[Congressional Record Volume 167, Number 150 (Tuesday, August 24, 2021)]
[House]
[Pages H4417-H4485]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 EXPLANATORY MATERIAL STATEMENT ON H.R. 4, JOHN R. LEWIS VOTING RIGHTS 
    ADVANCEMENT ACT OF 2021, SUBMITTED BY MR. NADLER, CHAIR OF THE 
                       COMMITTEE ON THE JUDICIARY

  Mr. NADLER. Madam Speaker, pursuant to section 2 of H. Res. 601, I 
submit the following materials into the Congressional Record as 
Explanatory Materials for H.R. 4. Taken together, these materials help 
explain the reasons why H.R. 4 is necessary as well as the reasons for 
the particular provisions in the bill. The materials are as follows:

       1. A section-by-section analysis of H.R. 4, as perfected by 
     the Manager's Amendment;
       2. A memorandum explaining the inclusion of key provisions 
     in the bill in light of the records developed in hearings 
     before the House Judiciary Committee and the Committee on 
     House Administration;
       3. Testimony of Wade Henderson of the Leadership Conference 
     for Civil and Human Rights, explaining ongoing voting 
     discrimination in certain states;
       4. Testimony of Peyton McCrary of George Washington 
     University Law School, explaining the data that supports the 
     coverage formula in H.R. 4;
       5. Testimony of Sophia Lin Lakin, Deputy Director of the 
     Voting Rights Project, American Civil Liberties Union, 
     explaining the need for a revised preliminary injunction 
     standard, a Purcell fix, and a burden-shifting test for 
     section 2 vote denial claims;
       6. Testimony of Wendy Weiser, Vice President, Democracy, 
     the Brennan Center for Justice, explaining the 
     constitutionality of H.R. 4's geographic coverage formula;
       7. Testimony of Jon Greenbaum, Chief Counsel of the 
     Lawyers' Committee for Civil Rights Under Law, explaining the 
     need for the incorporation of a retrogression standard in 
     section 2 and the need for a prescriptive approach to 
     assessing vote denial claims under section 2;
       8. Testimony of Bernard Fraga of Emory University regarding 
     evidence in support of the practice-based coverage formula 
     and its demographic thresholds;
       9. Letter from the Leadership Conference on Civil and Human 
     Rights and other civil rights groups in support of H.R. 4 and 
     outlining the need for the bill;
       10. Statement of Administration Policy in support of H.R. 4 
     from the Executive Office of the President;
       11. Brennan Center--Racial Voter Suppression in 2020 
     Executive Summary, outlining the contemporary nature of 
     voting discrimination;
       12. Brennan Center--Representation for Some Executive 
     Summary;
       13. Brennan Center--Racial Turnout Gap Grew in 
     Jurisdictions Previously Covered by the Voting Rights Act, 
     outlining the reasons why focusing on increases in minority 
     turnout, alone, masks a continuing racial disparity in voter 
     turnout;
       14. Brennan Center--Large Racial Turnout Gap Persisted in 
     2020 Election; and
       15. A report prepared by the Subcommittee on Elections of 
     the Committee on House Administration, outlining ongoing 
     voter suppression efforts in various states.
                                  ____


Section-by-Section Analysis of John R. Lewis Voting Rights Advancement 
             Act of 2021 for the 117th Congress as Amended

       Section 1. Short Title. Section 1 sets forth the short 
     title of the bill as the ``John R. Lewis Voting Rights 
     Advancement Act of 2021'' (``VRAA'').
       Section 2. Vote Dilution, Denial, and Abridgement Claims. 
     Section 2 of the bill would amend Section 2 of the Voting 
     Rights Act of 1965 (``VRA'') in response to the Supreme 
     Court's decision in Brnovich v. Democratic National 
     Committee. VRA Section 2(a) prohibits states and localities 
     from imposing a voting rule that has the purpose or effect of 
     denying or abridging citizens' right to vote because of race, 
     color, or language minority status. VRA Section 2(b) 
     currently lays out a test for determining when such a 
     violation has occurred, providing that a violation is 
     established if, ``based on the totality of the circumstances, 
     it is shown that the political processes leading to 
     nomination or election in the State or political subdivision 
     are not equally open to participation by members of a class 
     of citizens protected by subsection (a) in that its members 
     have less opportunity than other members of the electorate to 
     participate in the political process and to elect 
     representatives of their choice.''
       In response to the Brnovich Court's narrowing of Section 
     2(b) in vote denial cases (and with potential risk for vote 
     dilution cases), the bill creates a bifurcated test, one that 
     would apply to vote dilution claims (e.g., challenges to 
     redistricting or changes in district or jurisdictional 
     boundaries) and vote denial claims (e.g., challenges to 
     changes in voting rules).
       Section 2(a) of the bill would amend Section 2(a) of the 
     VRA by making technical amendments to clarify that subsection 
     (b) and new subsections (c), (d), or (e) apply when 
     determining a violation under Section 2(a) of the VRA.
       Section 2(b) of the bill amends Section 2(b) of the VRA to 
     preserve the existing ``totality of the circumstances'' test, 
     and expressly adopt the list of non-exhaustive factors 
     applied by federal courts considering Section 2 vote dilution 
     claims that were outlined in the Supreme Court's 1986 
     decision in Thornburg v. Gingles. Section 2(b) of the bill 
     requires a plaintiff to establish as a threshold matter that 
     1) the members of the protected are sufficiently numerous and 
     geographically compact to constitute a majority in a single 
     member district; 2) the members of the protected class are 
     politically cohesive; and 3) the residents of that district 
     who are not the members of the protected class usually vote 
     sufficiently as a bloc to enable them to defeat the preferred 
     candidates of the members of the protected class.
       Section 2(b) of the bill also provides that once the 
     plaintiff establishes the required threshold showing, a court 
     must consider a totality of the circumstances analysis with 
     respect to a claim of vote dilution to determine whether 
     there has been a violation of Section 2(A) of the VRA, which 
     must include consideration of the following factors:
       (1) The extent of any history of official voting 
     discrimination in the state or political subdivision that 
     affected the right of members of the protected class to 
     register, to vote, or otherwise to participate in the 
     political process.
       (2) The extent to which voting in the elections of the 
     state or political subdivision is racially polarized.
       (3) The extent to which the state or political subdivision 
     has used voting practices or procedures that tend to enhance 
     the opportunity for discrimination against the members of the 
     protected class, such as unusually large elections districts, 
     majority vote requirements, anti-single shot provisions, or 
     other qualifications, prerequisites, standards, practices, or 
     procedures that may enhance the opportunity for 
     discrimination against the members of the protected class.
       (4) If there is a candidate slating process, whether the 
     members of the protected class have been denied access to 
     that process.
       (5) The extent to which members of the protected class in 
     the state or political subdivision bear the effects of 
     discrimination, both public or private, in such areas as 
     education, employment, health, housing, and transportation 
     which hinder their ability to participate effectively in the 
     political process.
       (6) Whether political campaigns have been characterized by 
     over or subtle racial appeals.
       (7) The extent to which members of the protected class have 
     been elected to public office in the jurisdiction.
       Section 2(b) also provides that in conducting a totality of 
     the circumstances analysis under this subsection a court may 
     consider such other factors as the court may determine to be 
     relevant, including 1) whether there is a significant lack of 
     responsiveness on the part of elected officials to the 
     particularized needs of the members of the protected class, 
     including a lack of concern for or responsiveness to the 
     requests and proposals of the members of the protected class, 
     except that compliance with a court order may not be 
     considered evidence of responsiveness on the part of the 
     jurisdiction; and 2) whether the policy underlying the state 
     or political subdivision's use of such voting practices is 
     tenuous. In making this second determination, Section 2(b) 
     further requires a court to consider whether the 
     qualification, prerequisite, standard, practice, or procedure 
     in question was designed to advance and materially advances a 
     valid and substantiated state interest.
       Section 2(b) of the bill also amends Section 2 of the VRA 
     to create a new subsection 2(c) to govern claims of vote 
     denial. Under new subsection 2(c) , a violation of Section 
     2(a) is established if a voting standard, practice, or 
     procedure 1) results or will result in members of a protected 
     class facing greater costs or burdens in participating in the 
     political process than other voters and 2) that the greater 
     costs or burdens are, at least in part, caused by or linked 
     to social and historical conditions that have or currently 
     produce on the date of such challenge discrimination on the 
     basis of race, color, or language minority status. Section 
     2(b) further states that in determining the existence of a 
     burden, the absolute number or the percent of voters affected 
     or the presence of voters who are not

[[Page H4418]]

     members of a protected class in the affected area is not be 
     dispositive, and the affected area may be smaller than the 
     jurisdiction to which the qualification, prerequisite, 
     standard, practice, or procedure applies. Additionally, 
     Section 2(b) provides that the challenged voting rule need 
     only be one ``but-for'' cause of the discriminatory result.
       Section 2(b) also expressly outlines for courts the factors 
     that are relevant to the totality of the circumstances 
     analysis in a vote denial claim under new subsection 2(c). 
     The factors that are relevant include the following:
       (1) The extent of any history of official voting-related 
     discrimination in the state or political subdivision that 
     affected the right of members of the protected class to 
     register, to vote, or otherwise to participate in the 
     political process.
       (2) The extent to which voting in the elections of the 
     state or political subdivision is racially polarized.
       (3) The extent to which the state or political subdivision 
     has used photo ID requirements, documentary proof of 
     citizenship requirements, documentary proof of residence 
     requirements, or other voting practices or procedure beyond 
     those required by federal law that impair the ability of 
     members of the minority group to participate fully in the 
     political process.
       (4) The extent to which minority group members bear the 
     effects of discrimination both public or private, in areas 
     such as education, employment, health, housing, and 
     transportation, which hinder their ability to participate 
     effectively in the political process.
       (5) The use of overt or subtle racial appeals either in 
     political campaigns or surrounding adoption or maintenance of 
     the challenge practice.
       (6) The extent to which members of the minority group have 
     been elected to public office in the jurisdiction, provided 
     that the fat that the minority group is too small to elect 
     candidates of its choice shall not defeat a vote denial 
     claims.
       (7) Whether there is a lack of responsiveness on the part 
     of elected officials to the particularized needs of minority 
     group members including a lack of concern for or 
     responsiveness to the requests and proposals of the group, 
     except that compliance with a court order may not be 
     considered evidence of responsiveness on the part of the 
     jurisdiction.
       (8) Whether the policy underlying the state or political 
     subdivision's use of the challenged voting practice is 
     tenuous. In making a determination under this clause, a court 
     shall consider whether the qualification, prerequisite, 
     standard, practice, or procedure in question was designed to 
     advance and materially advances a valid and substantiated 
     State interest.
       (9) Such other factors as the court may determine to be 
     relevant subject to the limitations set forth in this 
     subsection.
       Section 2(b) also outlines the factors that are not 
     relevant to the ``totality of the circumstances'' in a vote 
     denial claim under new subsection 2(c). The factors that are 
     not relevant include the following:
       (1) The degree to which the challenged voting practice has 
     a long pedigree or was in widespread use at some earlier 
     date.
       (2) The use of an identical or similar voting practice in 
     other states or jurisdictions.
       (3) The availability of other forms of voting unimpacted by 
     the challenged voting practice to all members of the 
     electorate, including members of the protected class, unless 
     the jurisdiction is simultaneously expanding such other 
     practices to eliminate any disproportionate burden imposed by 
     the challenged voting practice.
       (4) Unsubstantiated defenses that the qualification, 
     prerequisite, standard, practice, or procedure is necessary 
     to address criminal activity.
       Section 2(b) creates new subsection 2(d) which clarifies 
     that 1) a violation of Section 2(a) of the VRA for the 
     purpose of a vote denial or abridgement is established if the 
     challenged voting practice is intended, at least in part, to 
     dilute minority voting strength or to deny the right of any 
     citizen to vote on account of race, color, or membership in a 
     language minority group; 2) that racial discrimination need 
     only be one purpose behind the challenged voting rule in 
     order to establish a violation of Section 2(a) of the VRA; 3) 
     that a voting practice intended to dilute minority voting 
     strength or make it more difficult for minority voters to 
     cast a ballot that will be counted violates this subsection 
     even if an additional purpose of the voting practice is to 
     benefit a particular political party or group; 4) that the 
     context for the adoption of the challenged voting practices, 
     including actions by official decisionmakers, may be relevant 
     to a violation of this subsection; and 5) that claims under 
     this subsection require proof of a discriminatory impact but 
     do not require proof of a violation of new subsection 2(b) or 
     new subsection 2(c).
       Lastly, Section 2(b) creates new subsection 2(e) which for 
     the purposes of Section 2 defines the term `affected area' to 
     mean any geographic area in which members of a protected 
     class are affected by a qualification, prerequisite, 
     standard, practice, or procedure allegedly in violation of 
     this section, within a State (including any Indian lands).
       Section 3. Retrogression. Section 3 of the bill would add 
     after Section 2 of the VRA as amended by the Act a new 
     Section 2(f). Section 2(f) effectively imports Section 5's 
     retrogression standard into Section 2 by establishing that a 
     violation of Section 2(a) occurs where a r voting law or rule 
     makes minority citizens worse off than the status quo in 
     terms of their ability to vote. Specifically, such a voting 
     rule would violate Section 2(a) if it had the purpose or will 
     have the effect of diminishing the ability of any citizen to 
     participate in the electoral process or elect a candidate of 
     their choice on account of their race, color, or membership 
     in a language minority group. The subsection applies 
     retroactively to any action taken on or after January 1, 
     2021.
       Section 3 also creates a new subsection 2(g) which 
     clarifies that the decisions of the United States District 
     Court for the District of Columbia preclearing any state or 
     political subdivision's change to a voting law or practice 
     supersedes new subsection 2(f).
       Section 4. Violations Triggering Authority of Court to 
     Retain Jurisdiction. Section 4(a) amends Section 3(c) of the 
     VRA to strengthen the ``bail-in'' provision by permitting 
     courts to bail in jurisdictions where there have been 
     violations of the VRA and other federal prohibitions against 
     discrimination in voting, in addition to instances where 
     there have been violations of the Fourteenth or Fifteenth 
     Amendments. Section 3(c) of the VRA, known as the ``bail-in'' 
     provision, currently allows courts to retain jurisdiction to 
     supervise further voting changes in jurisdictions where the 
     court has found violations of the Fourteenth or Fifteenth 
     Amendments. If a jurisdiction is ``bailed in,'' it must 
     submit any changes to its voting procedures for approval 
     either to a U.S. district court or to the Attorney General. 
     Section 4(a) strikes ``violations of the Fourteenth and 
     Fifteenth amendment'' and inserts ``violations of the 
     Fourteenth or Fifteenth Amendments, violations of this Act, 
     or violations of any Federal law that prohibits 
     discrimination in voting on the basis of race, color, or 
     membership in a language minority group.''
       Lastly, Section 4(b) of the bill also makes technical and 
     conforming amendments to Section 3(a) of the VRA.
       Section 5. Criteria for Coverage of States and Political 
     Subdivisions. Section 5(a)(1) of the bill amends Section 4(b) 
     of the VRA by inserting a new coverage formula intended to 
     meet the requirements set out in Shelby County. Formerly, 
     Section 4(b) provided the coverage formula for determining 
     which jurisdictions were subject to the Section 5 
     preclearance requirement. The coverage formula was triggered 
     if a state or political subdivision, as of various points in 
     the 1960s or early 1970s, (1) employed prohibited ``tests or 
     devices'' used to limit voting and (2) had fewer than 50 
     percent voter registration or turnout among its voting-age 
     population. In Shelby County, the Court held that Section 
     4(b) was unconstitutional because it imposed current burdens 
     that were no longer responsive to the current conditions in 
     the voting districts in question.
       Under the new coverage formula in Section 5(a)(1), ``a 
     State and all political subdivisions within the State'' 
     during a calendar year would be covered if, during the 
     previous 25 calendar years, there were 1) 15 or more voting 
     rights violations occurred in the state; 2) ten or more 
     voting rights violations occurred in the state and at least 
     one violation was committed by the state itself, rather than 
     a political subdivision (e.g., county, town, school 
     district); or (3) three or more voting rights violations 
     occurred in the state and the state itself administers 
     elections in the state or in political subdivisions in which 
     the voting rights violations occurred. In addition, Section 
     5(a)(1) provides that a political subdivision would be 
     covered if three or more voting rights violations occurred in 
     that subdivision during the past 25 years. Section 5(a)(1) 
     specifies that the 25-year coverage period ends 10 years 
     after a jurisdiction is covered.
       Section 5(a)(1) provides that if a state or political 
     subdivision obtains declaratory judgment and the judgment 
     remains in effect, coverage under preclearance shall no 
     longer apply unless voting rights violations occur after the 
     issuance of a declaratory judgment.
       Section 5(a)(1) defines several types of events or 
     incidents as ``voting rights violations.'' The definition 
     includes:
       (1) a final judgment or any preliminary, temporary, or 
     declaratory relief that was not reversed on appeal in which 
     the plaintiff prevailed or a federal court found that the 
     plaintiff demonstrated a likelihood of success on the merits 
     or raised a serious question with regard to race 
     discrimination, in which any federal court determined that a 
     state or political subdivision denied or abridged the right 
     to vote on account of race, color, or membership in a 
     language minority group, or that a voting qualification or 
     prerequisite to voting, or standard, practice, or procedure 
     with respect to voting, created an ``undue burden'' in 
     connection with a claim that the challenged rule unduly 
     burdened minority citizens in violation of the Fourteenth or 
     Fifteenth Amendment anywhere in the state or subdivision;
       (2) a final judgment or any preliminary, temporary, or 
     declaratory relief that was not reversed on appeal in which 
     the plaintiff prevailed or a federal court found that the 
     plaintiff demonstrated a likelihood of success on the merits 
     or raised a serious question with regard to race 
     discrimination, in which any federal court determined that a 
     voting qualification or prerequisite to voting or standard, 
     practice, or procedure with respect to voting was imposed or 
     applied or

