[Senate Hearing 118-547]
[From the U.S. Government Publishing Office]
S. Hrg. 118-547
THE RIGHT SIDE OF HISTORY:
PROTECTING VOTING RIGHTS IN AMERICA
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
MARCH 12, 2024
__________
Serial No. J-118-58
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
58-371 WASHINGTON : 2025
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
SHELDON WHITEHOUSE, Rhode Island LINDSEY O. GRAHAM, South Carolina,
AMY KLOBUCHAR, Minnesota Ranking Member
CHRISTOPHER A. COONS, Delaware CHARLES E. GRASSLEY, Iowa
RICHARD BLUMENTHAL, Connecticut JOHN CORNYN, Texas
MAZIE K. HIRONO, Hawaii MICHAEL S. LEE, Utah
CORY A. BOOKER, New Jersey TED CRUZ, Texas
ALEX PADILLA, California JOSH HAWLEY, Missouri
JON OSSOFF, Georgia TOM COTTON, Arkansas
PETER WELCH, Vermont JOHN KENNEDY, Louisiana
LAPHONZA BUTLER, California THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Majority Staff Director
Katherine Nikas, Minority Staff Director
C O N T E N T S
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OPENING STATEMENTS
Page
Durbin, Hon. Richard J........................................... 1
Graham, Hon. Lindsey O........................................... 2
WITNESSES
Warnock, Hon. Reverend Raphael, U.S. Senator from Georgia........ 3
Hunt, Hon. Wesley, U.S. Representative from Texas................ 6
Camarillo, Lydia................................................. 12
Prepared statement........................................... 46
Hewitt, Damon T.................................................. 8
Prepared statement........................................... 53
Lakin, Sophia Lin................................................ 15
Prepared statement........................................... 74
Riordan, Maureen................................................. 10
Prepared statement........................................... 106
Spakovsky, Hans von.............................................. 14
Prepared statement........................................... 119
APPENDIX
Items submitted for the record................................... 45
THE RIGHT SIDE OF HISTORY:
PROTECTING VOTING RIGHTS IN AMERICA
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TUESDAY, MARCH 12, 2024
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in Room
G50, Dirksen Senate Office Building, Hon. Richard J. Durbin,
Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Whitehouse,
Klobuchar, Coons, Blumenthal, Hirono, Booker, Padilla, Ossoff,
Welch, Butler, Graham, Grassley, Cornyn, Lee, Cruz, Hawley,
Cotton, Tillis, and Blackburn.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This meeting of the Senate Judiciary
Committee will come to order. Today the Committee will examine
the ongoing assault on voting rights and the continued need for
the John R. Lewis Voting Rights Advancement Act, which Senator
Warnock and I recently introduced with 48 of our colleagues.
Before we begin, I'd like to turn to a video that demonstrates
why this legislation is essential for our democratic rights
protection.
[Video is presented.]
Chair Durbin. Last week, we commemorated the 59th
anniversary of Bloody Sunday in Selma, Alabama. On that
infamous day in 1965, 600 Americans, led by a young John Lewis
and Reverend Hosea Williams, were met by police wielding billy
clubs, bullwhips, and tear gas as they marched across the
Edmund Pettus Bridge to protest the disenfranchisement of Black
Americans. Just months later, Congress finally passed
legislation to protect every American's right to vote. The
Voting Rights Act, or VRA, passed with 77 votes in the Senate,
an overwhelming bipartisan majority. When the VRA was last
authorized in 2006, not one Senator--not one Senator,
Democratic or Republican--voted against the bill.
Next year will mark 60 years since the Bloody Sunday and
the passage of the Voting Rights Act, but as a result of a
series of misguided Supreme Court decisions, there's been a
significant deterioration of the fundamental right to vote in
America. In 2013, five Republican-appointed Justices on the
Supreme Court dismantled a key feature of the Voting Rights Act
by throwing out the formula for jurisdictions subject to
preclearance. Preclearance had required States and localities
with a history of voting discrimination to submit any changes
to voting laws and procedures to the Justice Department or a
Federal judicial panel for review. Congress repeatedly
reauthorized that formula with bipartisan support, overwhelming
bipartisan support, in light of reams of evidence demonstrating
its continued value.
In the days following Shelby County v. Holder, Republican-
led States immediately moved to enact discriminatory voter
suppression efforts. Voters now wait years for court decisions
when they challenge these laws and have to endure elections
with these restrictions in place even when they're later found
to be violating Federal law. In 2021, the Court's right-wing
majority continued its assault on the Voting Rights Act with
its decision in Brnovich v. DNC, creating judge-made, more
difficult standards for plaintiffs in voting right lawsuits.
Many Americans fear that this attack on voting rights is part
of a coordinated assault on our fundamental rights and
institutions, as Government officials, including a former
President of the United States, try to overturn an election and
sow doubt about its integrity.
We can restore confidence in our democracy by ensuring that
every eligible American can vote without fear of
disenfranchisement. Congress can do that just by passing the
John R. Lewis Voting Rights Advancement Act, which would
restore the VRA. Some have suggested we don't need this law,
pointing to record-breaking voter turnout in the 2020 election.
But take a close look, and if you do, you'll see the racial
turnout gap is actually growing in this country, fueled by
these voter suppression efforts.
In 2012, the year before Shelby County, the turnout rate
for Black voters was higher than the rate for white voters in
seven of the eight Southern States subject to Section 5 of the
VRA. Eight years later, after the end of preclearance, the
turnout gap has returned. Black voter turnout has fallen
dramatically compared to white voter turnout in these States.
Since the Shelby County decision, States have passed 94
restrictive voting laws, including discriminatory laws that the
Department of Justice had previously rejected under
preclearance review.
This includes laws that limit the use of mail ballot drop
boxes, impose strict ID requirements, cut hours for early
voting, and purge voters from registration rolls based on
inaccurate databases. Voters in 27 States will face new
restrictions on their right to vote in the Presidential
election. And without the full force of the Voting Rights Act,
their rights are at risk during one of the most critical
elections of our lifetime. We must pass the John R. Lewis
Voting Rights Advancement Act to protect what he called ``the
most powerful nonviolent tool or instrument we have in a
democratic society.''
Senator Graham is unable to be here at this moment because
he's attending the Judicial Conference across the street. Oh.
Senator Graham. Hey.
Chair Durbin. On cue, he arrives. So, let me recognize
Senator Graham.
STATEMENT OF HON. LINDSEY O. GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman. I was over at the
Judicial Conference speaking to our judges. So, the Committee
is taking on reforming the way we vote. A lot of people on our
side think the voting system needs to be looked at when it
comes to mail-in ballots. There are accusations being made that
people can't vote, in States that have voter IDs, fairly. I
don't believe that for 1 minute. This bill is an effort, I
think, to rewrite Federal law in a fashion that would make it
harder for States to implement voter verification, that we're
trying to solve a problem that I think doesn't exist. I think
most Americans participated at the highest level in history in
the last election. We had more people vote than anytime ever,
anywhere.
And you're right about voting. It is a cherished right that
needs to be protected, but I don't see this as an effort to
protect voting as much as it is to create a situation where
States cannot, in a reasonable way, validate who's voting. The
only thing worse than being denied voting, or at least equal to
it, is somebody not eligible voting. And a lot of concerns
about that.
So, just think about how many times you have to show an ID
to do anything in America of consequence. So, my State and
other States have passed voter ID laws. They're designed to
make sure the integrity of the ballot box, not to
disenfranchise anybody. In South Carolina, we had record
participation in the last Presidential election. 2022 was
robust. So, you won't find much support for the John Lewis
Voting Rights Act on this side of the aisle.
Lot of admiration for John Lewis. He took a beating for
making America better. So, we admire the name John Lewis and
his heroic efforts during the 1960's to make America a better
place, but I think virtually all of us, if not all of us, will
see this as an attempt to rewrite Supreme Court decisions that
were long overdue. My State has been under scrutiny for a very
long time, and I am proud of the way we vote in South Carolina.
We've come a very, very long way, and I think the results of
our system and other States that have been under scrutiny have
borne fruit, and the Supreme Court recognized that.
This is something the left doesn't like but is real. People
can vote in America, fairly, and the idea of changing the
Supreme Court decision is not about expanding voting. It's
about curtailing efforts at the States to protect the ballot
box. We will be against that.
Chair Durbin. Before we turn to our witnesses, let me lay
out the mechanics for today's hearing. Begin with a Member
panel. Each Member has 5 minutes in an opening statement. Then
switch to our second panel. Once again, 5-minute opening
statements from each witness and a round of 5-minute questions
from each Senator.
First, we begin with a statement from Senator Warnock, our
colleague from Georgia, who has been an exceptional partner in
introducing this legislation and has firsthand knowledge of
voting laws at a State level and the impact they have on the
actual election. Senator Warnock, you may proceed.
STATEMENT OF HON. REVEREND RAPHAEL WARNOCK,
A U.S. SENATOR FROM THE STATE OF GEORGIA
Senator Warnock. Thank you so very much, Chair Durbin and
Ranking Member Graham, for inviting me here today. Across the
country, the right to vote is under assault, and we must
urgently pass voting rights legislation. I had the honor of
serving as John Lewis's pastor. I presided over his funeral.
But while I was his pastor, I'm very clear that he was the
mentor. And 2 weeks ago, I was deeply honored to introduce,
with Chair Durbin, the John Lewis Voting Rights Advancement
Act, legislation named in his honor to protect the right to
vote for all Americans.
As the first Black Senator from Georgia, let me be very
clear today. I would not be here without the Voting Rights Act
of 1965 and its protections that enabled millions of Americans
to have their voices heard in our democracy. But a series of
Supreme Court decisions have gutted preclearance, a very
important and powerful tool, and other provisions of the Voting
Rights Act, enabling State lawmakers to roll back voting rights
across our country.
I have seen the results firsthand in my State of Georgia. I
don't need anybody to tell me about it. I've seen it. I've
experienced it. After the 2020 elections, partisan actors in
the State legislature passed a sweeping voter registration law,
S.B. 202, that made voting harder for thousands of Georgians.
And let me offer just a few examples. I wish I had more time.
After a record number of Georgians voted by mail, S.B. 202
made it harder for voters to request a mail-in ballot, while
also reducing the number of drop boxes to return them. I wonder
why. It shortened the time for runoff elections, leading to
fewer early voting days, which led to lines that were hours
long. I wonder why. It allowed a single person--think about
this: a single individual--to make unlimited, mass challenges
to voters' registration. Who's changing the law in that case?
Who's changing the way we practiced our laws and the way we've
allowed people to vote? A single individual to make unlimited
mass challenges to voters' registration--and in 2022, this
allowed just 6 right-wing activists to challenge the
registrations of 89,000 Georgia voters: 100,000 voter
challenges, 89,000 of them put forward by 6 right-wing
activists.
And they have not stopped there. This year, a member of the
State Election Board proposed ending no-excuse vote by mail,
and a Georgia State Senate Committee voted to end automatic
voter registration. I find it very interesting that the folks
who say we need to make sure that there is integrity in our
system--and I believe in that--and who put forward voter ID,
which I support--I think often it's too restrictive, but it's
interesting that the folks who say we've got to make sure that
we verify people's voter ID would show up as opposed to voter
motor laws, where you're using the bureaucracy and the regimen
of getting a driver's license as a basis for getting registered
to vote. Why would you get rid of that, if you believe in voter
identification?
Sadly, Georgia is not unique. Last year, lawmakers
introduced over 350 restrictive voting bills in 47 States. Many
of these efforts are only possible because of the gutting of
the Voting Rights Act. Now, some argue that high voter turnout
means there is no voter suppression. So, let's talk about that.
Let me be very clear. People across the country turned out in
the rain and the cold and during hours-long lines, and not in
every neighborhood, some neighborhoods. We're entitled to our
own opinions, not our own facts. It's a fact that people of
color, Black people, stay in lines longer just to vote. But
these people stayed in line not because there's no voter
suppression. They just refused to have their voices silenced.
I saw this firsthand in 2022, when Georgia State Officials
tried to eliminate Saturday voting. They argued it wasn't
allowed, in part because of a State holiday originally
celebrating Robert E. Lee. And so I sued the State, and I won.
They appealed, and I won again. We went all the way to the
Georgia Supreme Court, where I won again. You would think that
State Election Officials in Georgia would've been busy getting
ready for the runoff election. Instead, they were spending our
resources appealing the decision for folks to be able to vote
on Saturday. I wonder why.
Seventy thousand people voted that day, and if you only
knew that number, you might think that voting is easy, as some
of my colleagues want to suggest. What you would miss is how
hard we had to fight for them to be able to show up. The fact
that people voted does not mean all people had an equal
opportunity to vote, and a recent analysis by the Brennan
Center shows that, since the 2013 Shelby decision, the turnout
gap between white and nonwhite Americans has grown. We're all
entitled to our own opinion. These are the facts. The racial
gap has widened.
And it has especially widened in the places once covered by
the Voting Rights Act's preclearance requirements. In 1965 and
over the decades since, Congress has repeatedly reaffirmed the
Voting Rights Act on a bipartisan basis. In 2006, this very
body reauthorized the Voting Rights Act by a vote of 98-to-0.
President George W. Bush, a Republican, was President. Before
us is the opportunity to advance that legacy by passing the
John Lewis Voting Rights Advancement Act and the Freedom to
Vote Act.
The Freedom to Vote Act, which many of my colleagues here--
including Senators Klobuchar and Padilla--and I introduced,
would create national minimum standards for voting, end
partisan gerrymandering, and root out the influence of dark
money. Meanwhile, the John Lewis Voting Rights Advancement Act
would restore the protections of the Voting Rights Act,
including preclearance, to prevent future attacks on our right
to vote. This should not be a partisan issue. The right to vote
is preservative of all other rights. It preserves the framework
in which all debate takes place. These bills would ensure that
every eligible American has a voice in the direction of our
country, from working families who need to vote after hours to
rural voters who need to vote by mail.
In conclusion--and nobody believes a pastor when he says,
in conclusion--let me say that it's true all of us celebrate
John Lewis. A couple weeks ago, many folks made that annual
pilgrimage to Selma. You cannot remember John Lewis and
dismember his legacy at the same time. If you celebrate John
Lewis, support what he supported. He supported the legislation
in front of us. The Freedom to Vote Act was written by John
Lewis. If you celebrate John Lewis, pass the John Lewis Voting
Rights Advancement Act.
Chair Durbin. Thank you, Senator. Senator Graham, you may
introduce your witness.
Senator Graham. Thank you, Mr. Chairman. We're honored to
be joined today by Representative Wesley Hunt. He serves as
U.S. Representative for Texas, 38th Congressional District. He
was first elected in 2023 and serves on the House Judiciary
Committee as well as the House Subcommittee on the Constitution
and Limited Government. He received his bachelor of science
from the United States Military Academy at West Point. After
serving 8 years in the United States Army, attended Cornell
University where he obtained a master's of business
administration and public administration and industrial labor
relations. You're a busy guy. We're honored to have you. Thank
you very much.
