has not proven adequate to 
confront all of the voting discrimination that we are up 
against.
    Moreover, that case-by-case approach is time-intensive, 
leads to long, protracted litigation. During the course of the 
litigation, the discriminatory voting measure is actually 
allowed to take effect and infects the electoral process. Our 
hope is that Congress will move quickly and swiftly to restore 
the Section 5 preclearance process, 8 years after the Shelby 
ruling.
    Senator Hirono. I am running out of time, but the other 
case, of course, is the Brnovich case, which made it hard to 
even bring a Section 2 case. The more recent Supreme Court case 
after Shelby just created, but basically, I think that the 
Supreme Court decided to write its own law and set up some 
criteria that's not even in Section 2 so that it makes it that 
much harder, and again, the reason why we need to pass the kind 
of legislation we're contemplating. Thank you, Mr. Chairman.
    Chair Durbin. Thanks, Senator Hirono. Senator Padilla.
    Senator Padilla. Thank you, Mr. Chair. Colleagues, when the 
Voting Rights Act was enacted in 1965, voter registration rates 
for Black Americans in the South were abysmal up until that 
point because of the discriminatory laws and policies that made 
it effectively impossible for them to register.
    I point this out because, largely because of the Voting 
Rights Act, things have undoubtedly improved since 1965. 
Indeed, more Black voters were added to the rolls in the first 
2 years following passage of the VRA than in the previous 
century. Significant barriers to ballot access remain, and some 
communities, particularly communities of color, feel the 
effects of these barriers more than others.
    After four decades of--and I want to underscore this. After 
four decades of overwhelming bipartisan majorities of Congress 
affirming the need for the Voting Rights Act with several 
reauthorizations, and in reauthorizing, acknowledging the need 
for Federal protection of the right to vote, including through 
preclearance. Protecting the right to vote through 
preclearance. That happened repeatedly over the course of more 
than 40 years.
    Today, we find ourself in a place where the Republican 
Party line is now that Federal protection of the right to vote 
is tantamount to an unconstitutional Federal takeover of State 
elections.
    My question, Ms. Clarke, is this. In Shelby County, the 
Supreme Court struck down the coverage formula to determine 
which jurisdictions have to submit to the preclearance 
requirement. Has the Supreme Court ever held preclearance 
itself to be unconstitutional?
    Assistant Attorney General Clarke. Thank you, Senator. No. 
It essentially gave Congress the task to go back to the drawing 
board to fashion an approach to coverage that tethers the 
preclearance process to current conditions. We know that 
Congress has been carefully studying this issue over the last 
few years, developing a record that makes clear, ongoing voting 
discrimination remains rampant across the country, and it is 
not unusual for Congress to respond to a Court ruling. We saw 
that with the Civil Rights Restoration Act and the Lilly 
Ledbetter Fair Pay Act. The Department welcomes this 
opportunity to work with you to update the coverage formula in 
response to the Court's Shelby ruling.
    Senator Padilla. Because conditions have changed since 
1965?
    Assistant Attorney General Clarke. Conditions have changed, 
Senator. We know that voting discrimination remains ongoing 
today.
    Senator Padilla. No, I understand. At the risk of going off 
on a tangent here, because I think we can apply that logic even 
more strongly when it comes to the electoral college, but 
that's a conversation for another day.
    Back on this topic, from a resource and a timing 
perspective--I'll call it a damage done perspective, can you 
spend just a minute on the benefits of a preclearance 
requirement versus a post-enactment litigation?
    Assistant Attorney General Clarke. Senator, the burden on 
voters is undeniable. A discriminatory voting tactic may have 
taken root and infect the electoral process that's playing out 
in a community. We know that States have spent millions of 
dollars defending suits. In Texas they spent $3.5 million 
defending the discriminatory voter ID law. In North Carolina, 
more than $10.5 million spent defending their omnibus bill that 
the Fourth Circuit found discriminated with almost surgical 
precision.
    The Section 5 preclearance process is swift. It is easy. It 
is cheap for jurisdictions to comply with it, and it leaves 
Americans with the benefit of an electoral process that is free 
from discrimination.
    Senator Padilla. Great. Thank you. Mr. Chair, I want to ask 
one more question of what may seem to some as not necessarily a 
voting rights element of this, but it is fundamentally one. Not 
how people can cast their ballots, but as it pertains to the 
census and the redistricting process which is pivotal from a 
voting rights perspective.
    Census data shows that the Latino population growth over 
the last decade fueled the population growth of States 
throughout the country. In California, for example, data shows 
that between 2010 and 2020, Latinos accounted for more than 
two-thirds of the State's population growth. Places like Texas 
similarly experienced significant growth of their Latino 
communities. Accounting for Latino population growth and 
redistricting is therefore critical to ensuring fair 
representation. This redistricting cycle is unlike any other in 
the past five decades.
    For the first time since 1965, in light of the Supreme 
Court's decisions in Shelby County and Brnovich, States will 
conduct redistricting without the full protections of the 
Voting Rights Act.
    Ms. Clarke, my question is what remaining tools does the 
Department of Justice have to help ensure a fair redistricting 
process, and how would the Department's efforts be enhanced by 
the passage of the John Lewis Voting Rights Advancement Act?
    Assistant Attorney General Clarke. Thank you, Senator. 
Essentially, we would have Section 2 of the Voting Rights Act 
at our disposal, and this is not an adequate substitute for the 
important protections that had long been provided by Section 5. 
This case-by-case approach simply is not enough to stand up to 
the breadth and scope of voting discrimination that we see 
today.
    If I may, I just want to underscore the importance of 
Section 5 when it comes to redistricting. The Department had 
issued an objection in East Feliciana Parish, Louisiana in 
2011, involving a proposed redistricting plan that would have 
reduced the Black voting age population of a particular 
district. The Department found evidence that the demographer in 
this matter worked exclusively with white elected officials in 
coming up with a plan in which they reduced the Black 
population and increased the white population, and they 
excluded Black elected officials in the course of drawing this 
map.
    This example illustrates the important role that Section 5 
plays at the local level--at the local and county levels that 
are often places that are not under a microscope, but places 
where the Department has found that voting discrimination has 
been rampant throughout the test of time.
    Senator Padilla. Thank you. Thank you, Mr. Chair.
    Chair Durbin. Thanks, Senator Padilla. Again, General 
Clarke, I want to apologize for the interruption. It wasn't 
planned, and we had a rather important caucus. I hope you'll 
understand. You're certainly always welcome before this 
Committee and we thank you for your testimony today. Since 
there are no other Senators seeking recognition at this point, 
you may be dismissed, as they say. Thank you so much for your 
testimony.
    Assistant Attorney General Clarke. Thank you, Senator.
    Chair Durbin. There may be written questions sent your way. 
We'll contact your staff if that's the case, okay?
    Assistant Attorney General Clarke. Thank you.
    Chair Durbin. We're going to call the second panel. I want 
to welcome Wendy Weiser, who directs the Democracy Program at 
the Brennan Center for Justice at NYU. She founded and directed 
the program's voting rights and elections project. Directed 
litigation, research, and advocacy to enhance political 
participation, and prevent voter disenfranchisement.
    We've also been joined by Jon Greenbaum, who serves as the 
chief counsel and senior deputy director for the Lawyers 
Committee for Civil Rights Under The Law, where he is 
responsible for overseeing the organization's legal project, 
including voting rights.
    In a departure from custom and practice, I have been given 
the introductions of the two Republican witnesses, and so I am 
going to give the script that Senator Grassley would give 
without prejudice.
    I'd like to welcome our two witnesses to the Senate 
Judiciary Committee this afternoon. If we can connect up with 
him virtually, we're going to have the Attorney General of 
Indiana Todd Rokita, and Hon. Ken Cuccinelli.
    Mr. Cuccinelli, are you still with us? Are you going to be 
with us virtually?
    Mr. Cuccinelli. I am, Senator.
    Chair Durbin. Good. Thank you. I'm glad you're here. 
Attorney General Rokita, are you onboard yet? We'll keep 
reaching out to his office.
    Let me say a few words about these two witnesses. The 
Honorable Ken Cuccinelli, currently National Chairman of the 
Election Transparency Initiative, decades of experience in 
Government, Acting Director of U.S. Citizenship and Immigration 
Services, Acting Deputy Secretary for the Department of 
Homeland Security during the Trump administration, leading 
spokesman for a variety of issues including election security, 
served in the Virginia Senate from 2002 to 2010, and as the 
Virginia attorney general from 2010 to 2014. He was the last 
attorney general of Virginia to handle the issue of 
preclearance. Welcome.
    Attorney General Todd Rokita I hope can join us, has a 
wealth of experience serving the Hoosiers in Indiana. He served 
as attorney general since he was elected with the highest 
number of votes of any State office holder in Indiana last 
year. Prior to that, served as Indiana's Fourth District 
Congressman from 2011 to 2019. He also served as Indiana 
Secretary of State from 2002 to 2010. While serving as the 
Indiana Secretary of State, he led the passage and 
implementation of the first-in-the-Nation voter ID law, which 
became a model. Following his success, 35 States followed suit 
implementing similar laws to protect the integrity of our 
elections.
    First item of business is the swearing in of the witnesses. 
Could the witnesses present please stand, and those at home 
stand virtually? I've got to administer the oath.
    [Witnesses are sworn in.]
    Chair Durbin. Record will reflect that the witnesses all 
answered in the affirmative. Senator Ossoff of Georgia is going 
to join me here in a moment and may be presiding over part of 
this. We'll start with opening statements of 5 minutes, and the 
first one we'll recognize is Wendy Weiser. Thank you for 
coming.