[[Page H4419]]

     would have been imposed or applied anywhere in the state or 
     subdivision in a manner that denied or abridged or would have 
     denied or abridged minority citizens' right to vote, in 
     violation of various VRA provisions;
       (3) a final judgment, that is not reversed on appeal, by a 
     federal court denying a state or political subdivision's 
     lawsuit seeking a declaratory judgment under Section 3(c) or 
     Section 5 of the VRA that its proposed change does not have 
     the purpose or effect of denying citizens the right to vote 
     on account of race, color, or language-minority status and 
     thereby prevented a voting practice from being enforced 
     anywhere within the state or subdivision;
       (4) an objection by the Attorney General under Section 3(c) 
     or Section 5 of the VRA, which thereby prevent a voting 
     practice to be enforced anywhere within the state or 
     subdivision. A violation does not occur if the Attorney 
     General has withdrawn an objection unless the withdrawal was 
     in response to a change in the law or practice that served as 
     the basis of the objection. A violation also does not occur 
     where the objection is based solely on a state or political 
     subdivisions' failure to comply with a procedural process 
     that would not otherwise constitute an independent violation 
     of this act; or
       (5) a consent decree, settlement, or other agreement that 
     was adopted or entered by a federal court or contained an 
     admission of liability by the defendants, which resulted in 
     the alteration or abandonment of a voting practice anywhere 
     within the territory of the state or subdivision that had 
     been challenged as discriminatory under the VRA. An extension 
     or modification of such consent decree, settlement, or other 
     agreement that has been in place for 10 years or longer 
     constitutes an independent violation. If a court finds that 
     an agreement itself defined by this subsection denied or 
     abridged the right to vote of any citizen on account of race, 
     color, or membership in a language minority group, violated 
     the provisions of the VRA, or created an undue burden on 
     minority citizens' right to vote in connection with a claim 
     that the consent decree, settlement, or other agreement 
     unduly burdened voters of a particular race, color, or 
     language minority group, that finding shall count as an 
     independent violation.
       (6) in the case of multiple violations committed by a 
     jurisdiction, each violation is to count as an independent 
     violation, and within a redistricting plan, each violation 
     found to discriminate against any group of voters based on 
     race, color, or language minority group shall count as an 
     independent violation.
       Section 5(a)(1) sets forth the timing of determinations of 
     voting rights violations by the Attorney General and requires 
     that the determinations are made ``[a]s early as practicable 
     during each calendar year . . . including updating the list 
     of voting rights violations occurring in each State and 
     political subdivision for the previous calendar year.'' This 
     section also provides that the determination or certification 
     of the Attorney General shall be effective upon publication 
     in the Federal Register.
       Section 5(a)(2) of the bill makes conforming amendments to 
     Section 4(a) of the VRA. Section 4(a) of the VRA provides the 
     mechanism by which a covered jurisdiction can ``bail out'' of 
     the preclearance requirement. Essentially, a jurisdiction 
     must demonstrate to a court that it has not engaged in 
     discriminatory practices and has complied with the 
     preclearance process in the preceding 10 years.
       Section 5(b) of the bill amends Section 4(a)(1) by striking 
     ``race or color,'' and inserting ``race, color, or in 
     contravention of the guarantees of subsection (f)(2),'' which 
     protects the voting rights of a member of a language 
     minority.
       Section 5(c)(1) of the bill amends Section 4 of the VRA by 
     adding a new subsection (g), New subsection (g) provides an 
     administrative bailout process for local jurisdictions 
     without a history of discrimination that might be captured by 
     geographic preclearance coverage.
       New subsection (g)(1)(A) requires the Attorney General 
     after making the determination as to which states are subject 
     to geographic preclearance to also determine which political 
     subdivisions of those states are eligible for an exemption 
     under subsection (g) and to publish the list of any such 
     political subdivisions in the Federal Register. Furthermore, 
     any political subdivision so listed is not subject to any 
     requirement under Section 5 until the date on which any 
     application under this section has been finally disposed of 
     or no such application may be made.
       New subsection (g)(1)(B) creates a rule of construction 
     that states that determinations made pursuant to inclusion on 
     the published list under subsection (g)(1)(A) does not have 
     any binding or preclusive effect nor does inclusion 
     constitute a final determination by the Attorney General that 
     a listee is eligible for an exemption; that a listee has 
     satisfied eligibility requirements (A) through (F) provided 
     under new subsection (g)(2); or that the listee is entitled 
     to an exemption under new subsection (g).
       New subsection (g)(2) sets forth the eligibility 
     requirements for an exemption under this new subsection. New 
     subsection (g)(2) states that a political subdivision that 
     makes an application under new subsection (g)(3) is eligible 
     for an exemption under this subsection provided that during 
     the ten years preceding the filing of the application, and 
     during the pendency of such application:
       (A) no test or device referred to in subsection 4(a)(1) of 
     the VRA has been used within the political subdivision with 
     the purpose or effect of denying or abridging the right to 
     vote on account of race, color, or membership in a language 
     minority group;
       (B) no final judgement of any court of the United States, 
     other than the denial of declaratory judgment under this 
     section, has determined that denials or abridgements of the 
     right to vote on account of race, color, or membership in a 
     language minority group have occurred anywhere in the 
     territory of such political subdivision and no consent 
     decree, settlement, or agreement has been entered into 
     resulting in any abandonment of a voting law or practice 
     challenged on such grounds; and no declaratory judgment under 
     this section has been entered during the pendency of an 
     action commenced before the filing of an action under this 
     section and alleging such denials or abridgements of the 
     right to vote;
       (C) no federal examiners or observers under the VRA have 
     been assigned to such political subdivision;
       (D) such political subdivision and all governmental units 
     within its territory have complied with Section 5 of the VRA, 
     including compliance with the requirement that no change 
     covered by Section 5 has been enforced without preclearance 
     under Section 5, and have repealed all changes covered by 
     Section 5 to which the Attorney General has successfully 
     objected or as to which the United States District Court for 
     the District of Columbia has denied declaratory judgment;
       (E) the Attorney General has not interposed any objection 
     (that has not been overturned by a final judgment of a court) 
     and no declaratory judgment has been denied under Section 5, 
     with respect to any submission or by or on behalf of the 
     plaintiff or any governmental unit within its territory under 
     Section 5, and no such submissions or declaratory judgment 
     actions are pending; and
       (F) such political subdivisions and all governmental units 
     within its territory have eliminated voting procedures and 
     methods of election which inhibit or dilute equal access to 
     the electoral process; engaged in constructive efforts to 
     eliminate intimidation and harassment of persons exercising 
     rights protected under the VRA; and engaged in other 
     constructive efforts, such as expanded opportunity for 
     convenient registration and voting for every person of voting 
     age and the appointment of minority persons as election 
     officials throughout the jurisdiction and at all stages of 
     the election and registration process.
       New subsection (g)(3) establishes the application period 
     for the exemption provided under new subsection (g). Not 
     later than 90 days after the publication of the list under 
     new subsection (g)(1)(A), a political subdivision included 
     under such a list may submit an application containing such 
     information that the Attorney General may require, and the 
     Attorney General must provide notice in the Federal Register 
     of such an application.
       New subsection (g)(4) requires the Attorney General to 
     establish a comment period during the 90 days beginning on 
     the date that notice is published under new subsection (g)(3) 
     to give interested persons an opportunity to submit 
     objections to the Attorney General regarding the issuance of 
     an exemption under this subsection to a political subdivision 
     on the basis that it may not meet the eligibility 
     requirements under new subsection (g)(2). New subsection 
     (g)(4) also requires the 90-day period to be extended for an 
     additional 30 days during the 1-year period beginning on the 
     effective date of this subsection. Additionally, the Attorney 
     General must notify the political subdivision of each 
     submitted objection and afford the political subdivision the 
     opportunity to respond.
       New subsection (g)(5) sets forth requirements for the 
     Attorney General when making a determination as to the 
     objections submitted during the 90-day comment period 
     established under new subsection (g)(4). Under this 
     subsection, the Attorney General must consider and respond to 
     each objection (and any response of the political 
     subdivision) during the 60-day period beginning on the day 
     after the comment period under new subsection (g)(4) 
     concludes. If the Attorney General determines that any 
     objection is justified, the Attorney General must publish 
     notice in the Federal Register denying the application for 
     an exemption. If the Attorney General determines that no 
     objection submitted is justified, no later than 90 days 
     after the 60-day comment period established under this 
     subsection concludes, each person that submitted an 
     objection may filed in the District Court of the District 
     of Columbia, an action for judicial review of such 
     determination in according with 5 U.S.C. Ch. 7.
       New subsection (g)(6) provides the Attorney General the 
     authority to issue an exemption under this subsection by 
     publication in the Federal Register from the application of 
     the preclearance formula in Section 4(a) with respect to a 
     political subdivision that is eligible under new subsection 
     (g)(2) and to which no objection submitted under new 
     subsection (g)(4) or determined justified under new 
     subsection (g)(5).
       New subsection (g)(7) states that, unless explicitly 
     provided in this subsection, no determination under this 
     subsection shall be subject to judicial review, and that all 
     determinations under this subsection are committed to the 
     discretion of the Attorney General.
       New subsection (g)(8) exempts a political subdivision from 
     geographic preclearance

[[Page H4420]]

     coverage under Section 4(a) if that political subdivision 
     obtained a declaratory judgment entered prior to the 
     effective date of this subsection ``bailing out'' the 
     political subdivision and the political subdivision has not 
     violated any of the eligibility requirements set forth in new 
     subsection (g)(2) any time thereafter.
       Section 5(c)(2)(A) of the bill makes several technical and 
     conforming amendments to Section 4(a)(1) of the VRA.
       Section 5(c)(2)(B) of the bill creates a self-executing 
     amendment to the VRA, establishing that 1 year following the 
     effective date of new subsection (g), Section 4(g)(3) of the 
     VRA (new subsection (g)(3) in this document) is amended by 
     striking ``During the 1 year period beginning on the 
     effective date of this subsection, such 90-day period shall 
     be extended by an additional 30 days.'' Section 5(c)(2)(B) 
     also provides that for the purposes of any periods under such 
     section commenced as of such date, the 90-day period shall 
     remain extended by an additional 30 days.
       Section 6. Determination of States and Political 
     Subdivisions Subject to Preclearance for Covered Practices. 
     Section 6 of the bill would add after Section 4 of the VRA a 
     new ``Section 4A'' that would provide a new ``practice-based 
     preclearance'' formula for known practices that would apply 
     nationwide and cover voting law changes that have 
     historically been used to discriminate against voters.
       New Section 4A(a)(1) provides that each state and political 
     subdivision must identify all new laws, regulations, or 
     policies that include voting qualifications or prerequisites 
     to voting covered by subsection (b) and ensure that no 
     covered practice is implemented unless it has been 
     precleared.
       New Section 4A(a)(2)(A) provides that the Attorney General, 
     in consultation with the Director of the Bureau of Census and 
     the heads of other relevant governmental offices, must 
     determine as early as possible each calendar year the voting-
     age populations and characteristics of those populations, and 
     publish a list of the states and subdivisions to which a 
     voting-age population characteristic described in the 
     ``Covered Practices'' section. Section 4A(a)(2(B) of the bill 
     sets forth that a ``determination or certification of the 
     Attorney General under this paragraph shall be effective upon 
     publication in the Federal Register.''
       New Section 4A(b) defines the following as ``covered 
     practices'' and includes additional protections for Native 
     American voters:
       (1) any change to the method of election to (a) add seats 
     elected at-large or (b) convert one or more seats elected 
     from a single-member district to one or more at-large seats 
     or seats from a multi-member district in a state or 
     subdivision where ``2 or more racial groups or language 
     minority groups each represent 20 percent or more of the 
     political subdivision's voting-age population'' or ``a single 
     language minority group represents 20 percent or more of the 
     voting-age population on Indian lands located in whole or in 
     part in the political subdivision'';
       (2) any change or series of changes within a year to the 
     boundaries of jurisdictions that reduces by 3 or more 
     percentage points the proportion of the jurisdiction's 
     voting-age population that is comprised of members of a 
     single racial group or language minority group in a state or 
     subdivision where ``2 or more racial groups or language 
     minority groups each represent 20 percent or more of the 
     political subdivision's voting-age population'' or ``a single 
     language minority group represents 20 percent or more of the 
     voting-age population on Indian lands located in whole or in 
     part in the political subdivision'';
       (3) any change to redistricting in a state or subdivision 
     where any racial group or minority language group that is not 
     the largest racial group or language minority group in the 
     jurisdiction and that represents 15 percent or more of the 
     jurisdiction's voting age population experiences a population 
     increase over the preceding decade of at least 20 percent of 
     its voting-age population in the jurisdiction;
       (4) any change to requirements for documentation or proof 
     of identity to vote or to register to vote such that the 
     requirements will exceed or be more stringent than those 
     under state law on the day before the date of enactment of 
     the John R. Lewis Voting Rights Advancement Act of 2021, and, 
     where a state imposes an identification requirement for 
     receiving and casting a ballot in a federal election, if the 
     State does not permit the individual to meet the requirement 
     and cast a ballot in the election in the same manner as an 
     individual who presents identification by permitting the in-
     person or vote by mail voters to submit a sworn statement 
     attesting to their identity and eligibility to vote in lieu 
     of identification;
       (5) any change that reduces multilingual voting materials 
     or alters the manner in which such materials are provided or 
     distributed, where no similar reduction or alteration occurs 
     in materials provided in English; or
       (6) any change that reduces, consolidates, or relocates 
     voting locations, including early, absentee, and election-day 
     voting locations, including early, absentee, and election-day 
     voting locations, or reduces days or hours of in person 
     voting on any Sunday during a period occurring prior to the 
     date of an election during which voters may cast ballots 
     in such election, or prohibits the provision of food or 
     non-alcoholic drink to persons waiting to vote in an 
     election except where the provision would violate 
     prohibitions on expenditures to influence voting: (a) in 
     one or more census tracts wherein two or more language 
     minority groups or racial groups represent 20 percent or 
     more of the voting-age population of the political 
     subdivision; or
       (b) on Indian lands wherein at least 20 percent of the 
     voting-age population belongs to a single language minority 
     group.
       (7) any change to the maintenance of voter registration 
     lists that adds a new basis for removal from the list of 
     active registered voters or that incorporates new sources of 
     information in determining a voter's eligibility to vote, 
     wherein such a change would have a statistically significant 
     disparate impact on the removal from voter rolls of members 
     of racial groups or language minority groups that constitute 
     greater than 5 percent of the voting-age population. This 
     would apply only to political subdivisions where (a) two or 
     more racial groups or language minority groups comprise 20 
     percent each of the voting age population or (b) on Indian 
     lands, a single language minority group comprises at least 20 
     percent of the voting age population located within the 
     subdivision. With respect to states, this provision would 
     apply to those states with where at least 20 percent of the 
     voting age population of the state or of a political 
     subdivision within a state is composed of two or more racial 
     groups or language minority groups, except the preclearance 
     requirement apply only with respect to each such political 
     subdivision.
       New Section 4A(c)(1) sets forth a preclearance process for 
     the covered practices described above. A state or political 
     subdivision may institute an action in the United States 
     District Court for the District of Columbia for a declaratory 
     judgment that the covered practice ``neither has the purpose 
     nor will have the effect of denying or abridging the right to 
     vote on account of race, color, or membership in a language 
     minority group.'' The covered practice cannot be implemented 
     unless and until the court enters such judgment. A state or 
     subdivision can forego pursuing the described court action 
     and implement the covered practice if the Attorney General 
     has not interposed an objection within 60 days. Section 
     4A(c)(1) provides that the Attorney General or any aggrieved 
     citizen may file an action in a U.S. district court to compel 
     any state or political subdivision to satisfy the 
     preclearance requirements. The court must provide injunctive 
     relief as a remedy unless the ``voting qualification or 
     prerequisite to voting, or standard, practice, or procedure 
     with respect to voting'' is not a covered practice or the 
     State or political subdivision has complied with the 
     preclearance requirements.
       New Section 4A(c)(2) provides that any covered practice 
     defined in New Section 4A(b) that has the purpose of effect 
     of diminishing the ability of citizens to elect their 
     preferred candidates of choice on account of race, color, or 
     language minority status is considered a denial or 
     abridgement of the right to vote for purposes of this 
     practice-based preclearance provision.
       New Section 4A(c)(3) defines ``purpose'' as used in Section 
     4A to include any discriminatory purpose.
       New Section 4A(c)(4) defines the purpose of Section 
     4A(c)(2) to protect the ability of citizens to elect their 
     candidate of choice.
       New Section 4A(d) grants authority to the Attorney General 
     or a private party to file a civil action in federal district 
     court to compel any state or locality to comply with this 
     section. Such actions are to be heard before a three-judge 
     panel. This subsection requires such a court to enjoin the 
     challenged voting practice unless the challenged practice is 
     not a covered practice or the jurisdiction has precleared the 
     challenged practice.
       New Section 4A(e) specifies that the calculation of the 
     population of a racial or language minority group must be 
     carried out using the methodology outlined in regulatory 
     guidance.
       New Section 4A(f) provides that Census Bureau data, whether 
     estimates or actual enumerations, cannot be subject to 
     challenge or review in court for purposes of any 
     determinations under this section.
       New Section 4A(g) defines ``multilingual voting materials'' 
     as used in this section to mean ``registration or voting 
     notices, forms, instructions, assistance, or other materials 
     or information relating to the electoral process, including 
     ballots, provided in the language or languages of one or more 
     language minority groups.''
       Section 7. Promoting Transparency to Enforce the Voting 
     Rights Act. Section 7 adds after Section 5 of the VRA a new 
     Section 6. New Section 6 imposes new notice and disclosure by 
     states and political subdivisions for three voting-related 
     matters, including: (1) late breaking voting changes 
     involving federal elections (e.g., changes in voting 
     standards or procedures enacted 180 days before a federal 
     election); (2) polling resources involving federal elections 
     (e.g., information concerning precincts/polling places, 
     number of voting age and registered voters, voting machines, 
     and poll workers); and (3) redistricting, reapportionment, 
     and other changes in voting districts involving federal, 
     state, and local elections. Section 7 of the bill provides 
     that public notice for each of these matters must be in a 
     format that is accessible to voters with disabilities, 
     including persons who have low vision or who are blind. 
     Section 7 also provides that the right to vote of any person 
     shall not be abridged or denied because that person failed to 
     comply with any voting law change if the state or