Representative Hunt. Thank you, sir.
Chair Durbin. Congressman Hunt, proceed.
STATEMENT OF HON. WESLEY HUNT,
A U.S. REPRESENTATIVE (TX-38), WASHINGTON, DC.
Representative Hunt. Thank you, Chairman Durbin and Ranking
Member Graham, for having me here today to speak about voting
rights in America, the country that I love dearly. More
importantly, I'm here to talk about the left's soft bigotry of
low expectations, because it's the Democratic party, not the
Republican party, that thinks so little of Black America, of
people of color, that they make the case that being Black in
America means we can't obtain a Government ID to vote. And
that's not only a ridiculous assertion, it's demeaning and it's
insulting.
When it comes down to it, many of my colleagues on the left
like to pretend that we're still living in the 1950's. Well,
we're not. I've got some good news for you. It's 2024, and I
know what year it is because I've been Black for just over 40
years, and I'm also the son of a retired lieutenant colonel who
grew up in the segregated South. You see, my parents grew up in
the Jim Crow South in the 1950's and 1960's, in New Orleans,
Louisiana. Their next generation, my parents, had three kids:
my sister, brother, and I. All went to West Point. All three of
us. We all served our country in combat. And I sit before you
today, as a sitting United States Congressman, in a district in
a suburb of Houston, Texas, in a white-majority district that
President Trump would have won by 25 points and I won by almost
30 points. And that doesn't happen unless we've made some
incredible progress in this great Nation.
Now, my colleagues on the left like to say that commonsense
voting laws, including requiring a Government-issued ID, are
racist and discriminatory and burdensome. Do you know what my
father had, back in the 40's and 50's, before it was even cool?
A Government-issued ID. And in his footsteps, I too have
multiple Government-issued IDs. And while that might be
shocking to many people in this country, you may ask, how does
that happen? It's very simple. It's personal responsibility for
all Americans in this country, regardless of what you look
like.
Sitting with me today is my global entry card; my military
ID card; my Texas driver's license; my Texas license to carry,
because that's how we roll in Texas; my congressional card;
and, of course, the good old-fashioned American passport. What
sorcery is this? What am I, the Black Houdini? How was I able
to pull off the impossible and attain not one, not two, not
three, but six government-issued IDs? Personal responsibility
in this country.
I fought for this country as an Apache helicopter pilot, to
protect free and fair elections, and having a Government-issued
ID isn't racist. It's American. You need to have an ID to drive
a car, to check in to the airport, open a bank account. You
need an ID for basically everything, to be a responsible adult
in this country, except for voting, apparently, according to
the left. Black America does not need well-meaning liberals
putting their arms around us and telling us how we should go to
the polls. In fact, if you look at recent headlines and polls,
you will find that Black men, specifically, in this country are
more fired up than ever to participate in the next Presidential
election. And I think I know why, and I'm really looking
forward to these results.
For the record, in the 2022 midterms in Georgia, it proved
that election integrity and ballot accessibility can be
achieved hand in hand. After the 2020 election, Georgia passed
a voter election integrity law, and subsequently the Department
of Justice filed a lawsuit against the State of Georgia,
alleging that the Georgia law is discriminatory and aims to
restrict citizens from voting. President Biden even called this
law ``Jim Crow 2.0.'' Really. In my humble opinion, referencing
Jim Crow for commonsense election integrity laws is offensive
to those who actually experienced Jim Crow, like my parents and
their parents before them. In fact, the law wasn't
discriminatory at all, because in the 2022 midterms, Georgia
voters shattered voter turnout records across the State. And
despite that record-breaking turnout in Georgia, the DOJ
lawsuit is still pending. I suspect that it's because that
record-breaking turnout resulted in a Republican Governor being
elected in Georgia. But I digress.
I'm going to say the quiet part out loud, which I tend to
do. I have a lot of respect for John Lewis, but the John Lewis
Voting Rights Advancement Act is not about protecting voting
rights. It's about solidifying Democrat power nationally. It's
about Federal control over State and local elections, which, by
the way, is unconstitutional. It's about diminishing the
security of our elections. And voter integrity laws aren't
discriminatory. They are required for a functioning
constitutional republic.
I'm going to tell you today, I categorically reject the
soft bigotry of low expectations. Black Americans and people of
color are proud. We expect more of ourselves. That's what Black
excellence really means to me. And above all else, we don't
need a new solution to a problem that doesn't exist. Let me be
clear. Making it to the polls to vote in person with an ID in
this country today is a very low bar, extremely low bar. We can
do it. White people can do it. Black people can do it.
Americans can do it. And we should all want that, for free and
fair elections.
If you want to be on the right side of history, you should
reject the Democrats' party's attempt to wind the clock back 70
years, because I'm sitting right here in front of you, and I'm
here to tell you, we've come a long way. Let's continue this
progress. Thank you for your time. Thank you, Chairman. Thank
you, sir, for having me.
Chair Durbin. Thank you, Representative. We'll now switch
to our second panel. If the witnesses for the second panel will
start to come forward, we'll start shortly. I thank everyone
for their patience. Let me introduce the majority witnesses.
First, we welcome Damon Hewitt, the president, executive
director of the Lawyers' Committee for Civil Rights Under Law.
Mr. Hewitt has more than 20 years of civil rights litigation
and policy experience, including prior leadership roles in the
nonprofit, philanthropic, and public sectors, and he's led the
Lawyers' Committee since 2021.
Also joined by Lydia Camarillo--I hope I pronounced that
correctly--who serves as president of the Southwest Voter
Registration Education Project, a nonprofit organization
helping millions of Latino voters register to vote. Ms.
Camarillo previously served as national leadership director for
the Mexican American Legal Defense and Educational Fund,
MALDEF.
Our final majority witness is Sophia Lin Lakin, director of
the Voting Rights Project at the American Civil Liberties
Union, where she leads a team of attorneys working to advance
and protect access to the ballot. She has worked on many
successful challenges to discriminatory voting laws across the
country.
Chair Durbin. Ranking Member Graham, would you please
introduce your two minority witnesses?
Senator Graham. Yes. Thank you, Mr. Chairman. Our first
witness is Hans von Spakovsky. Is that close?
Mr. von Spakovsky. Thank you, Mr. Chairman. The claim that
there----
Senator Graham. Oh, wait. Wait a minute. I just--did I get
your name right?
Mr. von Spakovsky. Yes.
Senator Graham. Okay. Good.
Mr. von Spakovsky. We're good.
Senator Graham. He's the manager of the Election Law Reform
Initiative and Senior Legal Fellow at The Heritage Foundation.
He was appointed by President Trump to the Presidential
Advisory Commission on Election Integrity in 2017. He also has
prior experience as a member of the Federal Election
Commission, an attorney with the Civil Rights Division at the
Department of Justice. He's a graduate of Vanderbilt University
school of law and received a BS from MIT in 1981.
Maureen Riordan. Did I get that right?
Ms. Riordan. Yes, you did.
Senator Graham. Thank you. Second witness. She is a
litigation counsel at the Public Interest Legal Foundation,
over 20 years of experience of litigation with the Voting
Rights Act in the Department of Justice. She holds her law
degree from St. Mary's law school and received her bachelor of
science degree from Seton Hall. Thank you.
Chair Durbin. Thank you. If the witnesses would please rise
to take an oath.
[Witnesses are sworn in.]
Chair Durbin. Let the record reflect that the witnesses
answered in the affirmative. And we'll start with Mr. Hewitt.
Five minutes.
STATEMENT OF DAMON T. HEWITT,
PRESIDENT AND EXECUTIVE DIRECTOR, THE LAWYERS' COMMITTEE FOR
CIVIL RIGHTS UNDER LAW,
MONTGOMERY, MARYLAND
Mr. Hewitt. Good morning, Chair Durbin, Ranking Member
Graham, and Members of the Senate Judiciary Committee. My name
is Damon Hewitt, president and executive director of the
Lawyers' Committee for Civil Rights Under Law. Thank you for
the opportunity to testify this morning about the important
need to protect voting rights by restoring the Voting Rights
Act.
The Lawyers' Committee uses legal advocacy to achieve and
advance racial justice, fighting inside and outside of the
courts to ensure that Black people, people of color, and all
Americans have the voice, the opportunity, and the power to
make the promises of democracy that are on paper real in our
daily experience. The Lawyers' Committee will litigate cases on
behalf of voters who are traditionally, historically, and today
disenfranchised; voters who face the fiercest of voter
suppression tactics. The Lawyers' Committee also coconvenes the
Election Protection Coalition, the Nation's largest, oldest
nonpartisan voter protection coalition, comprised of nearly 400
organizations.
Our work gives us a front-row seat to modern-day voter
suppression. We see up close the barriers that voters face, and
we understand the challenges that litigators and advocates face
in defending their right to vote, now, over 10 years since the
Supreme Court's decision in Shelby County v. Holder. As
Chairman Durbin noted earlier, the late Congressman John Lewis
said that voting is the most powerful nonviolent tool we have
to create a more perfect Union. And as President Lyndon Baines
Johnson noted when urging Congress to pass the Voting Rights
Act, he said there can and should be no argument. Every
American citizen must have an equal right to vote.
Senators, no eligible person of voting age, especially
historically disenfranchised Black voters, should be confronted
with barriers designed to make it more difficult for them to
register and more difficult to cast a ballot. That's what this
is all about. Nor should we be limited to participating in an
empty ritual in which the ballots we cast are rejected or
rendered meaningless by discriminatory procedures or
redistricting practices, sometimes hiding under the guise of
partisanship. Moreover, we should not be subjected to court
decisions that systematically neuter the reach of longstanding
civil rights laws. Yet, these things are happening with greater
frequency, due to the weakening of the Voting Rights Act. The
floodgates of voter suppression have been wide opened, and the
health of our democracy has deteriorated with every passing
election cycle.
Over a decade since Shelby County, we know that the
preclearance provision--which was so important, which allowed
DOJ or a Federal court to stop bad things from happening before
they happened, the prophylactic power--is what we're missing
here. Just as Ruth Bader Ginsburg's famous dissent in Shelby
County put it best, and it becomes more prophetic with each
passing year--she said, ``throwing out preclearance when it has
worked and it's continuing to work to stop discriminatory
changes is like throwing away your umbrella in a rainstorm
because you're not getting wet.''
Senators, voters of color are feeling the storm. Our
country has gone from being protected under the umbrella of
Section 5 to being drenched by wave after wave of voter
suppression actions and tactics and laws at the State level.
We're battered by headwinds from cases like Shelby County and
Brnovich v. DNC and other cases that systematically cut back
the scope and legal protections of the VRA. We are weathering
the barrage of all of these State laws, all made possible by
the gutting of Section 5, the heart of the Voting Rights Act.
Our litigators face new challenges in defending the right
to vote. Our election protection staff and our partners on the
ground nationwide are working valiantly to help voters make it
through the storm, but Congress must do its part. In the Shelby
County case, the Supreme Court acknowledged that racial
discrimination in voting continues to exist. Racial
discrimination in voting continues to exist. That's an
invitation for the Congress to act, and Congress can and must
act by passing legislation like the John R. Lewis Voting Rights
Advancement Act in its strongest possible form.
In the decade since Shelby County, Congress as a whole has
been derelict in its duty to restore the law. This is not
rewriting the law. This is restoring the law to its original
intent and force. And, ironically, Congress and this body, on a
bipartisan basis, has repeatedly supported, reauthorized, and
even strengthened the Voting Rights Act. So, what's different
now? As this body considers new legislation to protect voting
rights, I urge you to think back to the reasons why the VRA was
adopted and passed in the first place.
States with large numbers of people of color continuously
passed laws to make it harder to vote. They targeted Black
voters with surgical precision, coming up with ingenious
devices to make it harder to vote: a maze of trap doors, even
if the door itself wasn't physically barred. History is now
repeating itself, unfortunately, once again. As the proportion
of Black voters increases, we're seeing more of these ingenious
devices, these devious methods, to prevent people from voting
or just to make it harder to vote. The whole idea is to have a
chilling effect on voter engagement, voter participation, voter
turnout--all for the means of political power. When Congress
passed the VRA in 1965, it knew it had a moral imperative. I
urge this body to find that moral clarity once again. America
deserves better. I welcome your questions.
[The prepared statement of Mr. Hewitt appears as a
submission for the record.]
Chair Durbin. Thanks, Mr. Hewitt. Ms. Riordan.
STATEMENT OF MAUREEN RIORDAN, LITIGATION COUNSEL,
PUBLIC INTEREST LEGAL FOUNDATION,
ALEXANDRIA, VIRGINIA
Ms. Riordan. Good morning, Mr. Chairman, Ranking Members,
and Members of the Committee. Thank you for your invitation to
speak to you today. I'm an attorney with the Public Interest
Legal Foundation, a nonprofit law firm that is geared toward
promoting election integrity and preserving the constitutional
right of States to administer their own elections.
From August 2000, until the Supreme Court decision in
Shelby County v. Holder, my sole responsibility was reviewing
changes in voting that were subject to preclearance. If passed,
the proposed act will once again give tremendous power to
partisan bureaucrats within the Voting Section over the
election procedures of every State and locality in the country.
I began my employment in the Voting Section just prior to
the Presidential election in the year 2000, and during the
Florida recount, I personally observed attorneys within the
Section faxing and receiving faxes from the DNC in the Gore
campaign in Florida. The DOJ Inspector General report entitled,
``A Review of the Operations of the Voting Section of the Civil
Rights Division,'' is attached to my testimony, and it provides
instance after instance of bad behavior by the Section, often
racially motivated.
For example, when the Voting Section brought a case against
an African American in Noxubee County, Mississippi, the Section
attorneys didn't agree with the prosecution. They engaged in
horrific behavior and targeted a Black paralegal, telling him
he was not Black enough because he had the gall to work on that
matter. Abuses by the Section have also been really expensive
to the taxpayer. The Office of Legislative Affairs said that
between 1993 and 2000, the Voting Section has been sanctioned
well over $2 billion. For an example, Lynn Johnson v. Miller--
the Section was sanctioned almost $600,000 for collusive
conduct with attorneys from the Voting Section and attorneys
from the ACLU in review of the Georgia State redistricting
plan.
In Kinston, North Carolina, they objected to a decision by
a majority-Black city council to dump partisan races. The logic
of the objection was that Black voters in Kinston would not
know who to vote for if the Democratic title was not next to
their name. In North--South Carolina, they objected to the
annexation of two people, two white people. They wanted to get
into the town for sewer and water. They objected because the
town couldn't show that they had annexed any Black individuals,
despite the fact that none had applied.