           STATEMENT OF WENDY WEISER, VICE PRESIDENT,

         DEMOCRACY PROGRAM, BRENNAN CENTER FOR JUSTICE,

                       NEW YORK, NEW YORK

    Ms. Weiser. Thank you, Chairman Durbin, Ranking Member 
Grassley, and Senators of this Committee. Thank you for the 
opportunity to testify today on strengthening the Voting Rights 
Act, one of the foundational texts of American democracy, and a 
critical bulwark against discrimination in our voting system.
    Unfortunately, as we've heard at length, in the last 8 
years, the Supreme Court has dealt two serious blows to the 
law, and it is simply no longer strong enough to protect 
Americans from increasingly aggressive voting discrimination. I 
thank Senators Leahy and Durbin for their exhaustive work in 
refining and updating the John Lewis Voting Rights Act. It 
couldn't come at a more critical time.
    The scale of the current assault on voting rights is 
staggering. At least 19 States have passed 33 laws this year 
making it harder to vote according to the Brennan Center's 
latest count. Many of these laws target voters of color, 
exacerbating persistent racial disparities in access.
    Turnout for non-white voters is now substantially lower 
than that for white voters and has been for over 25 years. 
Despite record voter turnout in 2020, only 58 percent of non-
white voters participated compared to 71 percent of white 
voters.
    We are at the start of a redistricting cycle that is 
already showing signs of gerrymandering targeting communities 
of color, and an alarming wave of efforts to sabotage elections 
compounds these problems. Only Congress can solve this crisis.
    I will focus today on one aspect of the John Lewis Act, the 
geographic preclearance formula. The key point, it is new, 
updated, and laser focused. It is necessary because even though 
discrimination is now widespread, it is much more prevalent in 
some places than others. According to our count, there were 
over 120 voting rights violations over the past 25 years in the 
seven States likely to be covered under this bill for 
preclearance, but fewer than 50 in the 39 States that are not 
close to coverage.
    Without preclearance, discrimination has become impossible 
to root out in these places. States have piled voting 
restriction upon voting restriction, passing new ones as old 
ones are struck down in what amounts to legal whack-a-mole. For 
instance, the new Georgia and Texas vote suppression laws, the 
worst in the country, come after years of earlier voting 
hurdles in those States. States routinely devise devious new 
ways to discriminate in voting, what President Lyndon Johnson 
called ``ingenious discrimination'' when first enacting the 
Voting Rights Act.
    The geographic coverage formula has been updated and 
tailored with precision to meet current conditions following 
the Supreme Court's guidance. To ensure that the formula 
targets illegal discrimination, it relies on the best evidence: 
established violations of voting discrimination laws. To ensure 
that it targets states with a persistent pattern of 
discrimination, it captures only those States that meet a high 
numeric threshold of violations over the past 25 years. That 
25-year review period is critical, ensuring enough time to 
identify where discrimination is persistent. To ensure that it 
targets where discrimination is current, the review period is 
not frozen in time, but rolls forward.
    The duration of preclearance coverage is limited to 10 
years, so jurisdictions without recent violations will 
automatically drop out, and they can easily bail out before 
then. Of course, stronger tools are needed to address 
discrimination in other places too, and that's why it's 
important that the bill also strengthens Section 2 and expands 
other national protections, as well.
    As Justice Kagan observed in her recent dissent in the 
Brnovich case, this is a perilous moment for the Nation's 
commitment to equal citizenship, an era of voting rights 
retrenchment. Safeguarding our democracy and protecting voting 
rights is one of the most sacred responsibilities this body 
has. The House has passed its bill, and it's now up to the 
Senate to act without delay to pass both the John Lewis Act and 
the Freedom to Vote Act. Thank you very much.
    Senator Ossoff. [Presiding.] Thank you, Ms. Weiser. Do we 
have Attorney General Rokita remotely? Okay. We're still 
waiting on Attorney General Rokita. Mr. Greenbaum, you may 
proceed with your opening statement for 5 minutes.
    [The prepared statement of Ms. Weiser appears as a 
submission for the record.]