[[Page H4421]]

     political subdivision involved did not meet the applicable 
     requirements of this section with respect to that change.
       Section 8. Authority to Assign Observers. Section 8 of the 
     bill amends Section 8 of the VRA. Section 8 of the VRA 
     currently allows the Attorney General to certify the need for 
     federal election observers in jurisdictions covered by the 
     VRA's coverage formula where the Attorney General has 
     received ``meritorious complaints'' from residents, local 
     officials, or organizations that voting violations are likely 
     to occur, or where the Attorney General determines that 
     assignment of observers is ``otherwise necessary'' to enforce 
     the Fourteenth or Fifteenth Amendment. These observers must 
     be authorized to enter polling places to observe whether 
     people who are entitled to vote are being permitted to do so, 
     and to observe the processes in which votes are tabulated. 
     VRA Section 8 gives the Director of the Office of Personnel 
     Management the authority to designate and assign individuals 
     to be observers.
       Section 8 of the bill would expand the set of circumstances 
     under which the Attorney General may seek to assign election 
     observers and would transfer control of the observer program 
     from OPM to DOJ. Section 8(a) of the bill would amend Section 
     8(a)(2)(b) of the VRA to allow the Attorney General to 
     certify the need for observers in instances where doing so is 
     considered necessary to enforce statutory provisions of the 
     VRA and other federal law protecting citizens' voting rights, 
     rather than solely to enforce the Fourteenth and Fifteenth 
     Amendments. Section 8(b) would amend Section 8(a) of the VRA 
     to permit the Attorney General to assign election observers 
     in response to written meritorious complaints by residents, 
     elected officials, or civic participation organizations that 
     bilingual election requirements are likely to occur and if in 
     the Attorney General's judgment, it is necessary to enforce 
     those requirements. Finally, Section 8(c) of the bill would 
     amend Section 3(a) of the Voting Rights Act to transfer the 
     authority to assign and terminate election observers from OPM 
     to DOJ.
       Section 9. Clarification of Authority to Seek Relief. 
     Section 9 amends several provisions of the VRA to add an 
     explicit private right of action. Section 9(a) of the bill 
     amends Section 10(b) of the VRA. Section 10(b) currently 
     provides that the Attorney General may institute a civil 
     action to enforce Section 10's prohibition on the enforced 
     payment of poll taxes as a device to impair voting rights. 
     Section 9(a) amends this provision to provide that, in 
     addition to the Attorney General, there is a private right of 
     action for anyone who has been injured by a violation of 
     Section 10.
       Section 9(b) of the bill amends Section 12(d) of the VRA. 
     Section 9(b) of the bill adds a new section 12(d)(1) that 
     provides, in addition to the Attorney General, for an 
     aggrieved person to file an action for preventive relief, 
     ``[w]henever there are reasonable grounds to believe that any 
     person has implemented or will implement any voting 
     qualification or perquisite to voting or standard, practice, 
     or procedure that would deny any citizen the right to vote'' 
     in violation of the 14th, 15th, 19th, 24th, or 26th 
     Amendments, the VRA (except for Section 4A), or another 
     federal law that prohibits discrimination in the voting 
     process on the basis of race or membership in a minority.
       Section 9(c) of the bill amends Section 204 of the VRA to 
     provide an explicit private right of action whenever 
     ``[t]here are reasonable grounds to believe that a State or 
     political subdivision has engaged in or is about to engage in 
     any act or practice'' prohibited by the VRA's provisions 
     prohibiting the denial of the right to vote because of 
     failure to comply with any test or device, durational 
     residency requirements, or language-minority status.
       Section 9(d) of the bill amends Section 301(a)(1) of the 
     VRA to provide an explicit private right of action to enforce 
     the 26th Amendment, which prohibits states and the federal 
     government from denying the right to vote to anyone aged 18 
     and older.
       Section 10. Preventive Relief. Section 10 of the bill 
     amends Section 12(d) of the VRA to provide a new standard for 
     preliminary relief in any action for preventive relief 
     described in this subsection.
       Specifically, Section 10 adds new section 12(d)(2)(A) would 
     require that a court grant relief if it determines that the 
     complainant has raised a serious question as to whether the 
     challenged voting practice violations the VRA or the 
     Constitution and, on balance, the hardship imposed on the 
     defendant by the grant of the relief will be less than the 
     hardship which would be imposed on the plaintiff if the 
     relief where not granted.
       Section 10 also adds new Section 12(d)(2)(B) would require 
     the court to examine a number of factors in making the 
     determination under new section 12(d)(2)(A), including (1) 
     whether the voting act or practice in effect prior to the 
     change was adopted as a remedy for a federal court judgment, 
     consent decree, or admission regarding race discrimination in 
     violation of the 14th or 15th Amendment, a violation of the 
     19th, 24th, or 26th Amendments, a violation of the VRA, or 
     voting discrimination on the basis of race, color, or 
     language-minority status in violation of any other federal or 
     state law; (2) whether the voting act or practice in effect 
     prior to the change served as a ground for dismissal or 
     settlement of such a claim; (3) whether the change was 
     adopted fewer than 180 days before the date of the election 
     with respect to which the change is to take effect; and (4) 
     whether the defendant failed to provide timely or adequate 
     notice of the adoption of the change as required by federal 
     or state law.
       Finally, section 10 would also amend section 12(d) by 
     adding new section 12(d)(3) which deems that a jurisdiction's 
     inability to enforce its voting or elections laws, 
     regulations, policies, or restricting plans, standing alone, 
     shall not constitute irreparable harm to the public interest 
     or to the interest of a defendant in an action arising under 
     the Constitution or any federal law that prohibits 
     discrimination in the voting process on the basis of race or 
     membership in a language minority group, for the purposes of 
     determining whether a stay of court or an interlocutory 
     appeal is warranted.
       Section 11. Relief for Violation of Voting Rights Laws. 
     Section 11 provides a fix for federal courts' misapplication 
     of the Purcell doctrine.
       Under that doctrine, federal courts are cautioned not to 
     issue decisions that would change election rules ``too 
     close'' to an election. In practice, federal courts have 
     applied that doctrine to consistently deny preliminary 
     injunctions for voting rights plaintiffs even when they may 
     have enough evidence to demonstrate a substantial likelihood 
     of success on the merits.
       Section 11(a)(1) of the bill defines a ``prohibited act or 
     practice'' as one that violates 1) the 14th Amendment by 
     creating an undue burden on the fundamental right to vote or 
     by violating the 14th Amendment's Equal Protection Clause; 2) 
     violates the 15th, 19th, 24th, or 26th Amendment or a number 
     of specified federal voting statutes; 3) or one that violates 
     any federal law prohibiting voting discrimination, including 
     the Americans with Disabilities Act.
       Section 11(a)(2) of the bill provides a rule of 
     construction stating that noting in this section shall be 
     construed to diminish the authority of any person to bring an 
     action under any federal law.
       Section 11(a)(3) of the bill provides for the attorneys' 
     fees pursuant to 42 U.S.C. Sec.  1988.
       Section 11(b) prohibits courts from denying, granting, 
     staying, or vacating the issue of equitable relief sought 
     pursuant to an action brought under any law listed in 
     subsection 11(a) because of proximity of the action to an 
     election. Under Section 11(b), the exception to this default 
     rule is when the party opposing relief demonstrates, 
     through clear and convincing evidence, that issuance of 
     the relief would be so close in time to the election that 
     it would cause irreparable harm to the public interest or 
     impose serious burdens on the party opposing relief.
       Section 11(b)(1) requires a court to give substantial 
     weight to the public interest in expanding access to the 
     ballot when reviewing whether to issue, stay, or vacate the 
     grant of equitable relief and provides that state's 
     generalized interest in enforcing its enacted laws is not a 
     relevant consideration in determining whether relief is 
     warranted.
       Section 11(b)(2) also creates the presumption that the 
     grant of equitable relief close to an election would not harm 
     the public interest or burden an opposing party if such 
     relief is sought within 30 days of the adoption or reasonable 
     public notice of the challenged voting policy or practice, or 
     more than 45 days before an election.
       Section 11(c)(1) requires a court, when reviewing an 
     application for a stay or vacatur of equitable relief sought 
     pursuant to a law listed in subsection 11(a), to give 
     substantial weight to the reliance interests of citizens who 
     acted pursuant to the order for equitable relief under 
     review. It would also prohibit a court from issuing a stay or 
     vacatur order that has the effect of denying or abridging the 
     right to vote of any citizen who acted in reliance on the 
     underlying order being stayed or vacated.
       Section 11(c)(2) prohibits a court from issuing a stay or 
     vacatur unless it finds that the public intertest will be 
     harmed by the continuing operation of the equitable relief 
     that has been granted or that compliance with such relief 
     will impose serious burdens on the party seeking a stay or 
     vacatur such that the burdens substantially outweigh the 
     benefits to the public interest. In issuing a stay or vacatur 
     of equitable relief, a court can set aside any factual 
     findings in support of such relief only for clear error.
       Section 12. Enforcement of Voting Rights By Attorney 
     General. Section 12 of the bill amends Section 12 of the VRA 
     by adding at the end a new subsection (g). New Subsection 
     12(g)(1) provides that whenever the Attorney General or a 
     designee has reason to believe that any person may be in 
     possession, custody, or control of any documents relevant to 
     an investigation under the VRA or other federal voting rights 
     statute, he or she may, prior to commencing an action, issue 
     in writing and serve on such person an order requiring the 
     production of such information.
       New subsection 12(g)(2) set forth the contents of any order 
     issued by the Attorney General under new subsection 12(g)(1).
       New subsection 12(g)(3) sets forth the contents of any 
     response to an order issued by the Attorney General under new 
     subsection 12(g)(1).
       New subsection 12(g)(4) sets forth judicial proceedings 
     related to an order issued by the Attorney General under new 
     subsection 12(g)(1).
       Section 13. Definitions. Section 13 of the bill amends 
     Title I of the VRA by clarifying several definitions related 
     to the Native American voting population. The defined terms 
     include ``Indian,'' ``Indian Lands,'' ``Indian Tribe,'' 
     ``Tribal Government,'' and

[[Page H4422]]

     ``Voting-Age Population,'' which are referred to in amended 
     Section 4 of the VRA.
       Section 14. Attorneys' Fees. Section 14 of the bill adds at 
     the end of Section 14(c) of the VRA, which provides 
     definitions for the Act's attorneys' fee provision, a 
     definition for ``prevailing party'' to mean ``a party to an 
     action that receives at least some of the benefit sought by 
     such action, states a colorable claim, and can establish that 
     the action was a significant cause of a change to the status 
     quo.''
       Section 15. Other Technical and Confirming Amendments. 
     Section 15 of the bill makes technical and conforming 
     amendments to Sections 3(c), 4(f), and 5 of the VRA.
       Section 16. Severability. Section 16 adds a severability to 
     clause to the bill, providing that if any part of the VRAA or 
     any amendments made by the Act, or any application of any 
     part of the Act or amendments made by the Act, is held to be 
     unconstitutional or is otherwise enjoined or unenforceable, 
     the rest of the VRAA, and the remainder of the Act and any 
     amendments made by this Act, and the application of the 
     provisions and amendment to any person or circumstance, and 
     any remaining provisions of the VRA, shall not be affected by 
     the holding.
       Section 17. Grants to Assist with Notice Requirements Under 
     the Voting Rights Act of 1965. Section 17(a) requires the 
     Attorney General to make grants each fiscal year to small 
     jurisdictions who submit applications for financial 
     assistance to comply with the VRA's notice requirements.
       Section 17(b) requires a small jurisdiction seeking such a 
     grant to file an application to the Attorney General 
     containing such information as the Attorney General requires.
       Section 17(c) defines a small jurisdiction to mean any 
     political subdivisions with a population of 10,000 or less.
                                  ____


Memorandum Regarding the Inclusion of Certain Provisions in H.R. 4, the 
  ``John R. Lewis Voting Rights Advancement Act of 2021''--August 24, 
                                  2021


                            I. INTRODUCTION

       The following is an analysis of key provisions included in 
     H.R. 4, the ``John R. Lewis Voting Rights Advancement Act of 
     2021.'' This legislation will strengthen and revitalize the 
     Voting Rights Act of 1965 (VRA) in the wake of the Supreme 
     Court's decisions in Shelby County v. Holder and Brnovich v. 
     Democratic National Committee in light of the record 
     developed before the House Judiciary Committee's Subcommittee 
     on the Constitution, Civil Rights, and Civil Liberties 
     (Constitution Subcommittee) over the course of six hearings 
     this year and seven hearings in the 116th Congress as well as 
     the Committee on House Administration's Elections 
     Subcommittee.
       H.R. 4 includes provisions addressing the following: (1) a 
     geographic coverage formula to determine which jurisdictions 
     should be subject to the VRA's preclearance requirement that 
     is broad enough to accurately capture the full extent of 
     contemporary voting discrimination while accounting for the 
     federalism and state sovereignty concerns expressed by the 
     Court in Shelby County; (2) a practice-based coverage formula 
     to complement the geographic coverage formula in order to 
     cover jurisdictions where, because of demographic changes, 
     the risk of voting discrimination is heightened even in the 
     absence of a history of voting discrimination and to cover 
     practices that are historically associated with voting 
     discrimination; (3) a statutory standard for vote denial 
     claims under Section 2 of the VRA in light of the Supreme 
     Court's recent decision in Brnovich; (4) the inclusion of a 
     non-retrogression standard in Section 2; (5) the creation of 
     an explicit private right of action under the VRA; (6) the 
     expansion of the causes of action available under the VRA to 
     include violations of a broader spectrum of voting 
     discrimination-related constitutional and statutory 
     provisions; (7) a revision of the preliminary injunction 
     standard applicable to actions under the VRA to make it 
     easier for plaintiffs to obtain such relief; (8) a fix for 
     federal courts' misapplication of the Purcell doctrine, which 
     counsels courts against granting preliminary injunctions or 
     making other changes to election rules too close to an 
     election; (9) greater notice and transparency requirements; 
     (10) expanded bases for the assignment of federal election 
     observers; and (11) expanded bail-in preclearance 
     jurisdiction for federal courts. Congress's constitutional 
     authority to adopt these provisions remains broad even when 
     accounting for the terms of the Supreme Court's decisions in 
     Shelby County and Brnovich.