I'm also aware of the intentional targeting of the
continued viability of the Senate--State Senator in South
Carolina's district in the review of the State's statewide
redistricting plan. Section 5 was a temporary provision, and
the reason for it no longer exists. The Supreme Court in Shelby
not only determined that the formula for Section 5 is
unconstitutional, but it also questioned the need for it today.
It made clear that only rampant discrimination on a wide scale
would justify any formula for Section 5. The Court acknowledged
the onerous burden that preclearance process places on a
jurisdiction, and it will doom the constitutionality of this
act's addition of a retrogression claim under Section 2.
Attempts by some to use the retrogression standard
disguised as a claim under Section 2 has already been rejected
by the Supreme Court. And, furthermore, retrogression is not
unconstitutional. Even the Department of Justice recognizes
what's known as unavoidable retrogression, and this happens
when an area of Black population moves or there's been an
influx of white population or the minority population has
become so infused within the county that it is no longer able
to either maintain a minority district or create one. Those
types of retrogression are not actionable under Section 5, and
they certainly will not be actionable under Section 2.
The Department already has a history of weaponizing the
retrogression standard. When they disagree with a voting
change, they will use miniscule statistical differences to
claim retrogression. The Department's objections to South
Carolina's voter ID law, based upon a 1.6 percent difference in
white voters' and Black voters' possession of an ID, is a prime
example of this type of nonsense.
The States previously covered by Section 5 will also be
targeted again by your formula, which reaches back 25 years.
Twenty-five years ago, there were only certain States that were
subject to the Section 5 preclearance standard. Those States
had to submit every single voting change to the Department of
Justice or the Federal court. Therefore, they're the only ones
that will have a history of violations. Simply put, the act and
the formula will not survive judicial scrutiny. Thank you.
[The prepared statement of Ms. Riordan appears as a
submission for the record.]
Chair Durbin. Thank you, Ms. Riordan. Ms. Camarillo. Did I
pronounce that correctly?
Ms. Camarillo. Perfect.
Chair Durbin. Please proceed.
Ms. Camarillo. Thank you. Good morning, Chairman----
Chair Durbin. You have to----
Ms. Camarillo [continuing]. Durbin----
Chair Durbin [continuing]. Punch the button on the
microphone.
STATEMENT OF LYDIA CAMARILLO,
PRESIDENT, SOUTHWEST VOTER REGISTRATION
EDUCATION PROJECT, SAN ANTONIO, TEXAS
Ms. Camarillo. Good morning, Chairman Durbin, Ranking
Member Graham, and the U.S. Senate Judiciary Committee. Thank
you for this opportunity and the honor to testify before the
U.S. Senate Judiciary Committee. I come before you in strong
support of the John Lewis Voting Rights Advancement Act, and I
thank you for this important legislation. I am president of
Southwest Voter Registration Education Project. I have had the
privilege of serving in leadership positions at Southwest Voter
for over 25 years. I have served as a chair of the Texas Latino
Redistricting Task Force since 2010.
Southwest Voter is a nonpartisan, nonprofit organization
founded in 1974 in San Antonio, Texas by the late William C.
Velasquez. Since opening its doors 50 years ago, Southwest
Voter has registered 3.4 million Latinos. No other Latino or
non-Latino group has registered more Latino voters than
Southwest Voter. Southwest Voter has trained over 150,000
Latino leaders.
As William C. Velasquez began working in Latino communities
across the southwest, he sought technical assistance from John
Lewis while he worked for the Voter Education Project. William
Velasquez gained the knowledge and skills he needed to register
Latino voters from this legendary icon, a hero to all of us. In
my role at Southwest Voter, I had witnessed States' enactments
of laws to suppress and dilute votes, particularly of Latino
voters and of other racial and ethnic communities. I have
witnessed the systematic damaging impact of such legislation.
Among other factors, repair of efforts to suppress the vote
is costly. In Georgia, in 2020, Southwest Voter contacted over
200,000 Latino, Black, and other ethnic voters whose ballots
had to be cured to ensure their votes would be counted. In
2021, Southwest Voter reached out to over 50,000 Latino voters
with live contacts to ensure that they could exercise the right
to vote in the runoff elections for the U.S. Senate.
My perspective is also personal. Over several election
cycles, when I vote in my precinct, located in a majority-white
neighborhood, I am told that I am not registered to vote. I
have lived in my home since 1996. This is consistent with my
observation that voter suppression efforts often target Latino
communities based on the assumption that if the communities
included Spanish speakers, they consist primarily of
undocumented immigrants. I have seen dozens of voter
suppressions law that target relatively recent Latino
immigrants who are U.S. citizens as well as U.S. citizens whose
families have lived here for generations--indeed, since 1948.
These are 12-generation Americans.
My perspective in that--that many of these laws represent
serious deprivation of the right to vote and has confirmed by
Southwest Voter's history of prevailing lawsuits. Southwest
Voter has won 210 vindicating the right, loses--I'm sorry--
vindicating the right of Latino voters in multiple States. For
example, in 2019, Texas was blocked, by an SVREP lawsuit, from
purging 100,000 Latino voters from the voting rolls based on
outdated driver's license or State identification information.
These voters received their driver's license before they
naturalized but registered to vote after naturalization and
voted lawfully.
Efforts to make it difficult, if not impossible, for Latino
voters to exercise their voting rights have been dauntingly
successful. The Latino community makes up 40.2 percent of the
Texas population, while the non-Latino white community
comprises 39.8 of the Texas population. Yet there are 27 non-
Latino, white-majority districts and only 7 Latino-majority
congressional districts in Texas.
The John Lewis Voting Rights Advancement Act provides an
essential legal framework to stop discriminatory changes in
election law before they can be implemented. The act will help
vindicate the right to vote in marginalized communities,
particularly in States with large Latino populations. We urge
the reinstatement of Section 4(b) of the Voting Rights Act and
strengthen the VRA to help save America's democracy by
protecting the right to vote for all citizens. In the past,
Latino voters were blocked from voting by the poll tax. When
the courts ruled this pattern of discrimination
unconstitutional, the laws continue to be enacted to suppress
and dilute the political power of the Latino electorate and
others: literacy tests, English requirements, and long
residence requirements, to name a few.
Over the last year, 19 States have enacted 34 laws to
restrict access to voting. This includes obstacles to vote by
mail; new voter ID laws; proof of citizenship; and limitation
to voter assistance, especially for those with limited English
or Spanish-only speaking, visual impairment, and voters who
need assistance when voting due to disabilities or age. For
example, Texas counties eliminated early voting sites and
reduced days and hours of operation, particularly voting in
Latino communities.
I urge the support of this bill, the John Lewis bill. We
need it. Southwest Voter stands ready to work with the U.S.
Senate Judiciary Committee to make sure that we move forward to
ensure that we protect the right of every voter to vote. Thank
you.
[The prepared statement of Ms. Camarillo appears as a
submission for the record.]
Chair Durbin. Thanks for your testimony. Next is Mr. Hans
von Spakovsky.
STATEMENT OF HANS VON SPAKOVSKY, MANAGER OF THE
ELECTION LAW REFORM INITIATIVE AND SENIOR LEGAL
FELLOW, THE HERITAGE FOUNDATION, WASHINGTON, DC
Mr. von Spakovsky. Thank you, Mr. Chairman. The claim that
there is a wave of voter suppression going on across the
country that requires expansion of the Voting Rights Act is
simply false. Efforts to enhance the integrity of the elections
through reform such as voter ID and improvements to the
accuracy of voter registration lists are not voter suppression.
On voter ID, for example, the data is very clear that such a
requirement does not prevent eligible individuals from voting,
and yet the proposed legislation would treat it as a suspect
discrimination practice.
A 2019 survey by the National Bureau of Economic Research
of 10 years of turnout data from all 50 States found that State
voter ID laws ``have no negative effect on registration or
turnout overall or for any group defined by race, gender, age,
or party affiliation.'' Voters understand this. Polling shows
they overwhelmingly support commonsense voter ID requirements,
regardless of their race and regardless of their party
affiliation. The Census Bureau reports that the turnout in the
2020 election was 66.8 percent, just short of the record
turnout of 67.7 percent of voting-age citizens for the 1992
election.
The census survey shows that there was higher turnout among
all races in 2020 when compared to 2016, and the Census Bureau
also says that voter registration in 2020 was higher than the
2000, 2004, 2008, 2012, and 2016 elections, when supposedly all
this suppression was going on to keep people from registering.
A survey after the 2022 election in Georgia shows that critics
of the State's 2021 election reforms were wrong. The University
of Georgia found that precisely zero percent of Black voters
said they had a poor experience voting in 2022, and according
to the Pew Research Center, Georgians cast more votes in 2022
than in any other midterm election in its history, with Black
voters making up 48 percent of the increase since 2000.
In fact, in the 2020 election, when we were dealing with a
pandemic, we had, according to the Census Bureau, the highest
voter turnout of the 21st Century. Yet S. 4 would actually
expand preclearance to reach every State in the country with a
new practice-based preclearance requirement. As the Supreme
Court has made clear, any requirement that States obtain
Federal preapproval of election changes could be imposed only
if Congress found blatantly discriminatory evasions of Federal
court decrees, lack of minority officeholding, voting tests and
devices, or voting discrimination on a pervasive scale. Those
conditions are nowhere to be found in 2024.
The provisions of S. 4 that overturn the Supreme Court's
guidance in the Brnovich decision on the application of Section
2 are also ill advised and interfere with States'
constitutional authority over the administration of elections.
S. 4 eliminates rational and fundamental factors that are
essential to evaluating the totality of the circumstances in
any Section 2 lawsuit. It also specifically amends Section 2 to
include a coalition of different racial-or language-minority
groups. This would change the Voting Rights Act from a statute
intended to prevent racial discrimination to a partisan tool to
protect political alliances and coalitions. That would raise
serious constitutional questions over the validity of Section
2.
Existing Federal laws are more than sufficient to protect
voters and ensure that they can easily and securely practice
their franchise without discrimination, fear, or intimidation.
Americans today have an easier time registering and voting
securely than at any time in our nation's history, and election
officials and voters are already protected from intimidation
and coercion by comprehensive Federal and State laws. There is
simply no need to implement a new, vastly expanded Section 5,
and the changes proposed in Section 2 would change it from a
provision to prevent racial discrimination in voting to a tool
for political manipulation of redistricting and the voting
process, intended to guarantee the success of one specific
political party.
It is not 1965, and there's no longer any justification for
giving the Federal Government the ability to veto election laws
that citizens and their elected representatives choose to
implement in their respective States. There's also no
justification for eliminating the ability of States to defend
themselves from meritless lawsuits filed under Section 2 for
nondiscriminatory widespread traditional election practices
that have been developed to ensure both access for voters and
safe, fair, effective, and secure administration of elections.
Thank you.
[The prepared statement of Mr. von Spakovsky appears as a
submission for the record.]
Chair Durbin. Thank you, sir. Ms. Lakin.
STATEMENT OF SOPHIA LIN LAKIN, DIRECTOR,
VOTING RIGHTS PROJECT, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, NEW YORK, NEW YORK
Ms. Lakin. Chair Durbin, Ranking Member Graham, and Members
of the Committee, thank you for the opportunity to testify
today. I'm Sophia Lakin, the director of the ACLU's Voting
Rights Project. Last week, on the 59th anniversary of Bloody
Sunday, we honored John Lewis and the civil rights activists in
Selma, Alabama who risked or gave their lives to secure the
right to vote. Their courage, sacrifice, and determination led
Congress to enact the Voting Rights Act, or the VRA, one of the
nation's most successful pieces of civil rights legislation.
But nearly 11 years ago, in Shelby County v. Holder, the
Supreme Court gutted the VRA's most powerful provision, the
preclearance system that stopped discriminatory practices
before they took effect in places with the worst records of
discrimination.
This decision unleashed a flood of discriminatory voting
laws across the country. Nearly 100 restrictive voting laws
have been enacted since Shelby, and just this past year, at
least 14 States have enacted 17 restrictive voting measures.
Over the past 2 years, courts have struck down racially
discriminatory maps in Alabama, Georgia, Louisiana, South
Carolina, and elsewhere.
The ACLU and our many partners continue to utilize case-by-
case litigation to protect voting rights. For its part, the
ACLU has filed or intervened in nearly 100 cases to protect the
rights of voters since Shelby. But this approach, including
using what remains of the VRA, particularly Section 2--a
nationwide ban on discriminatory voting practices--is woefully
inadequate to address the enormity of the problem at hand.
For one, unlike preclearance, voters can bring Section 2
cases only after a jurisdiction passes a discriminatory law. It
also requires vast amounts of resources and time. As we know
firsthand, this too often allows States to keep discriminatory
rules in place during elections against the backdrop of slow
court processes, irrevocably disenfranchising the very voters
the VRA was designed to protect. The ACLU's 10 active Section 2
cases have been pending, on average, for 25 months, more than a
2-year Federal election cycle.
I want to highlight one potent and very recent example
undeniably showing that racial discrimination in voting is very
much alive and well today. The only appropriate response is to
restore and strengthen the VRA, including preclearance. In
2021, along with the Legal Defense Fund and partners, we
challenged Alabama's discriminatory congressional map within
days of its enactment and won an injunction blocking it 9
months before the 2022 midterms. But even though the three-
judge trial court held that the case was not particularly
close, the Supreme Court put that ruling on hold during appeal.
Ultimately, in its landmark ruling in Allen v. Milligan,
less than a year ago, the Supreme Court agreed that the map
discriminated against Black voters, violating Section 2--that's
11 years after a Supreme Court majority wrongly declared that
things have ``changed dramatically in the south''--in Alabama,
the very State from which the Shelby decision arose. But it
took 16 months to achieve this win, and in the meantime, the
2022 congressional elections took place under the racially
discriminatory map.
It is impossible to remedy the gross injustice Black
Alabama voters faced, having their voting strength illegally
stifled, despite every effort under what's left of the VRA.
This is an egregious affront to the promise of democracy John
Lewis and other civil rights giants marched and bled for. And
even after the Supreme Court finally agreed that Alabama's map
was racially discriminatory, the State drew a new map that
defied the judiciary and continued to discriminate against
Black Alabamians, trying to yet again appeal to the Supreme
Court.
And the fight in Alabama continues as I speak. While a new
map is in place for the 2024 elections, Alabama persists in
defending its discriminatory map for future elections. This is
one example among many, and we cannot stand by any longer while
Black, Latino, Asian-American, Native, disabled, and other
marginalized voters continue to be silenced. The promise of a
fully inclusive, multiracial democracy hangs in the balance.
Our current tools in this fight, while important, are simply
not enough to combat enduring racial discrimination in voting.
Congress must meet this moment by passing the John R. Lewis
Voting Rights Advancement Act. Thank you, and I look forward to
your questions.
[The prepared statement of Ms. Lakin appears as a
submission for the record.]