           STATEMENT OF JON GREENBAUM, CHIEF COUNSEL

         AND SENIOR DEPUTY DIRECTOR, LAWYERS' COMMITTEE

           FOR CIVIL RIGHTS UNDER LAW, WASHINGTON, DC

    Mr. Greenbaum. Thank you to Chairman Durbin, Ranking Member 
Grassley, and the Members of the Committee for giving me the 
opportunity to testify today on ways in which Congress can 
restore and improve one of the Nation's most important laws, 
the Voting Rights Act.
    It is vitally important that Congress pass the John R. 
Lewis Voting Rights Advancement Act of 2021 to remedy the 
damage to voting rights caused by the Supreme Court's decisions 
in Shelby County v. Holder, and Brnovich v. Democratic National 
Committee.
    My written testimony goes into detail about a number of the 
provisions of the VRAA. My oral statement, I'm going to focus 
on two items in the Senate bill that amended Section 2 of the 
Voting Rights Act.
    The first Section 2 amendment addresses the Shelby decision 
by importing the retrogression concept from Section 5 into 
Section 2. This amendment to Section 2 would enable the United 
States, or an aggrieved party, to be granted the right to bring 
an action if a voting change is retrogressive. In other words, 
voting changes that worsen the voting opportunities of persons 
of color would violate Section 2.
    The retrogression cause of action provides an additional 
reasonable and necessary weapon in the fight against 
suppressive and discriminatory voting practices. In response to 
current needs, which are not limited to those States and 
political subdivisions that may be subject to geographic 
coverage, or which attempt to implement practices known to be 
susceptible to discriminatory applications. It would fill a 
gap, because the Supreme Court has repeatedly made clear that 
the retrogression analysis under Section 5 and the Section 2 
discriminatory results analysis are analytically distinct.
    This amendment is constitutional under the current 
framework set forth in Shelby County that the current needs for 
law outweigh the current burdens. Regarding the current needs 
to voters these modifications would serve, we have seen a 
proliferation of retrogressive voting changes that are often 
difficult and time consuming to challenge otherwise.
    Conversely, the constitutional burdens on jurisdictions is 
modest. Retrogression is a concept that the Supreme Court has 
found to be constitutionally acceptable in permitting 
plaintiffs to prove a case of discriminatory effect is standard 
under Civil Rights Laws. Because the law would be national in 
application, the equal sovereignty principle set forth by the 
Supreme Court in Shelby County would not come into play.
    The second amendment in the Senate bill that I will discuss 
addresses the Brnovich decision and restores vote denial 
results claims under Section 2 of the Voting Rights Act to the 
pre-Brnovich standard that several Circuit Courts of Appeals 
had adopted.
    When Congress amended Section 2 in 1982 to explicitly allow 
for discriminatory results claims, it did so as part of a 
legislative scheme to eradicate discrimination in voting. In 
the 1982 Senate report, Congress stated that Section 2 was 
intended to capture the complex and subtle practices that may 
seem part of the everyday rough and tumble of American 
politics, but are clearly the latest in a line of repeated 
efforts to perpetuate the results of past voting 
discrimination.
    1986 in Thornburg v. Gingles, the Supreme Court had said 
that the essence of a Section 2 claim is that a certain 
electoral law practice or structure interacts with social and 
historical conditions to cause an inequality in the voting 
opportunities enjoyed by Black and white voters. Since Gingles, 
four different circuit courts addressing vote denial cases have 
used the foundation laid in Gingles to analyze these matters. 
This formulation distills Section 2 liability into a two-part 
test. One, there must be a disparate burden on the voting 
rights of minority voters, and two, that burden must be caused 
by the challenged voting practice because the practice 
interacts with social and historical conditions of racial 
discrimination.
    In answering the second question, the courts have used 
factors identified in the Senate's 1992 Committee report. The 
Supreme Court decision in Brnovich provided guidelines for 
future treatment of Section 2 vote denial results cases that 
were not only new, but also contrary, or at least dilutive of 
the decades-long accepted standards.
    My written testimony sets forth the various ways that the 
Brnovich decision runs contrary to Congress' intent from 1982 
that the VRA eliminate discrimination voting and how Congress 
should go about restoring Section 2 claims to the pre-Brnovich 
standard. The 8 years since the Supreme Court's decision in 
Shelby County v. Holder have left voters of color the most 
vulnerable of to discrimination they've been in decades. The 
record since the Shelby County decision demonstrates what 
voting rights advocates feared, that without Section 5, voting 
discrimination would increase substantially.
    The Brnovich decision, by creating new hurdles for Section 
2 claimants to overcome, raises the stakes appreciably. 
Congress must act. Thank you for providing the opportunity to 
testify today. I look forward to your questions.
    [The prepared statement of Mr. Greenbaum appears as a 
submission for the record.]
    Senator Ossoff. Thank you, Mr. Greenbaum. Mr. Cuccinelli, 
you're recognized for five minutes.

               STATEMENT OF HON. KEN CUCCINELLI,

            NATIONAL CHAIRMAN, ELECTIONTRANSPARENCY

                INITIATIVE, NOKESVILLE, VIRGINIA

    Mr. Cuccinelli. Thank you. Chairman Durbin, Ranking Member 
Grassley, and Members of the Committee, thank you for inviting 
me today to discuss the quality and integrity of our voting 
systems.
    I'm Ken Cuccinelli. I served as Virginia's last attorney 
general under the prior preclearance process. I currently serve 
as the National Chair 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 that every American has confidence in the 
outcome of every election, regardless of party or race, and 
regardless of whether one's chosen candidate won or lost.
    Today it's easier to register and to vote than ever before 
in our history, regardless of where you live, what color you 
are, or any political party you affiliate with. This is a great 
accomplishment, worthy of celebrating, while always looking to 
improve.
    Instead, many in this body seek to advance propaganda in 
place of truth. They accuse everyone who wants clean and 
transparent elections of the most despicable names, or 
suggesting they want to suppress the votes of their fellow 
Americans. As evil as this course of conduct is, it is not new. 
It's been a long-term strategy.
    For example, in 2003, a New York Times editorial called 
election integrity a, quote, ``code phrase for voter 
suppression'', unquote. That summarizes the false narrative 
very succinctly.
    The next year in 2004, in Colorado, the DNC election manual 
suggested launching a quote, ``preemptive strike by encouraging 
minority leadership to denounce voter suppression, issue press 
releases, and place stories when no signs of intimidation 
techniques have emerged yet'', end quote. I wonder if the 
minority leaders being used in that way were told they were 
being used.
    In 2010, my former AG colleague Martha Coakley, was caught 
red-handed in her losing Senate race practicing the tactic of 
preemptive accusation without evidence by issuing a press 
release alleging voting irregularities that had been drafted 
and dated the day before the election. Of course, her mistake 
was dating it the day before the election, unless you consider 
making up an accusation a mistake.
    In 2017 following the 2016 Presidential election, the 
Democrats carried their false voter suppression narrative into 
court. Obama-appointed District Judge Vasquez rejected those 
claims saying, quote, ``As far as what's before this court, 
you've presented me with no evidence of actual voter 
suppression efforts on the day of the election, much less tying 
it to the RNC.'' Quote, ``The DNC has a lot of resources, and I 
know this was a big concern. Where is the evidence that there 
was suppression going on on election day? Then a reasonable 
inference that the RNC was involved in those'', end quote. He 
found that there was none.
    More directly related to the history of the bill focused on 
here today, in 2019, Republicans offered to support that year's 
version of the bill if it included objective measures of voter 
suppression, such as low voter registration by minorities or 
low voter turnout by minorities. There was no interest in such 
objective standards on the left, and that offer was rejected, 
as that would not accomplish their actual goals of facilitating 
cheating nationwide. Not to mention the worst-performing States 
today under subject object standards would be States like 
Massachusetts and Oregon, not the states originally covered by 
the Voting Rights Act.
    The left advances this false narrative as a voter turnout 
message to rile up their base, period. As an example, in 2004, 
in an attempt to address the stated concerns of both parties, 
then RNC Chairman Ed Gillespie made a detailed proposal to then 
DNC Chairman Terry McAuliffe about how both parties could work 
together to address concerns about potential voter suppression 
and fraud, thereby attacking any such problems, and at the same 
time, by working together, dramatically increasing the 
confidence of all Americans in the 2004 election. I have put 
these two letters back and forth into the record.
    [The information appears as a submission for the record.]
    Consistent with the later discovered McAuliffe DNC strategy 
of intentionally making false accusations of voter suppression, 
as seen in the 2004 Colorado DNC Manual, Terry McAuliffe and 
the DNC declined to work together to actually address even 
their own alleged concerns about voter suppression, presumably 
because their only interest was in the false narrative, as 
there was no longer a voter suppression problem to address, 
thankfully, for America.
    I would also note the entire direction of this effort flies 
in the face of the Carter-Baker Commission's Recommendations, 
the most comprehensive and bipartisan election analysis ever 
done. With that, I'd appreciate the chance to answer your 
questions.
    [The prepared statement of Mr. Cuccinelli appears as a 
submission for the record.]
    Senator Ossoff. Thank you, Mr. Cuccinelli. I understand 
that Attorney General Rokita has joined us remotely. Mr. 
Rokita, you're recognized for 5 minutes for your opening 
statement.