      II. THE VOTING RIGHTS ACT: A BRIEF SUMMARY OF KEY PROVISIONS

       Below is a brief summary of the VRA's key provisions to 
     provide context for understanding the legislation's 
     provisions described later in this memorandum.
       Section 2(a) of the VRA applies nationwide and prohibits 
     any state or political subdivision from enacting any ``voting 
     qualification or prerequisite to voting or standard, 
     practice, or procedure . . . in a manner which results in a 
     denial or abridgement of the right of any citizen of the 
     United States to vote on account of race or color,'' or on 
     account of ``member[ship] [in] a language minority group.'' 
     Section 2 thus prohibits measures that are discriminatory in 
     purpose or in effect. Prohibited measures can include 
     practices that affect the ability to cast a vote (such as 
     through photo ID laws or by closing polling places) as well 
     as redistricting that dilutes the voting power of minority 
     citizens.
       Section 2(b) of the VRA clarifies how to determine when 
     there is a violation of Section 2(a) by providing that: ``A 
     violation of subsection (a) is established if, based on the 
     totality of the circumstances, it is shown that the political 
     processes leading to nomination or election in the State or 
     political subdivision are not equally open to participation 
     by members of a class of citizens protected by subsection (a) 
     in that its members have less opportunity than other members 
     of the electorate to participate in the political process and 
     to elect representatives of their choice.''
       Section 3(a) of the VRA provides that a federal court may 
     authorize the appointment of federal election observers by 
     the Director of the Office of Personnel Management (OPM) to 
     enforce the voting guarantees of the Fourteenth and Fifteenth 
     Amendments in the context of an enforcement proceeding.
       Section 3(c) of the VRA, known as the ``bail-in'' 
     provision, allows courts to retain jurisdiction to supervise 
     further voting changes in jurisdictions where the court has 
     found violations of the Fourteenth or Fifteenth Amendments. 
     If a jurisdiction is ``bailed in,'' it must submit any 
     changes to its voting rules and procedures for approval 
     either to the court or to DOJ.
       Section 203 was added to the VRA by Congress in 1975 and 
     contains a number of protections for members of ``language 
     minorities'' (i.e., non-English speakers). It supplements 
     Section 2 to prohibit voting discrimination against language 
     minorities, including by requiring provision of language 
     assistance to voters. It also added to the preclearance 
     coverage formula to include jurisdictions that provided 
     English-only voting materials where 5% or more of voting-age 
     citizens were from a single language minority.
       Section 4(b) of the VRA, known the ``coverage formula,'' 
     determined which states or political subdivisions are 
     required to submit changes to any voting laws for 
     preclearance under Section 5 prior to their implementation. 
     If a state is subject to preclearance, all of its political 
     subdivisions are as well. As described in detail below, in 
     2013 the Supreme Court invalidated the coverage formula as 
     unconstitutional in Shelby County v. Holder.
       Section 5 of the VRA, known the ``preclearance provision,'' 
     requires prior approval or preclearance of a proposed change 
     to any voting law in any states or political subdivisions 
     covered under Section 4(b). The Supreme Court's decision in 
     Shelby County effectively rendered Section 5 inoperative. A 
     covered jurisdiction can comply with Section 5 by preclearing 
     a proposed voting law change via two methods: administrative 
     or judicial review.
       Under administrative review, a covered jurisdiction can 
     submit a proposed voting change to DOJ. If DOJ affirmatively 
     indicates no objection to the proposed change, or if after 60 
     days DOJ has interposed no objection, the covered 
     jurisdiction can implement the change.
       Under judicial review, a covered jurisdiction can file suit 
     against the United States or the Attorney General in the U.S. 
     District Court for the District of Columbia for declaratory 
     judgment, whereby a three-judge panel must be convened to 
     hear the case (and with direct appeals to the Supreme Court). 
     Unlike in a Section 2 case, in an action brought under 
     Section 5, the burden is on the covered jurisdiction to 
     establish that it does not violate the substantive 
     prohibition in the preclearance provision.
       Section 5 prohibits covered jurisdictions from implementing 
     any changes to voting rules that have the purpose or effect 
     of denying or abridging the right to vote on account of race, 
     color, or membership in a language minority group. This 
     standard is referred to as the ``retrogression standard.'' 
     The Supreme Court has interpreted this substantive 
     prohibition to mean that a proposed voting rule change cannot 
     place minority citizens in a worse position to participate in 
     the electoral process or elect a candidate of their choice 
     than under the status quo. In this way, the standard for 
     establishing whether a proposed change must be precleared 
     differs from the standard for establishing a violation under 
     Section 2 of the Act, even though the wording appears 
     similar. Under the retrogression standard, a proposed voting 
     change is entitled to preclearance, even if the current 
     electoral system is potentially discriminatory under Section 
     2, so long as the change does not further increase the degree 
     of discrimination against minority voters.
       Sections 4(b) and 5 were originally set to expire after 5 
     years, but Congress reauthorized them several times since the 
     VRA's original enactment in 1965. Congress last reauthorized 
     the VRA in 2006, when it extended these provisions for an 
     additional 25 years.
       Section 8 of the VRA allows DOJ to certify the need for 
     federal election observers in covered jurisdictions where the 
     Attorney General has received ``meritorious complaints'' from 
     residents, local officials, or organizations that violations 
     of the VRA are likely to occur, or where the Attorney General 
     determines that assignment of observers is ``otherwise 
     necessary'' to enforce the Fourteenth or Fifteenth Amendment. 
     These observers must be authorized to enter polling places to 
     observe whether people who are entitled to vote are being 
     permitted to do so, and to observe the processes in which 
     votes are tabulated.

[[Page H4423]]

       Section 12(d) of the VRA provides the Attorney General with 
     the authority to institute a legal action for preventive 
     relief, including temporary or permanent injunctions, 
     restraining orders, or other relief, whenever any person has 
     engaged in, or there are reasonable grounds to believe that 
     any person is about to engage in, any violation of the VRA. 
     This provision has also been interpreted to provide an 
     implied right of action for private plaintiffs.


III. CONGRESS'S CONSTITUTIONAL AUTHORITY TO DEVISE PROTECTIONS AGAINST 
                    RACIAL DISCRIMINATION IN VOTING

       Congress has broad constitutional authority to protect 
     voting rights. Specifically, this authority is derived from 
     its powers to enforce the guarantees of the Fourteenth and 
     Fifteenth Amendments. Additionally, Congress has the 
     authority to ultimately determine the time, place, or manner 
     of congressional elections under the Elections Clause.
       The Fourteenth and Fifteenth Amendments to the Constitution 
     confer authority on the Congress to pass laws that regulate 
     federal, state, and local elections to protect voting rights. 
     Section 1 of the Fourteenth Amendment provides that ``[a]ll 
     persons born or naturalized in the United States, and subject 
     to the jurisdiction thereof, are citizens of the United 
     States and of the state wherein they reside. No state shall . 
     . . deny to any person within its jurisdiction the equal 
     protection of the laws.'' Section 2 requires members of 
     Congress to be apportioned among the states ``according to 
     their respective numbers, counting the whole number of 
     persons in each state, excluding Indians not taxed.'' Section 
     5 vests Congress with the ``power to enforce, by appropriate 
     legislation, the provisions of this article.''
       The Fifteenth Amendment prohibits racial discrimination in 
     the right to vote. Section 1 of the Amendment provides that 
     ``[t]he right of citizens of the United States to vote shall 
     not be denied or abridged by the United States or by any 
     state on account of race, color, or previous condition of 
     servitude.'' Like the Fourteenth Amendment, Section 2 of the 
     Fifteenth Amendment provides Congress with the ``power to 
     enforce this article by appropriate legislation.''
       The Elections Clause also provides Congress additional 
     authority to adopt voting rights protections. Article I, 
     Section 4, Clause 1 of the Constitution provides that ``[t]he 
     Times, Places and Manner of holding Elections for Senators 
     and Representatives, shall be prescribed in each State by the 
     Legislature thereof; but the Congress may at any time by Law 
     make or alter such Regulations, except as to the Places of 
     chusing Senators.'' While the Elections Clause grants the 
     States the authority to regulate the time, place, and manner 
     for holding elections for Representatives and Senators, it 
     vests Congress with the ultimate authority to determine the 
     election ``Regulations'' for those offices, with only one 
     explicit textual exception. As the Supreme Court, in an 
     opinion by Justice Antonin Scalia, noted, the ``Clause's 
     substantive scope is broad. `Time, Places, and Manner,' we 
     have written, are `comprehensive words,' which `embrace 
     authority to provide a complete code for congressional 
     elections.' ''
       The Supreme Court's earlier decisions upholding the 
     constitutionality of the VRA appear to have understood 
     Congress's constitutional authority to protect voting rights 
     in broad terms. In South Carolina v. Katzenbach, the first 
     case to uphold the VRA and its preclearance regime, the Court 
     appeared to apply a ``rationality'' test for measures enacted 
     to enforce the Fifteenth Amendment, noting that Congress need 
     only show that it had a legitimate end in adopting that law 
     and that the means to achieve that ``are plainly adapted to 
     that end.'' The Supreme Court decided Katzenbach in 1966 and 
     maintained the same standard of review for the VRA's 
     preclearance provisions, despite several challenges, and, at 
     least as to the scope of Congress's Fifteenth Amendment 
     authority, Katzenbach remains in effect.
       One caveat as to the scope of congressional authority over 
     voting rights legislation has arisen due to Supreme Court 
     interpretations of Congress's authority under the Fourteenth 
     Amendment. In a series of cases starting in the late 1990's 
     that were unrelated to voting rights, the Court began to 
     place limits on Congress's ability to adopt legislation 
     enforcing the Fourteenth Amendment's guarantees. In City of 
     Boerne v. Flores, the Court struck down as unconstitutional 
     as applied to states the Religious Freedom Restoration Act, a 
     statute that Congress passed to enhance protections for 
     religious minorities and other minority groups. It did so 
     based on an interpretation of Section 5 of the Fourteenth 
     Amendment that viewed Congress's authority to enact 
     legislation as primarily remedial in nature. Given this 
     remedial nature, the Court concluded that congressional 
     action in this area had to be congruent and proportional to 
     the injury being addressed. The ``congruence and 
     proportionality'' test adopted by the Court has raised some 
     question as to the scope of Congress's authority to adapt 
     voting rights legislation--particularly with respect to 
     language minorities--given the similarities in wording 
     between Section 5 of the Fourteenth Amendment and Section 2 
     of the Fifteenth Amendment.
       Nonetheless, existing precedent continues to establish 
     Congress's broad authority to adopt legislation to protect 
     voters against racial discrimination. As noted, the Court has 
     not overturned Katzenbach or related cases upholding the 
     VRA's preclearance scheme and the substantial deference that 
     the Court gave to Congress's exercise of its authority to 
     pass legislation enforcing the Fifteenth Amendment. Thus, 
     Congress can continue to adopt legislation that is rationally 
     related to its authority to protect against voter 
     discrimination.
       The Elections Clause also remains an oft-overlooked source 
     of congressional authority to prescribe voting rights 
     protections--though its reach is limited to federal 
     elections. Professor Franita Tolson previously testified 
     twice on the subject of Congress's authority to protect 
     voting rights under the Elections Clause. In her testimony, 
     Professor Tolson argued that enacting protections pursuant to 
     the Elections Clause provides several benefits as it ``avoids 
     many of the traps that have constrained congressional power 
     under the Reconstruction Amendments.'' She observed that 
     because it ``depriv[es] states of the final policymaking 
     authority that is the hallmark of sovereignty, the 
     [Elections] Clause is impervious to the federalism concerns 
     that have constrained congressional action under the 
     Fourteenth and Fifteenth Amendments.'' Moreover, Professor 
     Tolson noted that the Elections Clause is further 
     distinguished from the Reconstruction Amendments because it 
     ``does not require any evidence of discriminatory intent in 
     order for Congress to intervene, providing further 
     justification for a legislative record that shows that states 
     acted with discriminatory effect or in ways that otherwise 
     abridge or deny the right to vote.''
       Finally, Article IV's Guarantee Clause may provide Congress 
     additional authority to protect minority voting rights as a 
     means of ensuring the guarantee that every state has a 
     republican form of government. That Clause requires that the 
     ``United States shall guarantee to every State in this Union 
     a Republican Form of Government, and shall protect each of 
     them against Invasion; and on Application of the Legislature, 
     or of the Executive (when the Legislature cannot be convened) 
     against domestic Violence.''


                   IV. KEY ISSUES ADDRESSED BY H.R. 4

     A. New Geographic Coverage Formula to Revitalize Section 5 
         Preclearance Post-Shelby County
       On June 25, 2013, in Shelby County v. Holder, the Supreme 
     Court struck down as unconstitutional the coverage formula in 
     Section 4(b) of the VRA, effectively neutering the Act's 
     Section 5 preclearance provision. Citing its decision in an 
     earlier case called Northwest Austin Municipal Utility 
     District One v. Holder, the Supreme Court held that Congress 
     must justify the unequal burdens placed on state sovereignty 
     by the VRA's preclearance regime based on ``current needs'' 
     and that it had to demonstrate that the coverage formula was 
     ``sufficiently related to the problem that it targets.'' The 
     Court emphasized the principle of ``equal sovereignty'' of 
     the states, highlighting that ``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.'' In 
     other words, the Court believed that Congress was required to 
     further justify the coverage formula because it applied the 
     burden of the VRA's preclearance requirement to some states 
     but not others.
       The Court struck down the VRA's coverage formula based on 
     its conclusion that Congress had failed to demonstrate that 
     the coverage formula--first enacted in 1965--was sufficiently 
     connected to the present condition of voting rights in the 
     covered states, and because Congress could not justify the 
     disparate burdens placed by VRA's preclearance provision on 
     the sovereignty of some states and not others.
       Significantly, the Court invited Congress to ``draft 
     another formula based on current conditions.'' The Court went 
     on to note that, ``[o]ur country has changed, and while any 
     racial discrimination in voting is too much, Congress must 
     ensure that the legislation it passes to remedy that problem 
     speaks to current conditions.''
       To that end, H.R. 4 includes a geographic coverage formula 
     that would cover jurisdictions as follows. A state and all 
     political subdivisions in that state would be covered for 10 
     years if, looking back 25 years, there were 15 or more 
     violations in that state, or if there were 10 or more 
     violations in that state if at least one of those violations 
     was committed by the state itself (as opposed to a political 
     subdivision). A state is also covered if there are 3 or more 
     violations in that state when the state itself controls 
     elections in the state or its political subdivisions. 
     Separately, a political subdivision could be covered for 10 
     years if it committed 3 or more violations in the preceding 
     25 years. Drawing from Shelby County, any coverage formula 
     must reflect current needs, though the Court left unanswered 
     the question of how ``current'' is sufficiently ``current.'' 
     The formula in H.R. 4 reasonably meets this test because it 
     is a dynamic and self-updating formula, and preclearance 
     coverage would only last for 10 years for any given 
     jurisdiction, thereby always reflecting contemporary 
     conditions. Moreover, the 25-year lookback period reflects 
     two redistricting cycles and six presidential elections, 
     enough to ensure that the coverage formula only captures 
     jurisdictions that have engaged in a pattern of voting 
     discrimination, rather than those that may have committed a 
     ``one-off'' violation.
     B. Practice-Based Coverage
       ``Known practices coverage,'' also known as practice-based 
     preclearance, is a form of

[[Page H4424]]