Chair Durbin. Thank you, Ms. Lakin. We'll go the first
round, and Members each have 5 minutes of questions. Let me
say, at the outset, thank you for being here and being part of
this historic congressional hearing. But I do want to say,
before we congratulate ourselves too much about 60 percent of
the American population voting, we ought to take a look at some
European countries, which have much higher percentages. For us
to be satisfied with 60 percent, I think, should be an
embarrassment to us and not a source of great pride. We can and
we should do better. Every eligible American should be voting.
We should give them that opportunity, and that means making
certain that the voting procedures are realistic.
The University of Maryland teamed up with the Brennan
Center and did a survey that they recently released of 2,386
respondents nationwide. When it comes to the issue of voter ID,
what they found, I think, is very eye opening. Congressman Hunt
earlier brought in six or eight Government-issued IDs to
demonstrate how easy it is to get a voter ID. They included, of
course, the obvious driver's license but went on to include
passports, global entry, and other things. If you're aware of
those systems, you know that they're not free. You end up
spending money to obtain that Government ID, and it's
understandable that lower-income individuals are less likely to
be in that position.
The Brennan study with the University of Maryland found
some interesting things, as well, when it comes to the easiness
of using the driver's license as a voter ID. Twenty-one million
voting-age U.S. citizens do not have a current driver's
license. Twenty-one million. Another 12 percent have a
nonexpired license, but it does not have both a current name
and a current address for that voter. Ninety-six percent of
those with some discrepancy have a license without a current
address. So, you move, and you don't change your driver's
license--in many States, you can't use that as your ID to vote.
When you look at subsets affected by this, younger
Americans--41 percent of those between 18 and 24--currently
don't have a driver's license with a current name; young Black
Americans, 47 percent neither current name or address; 30
percent no license at all, for young Black Americans. So, to
say this is an easy thing is not realistic. And, of course,
when they do the analysis, people with less education and lower
annual incomes are more likely to lack a current driver's
license. To say that this is somehow the bigotry of low
expectations, I think, is insulting. These individuals, many of
them, are just living difficult lives with a lot of demands.
Ms. Lakin, have you run into this in your analysis of the use
of voter ID?
Ms. Lakin. Yes, Senator. Thank you for that question.
Absolutely. And when it comes to voter ID, I would say the
devil is in the details. While we all agree that elections
should be safe and secure and free and fair and that voters
should be verifying that identity, the truth of the matter is
that in many instances there are voter IDs that are really
difficult to comply with and that they are adopted with
discriminatory intent and with discriminatory impact.
And we have seen this, for example, in the North Carolina
case that we litigated in 2013, which challenged a law that was
adopted shortly after Shelby County. In that case, the State,
following Shelby County, went ahead and changed the voter ID
law that it was going to impose and, in doing so, dropped IDs
that were disproportionately held by Black voters and left in
the bill only those voter IDs that were disproportionately held
by white voters. Ultimately, the fourth circuit ruled that the
law targeted Black voters with almost surgical precision and
struck down that law as unconstitutional.
Chair Durbin. I think those were the exact words used by
the Court in North Carolina. Is that correct?
Ms. Lakin. That's correct, Your Honor--Senator.
[Laughter.]
Senator Klobuchar. We call him His Honor all the time. It's
fine.
Ms. Lakin. I'm a litigator.
Chair Durbin. Go straight to----
Ms. Lakin. Hard habit to break.
Chair Durbin. Mr. Hewitt, I guess they're telling us that
we're living in the past, we seem to think this is still Jim
Crow America, and things are much better off. And yet, since
the Shelby decision, we've taken a closer look at the changes
in State laws. And what do we find?
Mr. Hewitt. What we're finding is the same type of surgical
precision or attempts proximate to that. You know, I know, as a
native of New Orleans, in the great State of Louisiana, a State
where, you know, since the Voting Rights Act was adopted, every
redistricting plan for Louisiana in the House of
Representatives was rejected by DOJ or a Federal court because
it undermined Black voting strength--and that pattern would've
continued, but for Shelby County and the gutting of the
preclearance provision--we see the same patterns that we've
been seeing for a long time.
And also, growing up in Louisiana, I know that in Black
communities, certainly in my home State, people in Black
communities tend to vote in person. That's how we did it. But
during the pandemic, when there were new methods of voting,
newly available or newly popularized--absentee or by mail or
even, in Harris County, Texas, drive-through voting, which is
in-person voting, but drive-through voting--what we saw is, as
soon as Black voters started using those methods, all of a
sudden they became a problem. All of sudden, there's some type
of issue.
It's that kind of surgical precision that underlie our
desire and, in fact, our action, to file intentional
discrimination claims in cases like we did in Georgia,
challenging S.B. 202, because if you're challenging the very
means that are newly popular with Black voters, you must have a
problem with those Black voters. And so these patterns are
repeating themselves over and over again.
Chair Durbin. Thank you very much. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. Thanks to all of you
for being here to testify on this important issue. I'd like to
ask each of you a couple of very simple questions, in the
interest of time, because we've got a lot to cover and little
time to do it. I'm going to ask for a yes-or-no answer to each
of these questions. What I'd like to do is start with Mr.
Hewitt and then go to Ms. Riordan and so on and so forth.
Again, answer with a yes or a no.
So, we'll start with you, Mr. Hewitt. Do you believe that
only citizens of the United States should be able to vote in
Federal elections?
Mr. Hewitt. We don't have a position about noncitizens
voting in Federal elections. We believe that's what the current
laws are, and so we are certainly fighting for everyone who's
eligible under current laws to be able to vote.
Senator Lee. Ms. Riordan?
Ms. Riordan. I don't--do not believe they should be able to
vote. Oh, sorry. I do not believe that noncitizens should be
able to vote in Federal elections.
Senator Lee. Ms. Camarillo?
Ms. Camarillo. That's a decision of the State law, but I
want to emphasize that----
Senator Lee. It's a decision of State law, as to----
Ms. Camarillo. State----
Senator Lee [continuing]. Who should vote in Federal
elections?
Ms. Camarillo. States decide who gets to vote in various
elections, and in Federal elections, I believe that we should
be encouraging people to naturalize and then vote.
Senator Lee. Okay, but you're saying that the Federal
Government should have no say in who votes in a Federal
election.
Ms. Camarillo. I don't have a position on that.
Senator Lee. Mr. von Spakovsky?
Mr. von Spakovsky. As a first-generation son of naturalized
citizens, I believe only citizens should be allowed to vote in
all U.S. elections.
Senator Lee. Ms. Lakin?
Ms. Lakin. Federal law prohibits noncitizens from voting in
Federal elections, and we support and our work focuses on
enabling all eligible voters to be able to vote and cast their
ballot and have that ballot counted.
Senator Lee. Okay. Now, here's the second question. And
again, please give me a yes or no if you possible can. Do you
believe that people who are registering individuals to vote--
I'm sorry. Do you believe that people registering to vote
should provide documentary proof of their citizenship in order
to register to vote? Mr. Hewitt?
Mr. Hewitt. I think your first question kind of answers the
second. Based upon the applicable rules, Federal or State
elections or what have you, we know we have to follow those
rules. The question is, what's the impact of those rules?
Senator Lee. Ms. Riordan?
Ms. Riordan. Yes.
Senator Lee. Ms. Camarillo?
Ms. Camarillo. Voter registration cards and affidavits--
when people sign them, people are signing under Federal--under
penalties of--depending on the State, either criminal or
otherwise----
Senator Lee. Yes.
Ms. Camarillo [continuing]. That they're----
Senator Lee. Can I get a yes or no out of you?
Ms. Camarillo. I'm sorry.
Senator Lee. Should they or should they not have to require
documentation establishing their citizenship?
Ms. Camarillo. It's already redundant, in many States, and
it's already being asked.
Senator Lee. Mr. von Spakovsky?
Mr. von Spakovsky. Yes, all individuals should be required
to provide proof of citizenship.
Senator Lee. Ms. Lakin?
Ms. Lakin. Documented proof of citizenship requirements are
often discrimination. In fact, we sued the State of Kansas and
won litigation on this issue.
Senator Lee. Okay. I do find it troubling that these
couldn't both all be answered with a simple yes. I think if you
asked most Americans, overwhelming majority of Americans would
say, yes, you should have to be a citizen to vote in a Federal
election, and, yes, you ought to be required to prove it. You
have to show identification papers when you board an airplane,
unless you're an illegal alien, of course, but that's a
different question; to go to the doctor, in many instances; to
pick up prescription, in many instances. All kinds of things
require identification. Why not voting?
Now, the Carter-Baker report from 2008--keep in mind that
the Carter in Carter-Baker is former President Jimmy Carter--
recommended that States require voters to use a REAL ID-
compliant identification to ``ensure that persons presenting
themselves at the polling places are, in fact, the ones on the
registration list.'' And I agree with former President Carter
on that, and to that end, I've authored legislation that would
allow States to enforce such identification laws, which are so
popular among Americans, and with good reason.
The legislation, as compared to the likely unconstitutional
John Lewis Voting Rights Advancement Act, would respect the
boundaries of Federalism. And that's important, always, that we
do that--and that that's one of our twin structural safeguards
in the Constitution. Mr. von Spakovsky, in your experience,
would more robust voter ID laws disenfranchise legal voters?
Mr. von Spakovsky. The answer to that is no. And that's not
my opinion. That's based on turnout data that we now have for
more than 15 years, election after election after election.
Georgia, for example's, ID law has been in place since the 2008
election. They've seen record registration and turnout of all
voters, including Black and Hispanic voters there. And all the
studies--one of the ones I cited showed that when you compare
all 50 States, IDs do not keep people from voting, particularly
because every State that's put in an ID requirement will
provide a free ID to anyone who doesn't have one.
Senator Lee. Thank you. Thank you, Mr. Chairman.
Chair Durbin. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
you to our witnesses today. Ms. Camarillo, you testified that
just last year alone, over 19 States enacted laws to restrict
access to voting, making it more difficult for people--
specifically, in many instances, people of color--to vote.
Could you talk about which voting restrictions you've seen that
particularly impact people of color?
Ms. Camarillo. Well, I think that the restrictions for
voting are--in Texas, particularly, I think we find that a lot
of--some voters are not able to vote because they cannot have
an assistant. They're not able to vote--and by an assister,
it's an--they call it an assister. These voters need to take
someone because they can't either--they cannot read, they don't
speak the language, or they're visually impaired, or they
simply need someone to help them maneuver the voting system.
And that is no longer allowed. We found that when S.B. 1, which
is the case that I'm referring to--many voters were confused,
were scared that they were not going to be given an
opportunity. And there's also a partisan piece where partisans
can walk into the booth where you're voting and stand in front
of your face and intimidate the voter. It's a strategy to
intimidate the voter.
Senator Klobuchar. Okay.
Ms. Camarillo. That's one. I've also seen where voters--I'm
sorry. You were going to ask----
Senator Klobuchar. No, no, no. Go ahead. I just have a few
more. Go ahead, quick.
Ms. Camarillo. I've also seen where voters have not been
able to go to the precincts because they don't have a ride.
They moved the precincts--the voting sites from their
neighborhoods to other places that are far, and they don't----
Senator Klobuchar. Yes.
Ms. Camarillo [continuing]. Have a ride, and if----
Senator Klobuchar. I saw that in Georgia, when I went down
there, when we had our voting rights hearing with the Rules
Committee down there. They move it.
Ms. Camarillo. Correct.
Senator Klobuchar. In Georgia, there was a different
polling place for one voter from the primary to the general
election to the special election, so--exactly.
Ms. Camarillo. There's also tactics that we can't truly
document, that I recorded in my written testimony. And it's
part of my experience, where someone will show up to vote, and
they're being questioned. There's a woman in Florida that
Southwest Voter registered to vote, and she was told that she
did not register in time to participate in that particular
election cycle, when in fact she had registered to vote in
August. So, I'm concerned about laws that are in the books that
are hurting people to have the right to vote and exercise their
right to vote. I'm concerned that there's an attack on the
Latino community, thinking that we're all undocumented. And, in
fact, as someone who registers voters and trains people to
register voters--and we have registered 3.4 million people--I
can tell you that voters that are not citizens will tell you,
I'm not a citizen, because they don't want to create any
problems.
Senator Klobuchar. Okay. Thank you----
Ms. Camarillo. Thank you.
Senator Klobuchar [continuing]. Very much. Mr. Hewitt, when
Senator Warnock was speaking, he mentioned the Freedom to Vote
Act. As you know, there are a number of bills in there that
would supplement the John Lewis Voting Rights Advancement Act,
including the Same Day Registration Act, something that has led
Minnesota, year after year after year, to have the highest
voter turnout in the country--a number of voter turnout,
including with our minority communities, that a lot of States
would like to see. The Save Voters Act prohibits States from
unfairly purging people from voting rolls. Do you agree that,
in order to protect Americans' right to vote, we need the John
Lewis bill and also the Freedom to Vote Act? And could you talk
a bit about the Freedom to Vote Act?
Mr. Hewitt. Sure. I know there's a hearing, obviously, in
Senate Rules later today about Freedom to Vote----
Senator Klobuchar. Thank you for giving us a pre-
advertisement for that.
Mr. Hewitt. There you go. There you go. And I'll be there
to visit with you all. But, you know, we came to the
understanding, in the civil rights community, that there is a
double value to having the John Lewis Voting Rights Advancement
Act and the Freedom to Vote Act, which some people say is a law
just about election administration, but it's really about--it
really mirrors, in many ways, the John Lewis bill, because the
John Lewis bill and the VRA itself is about all of these kind
of death by a thousand cuts, these things that seem innocuous,
that seem facially neutral, that seem little--then lead to
voter disenfranchisement.
And that's how I think about the Freedom to Vote Act, you
know, when we think about election administration, about all of
the provisions of that bill that really make it easier for
people to vote, right? So, the John Lewis bill is about how we
should not make it harder for people to vote. The Freedom to
Vote Act is about, how do we make it easier for people to vote
in a safe way and a righteous way, in a way that's entirely
legal and lawful? And so I think that the twin force of those
bills really is the call, the invitation to Congress and to the
Senate, in particular, to act.
Senator Klobuchar. Thank you very much.
Chair Durbin. Thank you, Senator Klobuchar. Senator Graham.
Senator Graham. Thank you, Mr. Chairman. Mr. von Spakovsky,
what would you say this legislation's about? What do you think
the goal of this legislation is?
Mr. von Spakovsky. Well, bringing back preclearance is to
give the very partisan bureaucrats inside the Voting Section,
where I first worked when I got to the Justice Department,
basically control over State elections. And a lot of groups
don't want to have to go to court like other litigants and
actually prove a case, prove discrimination. They would rather
be able to call their friends and former colleagues, who are
now working in the Voting Section, and say, you know, we really
don't like this particular bill. You should object to it. And
that's the kind of thing that Ms. Riordan and I saw happening
when we were there.
