[Congressional Record Volume 162, Number 56 (Wednesday, April 13, 2016)]
[Extensions of Remarks]
[Pages E447-E449]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 STATEMENTS GIVEN AT ``RESTORE THE VOTE: A CONGRESSIONAL FORUM ON THE 
              CURRENT STATE OF VOTING RIGHTS IN AMERICA''

                                 ______
                                 

                          HON. TERRI A. SEWELL

                               of alabama

                    in the house of representatives

                       Wednesday, April 13, 2016

  Ms. SEWELL of Alabama. Mr. Speaker, the statements found below were 
given during an event titled--Restore the Vote: A Congressional Forum 
on the Current State of Voting Rights in America. The forum was held on 
Saturday, March 5, 2016 in the Birmingham City Council Chambers located 
at Birmingham City Hall. The forum provided elected officials, 
community leaders, scholars, and the general public the opportunity to 
examine modern-day voting rights as well as discuss the current 
challenges and barriers facing equal access to the ballot box. 
Discussions also focused on how community leaders and average American 
citizens can galvanize support around ensuring every American is able 
to exercise their constitutionally protected right to vote.
  The forum was hosted by Congresswoman Terri A. Sewell, and included 
special guests Rep. John Lewis, Rep. Jim Clyburn, Rep. G.K. 
Butterfield, Rep. Sheila Jackson Lee, Rep. Barbara Lee, Rep. Hank 
Johnson, Rep. Karen Bass, Rep. Marc Veasey, and Rep. Stacey Plaskett, 
Birmingham Mayor William Bell, and Birmingham City Council President 
Johnathan Austin. The panelists included Jefferson County Clerk of 
Court Anne Marie Adams, President of Southern Poverty Law Center 
Richard Cohen, Metro Birmingham Branch NAACP President Hezekiah Jackson 
the IV, Calera, Alabama City Councilman Ernest Montgomery, and 
President of the Joint Center for Political and Economic Studies 
Spencer Overton.


 statement of Councilman Ernest Montgomery, The City of Calera's 2008 
                           Municipal Election

       My name is Ernest Montgomery and I am a City Councilman, 
     representing District 2 in the City of Calera Alabama. Our 
     City is a beautiful small city, strategically located in the 
     south-central part of Shelby County. We had a population of 
     11,800 residents according to the 2010 census, but I believe 
     thousands more today. Between the 2000 to 2010 census, our 
     city was title as being the fastest growing city (percentage 
     wise), in the State of Alabama.
       This rapid growth is what led our City Leaders to have our 
     district lines redrawn. The results of these new lines 
     eliminated the sole minority-majority district in the city. 
     Changing it's minority voting percentages from about 69 
     percent down to about 28 percent.
       After submitting these changes to the Department Of Justice 
     for pre-clearance, they were rejected because the DOJ said it 
     clearly disadvantage the African American Community. The City 
     was in an election year and was order not to hold it election 
     with these new changes by the DOJ. Yet the City Mayor chose 
     to continue on with the municipal election.
       In this election I lost my seat in my district, but learned 
     two days later that the Department of Justice had filed a 
     lawsuit against the city. Outrage was mounting because the 
     African American Community said they had no chance of 
     electing a candidate of their choice.
       Changes were made to the city's plans after meeting in 
     Washington, DC with the DOJ and pre-clearance were granted. A 
     new municipal election was held in 2009, resulting in me 
     winning my seat again. I know without a doubt this would not 
     have happened if the VRA, (especially the pre-clearance 
     section), didn't protect the most vulnerable.