        STATEMENT OF HON. TODD ROKITA, ATTORNEY GENERAL,

            STATE OF INDIANA, INDIANAPOLIS, INDIANA

    Mr. Rokita [continuing]. Members of the Committee for 
inviting me to speak to you today on S. 4. Given my experience, 
both as Indiana's Chief Election Officer and as attorney 
general, and even with my experience as a candidate for both 
Federal and State election, I know how elections can and should 
be run to ensure transparency and public confidence in them.
    In March this year, I was able to testify--testify before 
the Senate Rules Committee on Senate Resolution 1. I'm here 
today to share with Americans and Hoosiers about how S. 4 now 
seeks to achieve the same end as S. 1, which was simply a 
partisan power grab of our election. Really, it accomplishes 
this left-wing agenda through different means.
    Now, S. 1 mandated States to adopt among other things early 
voting, automatic voter registration, no-fault absentee 
ballots. It's basically live balloting, while also prohibiting 
protective measures such as State voter ID laws and voterless 
maintenance laws meant to clean up the names that shouldn't be 
on the list. It sounds okay, but really without the balance of 
the accountability and the access, you don't have confidence in 
the election, and you don't have, you know, right results a lot 
of the times.
    Now, S. 4 would allow the Biden Justice Department to usurp 
the authority States rightly possess over their own election by 
resurrecting and expanding the Voter Rights Act to places it 
never should be. Both S. 1 and now S. 4 seek to do the same 
thing: place power over local elections in the hands of 
partisan, unelected bureaucrats in Washington. I happen to know 
bureaucrats in Washington, having been in Congress.
    What does S. 4 do? This partisan legislation creates new 
Federal preclearance requirements for certain election reforms. 
Voter ID or common voterless maintenance, for example, to be 
cleared by a partisan Department of Justice. The simple fact is 
S. 4 is a partisan power grab that erodes trust in our 
electoral system.
    This legislation is not honest. It's a politically 
motivated effort to circumvent the will of the American people, 
undermining their confidence in our election. Unfortunately, 
the Biden Justice Department, seeking more power as self-
declared Federal elections czar, has already signaled they will 
seek unlimited authority over State election. I note this 
because this is the same partisan Department of Justice that 
would be given unnecessary, unconstitutional, and nearly 
unlimited power over the State elections if S. 4 were to become 
law.
    I'll quickly run through the top five issues that I see 
with this legislation, and it's outlined further in my written 
testimony which was submitted yesterday. The Constitution 
reserves for the State the primary role of establishing the 
time, manner, and place of holding elections for Senators and 
Representatives--U.S. Senators and Representatives only. S. 4 
seeks to flip this constitutional mandate on its head, turning 
the Department of Justice into a strengthened Federal election 
czar, wielding the power to challenge any new or existing 
election law based on the whim of the party in power, whoever 
controls the Justice Department. That should never be.
    It is important to note that States create laws based on 
what works best for their jurisdiction, most recently to 
respond to a crisis of confidence in our election system like 
several States have done, and several more will do. Why? The 
principles of federalism seek to give voters the most impact 
possible in their elections and policy outcomes. You can't do 
that with an unelected election czar that the Department of 
Justice proposes to be.
    S. 4 seeks to reinstate and expand outdated portions of the 
Voting Rights Act. When the VRA was enacted in 1965, Federal 
oversight over State election laws was necessary to combat 
discrimination in some jurisdictions. Physical inaccess to 
polling places, other gross barriers to the ballot box that we 
have, we have overcome. The original intent was to ensure that 
the rights of Americans were not infringed upon at the ballot 
box based on their race. That has been accomplished for decades 
now. Thankfully, the VRA did exactly what it was intended to 
accomplish, like I said.
    However, instead of acknowledging these developments, S. 4 
looks backward to the conditions of--conditions at 1965, not 
the current condition that exists in 2021. I've never seen a 
bill, or, frankly, a party, that looks backward so much in 
order to keep themselves relevant.
    The U.S. Supreme Court recognized in Shelby, not the case, 
that this dramatic change noting how widely accessible voting 
is today said there's nothing to see here, and they're right. 
That court was correct. Proving this point, the aggregate 
effects of Shelby showed Black and Hispanic voters are 
participating at higher rates, the highest it's been. S. 4 
dramatically lowers the burden of proof for plaintiffs in vote 
denial and vote dilution claims under Section 2 of the VRA. S. 
4 encourages courts to consider subjective factors, and vote 
denial claims, and dilution claims that weigh heavily in favor 
of plaintiffs and are unpreventable by election officials.
    Most shockingly, S. 4 pressures judges to consider the 
factor of whether a jurisdiction uses photo ID requirements for 
voting and analyzing vote denial claims, directly attacking the 
Supreme Court's standard in the Crawford case, the case that I 
was a part of when I was Indiana Secretary of State. However, 
without the photo ID requirements and other similar security 
measures, legal citizen voters are disenfranchised by the fraud 
and illegal voting that will result and dilute legal citizen 
vote. Voter fraud goes both ways.
    S. 4 focuses on vote dilution of protected minorities, but 
it does nothing to address vote dilution of legal voters and 
fails to take any real action against illegal voting. S. 4 
excessively expands the coverage formula with potential to 
subject numerous States to preclearance requirements, draconian 
and unneeded at this stage of our democracy.
    State laws stand in jeopardy over mere preliminary 
judgments and consent decrees. To this point, S. 4 requires, 
quote, ``practice-based,'' unquote, preclearance for certain 
election laws in all 50 States, not just the States subject to 
the new coverage formula. If States enact election laws within 
any of these areas such as voter ID requirements, voting 
locations, redistricting, or maintenance of voter registration 
lists, the reform is automatically subject to the preclearance 
process, unfair and unneeded, and unconstitutional. All 
practices having to be approved by a partisan Justice 
Department allowing politically appointed bureaucrats to meddle 
in the elections of State, it's not right.
    I'll end with this. S. 4 would interfere with the State 
legislators' ability to protect their voters and the integrity 
of the election process in direct violation of the United 
States Constitution. In 2005, a bipartisan commission headed by 
former President Carter and Secretary of State James Baker 
recognized the existence of in-person voting fraud and endorsed 
a photo identification requirement. Few would say that 
President Carter is any kind of conservative, yet he endorsed 
it. In the wake of these endorsement, States like Indiana began 
passing voter ID laws, and over a decade ago, the Supreme Court 
upheld Indiana's voter ID law, a commonsense and non-
discriminatory protection for our elections in our free 
republic.
    While serving as Indiana Secretary of State, I led the 
passage, and then implementation, of the first-in-the-Nation 
voter ID law. Indiana's voter ID law became a model for the 
Nation. Our voter turnout went up. Since then, because of that, 
35 States have followed suit in enacting laws to protect the 
integrity of our election. Indiana has seen no as applied 
challenges to our voter ID law since the U.S. Supreme Court 
upheld our law. It is constitutional. It is common sense. Yet 
S. 4 would still likely put Indiana in a preclearance status 
due to its overreach and litany of reasons why the Federal 
Department of Justice would claim the need for preclearance 
review.
    S. 4 gives partisan bureaucrats in the Justice Department 
the power to veto those exact commonsense protection. Here's 
the bottom line. S. 4 is a clumsy and heavy-handed partisan 