Senator Graham. Ms. Riordan, you gave examples of this part
of the Department of Justice being sanctioned. You know, in
simple terms, it seems to be that people in this Section are
more on a political crusade than they are enforcing the law. Is
that a fair statement?
Ms. Riordan. That's definitely a fair statement. My very
first day in the Section, when I was being walked around and
introduced, there were political, you know, campaign type signs
for the Gore-Lieberman ticket. It was in the year 2000.
Obviously, you know, infraction of the Hatch Act. When Barack
Obama won the election in 2008--I come in very early in the
morning--somebody had smashed the picture of George W. Bush and
taken a picture of Barack Obama out of, like, the newspaper and
pasted it to the frame. If they don't like the politics of a
particular State, they target them. There were signs on doors
that said, ``Mess with Texas.'' It is very, very political. I
was shocked at how political it is.
Senator Graham. Yes. Well, I guess we shouldn't be. Are you
familiar with the case of Kim O-G-G--I can't say her last name;
I don't want to butcher it--the Democratic district attorney in
Harris County, Texas. She went to vote, but she was turned away
because her ballot had already been cast. Are you familiar with
that?
Ms. Riordan. I heard about that on the news.
Senator Graham. Yes. So, this is the district attorney for
a county in Texas. So, the idea that we want to preserve the
integrity of the ballot box, I think, is real. Mr. von
Spakovsky, at the end of the day, the Supreme Court decision
regarding preclearance was based on evidence----
Mr. von Spakovsky. Yes.
Senator Graham [continuing]. That States in question had
advanced. Is that correct?
Mr. von Spakovsky. That's exactly right. And, in fact,
remember, Section 5 was put in when voter registration and
turnout of African Americans in the covered States, places like
Alabama--I mean, look, they were the subject of systematic,
widespread discrimination. So, the registration and turnout
rates were extremely low. But when the Supreme Court got this
decision, Congress wanted to renew this bill based on 40-year-
old data. They didn't want to renew it based on current
registration and current turnout rates, because if they did,
not only were the covered States as good as uncovered States,
many of them were far superior.
I just did a study on this. And, for example, in the 2016
election, every one of the formerly covered States, with the
exception of Texas, had a higher registration rate than the
State of New York. In the 2020 election, six of the nine
preclearance States had higher registration than New York, and
four had higher turnout. New York, as you know--never been
covered, but the point is, there is no longer any radical
difference between the formerly covered States and the rest of
the country. In fact, they do better than many other States.
Senator Graham. So, if the data is that clear, then why are
we trying to do what we're doing? Ms. Riordan?
Ms. Riordan. I believe we're trying to take the States'
rights from them and federalize all elections and hand a lot of
those decisions to partisan bureaucrats within the Department
of Justice.
Senator Graham. I think you're right. Thank you, Mr.
Chairman.
Chair Durbin. Senator Coons.
Senator Coons. Thank you, Mr. Chairman. And I'd like to
thank all of the witnesses who are here with us today. Former
Congressman, late Congressman John Lewis was a personal friend,
and I was blessed to have the chance to cross the Edmund Pettus
Bridge with him on several occasions, to stand at that bridge
at the 50th anniversary and to hand to several of my colleagues
a copy of what is now known as the John Lewis Voting Rights
Advancement Act, and to press them to consider cosponsorship. I
worked closely with our former colleague, Senator Leahy, on
this legislation. I am from a State, Delaware, which has a long
history of actually making it hard to vote and where, in
Delaware, we have tried, several cycles now, to work to improve
things like mail-in voting, same-day registration, and where it
is actively being litigated. It is a contentious issue.
Everyone seems to agree that John Lewis was a towering
figure in the American Civil Rights Movement and that his
legacy needs to be maintained. In fact, it was one of the very
few moments in the State of the Union speech, Mr. Chairman,
where Members of both parties stood and applauded when he was
recognized by our President. Yet, what we should be doing going
forward seems strikingly divisive.
In the few minutes I've got, let me, if I could, Mr.
Hewitt, just ask you--since the Supreme Court's decision in
Shelby County, we've seen restrictive voting laws crop up all
over the country, including some States covered formerly by
Section 5. In 2023 alone, more than a dozen States enacted
newly restrictive voting laws. Why did the Supreme Court's
decision--briefly--make it more difficult to challenge these
laws? And if it became law, how would the John Lewis Voting
Rights Advancement Act protect against restrictive voting laws?
Mr. Hewitt. Well, in the covered jurisdictions, the Shelby
County case made it such that we no longer have, in this
Nation, the benefit of the prophylactic power, the power to
stop these negative laws, these bad laws from being implemented
before they cause harm. But also, there's other damage being
done, as well, by Brnovich v. DNC. And there's even, also, a
case right now suggesting that there's a right without a
remedy: that there is a right to not be discriminated against
but no right of private action, so to speak. And so I think Ms.
Lakin may have spoken to this earlier, but Section 2 litigation
is not only time consuming, but it takes so long that the
damage will be done, often, before we actually get relief.
Senator Coons. Mr. Hewitt, if I could briefly ask one other
question. In many hearings on this topic over many years, now,
I've heard concerns and complaints about voter fraud,
widespread voter fraud, being used as the reason to advance
some of these restrictive laws. How many cases are there of
voter fraud in our elections?
Mr. Hewitt. The numbers are infinitesimally small. They're
typically not associated with the voters who are pleading with
greater access, and really, the fraud squad, as some people
call it--they're really--you talk about a solution in search of
a problem, that's exactly what this fraud squad is. They search
high and low for instances of voter fraud, and they even try to
entrap voters, in the case of Florida, and to saying, ah, you
can vote now, but we got you. Now we're going to hold you
subject to criminal sanctions.
Senator Coons. Well, I'll say this. The integrity of our
voting process is an important matter for all of us. I was a
county elected official. Many counties across the country
administer the election process. I do think voting integrity is
important. But the point is, out of billions of votes cast,
there are just a handful of examples of voter fraud. I wish
this were a bipartisan issue. It was, when the Voting Rights
Act was first enacted, and it was, every single time it was
reenacted, for many, many years.
Let me turn last to a concern that I think is timely and
relevant and where there's bipartisan legislation being led
that could help forestall a very real possible challenge to our
next election. We've got the very real possibility that
artificial intelligence-generated deep fakes, which have been
deployed across the world--recently had an impact in an
election in Slovakia that changed the outcome; had a potential
impact in the Taiwanese elections, where they were widely
deployed; in New Hampshire, on primary day, an AI-generated
robocall of President Biden's voice encouraged New Hampshire
residents not to vote in the primary election.
Our own election is just months away, and I think we need
to act now to protect against the predictably harmful effects
that deceptive AI could have on our democracy. Senators
Klobuchar and Hawley, Collins, and I have introduced a
bipartisan Protect Elections from Deceptive AI Act, which would
ban the use of materially deceptive AI-generated voice or audio
of a candidate for Federal office in a way that would impact
the election or steer contributions. Ms. Lakin, do you agree
that AI does, in fact, pose some threat to our elections?
Ms. Lakin. Senator, I think that the risk of misinformation
and confusion is very real and that voters need to have
accurate, correct information in order to be able to
participate in our democracy.
Senator Coons. Given that there are very, very few cases,
relative to the number of votes cast, of actual voter fraud,
but there have been demonstrated cases of foreign nations
attempting to interfere in and influence our elections--and
there's recently been a national election determined,
influenced significantly by a deep-fake AI--do you think it's
important for us to pass bipartisan legislation like the
Protect Elections from Deceptive AI Act, before our own
elections this fall?
Ms. Lakin. It's certainly a concern that this Congress
should be looking at very, very closely.
Senator Coons. Thank you. And thank you to all the
witnesses today. Thank you, Mr. Chairman.
Chair Durbin. Thanks, Senator Coons. Senator Grassley.
Senator Grassley. Hans, I'm going to start with you. The
goal of Federal elections is to ensure that every U.S. citizen
who is eligible and registered to vote should have the
opportunity to cast a vote in an election if they so choose.
Americans need to have confidence in our elections. The
integrity of our elections is paramount to confidence in our
democracy, and the votes reflect the voice of the American
people. So, what safeguards are in place to ensure ineligible
noncitizens don't end up on the voter rolls? And are current
measure in place to satisfy this position?
Mr. von Spakovsky. Well, unfortunately, there aren't a lot
of safeguards in place. I mean, one of the only ones around is
what's called the SAVE System. That's a database at the
Department of Homeland Security. It's the same database
employers can check with and State agencies can check with, to
make sure that someone is a citizen, is somebody who's entitled
to apply for welfare benefits. The problem has been for many
years that DHS has thrown up red tape and made it almost
impossible for election officials to be able to consult the
SAVE database to check the citizenship status of individuals on
the voter registration list.
About the only other thing States can do--because they're
not requiring proof of citizenship, and there's some bad law on
that--is to use jury information. A great amendment to the NVRA
would be--you know, right now, the NVRA requires all U.S.
attorneys to notify State election officials if someone is
convicted of a felony in Federal court, in order--the State to
be able to take that into account if felons are not able to
vote. A great amendment would be to say that all Federal courts
have to notify State election officials when an individual is
called for jury duty and is excused because they're not a U.S.
citizen. Why? Because the courts get their voter lists from
State election officials. They use voter registration lists.
But other than that, there's hardly anything out there States
can do to check this.
Senator Grassley. Hans, do you think that the John Lewis
Act would be constitutional or unconstitutional by the courts?
Mr. von Spakovsky. Oh, I think it would raise serious
constitutional questions about the validity now of Section 2,
if the changes are made, and I don't think that the bringing
back of Section 5 meets the standards that've been laid out by
the Supreme Court for showing widespread, systematic
discrimination that would justify treating some States
differently than others or justifying Federal control over what
is, in essence, State sovereignty and the State ability to
administer their elections.
Senator Grassley. Ms. Riordan, I'd like to have you comment
on a question that another witness spoke to. If this voting
rights bill were to become law, so-called preclearance would be
reinstated. Can you explain why preclearance is problematic
here and why Section 5 was meant to only be temporary?
Ms. Riordan. Sure. Well, I think the Shelby County decision
is illustrative of the issues. As Mr. von Spakovsky has already
stated, during that case, the Supreme Court said that Section 5
was temporary, and it was temporary for a reason, right?
Because we no longer have rampant discrimination in this
country, and we no longer have evasion of court decrees, which
is what was happening, you know, during the time that Section 5
was imposed.
If we redo this formula, if the Senate does this and it
passed, and it goes back to the Department of Justice, there
will definitely be a weaponization of the preclearance process
by the Department of Justice. They've done it for the 20 years
I was present at the office, so I don't have any reason to
believe that that's not going to continue. And if this rampant
discrimination that everyone talks about actually exists, why
is it, then, that the Department of Justice has only brought
nine Section 2 cases since the Shelby County decision? They are
supposed to be the one group that has, you know, the foresight
and all the money of the Federal Government to bring these
Section 2 lawsuits that are so expensive, yet there's only been
nine since 2013. That's not even one a year.
Senator Grassley. Isn't it ironic, in the 2020 election,
the massive increase we had turned out in the election, and
then to hear complaints about voter suppression? I yield the
floor.
Chair Durbin. Senator Welch.
Senator Welch. Thank you very much, Mr. Chairman. Mr. von
Spakovsky, do you think that the 2020 Presidential election was
rigged?
Mr. von Spakovsky. Senator, that election's over with.
There were no cases proven in court to show that it should be
overturned, as happened in the--for example, the 2018
congressional race, the ninth circuit. So, what we should be
doing is looking forward to try to fix the vulnerabilities that
we do know exist in the system.
Senator Welch. So, what's your answer?
Mr. von Spakovsky. I just gave you an answer. Joe Biden is
the President. He was certified as the President. There were no
cases in court proven----
Senator Welch. So----
Mr. von Spakovsky [continuing]. To show that there was the
kind of fraud that would've overturned the election. That's the
way that, as you know, it works. In the ninth----
Senator Welch. All right. So, let me----
Mr. von Spakovsky. In the Ninth Circuit----
Senator Welch. Let me----
Mr. von Spakovsky [continuing]. Of North Carolina----
Senator Welch. Let me be clear.
Mr. von Spakovsky [continuing]. It----
Senator Welch. Let----
Mr. von Spakovsky [continuing]. That happened----
Senator Welch. So, the 2020 election was not rigged?
Mr. von Spakovsky. Was what?
Senator Welch. Not rigged.
Mr. von Spakovsky. I've given you my answer on this,
Senator.
Senator Welch. You know what? I don't understand a word you
said. Seriously. This is, for most folks, a yes or no----
Mr. von Spakovsky. I'll be happy to explain. If you have a
case in which you believe that an election was wrongly decided,
as----
Senator Welch. And I don't have much time.
Mr. von Spakovsky [continuing]. Happened in the 9th
Congressional District----
Senator Welch. I don't have much time, so----
Mr. von Spakovsky [continuing]. You go to court, and you
prove your case. That didn't happen in the 2020 election.
Senator Welch. So, do you believe that a lot of those legal
challenges--I guess only one was upheld--it was a proper
decision by the courts to throw all those challenges out?
Mr. von Spakovsky. I don't have all those cases in front of
me, and I haven't----
Senator Welch. Well, here's----
Mr. von Spakovsky [continuing]. Reviewed all--I haven't----
Senator Welch. Here's what I'm getting at.
Mr. von Spakovsky [continuing]. Reviewed all the cases.
Senator Welch. Here's what I'm getting at. There's a
subtext here, and the subtext is whether there's going to be
ongoing challenges, and there's a certain person running for
President right now who's already talking about--still talking
about that as being rigged. And election integrity that you're
talking about includes getting rid of what has been a
significant protection, in Shelby County, with preclearance.
Also, my understanding--maybe, Mr. Hewitt, you can describe
this--is that since Shelby, there have been numerous
restrictive voting statutes passed in various States. Can you
just comment on that?
Mr. Hewitt. Well, sure. And I think the record's very clear
on that. We've heard testimony earlier today. There's something
just very strange, whether it's political opportunity or some
coordinated effort, that all of a sudden, around the nation, we
see so many restrictive voting laws all of a sudden.
Senator Welch. By the way, my understanding from the
Brennan Center study is that the incident rate of voter fraud
is about .0003 percent. Does that conform to what you
understand the data says?
Mr. Hewitt. It does. I described it earlier as
infinitesimally small, and you've given some metrics to that.
Senator Welch. All right. So, a lot of these voter
restriction laws sound valid but have--they sound okay,
neutral, which, of course, is what was the case with a lot of
the Jim Crow provisions that prevented so many people from
voting for so long. It appeared on its face to be neutral, like
voter ID laws. But if that is the incidence of fraud--.0003--it
seems to me that many of these laws that make it a little bit
more onerous for people to vote are laws in search of a
problem. Would you agree with that?