 Statement of J. Richard Cohen, President, Southern Poverty Law Center

       Good afternoon. The fact that we must be here talking about 
     voting rights 51 years after Congress passed the Voting 
     Rights Act is a national disgrace, one that dishonors the 
     many who fought for the precious right to vote and the 
     millions who were disenfranchised for decades in our country 
     because of their race. It particularly dishonors the brave 
     Americans who sacrificed their lives so that everyone, 
     regardless of race, creed or color, could have a voice in our 
     democracy--people like Jimmie Lee Jackson, Viola Liuzzo, 
     James Chaney, Andrew Goodman and Michael Schwerner.
       A year ago at this time, we were celebrating the 50th 
     anniversary of Bloody Sunday. And, of course, we will observe 
     the 51 anniversary in two days. We all know that the events 
     of that fateful day and the subsequent completion of the 
     march to Montgomery led to passage of the Voting Rights Act 
     of 1965, perhaps the crowning achievement of the civil rights 
     movement--one that drove the final nail into the coffin of 
     Jim Crow.
       Forty-one years later, in 2006, when it reauthorized 
     Section 4, Congress remarked on the tremendous progress that 
     had been made under the Act to address first-generation 
     barriers to voting--like literacy tests and poll taxes--that 
     kept many minority voters from casting ballots.
       At the same time, Congress noted that vestiges of 
     discrimination continued in the states covered by the 
     original Act in the form of second-generation barriers that 
     diluted the voting strength of African Americans and other 
     minorities. These included such practices as gerrymandering, 
     at-large voting and the use of multimember legislative 
     districts.
       Today, 10 years later, we still have those second-
     generation barriers. For example, the Alabama legislature in 
     2012 passed a redistricting plan that packed black voters 
     into legislative districts, thereby reducing their

[[Page E448]]