effort to circumvent the will of the people. Earlier this 
month, 22 of my attorney general colleagues joined me in a 
letter to congressional leadership opposing this very 
legislation. If S. 4 were to become law, I am prepared to seek 
all legal remedies possible to protect the Constitution, the 
sovereignty of all our States, our election, and the rights of 
American citizens and Hoosiers.
    I'm confident other States are going to join. Americans 
know there must be confidence in our election process. It's 
common sense. Yet partisan proposals such as this or any 
Federal power grab seek to undermine further the American 
people's trust in our elections.
    Let's not do this. We don't need to do this. We shouldn't 
do this. The American people will not allow this radical power 
grab to move forward, and I'm going to be on their side. Thank 
you.
    [The prepared statement of Mr. Rokita appears as a 
submission for the record.]
    Senator Ossoff. Thank you, Mr. Rokita. Thank you to all of 
the witnesses for joining us today. Thank you to Senator Durbin 
and Senator Leahy for your tireless work to advance this 
legislation.
    Congressman John Lewis was my mentor for nearly 20 years. 
For those of us from the State of Georgia, for all Americans, 
for people around the world, he represents the very best of 
public service and self-sacrifice in advancing civil rights, 
voting rights, and human rights.
    It was on March 7th, 1965, in Selma, Alabama when Congress 
Lewis, and Hosea Williams, and Maria Boynton, and hundreds of 
others marched across the Edmund Pettus Bridge in Selma, 
Alabama into a storm of violence, and Congressman Lewis that 
day had his skull fractured for daring to demand equal access 
to the ballot for Black Americans in the American South. That 
was March 7th, 1965. Inspired and motivated by the example of 
John Lewis and the others who gave so much that day, just 10 
days later, the Voting Rights Act was introduced in the United 
States Senate. It was signed into law by President Johnson on 
August 6th, 1965, thanks to the sacrifices of patriots like 
John Lewis.
    In 2013, the Supreme Court invited the U.S. Congress to 
update this vital voting rights statute. Thanks to the efforts 
of Senator Durbin and Leahy and so many others, we are here to 
restore and strengthen the Voting Rights Act, to recommit to 
protecting voting rights and ballot access for voters in 
Georgia and across the country, no matter the color of their 
skin.
    It is essential that we pass this legislation. At this 
time, I would yield to Senator Durbin for his questions.
    Senator Durbin. Thank you, Senator Ossoff. I just want to 
say at the outset that I listened to the comments made by the 
Indiana Attorney General and Mr. Cuccinelli, and I thought to 
myself these are echoes of the same arguments that we have 
always heard. Leave it to the States. Things will turn out just 
fine.
    History tells us otherwise. History tells us that unless we 
carefully guard the right to vote for every American, some will 
tend to exploit that situation.
    Ms. Weiser, in your testimony, you talk about the findings 
of Professor McCrory. Staggering 143 violations over the last 
25 years in the eight States likely to be covered by the 2019 
formula. Another 32 violations in three States that were close 
to meeting the coverage requirements. It suggests that there is 
still a challenge, that the Supreme Court didn't get it right 
in Shelby. Is there evidence to back up the fact that we still 
are facing threats that go to the heart of a person's civil 
rights in America?
    Ms. Weiser. Thank you very much for that question. 
Absolutely, yes, there is overwhelming evidence in the record 
before this Congress of an ongoing persistent and growing 
threat of discrimination, threatening the right to vote of 
many, many Americans.
    I mentioned already that we are facing a huge surge in 
legislative efforts to restrict access to voting across the 
country, and this is actually the biggest legislative push 
since reconstruction. We are also seeing an increase in 
successful litigation across the country, as these 
jurisdictions are piling voting restriction upon voting 
restriction. These are precisely the reasons why the 
constitution gives Congress the power under the 14th and the 
15th Amendments to protect the right to vote from 
discrimination, to put in place prophylactic measures to deter 
and remedy discrimination in voting, and to enforce the 
constitution's guarantee of equal voting rights.
    Senator Durbin. Mr. Greenbaum, you've heard the statements 
that have been made by two of the other witnesses of this 
panel. It seems to me to be an echo of the argument of States' 
rights, which has been used historically, and as a 
justification for discrimination, or at least for the 
Government--Federal Government to take its hands off of State 
matters. It's a recurrent theme. Is there any more validity 
today than there has been in the past?
    Mr. Greenbaum. I think you're absolutely right, Senator. If 
you want to talk about the progress that has been made in the 
last several decades, actions by Congress have been a critical 
part of that. The Voting Rights Act of 1965, but I wouldn't 
leave it there.
    Mr. Cuccinelli referred to the increases in voter 
registration, how it becomes easier to register to vote. Why is 
that? The National Voter Registration Act, which Congress 
passed in 1993, enabled and put a floor and put some 
requirements that States had--that States had to implement with 
giving people increased voter registration opportunities, 
including to being able to vote, to register to vote at 
driver's license offices, at public assistance offices, et 
cetera.
    With respect to voting discrimination, which the Voting 
Rights Act covers, we've seen the void in the last 8 years 
after Shelby County in terms of what States have done to 
discriminate against voters of color. In States like Georgia 
for example, you have a demographic change going in in Georgia. 
In 2004, whites were 67 percent of the registered voters. 
Today, whites are 53 percent of the registered voters. What is 
happening is, as voters of color in Georgia are able to assert 
more power at the ballot, you're seeing actions by the Georgia 
Legislature to make it more difficult, particularly for voters 
of color, to participate at the ballot box.
    Senator Durbin. Let me say this in closing with the last 30 
seconds here. We should never tolerate any fraud, voter fraud, 
or abuse of our electoral system by either party or any, 
candidate, period. I will tell you that we have scant, if any, 
evidence of voter fraud that would justify some of the actions 
that are being asked by some of these activists on the other 
side.
    Time and again, when they spend thousands, even millions of 
dollars as in Arizona, it turns out to be a joke. Looking for 
bamboo fibers, for God's sake, in the ballots and whatever else 
they were up to. Turned out they found more votes for Joe Biden 
than the official count initially. This voter fraud excuse is 
no reason unless they can clearly prove it, and in most cases, 
they're not even close. I yield, Mr. Grassley.
    Senator Ossoff. Thank you, Chair Durbin. Ranking Member 
Grassley, you're recognized for 5 minutes.
    Senator Grassley. Yes, thank you. I'm going to start with 
Mr. Rokita because I'm told he has to go. You wrote a letter on 
September the 13th to congressional leadership, I quote, ``If 
passed, H.R. 4 would resurrect and enact new Federal 
preclearance requirements in jurisdictions targeted for 
litigation by activist groups.'' What is the danger of moving 
away from the vote denial factor set forth in Brnovich in favor 
of the focus on litigation tactics? The second part of the 
question, please tell us about your experience with activist 
groups and others and how these groups could use litigation 
tactics to successfully force select States into preclearance.
    Mr. Rokita. Thank you, Senator. The Brnovich case offered 
several factors to consider for future courts to consider in 
vote denial claims. The usual burdens of voting are legitimate. 
That's what they found and reaffirmed how long an election 
procedure has been lawfully and historically used, whether 
identical or similar election procedures are used by other 
jurisdictions, the availability or alternative means of voting, 
and the State's interest in preventing fraud.