     preclearance coverage formula that applies to certain voting 
     law changes that have historically been associated with 
     racial discrimination. This is distinct from geographic-based 
     preclearance, under which coverage is determined based on a 
     jurisdiction's history of voting rights violations. One 
     potential drawback of a geographic-based coverage formula is 
     that it does not cover jurisdictions with significant 
     emerging minority populations, where the risk of voter 
     suppression efforts against such populations is heightened 
     but there is no documented history of voting rights 
     violations.
       This has proven to be problematic as jurisdictions that do 
     not have a documented history of voting rights violations 
     have nonetheless responded to surges in the minority 
     population by turning to practices historically utilized to 
     discriminate against or disenfranchise minority voters. 
     Practice-based preclearance addresses this gap in coverage by 
     subjecting certain specific practices with a proven 
     historical association with discrimination to preclearance. 
     Moreover, such a practice-based coverage formula could be 
     limited in some instances to those jurisdictions that, based 
     on demographic changes, are most likely to engage in voter 
     suppression efforts. Unlike the VRA's currently defunct 
     preclearance coverage formula, practice-based preclearance 
     would apply to states and localities nationwide and not just 
     to certain states and political subdivisions.
       As such, H.R. 4 includes a practice-based preclearance 
     regime to supplement geographic-based preclearance. 
     Specifically, H.R. 4 includes a practice-based preclearance 
     provision that covered jurisdictions engaged in one of 
     several categories of practices, including changes to voter 
     ID requirements to be more stringent and changes to 
     multilingual voting materials when no such similar change 
     occurs in materials provided in English. Other categories of 
     voting procedures and practices are subject to preclearance 
     only in political subdivisions where certain demographic 
     thresholds are met. For instance, changing from single member 
     districts to at-large elections, redistricting, and the 
     consolidation or relocation of polling places could be 
     covered practices subject to preclearance in jurisdictions 
     where two or more racial groups or language minority groups 
     make up 20 percent or more of a political subdivision's 
     voting-age population.
     C. Clarifying Section 2 In Response to Brnovich v. Democratic 
         National Committee
       Prior to 2013, Section 2 had largely been used to challenge 
     state and local efforts that resulted in the dilution of the 
     effectiveness of minority citizens' votes, rather than in the 
     outright denial of the ability to vote. These ``vote 
     dilution'' cases mostly concern challenges to the drawing of 
     legislative districts or at-large voting systems. In 
     Thornburg v. Gingles, the Supreme Court outlined a non-
     exhaustive list of factors that a court should consider in 
     determining whether, under the totality of the circumstances, 
     a challenged voting rule violated Section 2's ``results 
     test'' as established under subsection 2(b). In evaluating 
     these ``vote dilution'' claims, courts were required to apply 
     the Gingles factors, which were geared toward consideration 
     of such ``vote dilution'' claims.
       Since 2013, in the effective absence of preclearance in the 
     wake of Shelby County, voting rights plaintiffs have been 
     forced to rely on Section 2 litigation to challenge 
     discriminatory voting rules after they had been implemented. 
     These kinds of claims were ``vote denial'' claims--i.e., 
     those claims alleging that the discriminatory effect of a 
     voting rule or practice was such that it effectively denied 
     minority citizens the equal opportunity to vote compared to 
     non-minority citizens. Until the Brnovich decision, the 
     Supreme Court had never addressed how a court should assess 
     ``vote denial'' claims under Section 2's results test, partly 
     because there were relatively few such cases while 
     preclearance was in effect.
       In the absence of Supreme Court guidance, a number of 
     federal appeals courts had attempted to articulate how the 
     results test would apply to vote denial claims under Section 
     2. For example, the Fourth, Fifth, Sixth and Ninth Circuits 
     articulated a two-part test: (1) the challenged voting rule 
     must impose a discriminatory burden on members of the 
     protected class, meaning that they have less opportunity than 
     other members of the electorate to participate in the 
     political process and to elect representatives of their 
     choice; and (2) the burden must in part be caused by or 
     linked to social and historical conditions that have or 
     currently produce discrimination against members of the 
     protected class.
       On July 1, 2021, the Supreme Court decided the consolidated 
     case of Brnovich v. Democratic National Committee and Arizona 
     Republican Party v. Democratic National Committee. In a 
     divided 6-3 opinion authored by Justice Samuel Alito and 
     joined by Chief Justice John Roberts and Justices Clarence 
     Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, 
     the Court upheld two Arizona measures challenged under 
     Section 2 of the VRA. One challenged measure required that 
     voters cast their ballots in their assigned precinct, and any 
     ballots cast out of precinct had to be discarded. The other 
     measure at issue was a criminal statute making it a felony 
     for a third party to collect early ballots from voters 
     (described by some as ``ballot harvesting''). Plaintiffs had 
     alleged that these voting rules violated Section 2's results 
     test and that the third-party ballot collection statute also 
     was motivated by a discriminatory purpose.
       At issue in the case was not just the legality of the two 
     challenged Arizona measures, but the impact that the Court's 
     decision may have on future Section 2 vote denial claims 
     alleging that a facially neutral voting practice governing 
     the time, place, or manner of an election denied the right of 
     minority citizens to vote. The full impact of the Court's 
     decision on these types of Section 2 vote denial claims 
     remains to be seen, but it appears from initial analyses that 
     the Brnovich decision will significantly curtail plaintiffs' 
     ability to bring or prove such claims, which could be 
     especially problematic in the effective absence of 
     preclearance.
       Although the majority in Brnovich expressly disclaimed the 
     notion that it was creating a new and narrow results test for 
     assessing Section 2 vote denial claims, it set forth what it 
     characterized as ``guideposts'' for considering such claims, 
     all of which, individually and taken together, significantly 
     narrowed the scope of Section 2 for vote denial claims and 
     will make it harder for future Section 2 vote denial claims 
     to prevail using the existing results test. In the majority's 
     view, the interpretive touchstone for Section 2's statutory 
     language is the term ``equally open'' as used in Section 2 
     and that in evaluating whether a plaintiff has established a 
     violation under Section 2 (i.e., that the challenged practice 
     ``results in'' discrimination), a court must examine the 
     jurisdiction's entire election system from a holistic 
     perspective to determine whether voting is ``equally open'' 
     to minorities.
       In her dissent, Justice Elena Kagan, joined by Justices 
     Stephen Breyer and Sonia Sotomayor, sharply criticized the 
     majority opinion, writing that ``Section 2 of the [VRA] 
     remains, as written, as expansive as ever'' and accusing the 
     Court of crafting ``its own set of rules, limiting Section 2 
     from multiple directions'' and giving ``a cramped reading to 
     broad language.'' Justice Kagan further found it ``tragic . . 
     . that the Court has (yet again) rewritten--in order to 
     weaken--a statute that stands as a monument to America's 
     greatness, and protects against its basest impulses.''
       In Justice Kagan's reading, Section 2: (1) applies to any 
     voting rule; (2) prohibits both denial and abridgement of a 
     citizen's voting rights based on race; (3) requires a court 
     to focus its inquiry on the effects of a challenged voting 
     rule and whether that rule results in racial discrimination, 
     not on the reasons why public officials enacted that rule; 
     (4) concerns itself with discrimination that results in 
     inequality of the opportunity to vote, which can arise from 
     facially neutral rules and not just targeted ones; (5) is 
     violated when an election rule, operating against the 
     backdrop of historical, social, and economic conditions, 
     makes it harder for minority citizens to vote than for 
     others; and (6) requires the state or locality imposing the 
     challenged rule to show that any strong governmental interest 
     justifying the challenged rule is the least discriminatory 
     rule necessary to satisfy the state interest. In short, 
     Justice Kagan wrote, Section 2 directs courts ``to eliminate 
     facially neutral (as well as targeted) electoral rules that 
     unnecessarily create inequalities of access to the political 
     process.''
       Although Brnovich is a deeply troubling decision, one 
     silver lining to the decision is that it left Congress with 
     the authority to respond with a legislative fix for the 
     damage that the Court has inflicted on Section 2. Because the 
     Court's decision is based on its interpretation of a statute 
     drafted by Congress, rather than on constitutional principles 
     restricting Congress's authority to legislate, Congress can 
     amend Section 2 to reverse the Court's decision in Brnovich.
       There were at least three potential approaches to 
     ``fixing'' the issues created by the Brnovich decision that 
     were considered. All three would essentially create a 
     separate standard for courts to apply when evaluating vote 
     denial (the situation in Brnovich) and vote dilution claims 
     under Section 2.
       Under the approach ultimately included in H.R. 4, Congress 
     clarifies that as to vote dilution claims, courts must 
     continue to apply the framework of the Gingles decision to 
     such claims. The legislation then creates a separate test for 
     courts to apply to vote denial claims that would require a 
     plaintiff to prove a violation of Section 2(a) by 
     establishing that the challenged voting practice imposes a 
     discriminatory burden on members of a class of citizens 
     protected by Section 2(a). Under this standard, the bill 
     codifies a separate set of detailed factors that courts must 
     consider when evaluating whether, under the totality of the 
     circumstances, the challenged voting practice ``results in'' 
     a discriminatory burden--while also precluding courts from 
     considering the ``guideposts'' described by the court in 
     Brnovich.
       Other possible approaches that were considered but not 
     ultimately included would have involved creating a burden-
     shifting test for vote denial claims under Section 2. Like 
     the previous approach, this approach would have largely 
     preserved Section 2(b) as applied to vote dilution claims, 
     which were not at issue in Brnovich. Under one potential 
     burden-shifting approach for vote denial claims, a plaintiff 
     could establish a prima facie case by demonstrating that a 
     challenged voting rule or practice interacts with historical 
     and socioeconomic factors to ``result in'' a disparate burden 
     on the opportunities enjoyed by members of a class of 
     citizens

[[Page H4425]]

     protected by Section 2(a) to participate in the political 
     process relative to other members of the electorate. The 
     burden then shifts to the defendant jurisdiction to 
     demonstrate by clear and convincing evidence that the 
     challenged rule is specifically tailored to materially 
     advance an important and particularized government interest. 
     If the state or political subdivision meets its burden, the 
     burden would then shift to the plaintiff to show by a 
     preponderance of the evidence that the state or political 
     subdivision could have implemented a procedure that furthered 
     the government's interest through a less burdensome means.
       Similarly, a third potential approach that was considered 
     but not ultimately included was suggested by Professor Nick 
     Stephanopoulos, who appeared before the Constitution 
     Subcommittee at its hearing held on July 16, 2021. His 
     proposal would import the disparate impact standard used in 
     other areas of civil rights law for vote denial claims. Under 
     his proposed standard for vote denial claims, a plaintiff 
     would have to show that an electoral practice causes a 
     statistically significant racial disparity. If the plaintiff 
     meets that burden, then the burden would shift to the 
     jurisdiction that imposed the challenged practice to 
     demonstrate that the practice is necessary to achieve a 
     strong state interest. The burden would then shift back to 
     the plaintiff to demonstrate that the interest could be 
     achieved through less discriminatory means, suggesting that 
     the state's asserted interest was pretextual.
     D. Section 2 Retrogression Standard
       As noted earlier, the substantive standard applied when 
     assessing a proposed voting change under the Section 5 
     preclearance regime is the retrogression standard--i.e., 
     whether the proposed voting change makes minority citizens 
     worse off than the status quo in terms of their ability to 
     vote. If the proposed change is retrogressive, then it cannot 
     be precleared.
       H.R. 4 imports this substantive standard into Section 2 to 
     apply to cases where an already-enacted voting law or rule 
     has a retrogressive effect. In such cases, a Section 2 
     retrogression standard would help to prevent the harm of 
     retrogression in the absence of preclearance in non-covered 
     jurisdictions. This measure also provides an additional basis 
     for finding a Section 2 violation.
     E. Enhancing Section 3(c) Bail-in Jurisdiction
       Section 3(c) of the VRA, known as the ``bail-in'' 
     provision, allows courts to retain jurisdiction to supervise 
     further voting changes in jurisdictions where the court has 
     found violations of the Fourteenth or Fifteenth Amendments. 
     If a jurisdiction is ``bailed in,'' it must submit any 
     changes to its voting procedures for approval either to the 
     court or to the DOJ. In practice, however, plaintiffs face a 
     high, perhaps insurmountable, burden in proving violations as 
     federal courts have determined that Section 3(c) requires a 
     finding of intentional discrimination. Thus, a jurisdiction 
     may have a history of VRA violations due to implementing 
     voting laws with a discriminatory effect, but because there 
     may not have been a constitutional violation, which requires 
     a showing of discriminatory intent, courts cannot invoke 
     Section 3(c) to subject a jurisdiction to preclearance as a 
     remedy. Additionally, even when there is substantial evidence 
     that government officials were motivated by discriminatory 
     intent, courts have proven reluctant to find that such 
     officials engaged in purposeful discrimination. Moreover, 
     since the Shelby County decision, some courts have suggested 
     that not all violations of the Fourteenth and Fifteenth 
     Amendments support Section 3(c) bail-in coverage. For these 
     reasons, courts have rarely invoked their authority under 
     Section 3(c) to impose bail-in preclearance on a 
     jurisdiction.
       As a result, H.R. 4 enhances the ``bail-in''' provision in 
     Section 3(c) of the VRA by permitting courts to impose a 
     preclearance requirement on a case-by-case basis on 
     jurisdictions where there have been violations of the VRA and 
     other federal statutory prohibitions against discrimination 
     in voting--in addition to instances where there have been 
     violations of the Fourteenth or Fifteenth Amendment. This 
     gives federal courts more flexibility and opportunity to 
     impose bail-in preclearance on a jurisdiction while avoiding 
     the federalism concerns that the Supreme Court articulated in 
     Shelby County, given the remedial and case-by-case nature of 
     bail-in coverage.
     F. Promoting Transparency to Enforce the Voting Rights Act
       Beyond effectively gutting the VRA's preclearance 
     mechanism, the Shelby County decision also undermined the 
     ability of DOJ and the general public to have notice of any 
     changes to voting laws, policies, or procedures. In addition 
     to being an effective enforcement mechanism, preclearance had 
     functioned as an effective notice regime. To address this 
     lack of transparency post-Shelby County, the legislation 
     imposes a notice and disclosure requirement on states and 
     political subdivisions for three voting-related matters, 
     including: (1) late breaking voting changes involving federal 
     elections (e.g., changes in voting standards or procedures 
     enacted 180 days before a federal election); (2) polling 
     resources involving federal elections (e.g., information 
     concerning precincts/polling places, number of voting age and 
     registered voters, voting machines, and poll workers); and 
     (3) redistricting, reapportionment, and other changes in 
     voting districts involving federal, state, and local 
     elections. The legislation also ensures that public notice 
     for each of these matters must be in a format that is 
     accessible to voters with disabilities such as those who have 
     low vision or who are blind. This type of reporting 
     requirement imposes a low burden on states and plainly bears 
     a logical relation to facilitating Congress's ability to 
     ensure proper enforcement of the law.
     G. Expanding the Authority to Assign Federal Elections 
         Observers
       Under Section 8, the Attorney General can certify the need 
     for OPM to assign federal observers to jurisdictions covered 
     by Section 5 of the VRA when the Attorney General ``received 
     written meritorious complaints . . . that efforts to deny or 
     abridge the right to vote . . . on account of race or color . 
     . . are likely to occur'' or when the Attorney General 
     considered the assignment of observers ``necessary to enforce 
     the guarantees of the 14th or 15th amendment.'' These 
     observers are authorized to ``(1) enter and attend at any 
     place for holding an election in such subdivision for the 
     purpose of observing whether persons who are entitled to vote 
     are being permitted to vote; and (2) enter and attend at any 
     place for tabulating the votes cast at any election held in 
     such subdivision for the purpose of observing whether votes 
     cast by persons entitled to vote are being properly 
     tabulated.'' They are also authorized to conduct 
     investigations and report to the Attorney General. 
     Additionally, under Section 3(a) of the VRA, federal courts 
     are also currently empowered to authorize the appointment of 
     federal observers by OPM to enforce the voting guarantees of 
     the Fourteenth and Fifteenth Amendments.
       As Jon Greenbaum, Chief Counsel for the Lawyers' Committee 
     for Civil Rights Under Law, noted in his testimony before the 
     Constitution Subcommittee at a hearing in May 2021, an oft 
     overlooked side effect of the Shelby County decision is the 
     reduced number of federal observer appointments under Section 
     8 of the VRA. DOJ has interpreted the Shelby County decision 
     as barring the use of the coverage formula to send observers 
     under Section 8 of the VRA. In place of full-fledged 
     observers, DOJ has relied on ``monitors'' to ensure that 
     jurisdictions with a history of discriminatory voting 
     practices hold elections in a fair manner that does not 
     disenfranchise minority voters. Unfortunately, these monitors 
     do not possess the same authority as an observer, and as such 
     jurisdictions are not required to provide them the same 
     access to the voting process as observers. Moreover, when 
     operating as intended, the authority of the Attorney General 
     and federal courts to appoint observers under the VRA is 
     generally limited to circumstances where such observers are 
     necessary to enforce the Fourteenth and Fifteenth Amendments.
       In order to address this problem, H.R. 4 expands the 
     circumstances under which both federal courts and the 
     Attorney General could certify the need for federal election 
     observers under Sections 3(a) and 8 of the VRA, respectively. 
     Section 3(a) is amended to permit federal courts to have 
     observers assigned where there are violations of the VRA or 
     any other federal law prohibiting discrimination in voting on 
     the basis of race, color, or language minority status, 
     supplementing its authority to do so to enforce the voting 
     guarantees of the Fourteenth and Fifteenth Amendments. 
     Similarly, the Attorney General's authority to certify the 
     need for observers is expanded to include instances when they 
     are considered necessary to enforce statutory provisions 
     prohibiting race, color, or language-minority discrimination 
     in voting and for the purpose of enforcing bilingual election 
     requirements.
       The legislation also amends the VRA so that the Attorney 
     General, rather than OPM, is authorized to control the 
     appointment and termination of federal election observers. 
     This is intended to ease administrative burdens on OPM and 
     improve the appointment process, given that DOJ possesses the 
     voting rights expertise necessary to evaluate candidates' 
     suitability to act as observers
     H. Strengthening the Effectiveness of VRA Enforcement Actions
       As noted by many Majority witnesses at most of the hearings 
     before the Constitution Subcommittee regarding the VRA, 
     Section 2 litigation has many drawbacks, including the time, 
     expense, and drain on resources that such litigation entails. 
     Most significantly, these witnesses noted that the biggest 
     drawback to Section 2 litigation is that it is difficult, if 
     not impossible, to stop the harm to voters that a 
     discriminatory voting law, policy, or practice can inflict 
     before such a measure is implemented. Being able to stop harm 
     to voters before a discriminatory voting measure took effect 
     was one of the primary benefits of preclearance.
       Part of the problem for those seeking to vindicate their 
     rights under the VRA using Section 2 litigation is that 
     because courts are reluctant to grant a preliminary 
     injunction and voting rights litigation is often lengthy, 
     several elections for federal, state, and local offices could 
     occur under voting laws or procedures that are later found by 
     the court to be discriminatory. Thus, thousands of minority 
     voters often remain disenfranchised before a court renders a 
     decision on the merits of a case brought under Section 2.
       For example, one witness testified during the 116th 
     Congress that ``Section 2 cases take a substantial amount of 
     time to litigate, leaving discriminatory voting practices in 
     place for months or years before they are