     influence in other districts. In 2015, the United States 
     Supreme Court ruled that there was strong evidence the 
     lawmakers had engaged in racial gerrymandering and that the 
     state had used the wrong legal standard to draw the 
     districts. The case is pending before the district court.
       But second-generation barriers are not the only problem 
     today. Tragically, we're once again fighting the battle to 
     remove first-generation barriers that suppress the votes of 
     minorities--a battle that was fought 50 years ago.
       Many have been implemented since the U.S. Supreme Court 
     gutted the preclearance requirement of the Voting Rights Act 
     in its Shelby decision. The passage of the laws restricting 
     voting rights has, in fact, accelerated since Shelby.
       Here in Alabama, the legislature passed a law in 2011 that 
     requires voters to produce one of seven kinds of photo IDs. 
     But, even though preclearance by the Justice Department was 
     still required under the Voting Rights Act at the time, the 
     state did not submit it for review. Instead, it waited two 
     years.
       Then, on June 26, 2013, the very next day after the Supreme 
     Court relieved Alabama and other states of their preclearance 
     obligations, the state announced it would begin to enforce 
     the law. The Alabama Secretary of State's office has 
     estimated that at least 280,000 registered voters--
     disproportionately minority voters--lack the type of photo 
     IDs required to vote.
       It's questionable whether Alabama's photo ID law would have 
     been precleared by the Justice Department under the Voting 
     Rights Act. It can, of course, still be challenged in federal 
     court--and, indeed, it is being challenged. But blocking the 
     law is much more difficult in a lawsuit, because the burden 
     of proof is on the plaintiffs to show discriminatory intent 
     or effect. Prior to Shelby, the burden of proof was on states 
     like Alabama--which have long histories of discrimination 
     against African Americans--to show that any new law would not 
     have a retrogressive or racially discriminatory impact.
       To add insult to injury, Alabama Gov. Robert Bentley last 
     year reduced the operating hours of the state offices in 27 
     largely poor, rural counties where residents can obtain the 
     IDs they need to meet the requirements of the photo ID law. 
     African Americans make up a larger share of the population in 
     those counties than in other parts of the state, where the 
     office hours were not curtailed.
       Rather than move toward same-day registration, the Alabama 
     Legislature has moved further from it since Shelby. Despite 
     the fact that for many years voters were allowed to register 
     10 days in advance of an election--and despite technological 
     advances--in 2014 the legislature extended the period to 14 
     days. Since then, there have been legislative attempts to 
     extend it even further--to 30 days.
       Alabama, of course, is not alone in enacting racially 
     discriminatory voting laws. According to the National 
     Conference of State Legislatures, 33 states now have some 
     form of voter ID law in effect. And, according to the Brennan 
     Center for Justice, 21 states have enacted new restrictions 
     since the 2010 mid-term elections. Sixteen have new voting 
     restrictions in place for the first time in a presidential 
     election. In addition, 27 states have attempted to purge 
     their voting rolls since Shelby, leading to numerous lawsuits 
     claiming these purges targeted minority voters.
       Also, some states are now pushing to make voters prove 
     their citizenship when registering. A recent decision by the 
     federal Election Assistance Commission has allowed Alabama, 
     Georgia and Kansas to require documentation of citizenship 
     for anyone registering to vote. This creates an undue burden 
     for many--particularly minorities, young people, the elderly 
     and the poor--who may lack easy access to their birth 
     certificate, passport, naturalization certificate or other 
     proof.
       At the center of these efforts is Kansas Secretary of State 
     Kris Kobach, who doubles as counsel for a nativist extremist 
     organization called the Federation for American Immigration 
     Reform. Kobach was the architect of the notorious anti-
     immigrant law in Arizona known as SB 1070--a discriminatory 
     law that was struck down by the U.S. Supreme Court. Kobach 
     was also behind an even more draconian, anti-immigrant law in 
     Alabama, HB 57, which was also dismantled by the courts.
       The cumulative impact of all of these efforts to suppress 
     the vote is that millions of Americans--minorities, the 
     elderly, the disabled and others--will be disenfranchised, 
     their voices silenced.
       And that is, of course, the goal of these laws. The 
     movement to restrict the vote, as we all know, has nothing to 
     do with combating ``voter fraud,'' which is, essentially, 
     nonexistent in our country.
       Here in Alabama, our secretary of state, John Merrill, has 
     characterized voting as a ``privilege.'' And I think that 
     statement, in some ways, reveals a certain mindset that we 
     are facing. We would never call our First Amendment freedoms 
     of speech and religion privileges. We would never call our 
     right to bear arms a privilege. We would certainly never call 
     it a privilege to be free from unreasonable searches and 
     seizures. Privileges are something to be earned or granted. 
     They can be taken away. The rights guaranteed under our 
     Constitution cannot. We firmly support Congressional efforts 
     to restore the federal preclearance requirement that was 
     stripped from the Voting Rights Act in Shelby. But we know 
     that restoring the Voting Rights Act will not resolve all of 
     the problems. Our country's needs broader reform. We need a 
     new vision for voting to bring the system into the 21st 
     century.
       The election process in the United States is a relic of the 
     18th and 19th centuries--an era when only white male property 
     owners were allowed to vote and when Congress was more 
     concerned about the time it took to travel to polling 
     stations on horse than two-hour lines at the polls. The 
     current system makes sense in the context of the 1850s, but 
     it ignores the technology and the complexities of life and 
     work in today's world. The reason we vote on Tuesday 
     illustrates the point.
       In 1845, Congress determined that Tuesday was the best day 
     to hold elections because Saturday was a workday for farmers, 
     Sunday the Sabbath, and Wednesday was a market day. Tuesday 
     gave voters a full day to travel by horse to the county 
     polling station.
       Not only are Tuesdays now a workday for most Americans, but 
     having only a 12-hour window to vote completely ignores 
     today's work schedules, childcare needs, and other features 
     of modern life. This system particularly disadvantages lower-
     income people who are more likely to work for hourly wages, 
     who often cannot afford to miss work, or who may not be 
     allowed to leave their job.
       For a country that prides itself on our democracy--a 
     country that has sacrificed thousands of our brave young men 
     and women in the fields of war in defense of our democratic 
     values--this is simply not acceptable. We can and must do 
     better.
       For starters, we must restore the preclearance requirement 
     that was shredded in Shelby. The political machinations of 
     the last few years have laid bare the unfortunate reality 
     that certain powerful forces will use whatever means are at 
     their disposal--however anti-democratic--to retain power.
       We also must roll back the many new state laws that silence 
     the voices of millions of eligible voters. And, we must 
     modernize our antiquated elections system in ways that make 
     sense for the world we live in today--in ways that will bring 
     many more people, not fewer, to the ballot box and result in 
     government that is truly of the people, by the people and for 
     the people.
       As the Declaration of Independence says, governments derive 
     their just powers from the consent of the governed. It does 
     not say ``some'' of the governed. We must ensure that 
     everyone has a voice. The future of our great democracy 
     depends on it.


Statement of Spencer Overton, President, Joint Center for Political and 
 Economic Studies, Professor of Law, The George Washington University 
                               Law School

       I am President of the Joint Center for Political and 
     Economic Studies, an organization that was created due to the 
     events of Bloody Sunday and the Voting Rights Act that 
     followed. The Voting Rights Act of 1965 enfranchised hundreds 
     of thousands of black voters, these black voters elected 
     hundreds of new black elected officials, and in 1970 the 
     Joint Center was founded to support these black elected 
     officials. Today, the Joint Center focuses on providing 
     innovative research, ideas, and support to leading elected 
     officials of color nationwide. I am also a tenured Professor 
     of Law at The George Washington University Law School. I 
     regularly teach a voting law course, and in previous years 
     I have taught courses on civil rights and the law of 
     democracy generally.