    S. 4 factors will make it challenging for future plaintiffs 
to win vote denial cases under Section 2, as I understand it. 
S. 4 vastly prohibits courts from considering commonsense 
factors that have been outlined by the Supreme Court now for a 
long time. The enumerated factors in S. 4 are to determine 
whether a violation occurred are completely subjective, and 
they're unreasonable. You're basically allowing an election 
czar to--like it was said I think by Senator Cruz and maybe 
others, if that election czar likes you, maybe you're a 
liberal, you know, because you're a liberal State, well, then 
you're going to be okay. If it doesn't like you in their own 
discretion, they get to decide if you need to be precleared.
    Activist groups drive up cost for the States. They 
browbeat. They force. Sometimes they collude with other elected 
officials, maybe in a State, maybe elsewhere, to force, 
embarrass, out of fear, out of intimidation, whatever, to enter 
into a consent decree. Again, it's violative of the U.S. 
Constitution, where our founders said time, manner, and place 
is to be decided by the States and we have the primary role.
    Senator Grassley. Thank you for that answer. I'm going to 
go to Cuccinelli. I think I know the answer, that nothing in 
H.R. 4 would bother what we are very jealously guarding in 
Iowa, both for Republicans and Democrats, to be first-in-the-
Nation caucus status, but I'm going to ask it anyway. Is there 
anything in this bill that might impact that?
    Mr. Cuccinelli. Certainly the expansive reading that I 
would expect to see from a Biden-Harris DOJ, and led by Kristen 
Clarke, who you heard from earlier, would not simply deal with 
general elections. They will certainly wade into primaries. 
Primaries can historically--I think of the Jayhawk case--be 
discriminatory. We have to guard against discrimination in 
those nominations, as well.
    The authority granted to the Department of Justice under 
this bill, you can fully expect to play a role. One of the 
complaints about Iowa and New Hampshire being early in the 
calendar for each of the parties is that they are more white 
than the Nation as a whole. Under this legislation, those are 
two States that were not under the Voting Rights Act 
previously, the preclearance meaning that would be subject to 
preclearance. I would extend Attorney General Rokita's comments 
to say those outside activist groups can simply target these 
two States with litigation, and the occurrence of litigation 
can be a basis to be brought into preclearance.
    Ms. Weiser's comment that the best evidence is violations 
might be true if it were limited to violations. That is not the 
standard in this bill. I would note that the Democrats rejected 
the ultimate goal being the standard, the goal being minority 
voter turnout and registration. That was rejected as an ongoing 
standard on their part. It gives away the fact that this is a 
partisan power grab, not an attempt to solve a problem with 
minority voting.
    Senator Grassley. Okay. You were attorney general with 
preclearance before it was outlawed by Shelby. Could you talk 
to us about the standards for preclearance that were in place 
for Virginia then versus the standards that would force 
Virginia into preclearance if H.R. 4 were passed? That's my 
last question.
    Mr. Cuccinelli. Senator, preclearance as it existed pre-
Shelby, you go back to 1965. It certainly was needed and 
required. I grant you that entirely. It worked as the Supreme 
Court found. As it continued on, and up to 2013, there's no 
question the burden was quite significant. Preclearance for 
those States meant preclearance of everything. If you moved a 
polling place, if you moved within a school for where you 
voted, you had to get that precleared by the Federal 
Government.
    Each of those opportunities, as the Federal Government 
would view it, is an opportunity to bend your State selection 
system to the will of those in the Justice Department. Even 
the--President Obama's Inspector General found that the voting 
section was hiring those from the radical left. They were 
predominant even back then. You've heard the commitments by 
Attorney General Garland. You can fully expect that trend to 
get worse.
    The place where these questions will be judged is not an 
objective set of professional career lawyers. These are 
literally the most rabid left-wing partisan lawyers you could 
find in the Federal Government.
    Senator Ossoff. Thank you, Ranking Member Grassley. Ms. 
Weiser, in the Shelby County decision, did not the Supreme 
Court expressly invite Congress to update the preclearance 
formulas?
    Ms. Weiser. That is absolutely correct.
    Senator Ossoff. Ms. Weiser, can you address how the 
preclearance coverage formula and other provisions in the John 
Lewis Bill as introduced to this Congress are carefully crafted 
to encompass the States' localities and voting practices that 
pose the greatest threat of voter discrimination, avoiding 
either over-inclusion or under-inclusion, please?
    Ms. Weiser. Yes. Thank you for your question. Absolutely. 
As I noted, the States come into preclearance based on their 
actions, actual proven violations of the law against race 
discrimination in voting. It is not based on things in 1965. It 
is current and ongoing and rolls forward. It is not the case 
that these are just mere lawsuits. They actually have to result 
in either judicial findings or admissions of liability or 
consent decrees, which are actually entered by courts, and 
actually require courts to consider the strength of the 
plaintiff's case and whether the finding is fair.
    In addition, it is tailored to get jurisdictions that not 
only have proven violations, but that have a persistent pattern 
of violations over a long period of time. It is tailored also 
by limiting the coverage period and offering very easy bailout 
to ensure that jurisdictions will not stay covered if they 
haven't had violations within the last decade.
    I will add, it is not partisan officials within the 
Department of Justice. It's not just that it's career 
officials. It is also the jurisdiction can choose whether or 
not they want to go to the Department of Justice or to the 
three-judge Federal court to submit their preclearance request.
    Senator Ossoff. Thank you, Ms. Weiser. Mr. Greenbaum, the 
John Lewis Bill includes a critical provision that under 
Section 2 would allow the Attorney General the opportunity to 
challenge changes in voting practices anywhere in the country 
that diminish voting rights for voters of color. I'm referring 
to what's known as the retrogression provision of the bill. Why 
is this retrogression provision so important? How does it 
differ from existing Section 2 authorities, and how is it 
different from retrogression under preclearance?
    Mr. Greenbaum. Sure. Thank you, Senator. The concept of 
retrogression is one that through Section 5, we're quite 
familiar with in terms of how to actually apply retrogression. 
In basic terms, what it means is does the law make things worse 
for voters of color, which is a much more straightforward test 
than the existing results test under Section 2, which requires 
a number of factors and takes longer time to litigate and are 
harder cases to resolve.
    Retrogression itself is a much more simple concept. It's 
one that the Supreme Court has signed off on through Section 5. 
In fact, the Supreme Court in the Beer case largely created the 
standard of retrogression.
    The retrogression under Section 2 would be different than 
under Section 5 in that it would cover all areas of the 
country. It would not be limited to particular places. It would 
not be limited to particular types of voting changes. It could 
apply to any voting change anywhere in the country. It would, 
unlike Section 5 preclearance, require the plaintiffs, whether 
they be the Department of Justice or a private party, to go 
into court and prove to a Federal judge that a particular 
voting change puts voters of color in a worse position than 
before.
    What we've seen with a lot of the laws that have been 
passed this year including in your State, Georgia, a number of 
the changes appear to be clearly retrogressive such as changes 
that make it more difficult for people to vote by mail. What we 
saw in 2020, is that Black voters and Asian voters particularly 
were the ones who voted by mail the most frequently, as well as 