Mr. Hewitt. I would wholeheartedly agree.
Senator Welch. I want to talk a little bit, too, about--
this is a slightly different topic, but reenfranchisement laws.
Vermont, actually, and Maine are two States that allow felons
to vote. Many States have laws that allow a person who's
completed his or her sentence to vote. I think that's
important, because I think voting is an action, a decision, but
the process of voting is engagement, civic engagement, talking
with your neighbors, talking with your friends about your point
of view, about how you can build community through civic
action. I'll ask you, Ms. Lakin, do you have any views on the
importance of including the opportunity for people to vote
who've completed their sentences?
Ms. Lakin. Thank you for that question. We absolutely
support the restoration of rights for people who have been
convicted of felonies or other crimes. These laws, these felon
disenfranchisement laws, have been rooted in Jim Crow and
unfortunately have continuing impacts on the ability of
communities of color in this country to be able to have their
voices heard, particularly after they've completed their
sentences.
Senator Welch. Okay. Thank you very much. I yield back, Mr.
Chairman.
Chair Durbin. Thank you, Senator. Senator Cornyn.
Senator Cornyn. Would you raise your hand if you believe
that our existing voting laws are rigged to the detriment of
African Americans and persons of color? I don't see any hands.
I agree with you.
I don't know really where to start. I'm not sure what the
John Lewis Voting Rights Advancement Act is supposed to try to
solve, if you don't believe that the current system is rigged
against African Americans or persons of color. What it does
look like, to me, is an enormous power grab by the Federal
Government, to the detriment of the States like mine, like
Texas. I think one of the ways that people get sucked into this
argument is this idea that Shelby County v. Holder somehow
decimated the Voting Rights Act. We know that's false.
In fact, I voted to reauthorize the Voting Rights Act. I
believe someone mentioned it was 98-to-0 in 2006. But what we
did point out at the time was our Democratic colleagues chose
to say that basically this country was still living in the
1960s. In other words, the data that applied to the formula for
coverage for the preclearance requirement was not updated to
current events, because I think, as has been pointed out, now
we're seeing persons of color voting at levels equal to or
higher than other parts of the voting population. We should be
celebrating the success of the Voting Rights Act. It worked.
And thank goodness it did.
But in another sense, we've been fighting since the
inception of this country for what the role of the Federal
Government is. Is it a national government? Is it a Federal
Government, with States having their own sovereign rights? And
here, the Supreme Court said, there is no general right to
review and veto State laws before they actually are enacted.
That's what preclearance provided, in Shelby County. And the
Supreme Court said, there is no right to that unless it's to
remedy past discrimination. And what they pointed out is the
Voting Rights Act did work and that now, as I said, the level
of voting by minorities was at or higher than that for the
general population. I think we should celebrate the success of
the Voting Rights Act.
But I have to ask you, Mr. von Spakovsky--and forgive me if
I butcher your name. You're probably used to it by now. I know
you've studied this area for many, many years, as Ms. Riordan
has, as well. Do you trust the Biden Department of Justice to
make these decisions?
Mr. von Spakovsky. No, not at all. I mean, just to give you
one example, when Arizona decided--you know, one of the things
that I've recommended for years is that all States should put
in audit requirements. You know, that's ubiquitous in the
business world, and States ought to audit their elections after
they're over, make sure that everything was done properly, the
equipment all works, that they complied with the law. When
Arizona decided to do an audit, the Justice Department suddenly
said, oh, you can't do that. That's a violation of the Voting
Rights Act. Well, that's ridiculous. Of course it's not a
violation of the Voting Rights Act.
But, Senator, you were saying, you know, what's the purpose
of this bill? Can I give you one example of what I think the
purpose is? It makes changes to Section 2 that would make it
almost impossible for States to defend ordinary, regular
practices of voting.
And the example I would give you is that, you know, Arizona
was sued in a case that went all the way to the Supreme Court--
the Brnovich decision--in which, why were they sued? Well,
because, like the vast majority of States, they said, look, you
have to vote in the precinct you're assigned to. And if you
vote outside of that precinct, we're not going to count your
ballot. That's the rule in most States. It's been that way for
decades. And yet what the Section 2 change would make is to
say, oh, if you are a State, are sued under Section 2, you
can't defend a law, you can't claim it's not discriminatory by
showing that this is a traditional voting rule that's long
established and that has been used in the majority of States.
That will no longer be a defense.
Senator Cornyn. Thank you.
Chair Durbin. Senator Butler.
Senator Butler. Thank you, Mr. Chair. Thank you for holding
such a timely hearing. I want to thank all of the witnesses for
joining today. You know, I came to today's hearing truly with
an open mind, believing that free and fair access to voting was
in the best interest of both parties and all Americans. And I
did find one thing that I agree with Mr. von Spakovsky about.
It is not 1965, sir. It is the year of our Lord 2024, and just
because we are not being asked to count the number of jelly
beans in a jar or bubbles on a bar of soap does not mean that
States and local jurisdictions are not indeed continuing to
discriminate.
I held a hearing in Montgomery, Alabama just last week,
learning about the restrictive laws that were being considered
in the Alabama State legislature, targeting, in my opinion and
the opinion of many legal scholars in the State and those who
are being asked to serve under those laws--targeting
communities of color, Black Alabamians, people with
disabilities. And I would ask--I'd like to start my question
with you, Ms. Lakin, about communities, people who live in the
disability community. In Alabama's S.B. 1 that just passed the
House last week, there are criminal penalties being proposed,
with up to a decade in prison, for those who would assist
someone who is living in our community with disabilities, with
filling out and completing their absentee ballot.
We heard the testimony of Laurel Hattix, in Alabama, who
suffers from lupis and is unable to drive. She would be subject
to up to a decade in prison if she gave her neighbor $5 to take
her to the poll to cast her ballot. Now, we know that there are
many millions of Americans who live with disabilities, just
like Ms. Hattix. Can you talk to us about any cases that the
ACLU find themselves in litigation specific to discrimination
targeted toward people in the disability community?
Ms. Lakin. Yes, absolutely. And thank you for that
question. Unfortunately, voters with disabilities, for far too
long, have been overlooked, and there is unfortunately an
enormous cross section between voters of disabilities and
voters of color, voters with low income, and the like. And
we've seen these attacks, a similar attack as you've mentioned
in Alabama, in places like Mississippi and Georgia, and we are
engaged in litigation in both. In Mississippi, we have been so
far successful in blocking a restriction on who can provide
assistance to voters with disabilities in casting their ballot,
which I think we should all be extraordinarily concerned about.
Senator Butler. And I wonder what kind of political crusade
it might be, to advance a person living in a wheelchair to
access the ballot. Thank you so much.
Mr. Hewitt, we also learned about the story of Mayor
Patrick Braxton, who was elected the first Black mayor of the
small town of Newbern, Alabama. I think Mr. Braxton's case is
an example of the updated but undeniably discriminatory
practices in evolution of State and local jurisdictions. We
heard about Mr. Braxton, who was literally locked out of city
hall after being duly elected the mayor of Newbern, but he was
locked out by his formerly all-white city council and prevented
from taking his seat. I would say, has your organization seen
instances of this kind of blatant voter suppression, updated
and modernized voter suppression, of election result rejection,
that is happening across the country?
Mr. Hewitt. We certainly have. I think the most marked
example is not the January 6 insurrection but what happened
before then, when the Lawyers' Committee and the NAACP sought
to intervene in some 15 cases after the 2022 elections were
over, where folks were trying to use the State courts to
overturn elections. And sometimes they used extrajudicial
means, as well. And so we needed to have an answer in the
courts of law, because the court of public opinion is clear:
that the election results were over and that we needed a
peaceful transfer of power. And so we're very worried about the
same thing happening at the Federal level, at the local level,
and at the State level, once again.
Senator Butler. Thank you, Mr. Hewitt. Mr. Chair, I'm done
with my questions and yield back the time.
Senator Booker [presiding]. I'd like to recognize Senator
Blackburn for her questions. And----
Senator Blackburn. Thank you.
Senator Booker. And I also want to just take note that I
have a lot of power now, because I'm effectively----
Senator Blackburn. Yes, you do.
Senator Booker. Yes.
Senator Blackburn. And----
Senator Booker. Thank you. I'm effectively the Acting
Chair.
Senator Blackburn. Senator Booker, if you and I had all the
power we needed, we would straighten out this NCAA, NIL mess.
Senator Booker. Amen. Hallelujah.
Senator Blackburn. As well as a bunch of other things.
Welcome to everyone. Thank you for being here for the hearing.
One of the things I repeatedly say is we need to make it easier
to vote and harder to cheat. That is what Tennesseans want to
see: easier to vote, harder for people to cheat.
And Tennessee has really made some great progress when it
comes to addressing how they run elections. And so many
different organizations, secretaries of state, different ones,
have recognized Tennessee for having the most secure elections
in our country. And, Mr. von Spakovsky, I think your
organization is one of those that has recognized Tennessee.
And, you know, making it easier to vote, making certain those
votes are secure, is something that should not be controversial
at all.
Now, I think one of the things that has played a role in
Tennessee is the fact that a photo ID is required. And I have
to show a photo ID when I go to get on a plane, when I go to
the pharmacy to get a prescription, when I go to a grandchild's
school. If I'm checking in for an appointment somewhere, you
always have to show a photo ID. And that is something--it's a
basic security measure. But I know there are States like
California, Illinois, New York--and they have not implemented
that. So, Mr. von Spakovsky, I do want to come to you. Talk a
little bit about how Tennessee is ranked number one when you
look at election integrity and safe elections, and then talk
about the need for a photo ID.
Mr. von Spakovsky. Let me take the second one first.
Senator Blackburn. Sure.
Mr. von Spakovsky. Look, I just don't know why we're even
still arguing about ID requirements. Like I said, they've been
in place in many States since the 2008 election. All of the
studies show that not only did registration and turnout not go
down in those States, it increased. Georgia, one of the first
States to put it in, has had record turnout, and like I said,
that one of the reasons is--everybody keeps talking about, oh,
people can't get an ID. Every State has put in a free ID for
anyone who doesn't already have one, but Americans
overwhelmingly have IDs. So, it's just not an issue, and the
polling--look, Americans disagree, a lot of stuff, but one
thing they agree on, and this has stayed consistent over the
past decade, is it doesn't matter whether you're Black or
white, Hispanic, Asian, or whether you're a Democrat or a
Republican. Overwhelmingly, Americans say, ID is a commonsense
requirement, because they have to do it every day.
Senator Blackburn. And----
Mr. von Spakovsky. On----
Senator Blackburn [continuing]. If I can interject right
here.
Mr. von Spakovsky. Yes.
Senator Blackburn. Not only do Americans overwhelmingly
support that, then-Justice Stevens wrote, in the Crawford case,
supporting----
Mr. von Spakovsky. Right.
Senator Blackburn [continuing]. Photo ID.
Mr. von Spakovsky. Yes. He wrote the majority opinion
upholding the constitutionality of it. By the way, that was
over Indiana's voter ID law, and with the new law in place in
2008, Barack Obama won the State of Indiana, the first Democrat
to win it, I think, since the 1960's.
On integrity, in general, in Tennessee, in 2021, The
Heritage Foundation, where I work, premiered a election
integrity scorecard. We came up with almost 50 different
criteria, best-practices recommendations, on how States should
handle their elections. And it covers everything from making
sure you have accurate voter registration lists to making sure
you have full transparency, so that observers of all the
parties can watch what's going on. And then we rated each State
according to their rules and regulations in place, and we
continually update it. I think Tennessee now is at the top of
our rankings, because they've made a whole series of changes to
improve the security of the election process.
Senator Blackburn. Excellent. Thank you so much. Thank you,
Mr. Chairman.
Senator Booker. You're very welcome. And just because of
the power of the Chair, I'd like to first, before I go to the
next Senator, recognize the members of Delta Sigma Theta that
are in the audience, a service organization. And I'd also just
like to note for the record, so we have this in writing, that I
am in a position higher than Tom Cotton, physically, at least--
and I think that's very important to note. I would now like to
go to the next esteemed Senator, handsome and brilliant. I
recognize Senator Cory Booker.
[Laughter.]
Senator Booker. I've really appreciated the conversation
from the panel, and more than you know. As I travel around the
globe and look at developing nations and developing
democracies--I've studied the work of Larry Diamond, who works
at the conservative Hoover Institution at Stanford--I think
that we have this clutch-our-pearls kind of attitude that
people in power don't try to effect rules that benefit their
power. That's the reality. And the brilliance of our founders
was to try to design a government model where there would be
checks and balances on that power. It states explicitly in the
Constitution about our authority over Federal election laws.
And that's why I'm sort of stunned here about all this
conversation that there are not attempts in and around our
country of people trying to rig the rules or benefit them. And
this isn't a partisan issue. I look at gerrymandering in
America, and it is ridiculous. Both parties do it. They try to
design maps that I think subvert the ideals of our democracy,
which is that voters should choose their representatives, not
their representatives choose their voters.
I was very frustrated that, in the Congress before last, we
tried to pass a bill that would've created far more drawing of
electoral lines, but it was blocked by House Republicans. It's
not as partisan as people think, because when I was coming up
in Newark, New Jersey, we had a very powerful political machine
there. I believe they were doing things to subvert election
fairness, and then Republican Chris Christie, who was the U.S.
attorney at the time, stepped in to try to ensure fairness. So,
let's be clear. It happens. We know that there are people
trying to game the system in ways that benefit their dominance
in the political system. It is the natural inclinations that
our founders talked about.
The Federalist Papers have extraordinary expositions on how
power can corrupt, and we are trying to set fair laws to stop
it. Gerrymandering is an example. Campaign finance rules--to
me, it's outrageous to me. Even the Supreme Court said the fact
that dark money could be drowning our politics, like it is
today--they called for a disclosure of that. We've tried, time
and time again, Democrats, to pass the DISCLOSE Act. No
American really wants dark-money billionaires, potentially
having foreign influence, to try to influence our elections.
And so I'm not ascribing these issues toward racism. I'm
ascribing them toward people that are trying to game the
system. When the North Carolina--we already heard the quotes
about designing something with surgical-like precision, to
racially affect the election. If you look at the actual emails
that they pointed to, of the legislators themselves, they were
trying to glean electoral advantage. And their thinking was
that Black people were going to vote for Democrats, so let's
design a system to stop Black people from voting.
And so that's the frustration. We're acting here like these
things don't go on, like there aren't people always trying to
game it, that are having real effects. One of the most
frustrating effects, for me, is just voting wait times. I've
seen people designing it so college campuses--it's harder to
vote, there's less voting machines, and there are lines I've
seen that are outrageous, trying to discourage kids from
waiting on line. Well, the same thing actually happens in
African-American communities. In Georgia, the data--and I'll
enter the article for the record, without objection--no
objection being heard--demonstrate the significantly longer
wait that African American neighborhoods have than white
neighborhoods.