 I. Background: Shelby County and Congressional Efforts To Update the 
                                  Act

                       A. Shelby County v. Holder

       In Shelby County, the Court held unconstitutional the 
     Section 4(b) coverage formula that determined which 
     jurisdictions must comply with the preclearance requirements 
     of Section 5 of the Voting Rights Act. Section 5 requires 
     federal preclearance of changes affecting voting in 
     ``covered'' jurisdictions before the changes are implemented. 
     Section 4(b) as originally adopted and updated provided 
     formulas that identified as ``covered'' jurisdictions with a 
     voting test or device and less than 50 percent voter 
     registration or turnout in the 1964, 1968, or 1972 general 
     Presidential elections.
       In Shelby County, the Court stated ``a departure from the 
     fundamental principle of equal sovereignty requires a showing 
     that a statute's disparate geographic coverage is 
     sufficiently related to the problem that it targets,'' and 
     that ``current burdens . . . must be justified by current 
     needs.'' The Court believed that in the past the 4(b) 
     coverage formula based on tests and low turnout from 1964, 
     1968, and 1972 elections was ``sufficiently related to the 
     problem,''--that it was ``rational in both practice and 
     theory,'' ``reflected those jurisdictions uniquely 
     characterized by voting discrimination,'' and ``link[ed] 
     coverage to the devices used to effectuate discrimination.'' 
     The Court observed that ``[t]he formula looked to cause 
     (discriminatory tests) and effect (low voter registration and 
     turnout), and tailored the remedy (preclearance) to those 
     jurisdictions exhibiting both.''
       In contrast, the Court believed that the coverage formula 
     based on 1964, 1968, and 1972 turnout and tests was not 
     tailored to address discrimination today. The Court noted 
     that Congress altered the coverage formula in 1970 (adding 
     counties in California, New Hampshire, and New York), and 
     1975 (adding the States of Alaska, Arizona, and Texas,

[[Page E449]]

     and several counties in six other states), but not in 1982 or 
     2006. Specifically, the Court stated:
       ``Coverage today is based on decades-old data and 
     eradicated practices. The formula captures States by 
     reference to literacy tests and low voter registration and 
     turnout in the 1960s and early 1970s. But such tests have 
     been banned nationwide for over 40 years. And voter 
     registration and turnout numbers in the covered States have 
     risen dramatically in the years since.''
       The Court did not believe that the record Congress amassed 
     in 2006 establishing vote dilution and other discriminatory 
     practices was tied to text of a coverage formula based on 
     turnout, registration rates, and tests from the 1960s and 
     1970s.
       The Court explicitly limited its holding to the 4(b) 
     coverage formula based on election data from the 1960s and 
     70s, and stated that ``Congress may draft another formula 
     based on current conditions.'' While the Court observed that 
     states generally regulate state and local elections and that 
     federal preclearance is ``extraordinary,'' the Court did not 
     find the Section 5 preclearance process unconstitutional. 
     Instead, it explicitly recognized that ``voting 
     discrimination still exists,'' that ``any racial 
     discrimination in voting is too much,'' and that Congress has 
     the power to enforce the Fifteenth Amendment to prevent 
     voting discrimination.