[[Page H4426]]

     ultimately blocked or rescinded,'' with the average time to 
     fully litigate a case to resolution being more than a year 
     and a half. Furthermore, he testified that because elections 
     take place during the time that Section 2 litigation is 
     pending, ``government officials are often elected under 
     election regimes that are later found to be discriminatory--
     and there is no way to adequately compensate victims of 
     voting discrimination after-the-fact.'' As an example, he 
     cited the ACLU's litigation challenging a sprawling North 
     Carolina voter suppression law, which took 34 months to 
     litigate from filing the complaint to a ruling by the U.S. 
     Court of Appeals for the Fourth Circuit, with the 2014 
     general election taking place in the interim. As he noted, 
     ``almost 200 federal and state officials in North Carolina 
     were elected under a discriminatory regime that the Fourth 
     Circuit found `target[ed] African Americans with almost 
     surgical precision' '' and that although the law was 
     ultimately struck down, ``there is no way to now compensate 
     the African-American voters of North Carolina--or our 
     democracy itself--for that gross injustice.''
       To address these drawbacks inherent to Section 2 
     litigation, H.R. 4 strengthens the ability of Attorney 
     General and private parties to bring enforcement actions by 
     amending the VRA to enhance the standard for preliminary 
     injunctions; to address federal courts undue reliance on the 
     Purcell principle when considering whether to grant equitable 
     relief; to expand the scope of the existing cause of action 
     available under the VRA; and to grant private parties an 
     explicit private right of action to obtain equitable relief.
       1. Enhancing the Standard for Preliminary Injunctions
       The legislation amends the VRA to enhance the standard for 
     preliminary injunctions by requiring a court considering a 
     preliminary injunction motion in Section 2 cases to grant 
     injunctive relief to the plaintiff if the court determines 
     that the plaintiff has raised a ``serious question'' 
     regarding the lawfulness of the challenged voting rule or 
     practice, and if the court determines that the balance of 
     interests and hardships favors the plaintiff.
       This standard departs from the traditional standard for 
     obtaining a preliminary injunction, under which a plaintiff 
     must show that he or she ``is likely to succeed on the 
     merits'' and is likely to suffer ``irreparable harm'' absent 
     an injunction and must demonstrate that the overall balance 
     of interests tilts in his or her favor. The Supreme Court, 
     however, has repeatedly held that Congress may alter common-
     law standards for seeking equitable relief so long as the 
     ``alternative comports with constitutional due process,'' 
     particularly in cases presenting issues of public interest.
       2. Addressing the Purcell Principle
       Compounding the difficulties and relative ineffectiveness 
     of relying solely on Section 2 litigation are some federal 
     courts' undue reliance on what is known as the Purcell 
     principle, named for the Supreme Court decision in which it 
     was articulated, Purcell v. Gonzalez. Briefly stated, the 
     Purcell principle holds that courts should not change 
     election rules in the time period close to an election 
     because it could cause voter confusion or problems for 
     election administration officials.
       As Professor Justin Levitt noted in his September 2019 
     testimony, ``[r]esponsive litigation often features 
     substantial discovery battles and extended motion practice, 
     all of which often precedes the awarding of even preliminary 
     relief. Such preliminary relief, according to experienced 
     litigators, is itself quite rare in affirmative voting rights 
     litigation, under the existing standard.'' Professor Levitt 
     further noted that the rarity of preliminary injunctive 
     relief ``only increases in the period shortly before an 
     election--when immediate rulings are most necessary to 
     prevent harm--based in part on the Supreme Court's 
     admonishment that the judiciary should be particularly wary 
     of enjoining enacted electoral rules under traditional 
     equitable standards when there is `inadequate time to resolve 
     . . . factual disputes' before the election proceeds.''
       The legislation addresses this problem by amending the VRA 
     to require a court evaluating any action for equitable relief 
     under Section 2 to shift the burden on to the jurisdictions 
     opposing the requested relief to prove that compliance with 
     such relief would be too burdensome. Courts are required to 
     not consider the proximity of the action to an election to be 
     a valid reason to grant or deny such relief, unless the party 
     opposing the relief--typically a State or political 
     subdivision thereof--meets the burden of proving by clear and 
     convincing evidence that the issuance of the relief would be 
     so close in time to the election as to cause irreparable harm 
     to the public interest or that compliance with such relief 
     would impose serious burdens on the opposing party.
       3. Empowering Private Parties by Providing an Explicit 
           Cause of Action
       Currently, the VRA expressly authorizes only the Attorney 
     General to seek preventive relief, including preliminary 
     injunctions. Although federal courts have interpreted the VRA 
     to provide private parties the ability to seek such 
     preventive relief, some courts have begun to express doubt 
     about whether such a cause of action exists, including 
     Justice Gorsuch in a concurring opinion in the Brnovich case. 
     To address this problem, the legislation explicitly provides 
     for a private right of action under the VRA, as H.R. 4 from 
     the 116th Congress did.


       V. THE CONTINUING NEED FOR A REVITALIZED VOTING RIGHTS ACT

     A. Congressional Consideration of Voter Suppression Efforts 
         Post-Shelby County
       During the 116th Congress, two subcommittees, the Committee 
     on the Judiciary's Subcommittee on the Constitution, Civil 
     Rights, and Civil Liberties and the Committee on House 
     Administration's Subcommittee on Elections, conducted a 
     series of hearings to examine the landscape of voting in 
     America following the Supreme Court's decision in Shelby 
     County v. Holder, current barriers to voting, and potential 
     remedies. During these hearings, Congress heard testimony 
     from leading civil rights advocates and organizations that 
     described a process akin to evolution whereby State and local 
     efforts to discriminate against minority voters have changed 
     over time in response to federal efforts to provide a remedy. 
     Accordingly, witness testimony described these barriers to 
     voting in terms of ``generations'' to best capture the fact 
     that voter discrimination continues to persist over time 
     despite changing form.
       ``First generation'' barriers: These barriers include poll 
     taxes, literacy tests, and other devices meant to overtly 
     disenfranchise racial minorities by preventing them from 
     registering and voting. States and localities enacted them 
     following the end of the Reconstruction Era. The VRA was 
     initially passed to address these barriers.
       ``Second generation'' barriers: These barriers include 
     racially gerrymandering electoral districts, adopting at-
     large election districts instead of smaller, single-member 
     individual electoral districts, and annexing another 
     political subdivision. States and localities enacted these 
     barriers to blunt the impact of minority voters on the 
     outcome of an election by diluting or underrepresenting the 
     strength of minority voters. The VRA was amended by Congress 
     to forbid these practices, though they remain a threat to 
     voting rights today.
       ``Third generation'' barriers: These barriers include 
     adopting procedures to make registering to vote more 
     difficult for language minorities, placing burdensome 
     restrictions on third-party voter registration activities, 
     moving or closing down polling places to increase the 
     difficulty for minorities to vote, and enacting voter ID 
     laws. These barriers are designed to make voting more onerous 
     for minority voters.
       Over the course of these hearings, the witnesses presented 
     extensive evidence supporting the conclusion that voter 
     discrimination remains a persistent problem. Furthermore, the 
     Constitution Subcommittee heard testimony that the Supreme 
     Court's decision in Shelby County has allowed these evolving 
     barriers to minority voting to proliferate further.
       At the time of the hearings, at least 23 states had enacted 
     restrictive voter laws since the Shelby County decision 
     including strict voter ID laws; barriers to voter 
     registration, such as requiring proof of citizenship 
     documents, allowing challenges of voters on the voter rolls, 
     and unfairly purging voters from the voter rolls; reductions 
     in early voting; and the moving or elimination of polling 
     places. Witness testimony particularly highlighted ongoing 
     efforts at voter discrimination in several states that were 
     previously covered by the VRA's preclearance formula: Texas, 
     Georgia, North Carolina, and Alabama.
       In Texas, within just hours of the Shelby County decision, 
     the state announced it would implement its voter ID law 
     despite a federal court having ruled that the same law could 
     not receive preclearance due to its effects on minority 
     voters. Other examples of voting barriers in Texas included 
     the reinstatement of at-large voting districts; criminal and 
     civil penalties for so-called ``voter fraud,'' including for 
     errors on voter registration forms; widespread purging of 
     voters from the rolls, including a policy targeting 
     naturalized citizens; a failure to comply with the National 
     Voter Registration Act; election judges and polling officials 
     engaging in discrimination against and hostility toward 
     minority voters; not processing voter registration of 
     minority voters; last-minute changes to polling sites and 
     assigning inconvenient polling sites to minority voters; long 
     lines; nonfunctioning voting equipment; elimination of 
     straight-ticket voting; and intimidation by state troopers 
     and harassment of African American voters by vigilante 
     groups.
       In Georgia, following Shelby County, discriminatory 
     barriers to voting included attacks on third party 
     registration; restrictive voter ID laws; the closure of 
     hundreds of precincts; database challenges that impacted 
     legitimate registrations; voter purges of more than a million 
     voters; a flawed process of ``exact match'' that impacted 
     53,000 people's registrations; undertrained and under-
     resourced election staff who could not meet the needs of 
     voters; long lines; policies that resulted in naturalized 
     citizens having to go to court for their voting rights; lack 
     of ballots in languages other than English for language 
     minority voters; broken voting machines; inadequate 
     distribution of voting machines; disparate application of 
     state laws between counties and inconsistent application of 
     the provisional ballot system; misapplied or miscommunicated 
     district lines (forcing do-over elections and disqualifying 
     candidates who would have otherwise been

[[Page H4427]]

     eligible); and high rates of rejecting absentee ballots.
       In North Carolina, after the Shelby County decision, the 
     legislature passed an omnibus voter restriction law that the 
     U.S. Court of Appeals for the Fourth Circuit would later 
     describe as ``the most restrictive voting law North Carolina 
     has seen since the era of Jim Crow'' with ``provisions [that] 
     target African Americans with almost surgical precision.'' It 
     included a ban on paid voter registration drives, the 
     elimination of same-day voter registration, a reduction of 
     early voting by a week, the elimination of the option of 
     early voting sites at different hours, and the reduction of 
     satellite polling sites for voters with disabilities and 
     elderly voters. Other examples of barriers to voting included 
     gerrymandering, voter roll purges, a voter ID constitutional 
     amendment, reductions to early voting, long lines, issues 
     with voting machines and curbside voting, and poll worker 
     misconduct.
       In Alabama, after the Shelby County decision, 
     discriminatory barriers to voting included a photo ID law, 
     the closure of DMV offices--which were needed to acquire the 
     necessary photo ID--in areas with the highest proportions of 
     Black Americans, restrictive absentee ballot rules, the 
     requirement of documents to prove citizenship to register to 
     vote, polling site closures, untrained poll workers, and 
     felon re-enfranchisement issues.
       In describing these voting barriers in specific states, the 
     witnesses' testimony pointed to a pattern demonstrating that 
     certain voting practices, enacted across multiple states in 
     the post-Shelby County era, consistently resulted in minority 
     voter disenfranchisement, including:
       Restrictions on voter registration, early voting, and 
     voting by mail;
       Restrictive voter ID laws;
       Voter roll purges;
       Issues with polling sites, such as the closure and 
     relocation of polling sites, long lines, intimidation of 
     voters primarily in communities of color, locating polling 
     places extremely far from where a resident lives--especially 
     in Native American communities, and denying limited English 
     proficient voters the right to language assistance;
       Vote dilution through redistricting plans, transitions to 
     at-large voting systems, and by other means; and
       Obstacles to restoring the right to vote for formerly 
     incarcerated individuals
       One witness summarized the numerous impacts of Shelby 
     County on voting rights as including the following:
       A resurgence of discriminatory voting practices, including 
     practices motivated by intentional discrimination, especially 
     in jurisdictions that were once covered by Section 5 of the 
     VRA;
       The institution and re-institution of discriminatory voting 
     policies with impunity by recalcitrant and hostile elected 
     officials;
       The lack of notification to the public of voting policy 
     changes that could have a discriminatory effect, which is 
     especially significant considering most of these actions 
     occur in small towns where constant oversight would be 
     difficult;
       The inability of the public to participate in reviewing 
     practices before they take effect;
       The elimination of the preclearance process' deterrent 
     effect;
       An unsustainable status quo where civil rights 
     organizations are attempting to fill the gaps created by the 
     Shelby County decision at huge expense; and
       The first redistricting cycle in decades without the full 
     protections of the Voting Rights Act.
       The record accumulated during the 116th Congress clearly 
     established that voter discrimination persists and continues 
     to evolve more than five decades after the passing of the 
     VRA. The Supreme Court's decision in Shelby County has 
     effectively permitted these laws to flourish across the 
     states unimpeded. The evidence highlights the need for the 
     Voting Rights Act's preclearance regime--both in areas where 
     voting discrimination has been substantial and persistent and 
     based on particular voting practices that are likely to 
     result in unconstitutional discrimination--and to update and 
     clarify other provisions of the VRA.
       During the 117th Congress, the Constitution Subcommittee 
     built upon the record from the previous Congress, holding six 
     additional hearings during which witnesses again presented 
     documented evidence of widespread discrimination in the 
     voting process. As one witness described at a hearing held in 
     May 2021, these ``direct burdens on the right to vote'' 
     include discriminatory voter purges; significantly longer 
     wait times at the polls for minority voters as compared to 
     white voters, disparities ``that discriminatory state and 
     local practices are at least partially responsible for''; new 
     strict voter ID laws; restrictions on voter registration such 
     as ``exact match'' laws ``mandating that voters' names on 
     registration records must perfectly match their names on 
     approved forms of identification''; cutbacks to early voting; 
     and new laws restricting access to mail in voting and 
     absentee ballots.
       The record compiled over the past two Congresses indicates 
     that states and political subdivisions have intensified their 
     efforts to suppress minority voters through the enactment of 
     facially neutral yet discriminatory voting practices and 
     procedures in the eight years since the Supreme Court's 
     Shelby County decision. As discussed in greater detail below, 
     President Trump and his allies' campaign to spread the 
     falsehood that his loss in the 2020 presidential election was 
     due to widespread fraud has further catalyzed state and local 
     efforts to enact discriminatory changes to voting laws under 
     the guise of ``election integrity protections.''
     B. Changes to State Voting Laws Since the 2020 Election
       Particularly salient to demonstrating the current need to 
     revitalize the VRA is the renewed effort by many states to 
     enact additional voting restrictions following former 
     President Trump's efforts to discredit the 2020 election 
     results by publicly promoting baseless claims that the vote 
     was marred by fraud and irregularities. As previously noted, 
     even before the 2020 election, states formerly subject to the 
     VRA's preclearance requirement enacted a series of new voting 
     restrictions in the wake of the Supreme Court's decision in 
     Shelby County. Taking cues from the baseless allegations 
     promoted by President Trump and his allies, several state 
     legislatures have proposed or enacted restrictive voting laws 
     in the name of protecting so-called ``election integrity 
     protection'', including in states previously subject to the 
     VRA's preclearance regime.
       According to a July 22, 2021 Brennan Center for Justice 
     report, as of July 14, 18 states have enacted 30 laws that 
     restrict the right to vote. The Brennan Center report also 
     observes that these restrictive voting laws target mail in 
     and absentee voting, ``make faulty voter purges more 
     likely'', and impose stricter voter ID requirements. As of 
     August 23, 2021, the non-partisan organization Voting Rights 
     Lab was tracking 495 anti-voter bills in the states.
       The recent voting law changes enacted by Georgia exemplify 
     many of the most restrictive voting measures adopted 
     following the 2020 election. Notably, the entire state of 
     Georgia was subject to preclearance under the VRA at the time 
     of the Shelby County decision. Signed into law by Governor 
     Brian Kemp (R-GA) on March 25, 2021, SB 202 incorporated 
     several restrictive voting proposals into a single omnibus 
     elections law. Several of SB 202's provisions are designed to 
     limit absentee voting. It requires absentee voters to provide 
     a Georgia driver's license or state identification card 
     number or photocopy of another identifying document with 
     their absentee ballot application; prohibits election 
     officials from providing ballot applications unless requested 
     by the voter; and reduces the time period in which a voter 
     can apply for an absentee ballot. Instead of allowing 
     municipalities and counties some discretion to set the hours 
     and days for early voting as was permitted previously, SB 202 
     standardizes early voting periods, effectively reducing many 
     voters' opportunities to vote early. One particularly 
     notorious provision of SB 202 criminalizes as a prohibited 
     ``gift'' the giving food or water to those standing in line 
     at a polling place.
       There is evidence in the public domain to suggest that 
     Georgia's recent changes to its election laws are more about 
     preserving partisan political advantage by burdening minority 
     communities' exercise of the right to vote than protecting 
     the integrity of elections. For example, a Gwinnett County 
     Republican official was quoted saying ``I was on a Zoom call 
     the other day and I said, `I'm like a dog with a bone. I will 
     not let them end this session without changing some of these 
     laws.' They don't have to change all of them, but they've got 
     to change the major parts of them so that we at least have a 
     shot at winning.''
       Other states that have enacted restrictive voter laws 
     include Florida and Arizona. On May 6, Florida's Republican 
     Governor, Ron DeSantis, signed into law an omnibus voter 
     suppression bill that makes voter registration and vote by 
     mail more difficult, changes rules for observers in ways that 
     could disrupt election administration, and restricts the 
     ability to give water and food to people waiting in line to 
     vote. On May 11, Arizona's Republican Governor, Doug Ducey, 
     signed into law a bill to make it harder for Arizonans to 
     vote by mail by purging voters who do not regularly vote from 
     Arizona's early voting list (which, before enactment of the 
     law, had previously been known as the state's permanent early 
     voting list).
       In July 2021, the Texas Legislature began a special session 
     to pass a new restrictive voting omnibus measure. Texas 
     Senate Bill 1 and House Bill 3 each would create new ID 
     requirements for voting by mail and clamp down on new voting 
     rules instituted by Harris County--the state's most populous 
     county and one of its most diverse--designed to increase 
     voter access, including banning drive-thru voting, and new 
     regulations for early voting hours. Senate Bill 1 passed on 
     August 12, 2021.