[Additional material submitted for the record follows.]
Senator Booker. And so I'm a little frustrated, here, that
we who are guardians of our democracy not trying to get
political advantage aren't trying to find ways to make the
system more balanced and fair, because the system will be
abused if we don't. I heard one of our witnesses talking about
there being no--the voter turnout for African Americans. Hey,
I've been psyched about it, but when you look at the growing
racial disparities in voter turnout--the Brennan Center has a
great point to this--these gaps are growing, because of a lot
of this gamesmanship.
And so in the remaining minute that I have, I just want to
ask this, about this issue of the racial gap in voter turnouts.
And, Ms. Camarillo, can you talk about the barriers that voters
of color are facing that could drive the kind of growing
disparities here and what we can do in a way to make the field
more fair?
Ms. Camarillo. Thank you. It depends on the States, but one
of the things that they're concerned about is, A, their vote's
not going to be counted, that the laws also are not allowing
them to participate. If they're low income and they live in
neighborhoods where the voting polls have been either moved or
they're too far away, it's very hard. If they need to get their
voter ID, sometimes they don't have the resources, or places
are closed. And, frankly, in Texas, the attorney general at the
time was Abbott--spent a million dollars to demonstrate that
there was fraud, and he found nothing.
So, for us at Southwest Voter, I have to say that, yes,
there are more Latinos and more Blacks and Asian communities
and voters that are voting, but we're not taking into account
the organization and the organizing that is happening by the
communities themselves, in spite of the violations and the
efforts to block them from voting. In the redistricting case in
Texas, we basically have lost five congressional seats that
should have been Latino-majority seats, two that were weakened,
the 15th and 23rd, and three that we should've gained. And so
we see this over and over. And so in that case, I was asked,
when I was deposed in our Senate Bill 1 litigation, isn't it
true that you're going to be working in South Texas anyways,
which is District 15? And I said, that's not the point. If
voters think that their vote is not valued when it's cast, why
should they turn out to vote?
Senator Booker. Thank you. I'm over my time. I want to
recognize Senator Thom Tillis next, and there's going to be a
peaceful transfer of power now, something very important to the
traditions of our Government. I hand over chairmanship to the
far more senior Senator, more experienced, wiser, with more
hair, Senator Whitehouse.
Senator Whitehouse [presiding]. I'm flattered.
Senator Tillis. I think I got recognized. I----
Senator Whitehouse. Yes, sir, you did.
Senator Tillis. Actually, I was just walking in, before I
got seated, and you said you were going to introduce a dashing,
handsome person. I said, man, I'm not even at my seat yet. So,
thank you all for being here.
I've got a little bit of history here, because my signature
as Speaker of the House is on a voter ID bill from many years
ago. I remember the negotiation vividly, because I said that,
on the one hand, I think it's reasonable to require a voter--an
identification. But then I was subject to loud criticism from
the right, for also suggesting that HAVA documents and other
documents could be used if, in fact, you didn't have a driver's
license. I was criticized from the left, for saying--why do you
think you need an ID? Some people just don't have an ID.
I said, well, how about if we provide an ID for free?
Because it seems to me having a valid Government-issued ID is
liberating. It's how I get on an airplane every week. It's how
I purchase prescriptions. It's how I fully participate in
society. And so I don't really understand it, if the laws are
one that tries to do everything that you can to provide a
person with good access to an identification.
I had to cast my vote early. I like voting early. I didn't
have any problem with remembering to bring my ID with me, but I
know if I hadn't, then I could've had other forms of ID that
could've possibly given me access to the polls. So, I really
just don't understand the down side for overcoming the cost,
the accessibility, the number of other things--not to mention,
I don't understand if you really don't want a Government ID, if
you don't want a Government-issued ID, if you don't want to
have access and fully participate in all that requires an ID,
up to and including getting a hotel room, then why not vote by
absentee ballot? If it's mailed to your home, you can cast a
ballot. You don't have to provide an ID. Did that. Didn't need
an ID. Last time. I voted early. This time, I voted early in
person.
So, I don't know what we're missing here and why we're
making this such a polarizing discussion. I didn't have anyone
tell me, with any statistical validity, that the law that I was
passing--and the HAVA document provisions and everything else--
were really being that difficult. And, incidentally, I did
hear--I'm going to call you Hans, because I don't want to
butcher your last name. I did hear Hans's opening statement,
and I tend to--I'm a data-driven person. So, look, if there are
injustices, I don't want that. I want to fix it.
And, by the way, I know Senator Booker has left. An
interesting thing happens when elections occur. When I was in
the minority for 4 years, I signed onto and tried to sponsor
independent redistricting. I tried to go to Speaker Hackney,
who is a Democrat and the Democrat leader in the Senate, and
say, we ought to try and get this done. They were against it.
Now, fast-forward 3 years later, I'm Speaker of the House. You
know what I did? I endorsed independent redistricting. You know
what Hackney did? He finally supported it, but guess what? You
know what the Republicans did? They didn't.
So, what people need to do is take the opportunity when
they're in the leadership to look their party in the eye and
say, we need to end this cycle. There is a way to do it fairly,
and there is a way to do it with political considerations on
the end. But in the same way that voter ID laws have been
politicized--and I'm not trying--what I want to do is maximize
access to the ballot. If you can tell me how I can tweak a
voter ID law and still keep what I think is a rational
expectation at the time somebody's going to vote, the same
expectation that's required at the time I'm going to go through
security at an airport or to check into a hotel or get my
prescriptions, count me in. I'll fix it. But I think that some
of these discussions are politically motivated and
unproductive.
Hans, I know technology well. I can still download the
voter files--and have, fairly recently--in North Carolina, put
it in an Excel spreadsheet, an Access database, go through and
find people that look roughly my age or the age of some other
ethnicity based on a name association, and I can find a lot of
people who haven't voted for years. Now, if I'm a smart person
and I know that there are certain districts that are going to
win by a couple of hundred votes--there are congressional races
that are won by a couple hundred votes--I can guarantee you I
can find a couple of hundred people, spread out over several
precincts, who have not voted, and if I chose to, going in with
my name or going in with their name, vote, and without a voter
ID requirement, I could literally--I wouldn't, just so--my comm
staff is watching. I wouldn't do this, but a bad actor could
literally reverse the outcome of an election by abusing the
fact that you don't have to present an ID. Do you agree or
disagree with that?
Mr. von Spakovsky. Well, I agree. And, in fact, I wrote a
case study about a State grand jury report that was published
in New York, conducted by Elizabeth Holtzman, former Democratic
Congresswoman who then went back and became a DA, and she
released a report, entire grand jury investigation. That's
exactly the way she found that, for many years----
Senator Tillis. Thank you.
Mr. von Spakovsky [continuing]. Elections----
Senator Tillis. I'm cognizant of the time and the fact the
vote's going on. Folks, people are interfering in our
elections. Foreign actors are smart enough to take what I can
do on an Excel spreadsheet and a laptop and do it at scale.
Let's try and figure out how we get past the political divide,
here, and recognize that this is a legitimate discussion to
have about integrity of elections--so, not having a political
hearing; have one with results. And, by the way, count me in if
everybody, when they're in a position to make a change and they
have the gavels--let's also work on redistricting. Thank you.
Chair Durbin [presiding]. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. I thank everyone
for testifying on this really important issue, because
practically nothing, aside from a woman's right to control her
own body, could be as important as voting. And we know that
there are all kinds of efforts, after Shelby County--I think
some 13 States immediately enacted what I would deem to be
voter suppression laws, and these take all kinds of forms. And,
in fact, it's to make voting harder: anything that makes voting
harder, such as changing the times that people can vote or
changing where people can vote or restricting the kind of
identification that can be used to go and vote. These are all,
I think, efforts--these are all efforts to suppress people's
votes.
So, I have a couple of questions relating to what will be
happening probably in this election cycle. I did want to ask
one of our testifiers a question relating to the robocalls. So,
this is for Mr. Hewitt. Last year, your organization brought to
light a racially targeted voter suppression operation in the
form of a robocall scheme. Probably these kinds of schemes are
going to be utilized in this upcoming election season. I think
they're pretty easy to do and maybe not that hard to stop. Can
you, Mr. Hewitt, tell us a little bit more about the case that
you brought? And what kind of robocall was it, and who did it
target?
Mr. Hewitt. Thank you, Senator Hirono. During the 2020
election cycle, we received, through the Election Protection
Coalition Hotline, 866-OUR-VOTE, calls from voters indicating
that they were receiving robocalls in which there was
apparently a voice actor, we later learned, who was hired to
say something to the effect of, if you vote by mail, the
information will be used against you to collect outstanding
debt, to execute outstanding police warrants, and to force
mandatory vaccinations. The kicker line was, don't give your
information to the man. We traced this to a gentleman named
Jacob Wohl and his compatriots who, we learned, on the cheap
were able to send 85,000 such robocalls, and they tried to
target Black voters.
We filed suit under Section 11(b) of the Voting Rights Act.
These individuals were later prosecuted successfully and
convicted, and we won on summary judgment, and we're going
after damages from these folks, as well. We represented the
National Coalition on Black Civic Participation, which had to
divert resources to address these issues and reinform these
85,000 voters about what the law really provided. That was done
on the cheap. That was in the 2020 cycle.
Today, the same robocall could be done in an AI-assisted
way, and it could clone the voices of people like Barack Obama
or Morgan Freeman or Oprah Winfrey or anyone who's of
notoriety, and people can be fooled. And so we need protection
from this. We won our case because that was found to be voter
intimidation, but not all mis-and dis-info that's designed to
chill the vote is going to rise to that level. So, we need more
protections.
Senator Hirono. Aren't there bills that have already been
introduced that will prevent these kinds of robocalls from
occurring?
Mr. Hewitt. There certainly are some bills introduced which
we could certainly talk about and figure how we can all rally
around and support. There's also action by the executive
branch, by the FCC, to ban use of robocalls at least in federal
elections--AI-assisted robocalls, that is. And so when we think
about how we make it easier to vote, and how do we actually
make it harder to stop people from voting, we have to think
comprehensively in this way.
Senator Hirono. Considering that the Voting Rights Act used
to be reauthorized in a bipartisan way for decades, and
suddenly the Supreme Court decided to become very activist, and
the Shelby County pretty much decimated the Voting Rights Act,
and then they went on in another case to make it even harder to
go after Section 2 violations--so, I do have a bill that some
of you, your organizations, support: the Time Off to Vote Act.
This is a bill that would require employers to provide 2 hours
of paid time to vote. So, for Mr. Hewitt and Ms. Lakin, your
organizations support this bill. Can you express or explain a
little bit why you think that this is important, even in places
where there is voting by mail?
Ms. Lakin. Yes, absolutely. We definitely support this
bill. There are far too many people in this country who are
unable to take time off of work to be able to access mail
balloting, which isn't available in the same way across the
country. And so being able to, first of all, recognize the
importance of voting, recognize the importance of employers to
provide that opportunity for voters is extraordinarily
important and increases access in a way that we absolutely
support.
Senator Hirono. Mr. Hewitt, would----
Mr. Hewitt. We support----
Senator Hirono [continuing]. You like to add----
Mr. Hewitt. Thank you, Senator. We support that bill, as
well. And as I talk to people in corporate America, we ask them
to do the same, whether they're legally required to or not, and
also lift up what they're doing, because their reputational
capital matters. We want to mainstream not just the act of
voting but also the importance of opening up pathways to be
able to exercise that right.
Senator Hirono. This bill already has dozens of sponsors.
You know, can one of you submit the list of all the kinds of
voter suppression laws that have been enacted across our
country? My time is up, but maybe one of you can supply that to
us, because voter IDs is just one of many, many ways that--
dozens of ways that voter suppression is taking place in our
country.
Chair Durbin. Thanks, Senator Hirono.
Senator Hirono. Thank you.
Chair Durbin. Senator Whitehouse.
Senator Whitehouse. Thanks very much, Chairman, and thanks
to all of the witnesses for being here. I'd like to take my
time, as we close out this hearing, to interrelate the problem
that we're talking about today with the related problem of
right-wing capture of the U.S. Supreme Court, an enterprise
which the Center for Media and Democracy says is going to cost
$570 million. Pretty darn big number to spend if you don't
expect results. So, sure enough, it seems that they got results
for their expenditure, and I contend that one of those results
was the Shelby County decision. And I'd like to focus a little
bit on the fact-finding piece of that decision.
I think we all know--anybody who's a lawyer in the room
knows that, as a general proposition, in the American system of
justice, the facts get found at the district court level.
That's where the adversarial process can be brought to bear on
potentially false facts. That's where the parties who are
charged in our system to bring in facts and present to the
judge have the opportunity to do that. That's where appellate
scrutiny of errant fact-finding can take place. And the result
of all of that is quite a robust and honest fact-finding
process in the United States system of justice.
Those safeguards fall completely apart when, at the very
end of the day, after the arguments, after the briefs, at the
very highest court level, in the Supreme Court, the Justices in
the majority invent new facts. Just as a procedural matter,
they're not supposed to do that, and it's particularly
frustrating and concerning when the facts they find are false
ones. In Shelby County, the majority opinion determined that
things had changed dramatically on racial gerrymandering, voter
suppression, and other issues in the preclearance States--the
ones that were under the rule that they had to submit new rules
for clearance to a court or to the Department of Justice before
they could proceed--and made the decision that this part of the
Voting Rights Act was no longer justified by current needs.
And that question of how much things had changed and what
the current needs were had no foundation in the court or the
legislative record. There were lower court determinations that
pointed out significant voter suppression efforts in Shelby
County itself and in Alabama more generally. What the court did
was to take that statute and look at it as a facial challenge
to the statute which got it by having to reckon with the
judicial record that had been established of persistent voter
suppression efforts. So, they just shot by the record that
existed.
That was supplemented by a Congressional Record from the
reauthorization of the Voting Rights Act, which was very robust
and represented hours of hearings, enormous amounts of
documentary work, testimony from experts and advocates and
people in the preclearance States. And the Congressional Record
was very clear that reauthorization was justified; that some of
the techniques of voter suppression had changed, but even
though some of the techniques had changed, new techniques had
emerged, and therefore the preclearance process should be
renewed. And that was accomplished on a bipartisan basis, with
a massive bipartisan vote in both houses.
And what the court did was simply pay no attention to the
Congressional Record, to basically write it off. Well, folks,
we're an independent branch of the Government. We've got every
bit the right of the Supreme Court to decide what the facts are
in a matter. We're actually the place where that decision
better belongs, because if we get it wrong, voters can have a
say about that, whereas if the Supreme Court gets it wrong,
we're stuck with zombie decisions based on false facts that
just persist and persist and persist unless and until the
Supreme Court is willing to clean up its own errors. But it's
hardly likely that they will persist in cleaning up their own
errors, when they went ahead and made the errors in the first
place.