 B. 2014 and 2015 Congressional Efforts To Update the Voting Rights Act

       Since Shelby County, legislation has been submitted to 
     update the Voting Rights Act--the Voting Rights Amendment Act 
     of 2014 and the Voting Rights Advancement Act of 2015. Both 
     bills: 1) tie preclearance to recent instances of 
     discrimination; 2) allow judges to order ``bail in'' 
     preclearance coverage as a remedy for a voting rights 
     violation even in the absence of intentional discrimination; 
     3) attempt to deter bad activity by requiring that 
     jurisdictions nationwide provide notice of certain election 
     changes; and 4) make it easier for plaintiffs to obtain a 
     preliminary injunction to block potentially discriminatory 
     election rules before they are used in an election and harm 
     voters.
       There are, however, significant differences. Generally, the 
     2014 Amendment Act basis preclearance coverage on 
     jurisdictions with significant voting rights violations over 
     the prior 15 years, while the 2015 Amendment Act focuses on 
     violations over the prior 25 years. Thus, while the 2014 
     Amendment Act subjected only Georgia, Louisiana, Mississippi, 
     and Texas to preclearance when introduced, the 2015 
     Advancement Act applied preclearance to those states plus 
     Alabama, Arkansas, Arizona, California, Florida, New York, 
     North Carolina, South Carolina, and Virginia. The 2014 
     Amendment Act exempts voter identification from violations 
     that justify the expansion of preclearance, whereas the 2015 
     Advancement Act provides no such voter identification 
     exemptions.
       The 2015 Advancement Act also contains provisions that do 
     not appear in the 2014 Amendment Act. For example, the 2015 
     Advancement Act requires preclearance nationwide for ``known 
     practices'' historically used to discriminate against voters 
     of color, such as: 1) voter qualifications that make it more 
     difficult to register or vote (e.g., ID or proof of 
     citizenship documentation); 2) redistricting, annexations, 
     polling place changes, and other changes to methods of 
     elections (e.g., moving to at-large elections) in areas that 
     are racially, ethnically, or linguistically diverse; and 3) 
     reductions in language assistance. The 2015 Advancement Act 
     also includes Native American and Alaska Native voting 
     protections that ensure ballot translation, registration 
     opportunities on and off Indian reservations, and annual 
     consultation with the Department of Justice.

              II. The Need To Update the Voting Rights Act

      A. Litigation Inadequate Substitute for Loss of Preclearance

       While the holding in Shelby County was limited to 
     invalidating the coverage formula, the decision has a 
     significant impact. It effectively suspends Section 5 
     preclearance in all jurisdictions other than the handful 
     currently subject to a Section 3(c) ``bail in'' court order,
       Litigation Not Comprehensive: Preclearance was 
     comprehensive--it deterred jurisdictions from adopting many 
     unfair election rules because officials knew every decision 
     would be reviewed. In contrast, litigation requires that 
     plaintiffs have the information and resources to bring a 
     claim, and therefore litigation misses a lot of under-the-
     radar manipulation.
       Litigation More Expensive: Preclearance also put the burden 
     to show a change was fair on jurisdictions--which enhanced 
     efficiencies because jurisdictions generally have better 
     access to information about the purpose and effect of their 
     proposed election law changes. Litigation shifts the burden 
     to affected citizens--who must employ experts and lawyers who 
     fish for information during drawn-out discovery processes.
       Significant Voting Discrimination Persists: Too many 
     political operatives in previously covered jurisdictions 
     continue to maintain power by unfairly manipulating voting 
     rules based on how voters look or speak. Congress determined 
     as much during the last reauthorization, and such 
     discrimination has occurred since that time in various 
     jurisdictions like Nueces County, Texas, While the Court in 
     Shelby County invalidated the coverage formula because it was 
     based on data from the 1960s and 1970s, the Court 
     acknowledged that ``voting discrimination still exists'' and 
     that ``any racial discrimination in voting is too much.''

       B. Joint Center Report: 50 Years of the Voting Rights Act

       In 2015, the Joint Center for Political and Economic 
     Studies published 50 Years of the Voting Rights Act:
       The State of Race in Politics. The 46-page report 
     established that while the Voting Rights Act increased 
     turnout by voters of color, citizen voting age population 
     turnout rates among Latinos and Asian Americans trail 
     African-American turnout by 10-15 percentage points and white 
     turnout by 15-20 points. The report also found that racially 
     polarized voting persists, and in some contexts is growing. 
     Race is the most significant factor in urban local elections, 
     and more decisive than income, education, religion, sexual 
     orientation, age, gender, and political ideology. The 38 
     point racial gap exceeds even the 33 point gap between 
     Democratic and Republican voters.

                            III. Conclusion

       In the last 51 years the United States has made significant 
     progress on voting rights. Unfortunately, after Shelby County 
     v. Holder political operatives have more opportunity to 
     unfairly manipulate election rules based on race. The Court 
     in Shelby County stated that the purpose of the Fifteenth 
     Amendment is ``to ensure a better future,'' but the future 
     will be worse if Congress fails to act.
       Fortunately, Congress has the power to prevent 
     discrimination and update the Voting Rights Act. An updated 
     Voting Rights Act will help not just voters of color, but our 
     nation as a whole. Protecting voting rights provides 
     legitimacy to our nation's efforts to promote democracy and 
     prevent corruption around the world. We all agree that racial 
     discrimination in voting is wrong, and Congress should update 
     the Voting Rights Act to ensure voting is free, fair, and 
     accessible for all Americans.

                          ____________________