[Congressional Record Volume 162, Number 146 (Tuesday, September 27, 2016)]
[Extensions of Remarks]
[Pages E1377-E1378]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             VOTING RIGHTS

                                 ______
                                 

                               speech of

                       HON. LUCILLE ROYBAL-ALLARD

                             of california

                    in the house of representatives

                     Wednesday, September 21, 2016

  Ms. ROYBAL-ALLARD. Mr. Speaker, to help my constituents gain a better 
understanding of the negative impact of the Supreme Court decision 
Shelby County v. Holder, on May 20, 2016, I hosted a forum titled 
``Protect Your Future: Restore the Vote.'' My co-chairs were 
Representative Linda Sanchez, Chair of the Congressional Hispanic 
Caucus; Representative Judy Chu, Chair of the Asian Pacific American 
Caucus; and special guest, Representative Karen Bass.
  Members from our communities heard expert testimony from the Mexican 
American Legal Defense Fund. For that reason, I include in the Record 
testimony from Tom Saenz of MALDEF.


                      statement of thomas a. saenz

                     president and general counsel

                                 maldef

            regarding the effects of shelby county v. holder

       Since 2009, I have had the great honor of serving as 
     President and General Counsel of MALDEF (Mexican American 
     Legal Defense and Educational Fund), a national legal civil 
     rights organization whose mission is to promote the civil 
     rights of all Latinos living in the United States. MALDEF 
     pursues its mission through litigation, policy education and 
     advocacy, community education, and media/communications in 
     the areas of education, employment, immigrant rights, and 
     voting rights. In the area of voting rights, MALDEF is one of 
     a small handful of national non-profit organizations that 
     have been involved in both litigation and advocacy under the 
     federal Voting Rights Act over several decades. MALDEF 
     currently coordinates a consortium of ten voting rights 
     litigation organizations striving to better coordinate 
     activities nationwide in the aftermath of the 2013 United 
     States Supreme Court decision in Shelby County v. Holder.
       Our nation and its most precious democratic values have 
     unquestionably suffered from the Supreme Court majority's 
     2013 decision in Shelby County v. Holder and the subsequent 
     refusal by congressional leadership to consider, much less 
     vote upon and enact, well-crafted proposals to reaffirm and 
     strengthen the Voting Rights Act of 1965 (VRA) by 
     implementing new formulas to apply the impactful pre-
     clearance provisions in section 5 of the VRA.
       In Shelby County, the Court voted 5-4 to strike down the 
     pre-clearance coverage formula in section 4 of the VRA. The 
     coverage formula had been overwhelmingly approved by 
     bipartisan supermajorities in both houses of Congress in the 
     latest VRA reauthorization in 2006. The coverage formula that 
     the Court majority struck down required those jurisdictions--
     mainly states, with some counties and other parts of states--
     with histories of low electoral participation and of efforts 
     to suppress participation by minority voters, to comply with 
     a pre-clearance obligation as to all proposed electoral 
     changes. The effect of the Court's decision was to completely 
     disable the application of the pre-clearance obligation 
     absent a rarely-issued federal court order subjecting a 
     specific jurisdiction to pre-clearance for a limited period 
     of time. Of course, the Congress can, at any time, subject to 
     the requisite constitutional showing of adequate findings, 
     enact a new coverage formula or formulas to subject other 
     jurisdictions to the pre-clearance obligation with respect to 
     specific or all electoral changes.
       It is no exaggeration to label, as it has now often been 
     characterized, section 5 of the VRA and its pre-clearance 
     mechanism as one of the most effective civil rights 
     provisions ever enacted in federal law. Before the Court 
     decision in Shelby County, pre-clearance had, through almost 
     half a century, blocked the implementation of numerous 
     proposed electoral changes that were intended to suppress 
     minority participation or to limit minority electoral power, 
     and numerous other proposed changes that would have been 
     retrogressive in effect, threatening to reduce acquired 
     minority electoral power.
       In addition, however, a full appreciation of the damage the 
     Shelby County decision has wrought requires recognizing that 
     section 5 is also one of the first enactments of an 
     alternative dispute resolution (ADR) mechanism into federal 
     law. ADR can be powerfully efficient and effective in 
     resolving disputes without requiring resort to litigation in 
     court. Ironically, the same Supreme Court majority that 
     struck down the VRA coverage formula and disabled section 5 
     has strongly embraced ADR in the form of mandatory 
     arbitration contracts, even where serious concerns have been 
     raised about bias against employees or consumers in 
     arbitration and about unequal power in negotiating 
     arbitration agreements. Indeed, Section 5 actually includes 
     the very kinds of protections