Statement of Wade Henderson, Interim President and CEO, the Leadership 
                  Conference on Civil and Human Rights


   U.S. HOUSE OF REPRESENTATIVES, HOUSE COMMITTEE ON THE JUDICIARY, 
  SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

HEARING ON ``OVERSIGHT OF THE VOTING RIGHTS ACT: POTENTIAL LEGISLATIVE 
                       REFORMS''--AUGUST 16, 2021

       Chairman Cohen, Ranking Member Johnson, and members of the 
     subcommittee: Thank you for holding this important hearing 
     today to highlight the ongoing crisis of racial 
     discrimination in our voting system and the urgency to 
     fulfill the promise of our democracy. My name is Wade 
     Henderson, and I am the interim president and CEO of The 
     Leadership Conference on Civil and Human

[[Page H4428]]

     Rights, a coalition of more than 220 national organizations 
     working to build an America as good as its ideals.
       The Leadership Conference was founded in 1950 and has 
     coordinated national advocacy efforts on behalf of every 
     major civil rights law since 1957, including the Voting 
     Rights Act of 1965 and subsequent reauthorizations. Much of 
     our work today focuses on making sure that every voter has a 
     voice in key decisions like pandemic relief, access to 
     affordable health care, and policing accountability. At The 
     Leadership Conference, we aim to ensure that every voter can 
     cast a vote and have it counted. We are deeply grateful to 
     this subcommittee for its work to restore the Voting Rights 
     Act and for introducing voluminous evidence of racial 
     discrimination into the record with integrity, deliberation, 
     and due diligence.
       In 1965, Congress passed the Voting Rights Act to outlaw 
     racial discrimination in voting. Previously, many states 
     barred Black voters from participating in the political 
     system through literacy tests, poll taxes, voter 
     intimidation, and violence. In the mid-1950s, only 25 percent 
     of African Americans were registered to vote, and the 
     registration rate was even lower in some states. In 
     Mississippi, for example, fewer than 5 percent of African 
     Americans were registered to vote. Those rates soared after 
     Congress enacted the Voting Rights Act. By 1970, almost as 
     many African Americans registered to vote in Alabama, 
     Mississippi, Georgia, Louisiana, North Carolina, and South 
     Carolina as had registered in the century before 1965. The 
     Voting Rights Act became the nation's most effective defense 
     against racially discriminatory voting policies.
       Only 15 years ago, this body reauthorized the Voting Rights 
     Act for the fourth time with sweeping bipartisan support. The 
     House of Representatives reauthorized this legislation by a 
     390-33 vote and the Senate passed it unanimously, 98-0. Given 
     the importance of the Voting Rights Act, Congress undertook 
     that reauthorization with care and deliberation--holding 21 
     hearings, hearing from more than 90 witnesses, and compiling 
     a record of more than 15,000 pages of evidence of continuing 
     racial discrimination in voting.
       Then, in 2013, the U.S. Supreme Court in Shelby County v. 
     Holder eviscerated the most powerful provision of the Voting 
     Rights Act: the Section 5 preclearance system. This provision 
     applied to nine states and localities in another six states. 
     These jurisdictions with histories of voting discrimination 
     were required to obtain preclearance from the U.S. District 
     Court for the District of Columbia or the U.S. Department of 
     Justice before implementing any change in a voting practice 
     or procedure. As discussed herein, Section 5 was incredibly 
     successful in blocking proposed voting restrictions in 
     certain states and localities with histories of racial 
     discrimination. It also ensured that changes to voting rules 
     were public, transparent, and evaluated to protect voters 
     against discrimination based on race and language. But, in 
     Shelby County, Chief Justice John Roberts, on behalf of the 
     majority, declared that ``Our country has changed.'' The 
     Court held that the formula that decided which jurisdictions 
     were subject to preclearance was based on ``decades-old data 
     and eradicated practices.'' It instructed Congress to assess 
     ``current conditions'' in order to require states and 
     political jurisdictions to preclear voting changes. Now that 
     this assessment has been conducted, there can be no question 
     of the persistent racial discrimination at the ballot box. 
     Congress must act.
       Despite the best efforts of The Leadership Conference and 
     its many member organizations to protect voting rights and 
     promote civic participation, the eight-year impact of the 
     Shelby County ruling has been devastating to our democracy. 
     The Supreme Court's invalidation of the preclearance formula 
     released an immediate and sustained flood of new voting 
     restrictions in formerly covered jurisdictions. Without the 
     Voting Rights Act's tools to fight the most blatant forms of 
     discrimination, people of color continue to face barriers to 
     exercising their most important civil right, including voter 
     intimidation, disenfranchisement laws built on top of a 
     system of mass incarceration, burdensome and costly voter ID 
     requirements, and purges from the voter rolls. States have 
     also cut back early voting opportunities, eliminated same-day 
     voter registration, and shuttered polling places. The pattern 
     is familiar: Gains in participation in voting among 
     communities of color are met with concerted efforts to impose 
     new barriers in the path of those voters.
       Attached to this testimony are reports covering several 
     states which document the ``current conditions'' surrounding 
     voting discrimination, the same conditions required by the 
     Supreme Court in Shelby County as the basis for Congress to 
     update a coverage formula. Additional reports will be 
     submitted into the congressional record. These reports 
     highlight the pervasiveness and persistence of voting 
     discrimination in its modern-day form. They demonstrate the 
     importance of reinstating Section 5 preclearance to stop 
     discriminatory voting changes from going into effect and 
     thereby ensuring that voters of color can fully participate 
     in the political process and have their voices heard.
     Alabama
       In reviewing the current state of voting discrimination, it 
     is only appropriate to begin with the State of Alabama, the 
     birthplace of the Voting Rights Act of 1965. From Selma to 
     Shelby County, Alabama has served as ground zero for the 
     struggle by Black voters to exercise the franchise. In 1982, 
     Congress had to explicitly add a results test to Section 2 of 
     the Voting Rights Act after the Supreme Court required proof 
     of intent in a Section 2 case challenging the City of 
     Mobile's at-large voting districts as a dilution of Black 
     voting power in City of Mobile v. Bolden. As the report 
     written by the NAACP Legal Defense and Educational Fund 
     indicates, ``racial discrimination in voting remains a 
     persistent and significant problem in Alabama today.'' The 
     Southern Poverty Law Center states in its report, also 
     attached to this testimony: ``The State of Alabama has never 
     rested in its efforts to undermine its Black citizens' right 
     to vote.''
       Since the Shelby County decision, Alabama is the only state 
     in the nation where federal courts have ordered more than one 
     jurisdiction to submit to preclearance under Section 3(c) of 
     the Voting Rights Act. Plaintiffs in a longstanding school 
     desegregation case, Stout v. Jefferson County Board of 
     Education, challenged the hybrid system of electing school 
     board members in Jefferson County under which four were 
     elected at-large from a ``multi-member'' district and a fifth 
     was elected from a single-member district. No Black person 
     had ever been elected to an at-large seat. A federal court 
     ruled that at-large districts violated Section 2 of the 
     Voting Rights Act, finding that the state legislature created 
     the districts ``for the purpose of limiting the influence of 
     Black voters.'' It ordered that multi-member districts be 
     divided into four single-member districts and the county to 
     submit future voting changes for Section 3(c) preclearance 
     through 2031.
       The City of Evergreen became the first jurisdiction in the 
     nation to be subjected to preclearance after Shelby County. A 
     lawsuit by Black voters challenged Evergreen's post-2010 
     Census redistricting plan for five single-member districts, 
     which retained three districts with white majorities even 
     though 62 percent of Evergreen's population is Black. The 
     lawsuit also challenged the city's system for determining 
     voter eligibility, which removed registered voters if their 
     names did not also appear on the list of utility customers, a 
     practice which disproportionately removed Black voters from 
     the voter list. Evergreen failed to obtain preclearance for 
     these changes before the Shelby County ruling, and a federal 
     court issued a preliminary injunction against the 
     redistricting plan. After Shelby County, the court granted 
     the plaintiffs' motion for summary judgment on their 
     intentional discrimination claims and ordered Evergreen to 
     submit future voting changes relating to redistricting and 
     voter eligibility for preclearance until December 2020.
       The Alabama report reveals additional ``stunning evidence'' 
     of intentional racial discrimination against Black voters by 
     the Alabama state legislature and local jurisdictions. 
     African-American state legislators filed a lawsuit alleging 
     that the Republican-led legislature intentionally sought to 
     dilute the Black vote in violation of the Voting Rights Act 
     and the Fourteenth Amendment by redrawing the state's 
     legislative districts to pack Black voters into majority-
     Black districts, thereby reducing their influence in other 
     districts. The legislators also claimed that the 
     redistricting plan was an unconstitutional ``racial 
     gerrymander,'' where it deliberately segregated voters into 
     districts based on their race without adequate legal 
     justification. A three-judge district rejected the claims, 
     and the case was appealed to the Supreme Court, which vacated 
     the lower court ruling and remanded the case for 
     reconsideration. The Court concluded that the fact that the 
     legislature ``expressly adopted and applied a policy of 
     prioritizing mechanical racial targets above all other 
     districting criteria (save one-person, one-vote) provides 
     evidence that race motivated the drawing of particular lines 
     in multiple districts in the State.'' On remand, one of the 
     Eleventh Circuit's most conservative judges, William Pryor, 
     authored an opinion for the three-judge court, ruling that 12 
     of the majority-minority districts were unconstitutional 
     because the legislature relied too heavily on race in drawing 
     their boundaries.
       Another glaring example of intentional discrimination by 
     Alabama arose in a federal bribery investigation in which 
     recordings by White Alabama legislators revealed a plot by 
     legislators to stop a gambling referendum from appearing on 
     the ballot because it would increase Black voter turnout. The 
     legislators were overheard calling Black voters 
     ``Aborigines'' and predicting that the referendum would lead 
     ``'[e]very black, every illiterate to be ``bussed [to the 
     polls] on HUD financed busses.'' A district court judge 
     presiding over the bribery trial ruled that these legislators 
     were not credible because they tried to ``increase Republican 
     political fortunes by reducing African American voter 
     turnout'' and because ``the record establishes their 
     purposeful, racist intent.'' The court concluded that the 
     ``recordings represent compelling evidence that political 
     exclusion through racism remains a real and enduring 
     problem'' in Alabama, and that overt racism ``remain[s] 
     regrettably entrenched in the high echelons of state 
     government.''
       Finally, Alabama's efforts to enact photo ID laws, which 
     disproportionately burden voters of color, dates back several 
     decades. Although Alabama was required to seek preclearance 
     before enforcing a 2011 law enacted prior to the Shelby 
     County ruling, it did not. Instead, it waited until the 
     ruling and then allowed the law to go into effect.

[[Page H4429]]

     The photo ID law was the subject of multiple lawsuits, 
     recounted by both the NAACP Legal Defense Fund and the 
     Southern Poverty Law Center in their reports. A key issue in 
     the litigation was the limited ability of Black voters to 
     obtain photo ID. In 2015, the Alabama governor and a state 
     agency announced the closure of 31 driver's license offices, 
     many in majority Black counties. The U.S. Department of 
     Transportation opened a civil rights investigation under 
     Title VI of the Civil Rights Act of 1964 and concluded that 
     the closures had a disparate impact on Black Alabamians in 
     violation of the law.
     Alaska
       There is a well-developed record of Alaska's discrimination 
     against the state's indigenous peoples, Alaska Natives, which 
     continues to this day and which was outlined in a 2017 
     article attached to the testimony. In 1975, the Section 4(b) 
     coverage formula was amended to address the ``pervasive'' 
     problem of ``voting discrimination against citizens of 
     language minorities.'' Congress identified what it described 
     as ``substantial'' evidence of discriminatory practices 
     against Alaska Natives. That evidence came in four forms: (1) 
     Alaska Natives suffered from severe and systemic educational 
     discrimination. (2) Alaska Natives suffered from illiteracy 
     rates rivaling and even exceeding rates of Black voters in 
     the South. (3) The illiteracy of Alaska Natives was 
     exacerbated by their high limited-English proficiency 
     (LEP) rates and need for interpreters to understand even 
     the most basic voting materials written in English. (4) 
     Congress considered evidence of Alaska's constitutional 
     literacy test and its impact on Alaska Native voters.
       When Section 4(b) was reauthorized in 2006, Congress 
     considered substantial evidence of the impact of past and 
     present educational discrimination on Native voters. Court 
     decisions found ``degraded educational opportunities'' for 
     Alaska Natives, resulting in graduation rates that lagged far 
     behind non-Natives. Alaska's continued failure to provide 
     equal educational opportunities profoundly affected the 
     ability of Native voters to read registration and voting 
     materials. Congress determined that because of Alaska's 
     discrimination, Native voters continued ``to experience 
     hardships and barriers to voting and casting ballots because 
     of their limited abilities to speak English and high 
     illiteracy rates . . . particularly among the elders.'' The 
     sad legacy of education discrimination remains. According to 
     the most recent census data from the 2016 language coverage 
     determinations under Section 203, approximately one in five 
     adult citizens of voting age in the Bethel Census Area is 
     Limited English Proficient in the Yup'ik language.
       Alaska's record of voting discrimination has exacerbated 
     the continuing effects of its educational discrimination 
     against Alaska Natives. While Shelby County was being 
     litigated, Alaska was under a settlement agreement for 
     violating the language assistance provisions in Section 203 
     of the Voting Rights Act and the voter assistance provisions 
     in Section 208 of the Act. In 2009, a federal court issued a 
     preliminary injunction in Nick v. Bethel finding that the 
     State of Alaska had engaged in a wholesale failure to provide 
     language assistance to Yup'ik-speaking voters in the Bethel 
     Census Area. The court noted that ``State officials became 
     aware of potential problems with their language-assistance 
     program in the spring of 2006,'' but their ``efforts to 
     overhaul the language assistance program did not begin in 
     earnest until after this litigation.'' At that time, Alaska 
     had been covered under Section 5 for Alaska Natives since 
     1975. However, state officials had taken no steps ``to ensure 
     that Yup'ik-speaking voters have the means to fully 
     participate in the upcoming State-run elections'' in 2008, a 
     third of a century later.
       Alaska Native villages outside of the Bethel region 
     expected that the fruits of the hard-fought victory in the 
     Nick litigation would be applied to other regions of Alaska 
     where language coverage was mandated. However, Alaska 
     officials made a ``policy decision'' not to do so. The state 
     directed its bilingual coordinator to deny language 
     assistance to other areas. The bilingual coordinator's last 
     day of employment was on December 31, 2012, the very day that 
     the Nick agreement ended. That led Alaska Native voters and 
     villages from three covered regions, the Dillingham and Wade 
     Hampton Census Areas for Yup'ik and the Yukon-Koyukuk Census 
     Area for the Athabascan language of Gwich'in, to file suit 
     just a month after Shelby County was decided. In Toyukak v. 
     Treadwell, Alaska Natives sued the state for again violating 
     Section 203 and for intentional discrimination in violation 
     of the U.S. Constitution because election officials 
     deliberately chose to deny language assistance to other 
     regions of Alaska even while the Nick settlement was in 
     effect. Alaska's recalcitrance to comply with the Voting 
     Rights Act is particularly noteworthy because it was the 
     first Section 203 case fully litigated to a decision in 35 
     years.
       In defending the latter claim, Alaska argued that the 
     Fifteenth Amendment was inapplicable to Alaska Native voters. 
     State officials argued that Alaska Natives were entitled to 
     less voting information than English-speaking voters. The 
     Alaska Native voters prevailed, but only after nearly two 
     million dollars in attorneys' fees and costs, the passage of 
     14 months for the ``expedited'' litigation, and a two-week 
     trial in federal court. The court concluded that ``based upon 
     the considerable evidence,'' the plaintiffs had established 
     that Alaska's actions in the three census areas were ``not 
     designed to transmit substantially equivalent information in 
     the applicable minority . . . languages.'' The Toyukak 
     decision came just 14 months after Shelby County, which 
     refutes the majority's conclusion that ``things have changed 
     dramatically'' and ``[b]latantly discriminatory evasions of 
     federal decrees are rare.'' The norm in many areas like 
     Alaska in a post-Shelby world is defiance and deliberate 
     violations of federal voting rights law to suppress 
     registration and voting by American Indians and Alaska 
     Natives.
     Florida
       The combination of a large and racially diverse electorate, 
     two different time zones, and a history of razor-thin, 
     contested elections would be enough basis for any state to 
     become a focal point in an examination of voting rights. 
     Florida's place in the ongoing conversation about the need 
     for a renewed Voting Rights Act is well-deserved. Since 
     situating itself at the epicenter of a modern meltdown in the 
     2000 presidential election, the leaders who run the state's 
     government have been on the wrong side of policy reform 
     opportunities that would protect the right to vote. As a 
     result, communities of color, who comprise nearly half of 
     Florida's population in excess of 21 million voters, remain 
     unable to enjoy the franchise by participating fully in 
     deciding who represents them.
       Since the entire nation witnessed its ballot counting 
     meltdown during a presidential election more than two decades 
     ago, Florida has not ceased to find its way into voting 
     rights controversy. The Florida report prepared by the 
     Advancement Project and submitted with this testimony 
     outlines a series of issues that have required careful 
     federal oversight and intervention in support of voting 
     rights. Prior to the Shelby County decision, the state had 
     crafted several policies that elicited multiple inquiries and 
     preclearance objections from the Justice Department. For 
     instance, the department interposed objections to Florida's 
     state legislative maps along with subsequence policies 
     purporting to ``reform'' its election administration system. 
     All of these objections demonstrated threats to voters' 
     ability to access the ballot due to the state's inattention 
     to the effect of language accessibility.
       Since Shelby County, however, the scope of the loss of 
     voting rights has been exceedingly apparent. Florida has 
     moved quickly to adopt changes in its election system, and 
     challengers now must resort to court challenges in place of 
     the preclearance administrative review process. For example, 
     Florida's secretary of state was enjoined by the Northern 
     District of Florida from employing a ballot review process 
     based on a flawed signature mismatch examination due to a 
     lack of notice for people to cure perceived issues with their 
     signatures. At the same time, it should be noted that certain 
     policy decisions that had not reached disposition under the 
     preclearance regime slipped through the cracks, like 
     Florida's 2012 voter purge policy where the challenge was 
     dismissed due to the Shelby County decision in Mi Familia 
     Voter Education Fund v. Detzner.
       Florida has sustained its habit of undermining the will of 
     the people, even when it was expressed clearly in a public 
     ballot measure. In 2018, more than 60 percent of Florida 
     voters approved a constitutional mandate to restore the 
     rights of its returning citizens. After moving slowly to even 
     review applications for pardons and clemency before Amendment 
     Four, state officials doubled down by severely curtailing 
     eligibility for rights restoration. Florida Senate Bill 7066, 
     signed into law in 2019, created a new barrier between these 
     citizens and the franchise: a modern-day poll tax. The new 
     rules require these citizens to resolve all fees and costs 
     associated with their prior convictions before becoming 
     eligible to register.
       In practice, this policy is arguably worse than the classic 
     poll tax, because Florida acknowledges that it does not keep 
     reliable documentation to allow a person to pay outstanding 
     costs. Further, the impact of this law shows significant 
     racial effects in several counties, meaning that people of 
     color will be less likely than others to pursue the 
     restoration of their rights. While the federal challenge to 
     the law was not successful, the fact that the state still did 
     not understand the likely impact of its fines and fees policy 
     makes clear the work that preclearance review would address; 
     this provision would be more carefully researched and either 
     revised or eliminated due to the significant limits on the 
     franchise.
       In multiple ways, Florida impeded efforts to enhance voter 
     accessibility during the 2020 election. Amidst a global 
     pandemic, where voters could not cast ballots in person 
     without risking life and health, the state did precious 
     little to provide more opportunities to vote from home. To 
     the extent the state took affirmative steps, officials made 
     the problems for voters worse, not better. Even though 
     Florida has an established record of allowing citizens to 
     vote by mail, the state limited the number of drop boxes and 
     locations to drop off ballots, and also curtailed the period 
     in which early voting would occur. These policies were 
     compounded by the troubling policy of signature matching for 
     ballots, an arbitrary methodology which placed doubts on many 
     cast ballots. All of this occurred against the backdrop of a 
     well-documented fiasco with delivery times in the U.S. Postal 
     Service. The results placed unnecessary pressures on 
     participation rates in low-income areas of the state, as well 
     as in communities of color.