So, there's a test of whether or not this was accurate, and
the test was real life. And in real life, as soon as the
preclearance was lifted, there came an avalanche from
preclearance State after preclearance State: over 100 pieces of
legislation, sometimes targeting minority voters with what one
court called surgical precision--surgical precision--to affect
the election outcomes to the benefit of Republicans in those
States. That is the background that bothers me. My time is
expired on this, but I did want to make that point, and I thank
the Chairman for holding the hearing.
Chair Durbin. Thanks, Senator Whitehouse. And Senator
Ossoff.
Senator Ossoff. Thank you, Mr. Chairman. Thank you to our
witnesses. You know, Mr. Hewitt, it is extraordinary, the
lengths to which Republican State legislators in Georgia have
gone to try to make it harder for some folks to vote. They
passed legislation that makes it harder to request an absentee
ballot; that shrinks the period of runoff elections, to drive
up lines at polling places during early voting in runoff
elections; that allows anybody to file limitless frivolous
challenges to the eligibility to vote of their own neighbors.
So, 6 activists, on the basis of this, in 2022 challenged the
registrations of 89,000 Georgia voters. All of this intended to
make it harder for some folks to vote and therefore to gain an
edge in elections. It's about partisan political power.
I am introducing today legislation called the Right to Vote
Act, and this bill would empower voters to challenge in court
any action taken by a State or local government that makes it
harder to vote and force that State or that locality to
demonstrate that the restrictions serve some governmental
purpose and are the least restrictive means of doing so. Mr.
Hewitt, why is it essential that voters be able to challenge
voter suppression policies in court?
Mr. Hewitt. It's essential because otherwise they have
rights with no remedy, and that's exactly what some people are
after. You know, we had to fight tooth and nail, Senator
Ossoff, just to get a preliminary injunction on a couple of
those provisions that you mentioned. On the line-warming
provision outside of 100 feet, 150 feet of a polling place and
also the provision that trick voters, where you have to have
your date of birth on an absentee ballot--and many people just
write the date that they're submitting the ballot, by instinct,
and so it was viewed as immaterial by the court. But there's so
many other provisions that have not been addressed.
But your legislation is so critical, we believe, and we're
glad to see you introduce it, because the notion of a positive,
affirmative right is what we should have in this country. We
have the constitutional provision that prohibits discrimination
in voting and statutory provisions which we seek to strengthen,
but a positive, affirmative right is what this country should
be all about. And so we applaud your introduction and look
forward to supporting your legislation.
Senator Ossoff. Well, thank you for supporting the bill.
And the basic idea is that if States or local governments are
going to make it harder for eligible voters to vote, then they
should have to be able to prove in court why it's necessary and
that it's the least restrictive means of achieving whatever
their objective is. And I just want to reflect, in closing,
here, on the context for what's happened in Georgia.
Mr. Hewitt. Well----
Senator Ossoff. Let me just say, Mr. Hewitt--we had just
concluded a Presidential election and two of the most
consequential Senate runoffs in U.S. history. Democrats had
prevailed in those races. The former President, as you'll
recall, had put immense pressure on the Governor of Georgia,
the Secretary of State of Georgia, to commit what may have been
felony election crimes and overturn the results. You'll recall
the former President saying, just find me 12 or 13,000 votes,
to try to overturn the outcome of the election. No evidence
whatsoever supporting the former President's conspiracy theory
has been presented.
There was just a lengthy piece written in the AJC by a
gentleman named Ken Block, who was hired by the Trump campaign
to try to find this alleged fraud. He found none. Nevertheless,
the State legislature advanced this legislation, passed a law
to drive up the time it takes to wait in line to vote during
runoffs, make it so no one can bring you so much as a drink of
water while you're standing in line, allow these unlimited
challenges--I mean, the fact that people are spending their
time filing frivolous challenges to their fellow Americans'
eligibility to vote should outrage us. And we need to
establish, as a matter of Federal law, that voters have a say
in court, where their rights are infringed without some
specific reason for the restriction and a demonstration that
it's the least restrictive means of doing so. I thank you all
for your testimony, your expertise, and your advocacy.
Chair Durbin. Thank you, Senator Ossoff. There's one more
Senator on the way, so I'll just wait and kind of pause for a
moment, here. But let me say a word to my colleague from
Georgia. I think you've really put your finger on the major
issue here. It is time for us to establish the right to vote in
this country, and those who would take away that right have to
pay a price and answer to the judgment not only of history but
of their peers at this time in history. I think you're moving
in the right direction, and I want to support your effort in
that regard.
I think it's also important to note that the excuse--and I
call it an excuse--given for a lot of this misconduct is voter
integrity. And when the facts come through and it's .003--maybe
I missed a zero there--003, the incidence of fraud and abuse,
you have to ask yourself, what are you sacrificing in the
process, to have this kind of scrutiny and this kind of
obstacle in the path of the voter? They're trying to exercise
their right. It's a rare, rare occurrence. We want to eradicate
it if we can, but to do it at the expense of people's right to
vote is just fundamentally wrong, as far as I'm concerned. So,
thank you for raising that issue. Appreciate it very much.
We're going to wait here for a moment.
Senator Ossoff. I would note, Mr. Chairman, since we're
waiting for a colleague to arrive, something else that happened
during that infamous period where the former President was hell
bent on overturning the result in Georgia, based upon baseless
conspiracy theories. The U.S. Attorney for the Northern
District of Georgia resigned because he was coming under
pressure from the White House or the Trump campaign to
participate in this effort to overturn the election result. And
let me just remind everyone, again, as we wait for our
colleague to arrive: zero evidence. Zero evidence. The very man
hired by the Trump campaign to try to find this alleged fraud,
to substantiate this conspiracy theory, just wrote a long
article about how he found nothing. Nothing. Thank you, Mr.
Chairman.
Chair Durbin. Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. Once again, we're at
a hearing for an incredibly partisan piece of legislation, just
after last week, where all of us witnessed the most partisan,
angry, bitter, divisive State of the Union speech in the
history of our country. So, I guess we shouldn't be surprised
that Democrats, once again, seek to divide us.
Contrary to the prevailing Democrat narrative, happily
repeated by the corporate media, that Republican-sponsored
legislation would herald a return to Jim Crow--I would note, by
the way, Jim Crow laws were drafted by Democrats to ensure the
voters could only elect Democrats; that's what Jim Crow was
designed to do--the reality is a majority of Americans support
legislation that protects election integrity, that protects the
right to vote. And yet today Democrats are not interested in
election integrity. They are interested in power, power by any
means necessary. And so the Democrats' focus is on controlling
elections and controlling the outcome.
There's an irony. Today Democrats love to beat their chest
and say they are defending democracy, and yet all across the
country we see Democrat courts and Democrat officials who have
been trying to throw Donald Trump off the ballot, because
nothing protects democracy like preventing the voters from
voting for your opponent. When the Colorado Supreme Court
decision came down, stripping the voters of Colorado of the
right to vote for President Trump, I said that day the decision
would be reversed by the U.S. Supreme Court, and I said it
would likely be reversed unanimously. It was reversed
unanimously. I invite anyone in this room to point to even one
prominent Democrat who criticized that baldly anti-democratic
power grab in not only Colorado but Maine and Illinois. Stood
up and said, we hate democracy, and we will not let the voters
vote for our opponent.
In the Supreme Court, I led a brief on behalf of 179
Members of Congress, arguing that Colorado's actions striking
President Trump's name from the ballot were unconstitutional
and that they endanger democracy. You know who didn't join that
brief? Even a single Democrat. Because when it comes to
democracy, today's Washington Democrats have zero interest in
the voters actually deciding. What they're interested in is
anything that maintains Democrat power. And what they oppose is
anything that creates even a tiny window that the voters might
choose to vote for somebody else.
Today, Democrats are pushing a bill that has many terrible
provisions, but let's cut to the heart of it. This bill would
institute two types of preclearance: preclearance for everyone
Democrats don't like and preclearance for everything they don't
like. This is about power. This is not about election
integrity. This is the opposite of election integrity.
Here's how it would work. Every State and local government
across the country would have to submit certain voter changes,
things like voter ID requirements or prohibitions on ballot
harvesting, to radical partisan activists at the Biden
Department of Justice like Kristen Clarke, who has not been shy
about her hatred of voter integrity laws. And, by the way,
spoiler alert, the Biden Justice Department would refuse to
preclear all of them. Anything enhancing election integrity,
the Biden Department of Justice is opposed to. Similarly, State
and local governments that the Democrats don't like would have
to submit any voting changes to the Biden Department of
Justice, which, sadly, has been the most partisan and political
Department of Justice in our Nation's history.
Mr. von Spakovsky, welcome back to the Committee. Although
Democrats are holding this hearing under the guise of caring
about voting rights, it's ironic, because they're the party
that just attempted to disenfranchise millions of Americans. I
want to talk to you about that irony, Mr. von Spakovsky. How
many Colorado voters would've been disenfranchised if the
Democrat Supreme Court had affirmed--if the U.S. Supreme Court
had affirmed the Democrat Colorado Supreme Court?
Mr. von Spakovsky. Four and a half million registered
voters.
Senator Cruz. Does disenfranchising four and a half million
voters--is that enhancing democracy?
Mr. von Spakovsky. No.
Senator Cruz. Are you aware of any major Democrats who
spoke out in support of democracy and against disenfranchising
millions of people in Colorado?
Mr. von Spakovsky. I am not.
Senator Cruz. Are you aware of any major Democrats who
spoke out against disenfranchising voters in the State of
Maine?
Mr. von Spakovsky. I am not, and that would've been a
million registered voters.
Senator Cruz. Are you aware of any major Democrats who
spoke out against disenfranchising voters in the State of
Illinois, which is the home State of the Chairman of this
Committee?
Mr. von Spakovsky. I am not.
Senator Cruz. And that was one lone district judge who
said, nope, the people of Illinois don't get to vote for the
Republican nominee for President. Mr. von Spakovsky, you wrote
a November 2023 report with two important findings, utilizing
2016 and 2020 Census Bureau data. What were your conclusions
regarding the nine formerly covered states under Section 5?
Mr. von Spakovsky. That they had registration rates and
turnout rates close to the national registration or turnout
rate or above it, and, in fact----
Senator Cruz. And how do they compare to New York and
California?
Mr. von Spakovsky. Yes. Well, they all did better than New
York and California, including the turnout of--registration,
turnout not just of all voters but registration, turnout of
Black voters.
Senator Cruz. Thank you.
Chair Durbin. The Fourteenth Amendment, Section 3, makes
reference to a set of facts which clearly applied at the time,
in the 19th century, and most people assumed would never, ever
occur again in history. And that was the existence of an
insurrection in this country. And Section 3 says that no person
shall be a Senator or Representative in Congress or elector of
a President, Vice President, or hold any office, civil or
military, under the United States or any State, who shall have
engaged in insurrection or rebellion against the same. To my
knowledge, that had not been tested before. It reached the
point where we relied on the Supreme Court to rule on how we
would establish that an insurrection occurred and a person was
engaged in.
And the reason, of course, it was raised is because of
January 6, 2021. I remember that day. I think all America
remembers that day. What some called tourism turned out to be
an insurrection, and we were rousted from the Senate Chamber
and sent to a safe place until the Capitol Building of the
United States could be secured again. It was clearly designed
by President Trump to send his supporters down to stop the
process of counting the electoral votes. He disputed the
outcome of the election. That was his recourse.
Let me tell you what one Senator said about it. He said
afterwards, ``He didn't get away with anything yet. We have a
criminal justice system in this country. We have civil
litigation. And former Presidents are not immune from being
accountable by either one.'' That quote comes from Senate
Minority Leader Mitch McConnell, who said that about the
insurrection that occurred on January 6.
What the Supreme Court was asked to do was decide, in the
context of 2024, where are we in terms of that language, the
rather clear language in the Fourteenth Amendment, Section 3.
The Court rejected the plaintiff's claims and found that
``because the Constitution makes Congress, rather than the
States, responsible for enforcing Section 3 of the Fourteenth
Amendment against Federal office-holders and candidates,
individual States cannot bar former President Trump from
appearing on a ballot for the 2024 election.'' They didn't say
that the President was not engaged in an insurrection, but they
said that isn't to be decided by individual States. It's to be
decided by Congress.
I don't think there was any great conspiracy here. There
was a set of facts no one anticipated when this was originally
written back in the 19th century. So, that is a fact, and what
I've read is directly from the Supreme Court decision. I
appreciate all----
Senator Cruz. Mr. Chairman? If I could ask a question to
the Chairman, is the Chairman saying that you disagree with the
unanimous decision of the Supreme Court, and do----
Chair Durbin. No.
Senator Cruz [continuing]. You believe the voters should be
prevented from voting for President Trump, if they so desire?
Chairm Durbin. No. I didn't say that. I----
Senator Cruz. That's why I'm asking.
Chair Durbin. I stand by the decision of the Court.
Senator Cruz. Okay. Good.
Chair Durbin. I appreciate all the witnesses appearing
before the Committee today. John Lewis, who was the inspiration
for this hearing, famously described the right to vote as
``precious, almost sacred.'' I believe we have a sacred duty as
Members of Congress to protect this right. Throughout his life,
John Lewis fought for legislation to combat voter suppression,
and it is a great tragedy he passed away before Congress acted
to restore the Voting Rights Act. Our country owes an
outstanding debt to John Lewis and countless others who
tirelessly fought to ensure equitable access to the ballot. I
hope this Congress will honor their legacy by finally enacting
this act into law. This hearing will remain open for a week,
and questions may be submitted to the Members of the panel who
were kind enough to be here today.
Chair Durbin. With that, the hearing stands adjourned.
[Whereupon, at 12:35 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Submitted by Senator Durbin:
NARF--Native American Rights Fund................................ 133
Southern Poverty Law Center Shelby Report........................ 145
SPLC-Southern Poverty Law Center--Protecting Voting Rights in
America....................................................... 177
American Civil Liberties Union (ACLU)
https://www.govinfo.gov/content/pkg/CHRG-118shrg58371/pdf/CHRG-
118shrg
58371-add1.pdf
Leadership Conference on Civil and Human Rights
https://www.govinfo.gov/content/pkg/CHRG-118shrg58371/pdf/CHRG-
118shrg
58371-add2.pdf
NAACP Legal Defense and Educational Fund, Inc.
https://www.govinfo.gov/content/pkg/CHRG-118shrg58371/pdf/CHRG-
118shrg
58371-add3.pdf
Submitted by Senator Booker:
Voting Rights Hearing--Brennan Center--Growing Racial Disparities
in Voter Turnout.............................................. 220
Why Do Nonwhite Georgia Voters Have To Wait In Line For Hours?... 246
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