[[Page E1378]]

     that are not often seen in other ADR schemes, including the 
     absolute right to seek court review instead of review by the 
     Department of Justice.
       With this in mind, the damage from the Shelby County 
     decision, and the congressional inaction in response, falls 
     into three areas. First, the nation has been deprived of 
     advance notice with regard to electoral changes in those 
     jurisdictions previously covered. These changes, which 
     previously would have been developed and submitted for pre-
     clearance well in advance, include many changes--with 
     significant potential effects on electoral participation, 
     particularly among minority voters--that today are often 
     revealed very close in time to an election. Such changes as 
     precinct consolidations, alterations in precinct boundaries, 
     and changes in voting locations often occur too close to an 
     election to prevent their implementation through litigation 
     under the still-viable section 2 of the VRA, prohibiting 
     minority vote dilution, or other constitutional or statutory 
     provisions. Courts are, perhaps understandably, reluctant to 
     issue a preliminary injunction so close in time to a 
     scheduled election. This problem is exacerbated by the lack 
     of advance notice of such changes previously provided by the 
     section 5 preclearance obligation.
       For example, Arizona was a covered jurisdiction, so, prior 
     to the Shelby County decision, the state and all its 
     governmental subdivisions had to seek and obtain pre-
     clearance for any electoral change. Recently, in the 2016 
     Arizona presidential primary, there were widespread reports 
     of very long lines and chaos at polling places. This seems to 
     have been caused in large part by a drastic reduction in the 
     number of polling places, a change apparently undertaken as a 
     cost-saving measure. Whether or not this ill-considered 
     decision had a particularly pronounced effect on minority 
     voters in Maricopa County, such a change would have been 
     analyzed in advance for its discriminatory potential under 
     preclearance prior to Shelby County. Regardless of whether 
     that analysis would have blocked or altered the plan to 
     reduce polling locations, the requirement of pre-clearance 
     would at least have provided notice, well in advance, of the 
     intention to drastically reduce polling places. This might 
     have yielded challenge and change, wholly apart from the 
     process of pre-clearance itself.
       The second area of damage from the Shelby County decision 
     lies in the inability to review electoral changes for their 
     potential discriminatory elements before the changes are 
     implemented. As noted above, courts are often reluctant to 
     issue preliminary injunctions with respect to elections 
     matters. Indeed, a preliminary injunction is extraordinary 
     court relief in any circumstance, but there is a particular 
     reticence with respect to elections because of the potential 
     disruption of the plans and efforts of so many voters and 
     candidates. However, elections are also particularly 
     resistant to remedy after the fact. Once an election has 
     occurred under a particular electoral change, it is nearly 
     impossible to ``unring the bell'' and discount an election or 
     its results once reported, even if only unofficially by media 
     engaged in exit polling. Thus, the inability to bar 
     implementation of an electoral change by requiring pre-
     clearance prior to implementation results in severely limited 
     or no remedy at all to what may be actions with significant 
     discriminatory effects. When this occurs, this does palpable 
     and lasting harm to voters' respect for democracy and can 
     deter participation by understandably distrustful minority 
     voters in many future elections.
       Soon after the Shelby County decision, the mayor of 
     Pasadena, Texas announced his intent to pursue a change to 
     the city's elections that he would not have pursued when the 
     city was subject to preclearance as a sub-jurisdiction in the 
     covered state of Texas. He sought to change the eight-member 
     council from one comprised of candidates elected in eight 
     single-member districts to one comprised of representatives 
     from six single-member districts and two members elected at 
     large by the entire city. Based on participation 
     differentials between groups, this change would have the 
     effect of reducing the growing Latino community's chances to 
     elect a majority of the council. The change was adopted and 
     has now been implemented, while MALDEF pursues an ongoing 
     legal challenge to the change and its effects on the Latino 
     vote. It is unclear how many elections will occur under the 
     flawed changes before the court case is finally resolved.
       The third area of Shelby County harm lies in requiring the 
     resolution of disputes regarding potentially discriminatory 
     electoral changes through inefficient and costly litigation 
     under section 2 of the VRA. The Supreme Court's adopted test 