limitations on the use of drop boxes, which again, voters of 
color use in a disproportionate number. It creates a clear, 
easy to administer, or at least easier to administer standard 
for the Federal courts to follow.
    Senator Ossoff. Thank you, Mr. Greenbaum. Senator Klobuchar 
is recognized for 5 minutes.
    Senator Klobuchar. Thank you very much, Mr. Chair. Let me 
start with you, Ms. Weiser. Justice Ginsburg's dissent in 
Shelby County noted that the constitution uses the words right 
to vote in five separate places, the 14th, 15th, 19th, 24th, 
and 26th Amendment. Each of these amendments contains the same 
broad empowerment of Congress to ``enact appropriate 
legislation''--that's the Constitution words--to enforce the 
protected right. The implication is unmistakable. Under our 
constitutional structure, Congress holds the lead rein in 
making the right to vote equally real for all U.S. citizens.
    Can you explain why time and time again, the constitution 
recognizes a role for the Federal Government? Why is that 
Congress, and not State legislature, is entrusted with making 
the right to vote equally real for all U.S. citizens?
    Ms. Weiser. Thank you for that question.
    Senator Klobuchar. Thank you, Ms. Weiser. Thank you.
    Ms. Weiser. It is absolutely the case that the Constitution 
empowers Congress to make real the guarantee for the right to 
vote against discrimination. The Constitution also grants 
Congress broad powers over--to regulate Federal elections, even 
to create an entire code of voting for Federal elections as 
Justice Scalia--the late Justice Scalia recently affirmed under 
the Constitutions Elections Clause.
    One of the main concerns that the framers of the 
Constitution had was that voting rights and including elections 
for Federal elections would be manipulated by factions and 
partisans at the State level who might try to disenfranchise or 
engage in practices like gerrymandering. Under the 14th and 
15th Amendment, which grow out of the unfortunate history of 
brutal slavery and disenfranchisement of large swaths of the 
population of Black Americans, it was Congress that took the 
reins to actually enforce equality after the brutal Civil War. 
It was States were not trusted with that.
    Senator Klobuchar. Very good. I know in your testimony, Ms. 
Weiser, you mentioned the Freedom to Vote Act, which I 
appreciate. You noted in your testimony to the Committee that 
Section 2 cases are extremely time consuming and resource 
intensive, which you experience as a litigator at the DOJ. 
Taking proactive steps like Section 5 of the VRA's preclearance 
formula is an important measure to prevent voter suppression 
laws from ever having to be litigated in a courtroom.
    That is one of the reasons why Chair of the Rules 
Committee, we worked on the Freedom to Vote Act, which sets 
these basic national standards. Could you talk about why it is 
important to pass both the John Lewis Bill and the Freedom to 
Vote Act in order to proactively prevent discriminatory laws 
from being enacted, as well as put some basic Federal rights 
into law?
    Ms. Weiser. Absolutely. The preclearance requirement has 
long worked to--or before the Shelby County decision, was the 
most successful provision at actually stopping the worst 
discriminatory measures from going into place in the 
jurisdictions with the worst histories of discrimination. It 
stopped them in their tracks before they were put in place. 
That was only for new voting changes, and the rest of the 
country where there wasn't that same history of discrimination 
had to rely on Section 2 of the Voting Rights Act, as you note.
    Bringing case-by-case litigation is time consuming, 
expensive, slow, and while it is pending, discriminatory 
measures can continue and go into effect. What the For the 
People Act also does is puts bright line standards, a set of 
rules that every American can rely on, regardless of race, and 
that can't be manipulated for discriminatory or partisan 
reasons. It's much easier for courts to enforce and administer, 
because they are clear and don't require this multiparty 
inquiry. Together, these bills work to fill the hole and meet 
the crisis that we're facing today in voting rights in 
American.
    Senator Klobuchar. Very good. My last question, Mr. 
Greenbaum, I actually was quoting you, but she also mentioned 
it. Ms. Weiser mentioned it in her opening. Do you want to 
comment on what I just asked Ms. Weiser?
    Mr. Greenbaum. Sure. You know, what we've--really what 
we've seen since Shelby County is an incredible proliferation 
on discrimination against people of color in terms of voting, 
beginning with the day that Shelby was announced when the 
attorney general of Texas where their voter ID law had been 
prevented from going into place under Section 5 said, ``Okay. 
We're going to intervent--move forward with that voter ID 
law.'' We spent the next several years--my organization, Ms. 
Weiser's, Department of Justice, other organizations, going to 
court to get that law struck down, that it was discriminatory 
under the Voting Rights Act.
    Ultimately, getting a Fifth Circuit en banc decision in our 
favor, and then we went for our fees. The Fifth Circuit, in the 
last month, affirmed our fee award of $6.8 million. We know 
that Texas spent at least three and a half million dollars on 
that lawsuit. We spent several years litigating, finally 
brought--preventing that law from going into effect, which 
affected people during those 3 years in between, and 
ultimately, between--ultimately is going to cost the State of 
Texas more than $10 million for moving forward with that 
discriminatory law.
    Senator Klobuchar. Very good point. Thank you very much. 
Thank you, Mr. Chair.
    Senator Ossoff. Thank you, Senator Klobuchar. Senator 
Hirono, you're recognized for 5 minutes.
    Senator Hirono. Thank you, Mr. Chairman. It's not a 
coincidence that shortly after Shelby County, some 13 States 
passed voter suppression laws. Now with the conservative 
majority firmly ensconced in the Supreme Court with three Trump 
justices, we are seeing dozens of voter suppression laws being 
enacted supposedly to prevent widespread voter fraud, which has 
not been shown to be the case at all.
    Earlier, I noted three Supreme Court shadow docket rulings 
that continue the court's trend, as Justice Sotomayor put it, 
of condoning disenfranchisement by the court. Ms. Weiser and 
Mr. Greenbaum, do you agree with Justice Sotomayor's dissent, 
noting that the court is condoning disenfranchisement?
    Ms. Weiser. Thank you for that question. The courts play--
continue to play a critical role in protecting voting rights 
for all Americans. Unfortunately, it is the case that the 
Supreme Court has consistently rolled back the strength of 
voting rights protections, making it much harder for litigants, 
voters to enforce those rights, and seems to be portending that 
there might be more to come.
    That is why it is absolutely critical for Congress to step 
in and protect voting rights. The court has actually said that 
Congress has broad powers to enact legislation to protect 
Americans' voting rights, and where the Court is not fulfilling 
its obligation, Congress can really meet that constitutional 
obligation for America.
    Mr. Greenbaum. I absolutely agree with that. We've seen a 
number of times, including the cases you cited, Senator Hirono, 
as well as the decisions that we've been talking about, Shelby 
and Brnovich.
    One of the things that I find especially disturbing about 
the Brnovich case is it clearly flies in the face of 
congressional intent by the Court's decision in that case 
adding a whole new set of factors that courts are supposed to 
consider that none of that appears in the statute itself. None 
of it appears in the congressional history in 1982. It flies in 
the face of what this--what this body did in 1982 to try to 
eradicate discrimination voting. There are aspects of that 
decision that seem to almost encourage jurisdictions to move 
forward with mechanisms that are discriminatory. It's a 
tremendous concern. Thank you, Senator Hirono.
    Senator Hirono. That's exactly what happened. In fact, 
Justice Alito, who is a Justice who signals certain things such 
as he'd like to revisit border fail, for example. There he is, 
writing in that case, which I found astounding because he 
creates--I think he writes laws--he creates what he calls a 