     for resolving section 2 claims is ``totality of the 
     circumstances.'' The phrase alone illustrates the scope of 
     such litigation, ordinarily involving multiple experts on 
     both sides of a case, numerous percipient lay witnesses, and 
     voluminous sets of documentary exhibits. The presentation of 
     all of this testimony and other evidence consumes many months 
     in preparatory depositions, discovery, and resolution of 
     evidentiary disputes. Trial, even if streamlined in multiple 
     ways by the court, usually involves weeks or months of 
     presentation to a judge. The court itself then faces the 
     arduous task of evaluating the evidence and making findings 
     of fact and drawing conclusions of law to support a decision 
     under the ``totality of the circumstances.'' The costs in 
     both time and money associated with this arduous court 
     journey are significant, and most often imposed on and borne 
     entirely by a challenged jurisdiction that loses a filed 
     section 2 case. The same jurisdiction could get to the same 
     result, at a fraction of the cost through pre-clearance.
       MALDEF has long been a leader in pursuing section 2 
     litigation in the formerly covered state of Texas. The 
     dispute over Texas statewide redistricting in 2011 ended up 
     being challenged under section 2 at the same time that it was 
     subject to consideration for pre-clearance under section 5 by 
     a three-judge district court in Washington, D.C. The 
     Washington, D.C. court rejected the original Texas 
     redistricting plan even before the Shelby County decision, 
     but the Court's ruling wiped that conclusion from the books. 
     The section 2 case had to be tried over several months in 
     2014. The trial was concluded and fully briefed as of 
     December 2014. More than 16 months later, we are still 
     awaiting a district court decision on the section 2 case. 
     This ongoing wait epitomizes that third area of harm from the 
     Shelby County decision.
       Some might assume that the ongoing harms from the Shelby 
     County decision and the congressional failure to respond with 
     appropriate legislation are limited to the areas, and their 
     residents, that were previously subject to pre-clearance 
     under the coverage formula that the Court struck down. In 
     fact, the entire nation suffers the damage inflicted by the 
     decision and its aftermath. The pre-clearance process--the 
     submission and analysis of electoral changes for 
     discrimination--provided a nationwide indication of the 
     potential effects of specific changes and specific categories 
     of changes. An adverse pre-clearance decision stood as a 
     warning to non-covered jurisdictions that might be 
     considering, or already have in place, similar electoral 
     procedures as those rejected in a covered jurisdiction.
       In this way, pre-clearance provided election administrators 
     and policymakers interested in minimizing discrimination in 
     voting with guidance as to where they might look in current 
     practice to eliminate discriminatory effects and as to what 
     changes they should avoid to prevent further discrimination. 
     Conversely, adverse pre-clearance decisions stood as a 
     warning and deterrent to administrators and policymakers 
     interested in adopting changes despite or even because of 
     discriminatory effects. Pre-clearance outcomes stood as an 
     indication of possible or likely successful legal challenge 
     to such changes. In effect, just as pre-clearance was a more 
     efficient mechanism to resolve disputes about a specific 
     electoral practice in a specific jurisdiction, it was also a 
     more efficient means to provide persuasive precedent for 
     other jurisdictions, both those covered and those not 
     covered.
       Thus, in a state like California, which had only three 
     covered counties at the time the Supreme Court decision came 
     down, everyone still benefitted from the ready and available 
     information provided by the pre-clearance process. In 
     addition, although the state was only partially covered, 
     statewide electoral changes were subject to pre-clearance 
     because of the effects in the covered counties. This meant 
     that statewide elections procedures saw all the benefits of 
     advanced awareness, pre-implementation analysis, and 
     efficient dispute resolution described above.
       The experience of three years, including one mid-term 
     election, demonstrate that the absence of the efficient pre-
     clearance process has deleterious effects on deterring, 
     preventing, and eliminating electoral practices with 
     significant discriminatory effects. MALDEF urges 
     congressional action to reintroduce a coverage formula or 
     formulas--that are responsive to current demographics and 
     dynamics with respect to minority communities--into the VRA. 
     The nation as a whole will benefit from the positive 
     repercussions of an effective pre-clearance process for 
     voting discrimination.

                          ____________________