non-exhaustive list of guideposts for Section 2 cases 
including, ``the size of the burden imposed by a challenged 
voting rule, the degree to which a voting rule departs from 
what was standard practice when Section 2 was amended in 1982, 
the size of any disparities and arose impact on members of 
different racial or ethnic groups, the opportunities provided 
by a State's entire system of voting when assessing the burden 
imposed by a challenged provision, and the strength of a State 
interest served by a challenged voting rule in requiring courts 
to compare the voting restrictions being challenged in a 
Section 2 case to the burdens of voting as existing in 1982.'' 
My gosh, I find this case to be completely astounding, and talk 
about judicial activism.
    I can see where Section 2 cases was made even harder after 
this decision, and why we need the legislation that we're 
talking about.
    When we talk about some of the kinds of voter suppression 
laws that have been enacted by the States, I think sometimes we 
don't understand quite how, with surgical precision, some of 
these voter suppression laws are. Ms. Weiser, can you give a 
specific example of a voter ID law, for example, that is 
surgically targeted so that it makes it a lot harder for Black 
voters, for example, to vote?
    Ms. Weiser. Yes, thank you. And as you note, the inquiry 
into voter ID laws, it's not whether or not all voter ID laws 
are discriminatory.
    Senator Hirono. Yes.
    Ms. Weiser. It is a case-by-case examination based on the 
actually particular design of the law. Some of the laws are 
very clearly both intended to discriminate based on race and 
are designed very clearly to do so.
    One that comes to mind is in North Dakota. There was a 
voter ID law that required a residential address on the 
identification itself, despite the fact that 19 percent of the 
Native American citizens in North Dakota lived on reservations 
without residential addresses. They tried to change that, but 
that was found to be intentionally discriminatory.
    The Texas voter ID law that Mr. Greenbaum referred to was 
found to be intentionally discriminatory by the district court 
and was ultimately found to have a discriminatory result. It 
surgically chose identification so as to have that impact. It 
famously included concealed carry licenses as acceptable forms 
of ID, but not State employee IDs or State university IDs, 
which were disproportionately held by Black and Latino voters 
in Texas.
    Senator Hirono. Those legislatures that are enacting these 
kinds of laws know very well whose votes they are 
suppresstion--suppressing, and that is why they're doing it. I 
think it's just so nefarious. It's just voting is a fundamental 
right. I am a naturalized U.S. citizen, and one of the first 
things I did when I turned 18 was to vote because I considered 
that so foundational and fundamental, and we should do 
everything we can to make sure that everyone can exercise their 
right to vote. Thank you very much for what you are doing at 
the Center. Thank you, Mr. Chairman.
    Senator Ossoff. Thank you, Senator Hirono. Seeing no other 
Senator seeking recognition, I'll in closing just ask each one 
more question.
    In the Shelby County v. Holder decision, again, the Supreme 
Court, as you affirmed in your testimony, Ms. Weiser, expressly 
invited the U.S. Congress to update the coverage formulas 
necessary for the Department of Justice to execute its 
authorities under Section 5 of the Voting Rights Act. We have 
taken that seriously and done that work, and based upon the 
evidence, we have drafted those updates. They are included in 
this legislation. It is, in my view, vital that we restore 
those vital protections for American voters.
    My question beginning with you, Ms. Weiser, if we in the 
U.S. Congress, do not use the authority that we have under 
Article 1, Section 4, and the 14th and 15th Amendments to 
protect ballot access by enacting this legislation, what do you 
see for the future of voting rights, especially for minority 
voters of the United States?
    Ms. Weiser. Thank you for that question. There's no 
question, we are at a critical moment with respect to a tax on 
voting rights with vote suppression, voting discrimination, 
even efforts to sabotage election results achieving fever 
pitch, discriminatory redistricting abuses, and court rollbacks 
of rights. If Congress does not act, I fear that there's no 
question that this vote suppression is not only going to 
continue to proliferate, but that Americans of color are going 
to be disenfranchised in large numbers because of their race, 
and that is fundamentally at odds with the promise of our 
constitution, of our democracy.
    This is something that Congress emphatically has the power 
and duty to stop. I'll say that when preclearance was in effect 
beforehand, as Justice Ginsburg noted famously in dissent in 
the Shelby County decision, it was working very well in the 
throwing away preclearance. Just because we're not seeing a 
spike in discrimination is like throwing away an umbrella in a 
rainstorm because you're not getting wet.
    We saw what happened after the preclearance went away. We 
got very, very wet. There was a deluge of voting discrimination 
measures, and that has continued, and it's getting more brazen. 
There is an urgency, and we strongly urge Congress to act 
quickly to pass this vital legislation, as well as the Freedom 
to Vote Act.
    Senator Ossoff. Thank you, Ms. Weiser. Mr. Greenbaum.
    Mr. Greenbaum. I would agree with my colleague. I mean, I 
think we're seeing the greatest attack on the right to vote 
since the Voting Rights Act was passed. It's not surprising, 
because you have this state of affairs where there's a big hole 
in the enforcement power of the Federal Government, and private 
parties to fight against voting discrimination that you're 
seeing that because of this gap, what you're seeing is seeing 
legislatures and others using this as an opportunity to 
introduce measures that are specifically designed to go after 
voters of color. This is particularly true in those States 
where voters of color can make the difference in terms of who 
wins and who loses elections.
    You know, we're seeing these laws being proposed and 
enacted in certain States. A disproportionate amount of the 
activity are in those States where voters of color really are 
exercising their opportunity to vote and can make a difference 
in who wins and who loses elections. Unfortunately, it's coming 
from a very cynical place. It's really disturbing for me as a 
career civil rights and voting rights lawyer to see sort of the 
cynicism. That--I think what you're seeing is you're seeing 
people putting--putting their own interest ahead of the 
fundamental right to vote and being willing to do things that 
are in a lot of ways intentionally designed to make it more 
difficult for voters of color.
    It's absolutely critical as Congress did in 1965, to go 
after eliminating discrimination voting. It's absolutely 
critical that Congress, in 2021, fill that gap that the Supreme 
Court has created and enact legislation that is going to allow 
people to exercise their most fundamental of rights, and that's 
the right to vote. Thank you, Senator.
    Senator Ossoff. Thank you, Mr. Greenbaum. Thank you again 
to all of the witnesses appearing before the Committee today.
    Before we adjourn, I'd like to enter into the record a 
report from the Leadership Conference on Civil and Human Rights 
documenting voting conditions in States and jurisdictions 
previously covered under preclearance. This report covers New 
York and that'll be entered in the record without objection.
    As referenced in the title of this hearing, my friend, 
Congressman John Lewis, and if you're a Georgian, an American, 
still feel his presence profoundly though he's gone, and we 
have an obligation to live up to and honor his example. He said 
that the right to vote is, quote, ``precious, almost sacred.'' 
I can think of no better way to honor the life and legacy of 
Congressman John Lewis, as our country still mourns his passing 
last year, than to restore the Voting Rights Act of 1965 for 
which he bled and nearly died to protect that precious, almost 
sacred right to vote. And the hearing is adjourned.
    [Whereupon, at 6:14 p.m., the hearing was adjourned.]
    [Additional material submitted for the record follows]
    
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