[[Page H4430]]

       Finally, Florida adopted S.B. 90 this year, following 
     efforts elsewhere to push back on many of the activities and 
     third party organizations working to address the above 
     problems with voting practices. The new law places 
     restrictions on the ability of organizations to assist with 
     voter registration, a bedrock activity for many groups whose 
     mission is to enhance participation among voters of color. 
     Additionally, the bill directs these organizations to warn 
     citizens who register through their systems that their 
     applications might not arrive in time, which sows doubt and 
     uncertainty into these private efforts to expand the 
     franchise. And focusing on election management by local 
     officials, the bill eliminates ballot drop-offs on Sundays, 
     which is widely used by churches in Souls to the Polls 
     programs. It is difficult to see these changes by Florida's 
     leadership as motivated by anything more than a hostile move 
     against threats to their power.
     Georgia
       Georgia is home to history. In 2021, Black voters in 
     Georgia turned out in record numbers, electing the state's 
     first Black U.S. senator, Reverend Raphael Warnock. These 
     voters were able to make their voices heard despite 
     tremendous obstacles enacted by the state to limit Black 
     Georgians' participation. Their ability to not just overcome, 
     but to triumph, is yet another example of Black Georgians' 
     achievements, including those of storied civil rights leaders 
     like Martin Luther King Jr. and the late Congressman John 
     Lewis. Black and Brown Georgians deserve a democracy that 
     allows for and encourages their full participation. Sadly, 
     the state remains relentless in its pursuit of racial 
     discrimination in voting.
       The state has a long and sordid history of relentless 
     efforts to disenfranchise voters of color, beginning with 
     prohibitions against Black voting enshrined in the state's 
     first Constitution in 1777. As Fair Fight Action demonstrates 
     in its report, ``Georgia's Enduring Racial Discrimination in 
     Voting and the Urgent Need to Modernize the Voting Rights 
     Act,'' which is attached to this testimony, there is ``an 
     urgent and overwhelming need for Congress to bring the 
     preclearance formula found in the Voting Rights Act (``VRA'') 
     of 1965 . . . into the modern era, to reinstate robust 
     federal oversight over discriminatory voting practices, and 
     to strengthen and protect voting rights--for all eligible 
     voters in Georgia and nationwide.''
       The glaring examples of current disenfranchisement take 
     many forms and are recounted, chapter and verse, in the Fair 
     Fight Action report. For example, the two recent objections 
     interposed directly against the State of Georgia arose in the 
     five years preceding the Shelby County ruling. In both cases, 
     the Department of Justice found that Georgia had attempted to 
     implement new laws that would have a retrogressive and 
     disproportionate impact on voters of color. Most recently, in 
     2012, Georgia submitted for preclearance an amendment to the 
     Georgia election code that required all nonpartisan elections 
     for members of consolidated governments to be held in 
     conjunction with the July primary, rather than in November. 
     The Department of Justice objected, finding the change would 
     affect Augusta-Richmond County, in which Black voters had 
     just become a majority. Because Black voters were less likely 
     to vote in July, the Department determined the change 
     depressed turnout for voters of color and further, that the 
     state had not sustained its burden of showing a lack of 
     discriminatory purpose or effect.
       Three years earlier, in 2009, the Department of Justice 
     lodged an objection to a version of Georgia's voter 
     verification program. It found that the ``seriously flawed'' 
     program, which improperly removed voters from the rolls, 
     disproportionately affected voters of color. It made this 
     finding based on the ``actual results of the state's 
     verification process'' because Georgia had violated Section 5 
     of the Voting Rights Act by not seeking preclearance before 
     implementing the program.
       Fair Fight Action has collected the stories of thousands of 
     voters across the state who faced incredible barriers to 
     voting in the 2018 general election and the 2020-21 election 
     cycle. For example, a DeKalb County physician, one of the 
     country's leading infectious disease specialists, was 
     challenged at his polling location because there was a slight 
     discrepancy with the spelling of his last name on his 
     driver's license as compared with his registration 
     information. A Fulton County voter was initially refused a 
     ballot because he was classified as a non-citizen, despite 
     presenting his U.S. passport. Voters across the state 
     expressed frustration at the closing and moving of polling 
     locations, including a voter from Clay County, who was forced 
     to drive an hour to a new polling location because her old 
     polling location down the street closed.
       Voter purges have also disenfranchised eligible and 
     properly registered voters whose only mistake was not voting 
     recently enough, like a voter in Warner Robins who has lived 
     at the same address for 50 years but did not vote in recent 
     elections. In 2019, he was placed on the state's purge list 
     impermissibly, with no notice. Georgia voters also 
     experienced unacceptably long lines when trying to vote, such 
     that many voters were forced to leave without voting or 
     experienced other adverse consequences. For example, a voter 
     from Cobb County left her home at 6:30 a.m. to vote on 
     Election Day in 2018. The line was too long, so she left and 
     came back on her lunch break at 2:20 p.m. She was not able to 
     cast her ballot until 5:30 p.m., and lost two hours of pay. 
     In the Fair Fight Action report, there are also powerful 
     examples of how the state abdicated its responsibility to 
     adequately train local officials and poll workers about 
     provisional ballots, which in turn, has resulted in 
     conflicting and incorrect information given to voters.
       Despite the high standards applied to voter discrimination 
     claims by federal courts, at least two cases have resulted in 
     a final judgment that a practice within the State of Georgia 
     violated the Voting Rights Act. In a 2018 ruling, a federal 
     court found that Sumter County's redrawn school board 
     district map, which reduced the number of single-member 
     districts and added two new at-large districts, violated 
     Section 2. The plaintiff claimed the new map diluted the 
     voting strength of Black voters. The court agreed, finding 
     that the ``infringement of black voters' right to vote in 
     Sumter County is severe.'' The court specifically found there 
     was a ``glaring lack of success for African American 
     candidates running for county-wide office, both historically 
     and recently, despite their plurality in voting-age 
     population.'' And the low rate of Black turnout was 
     attributable to the indisputable history of discrimination in 
     Sumter County and in Georgia. A court made a similar finding 
     in 1997 after a bench trial on claims challenging the City of 
     LaGrange's at-large city council district plan. Noting that 
     LaGrange and Georgia had a long history of discrimination, 
     the court found the plan violated Section 2 of the Voting 
     Rights Act because it deprived citizens of color of the 
     opportunity to elect candidates of their choice.
       For further proof that attacks on voting represent an 
     escalating threat to the rights of Georgians of color, one 
     need look no further than the state's recently enacted Senate 
     Bill 202. Georgia's Republican-led General Assembly hastily 
     passed S.B. 202 after a historic turnout for the 2020 
     election and the 2021 Senate runoff, in which record 
     participation among Black and Brown voters led to the 
     election of Senator Warnock, and in response to conspiracy 
     theory-fueled, groundless allegations of voter fraud. 
     Provisions such as the photo ID requirement, reduced minimum 
     early voting for runoff elections, limited access to drop 
     boxes, and prohibition of most out-of-precinct voting will 
     disparately impact voters of color, particularly those with 
     limited resources and time to navigate the complex 
     requirements. Private parties have filed seven suits against 
     Georgia's governor, the secretary of state, the State 
     Election Board and its members, and various county election 
     officials for declaratory and injunctive relief challenging 
     various provisions of S.B. 202. On June 25, 2021, the 
     Department of Justice sued the state, the secretary of state, 
     and the State Election Board, bringing the number of pending 
     lawsuits challenging S.B. 202 to eight.
     Louisiana
       Louisiana's record of racial discrimination in voting is 
     ever present and well-documented. As the Southern Poverty Law 
     Center demonstrates in its report attached to this testimony, 
     Louisiana officials have consistently developed methods of 
     denying or diluting the votes of Black Louisianans. The 
     tactics may have changed over time, but the outcome is the 
     same: Black voters disproportionately bear the impact and are 
     less able to participate in the political process.
       Louisiana's population is nearly one-third Black. Since 
     Reconstruction, however, the state has not elected a Black 
     candidate to statewide office. Louisiana lawmakers continue 
     to reduce the power of Black communities through at-large 
     elections, proposed annexations, incorporation, and 
     redistricting plans. Louisiana currently unnecessarily 
     restricts registration, purges eligible voters from the 
     rolls, and makes registration onerous for people with felony 
     convictions. Since Shelby County, Louisiana has also 
     eliminated dozens of polling places, mostly in Black 
     communities. And while the state provides early voting, it 
     limits the number of sites, creating incredibly long lines in 
     the most populous parishes, including those with the most 
     Black residents. The state also banned early voting on 
     Sundays in 2016, which is a well-known tool for increasing 
     Black voter turnout. The state narrowly restricts access to 
     absentee ballots, erects barriers to ensuring that votes are 
     counted, and engages in voter intimidation. Despite myriad 
     barriers to voting placed in their path, Louisiana voters 
     persevere. Southern Poverty Law Center's report recounts more 
     than 70 Louisiana voters' stories demonstrating the personal 
     side of voter suppression.
       In 2000, the Department of Justice sued Morgan City, 
     alleging that the at-large system for electing members to the 
     city council violated Section 2. After five private 
     plaintiffs filed a similar action, the cases were 
     consolidated and the parties settled. The court entered a 
     consent judgment, finding ``a reasonable factual and legal 
     basis to conclude that under the at-large system for election 
     of City Council in Morgan City, minority voters have less 
     opportunity than other members of the electorate to 
     participate in the political process and to elect 
     representatives of their choice.'' As a condition of the 
     settlement, the parties agreed that all future elections for 
     the city council would proceed according to a single-member 
     election system.
       In 2002, a residents' association sued the St. Bernard 
     Parish School Board under Section 2 to prevent it from 
     adopting a redistricting plan that reduced the board's size

[[Page H4431]]

     and created two at-large seats. The redistricting plan arose 
     from Act No. 173, which required St. Bernard Parish, upon the 
     collection of a sufficient number of petitions, to hold a 
     referendum to transform the parish school board from a body 
     composed of 11 members elected from single-member districts 
     to one composed of seven members, five elected from single-
     member districts and two elected at-large. Parish voters 
     approved the ``5-2'' plan. Under the 11-member single-
     district plan, it had been possible to create a majority-
     Black district; indeed, prior to the referendum, the school 
     board had tentatively approved doing just that. But the 5-2 
     plan made a majority-Black district impossible. The court 
     invalidated the plan, finding that it diluted the voting 
     strength of the parish's Black voters in violation of Section 
     2.
       In 2007, Black residents of Jefferson Parish filed suit 
     against the State of Louisiana, alleging that the method for 
     electing judges on an at-large basis to the First District of 
     the Fifth Circuit Court of Appeals diluted Black voting 
     strength. On July 6, 2007, the Louisiana governor signed Act 
     261, dividing the First District into two single-member 
     ``election sections.'' The court entered a consent judgement, 
     confirming that Act 261 provided a framework for resolving 
     the litigation. The court ordered that the action be 
     dismissed, subject to preclearance and implementation of Act 
     261.
       In 2021, the Department of Justice filed suit against the 
     City of West Monroe under Section 2, challenging the at-large 
     method of electing representatives to the West Monroe Board 
     of Aldermen. Although Black residents comprised nearly 30 
     percent of the voting-age population in West Monroe, no Black 
     candidate had ever been elected to the board. The court 
     entered a consent judgment adopting a ``mixed'' election 
     method that provided for three single-member districts and 
     two at-large seats.
       As a harbinger of what is to come, in the latest 
     legislative session, state lawmakers passed five bills that 
     would have further restricted voting rights, including a bill 
     that would unnecessarily purge registered voters, a bill that 
     would add additional identification requirements to absentee 
     ballots, and a bill that would ban absentee ballot drop 
     boxes. Only fierce and persistent advocacy from dedicated 
     organizers and a veto from the governor prevented these bills 
     from becoming law. Louisiana's current conditions of racial 
     discrimination in voting are unequivocal. Without federal 
     preclearance, the promise of the Fifteenth Amendment and the 
     Voting Rights Act to guarantee equal voting rights will slip 
     further away.
     Mississippi
       Home to voting rights heroes like Fannie Lou Hamer and 
     Medgar Evers and the site of Freedom Summer, Mississippi is 
     notorious for its exclusion and suppression of Black voters 
     throughout history. Mississippi enforced white supremacy 
     through explicit legal impediments to Black voting as well as 
     state-sanctioned murder, including more than 650 lynchings 
     from Reconstruction through 1950--the most of any state in 
     the country. Mississippi was the first state sued by the 
     Department of Justice after the Voting Rights Act was passed. 
     Between 1965 and 2006, the department objected to more than 
     169 proposed voting changes in Mississippi that 
     disenfranchised voters of color, including redistricting 
     plans, at-large election schemes, polling place changes, 
     candidate qualification requirements, and open primary laws. 
     The state has the highest percentage of Black residents in 
     the country--38 percent--yet no Black candidate has been 
     elected to statewide office since Reconstruction.
       As documented in the Southern Poverty Law Center's report, 
     ``Freedom Summer, Shelby County, & Beyond: Mississippi's 
     Continued Record of Racial Discrimination in Voting, the 
     Tireless Mississippians Who Push Forward, & the Critical Need 
     to Restore the Voting Rights Act,'' the state and many of its 
     jurisdictions have made strident and continuous efforts to 
     prevent Black Mississippians from participating in the 
     political process. For example, instead of paying a ``poll 
     tax'' to vote, Black Mississippians are now required to incur 
     the burdensome expense of having certain absentee ballots and 
     applications notarized. Additionally, instead of being asked 
     to interpret complex legal provisions under the guise of 
     literacy tests, Black Mississippians are now subject to 
     unevenly applied voter ID requirements.
       Voting rights litigation during the last 25 years 
     demonstrates the ongoing struggle of voters of color. In 
     1993, a nonprofit group sued the City of Quitman, 
     Mississippi, arguing that the city violated Section 2 of the 
     Voting Rights Act by electing its five aldermen from at-large 
     districts, thus diluting the voting strength of the city's 
     Black voters. A federal court granted a preliminary 
     injunction, enjoining the upcoming 1993 alderman elections. 
     The court later entered a final judgment, concluding that the 
     city's system of electing its aldermen from at-large 
     districts violated Section 2. In 1996, Black voters 
     challenged Calhoun County's redistricting plan. Rather 
     than drawing a ``geographically compact black majority 
     district,'' the county created a plan that divided Black 
     residents between five districts, where the Black 
     population ranged from 19 percent to 42 percent. A federal 
     appellate court held that the plan ``dilute[d] minority 
     voting strength'' and therefore violated Section 2 of the 
     Voting Rights Act. In 1997, a federal court found that 
     Chickasaw County's redistricting plan for its justice 
     court judge and constable elections violated Section 2 of 
     the Voting Rights Act. The court concluded that ``the 
     lingering effect of the past history of discrimination, 
     the racially polarized voting patterns, the substantial 
     socio-economic differences between black and white 
     citizens, and the lack of success of black candidates in 
     country-wide, county district and city-wide elections in 
     Chickasaw County causes black voters to `have less 
     opportunity than other members of the electorate in the 
     political process and to elect candidates of their 
     choice.' ''
       It is harder to vote in Mississippi than in almost any 
     other state. Mississippi ranked 47 out of 50 in the 2020 Cost 
     of Voting Index--which considers election system features 
     that impact voting access, including registration deadlines, 
     availability of pre-registration and early voting, number of 
     polling places, poll hours, and voter ID laws. It was a 
     modest improvement from 2016 when it ranked dead last. There 
     is no online voter registration. No automatic or same-day 
     registration. No early voting. Mississippi has a strict photo 
     ID law for voting in person. One can only vote absentee by 
     qualifying for one of a narrow set of excuses. Even those who 
     qualify to vote absentee must have their absentee ballot 
     application and their absentee ballot notarized. During the 
     2020 election season, the state refused to lift these 
     burdensome requirements even amid a global pandemic, 
     endangering Mississippians wishing to avail themselves of 
     their rights and make their voices heard while keeping 
     themselves and their families safe.
       In its report, the Southern Poverty Law Center documented 
     Mississippians' obstacles to cast their votes. On Election 
     Day 2012, a Hinds County resident arrived at the polling 
     location at which she had voted for years, only to be told 
     that her name was not in the register, and she was not able 
     to vote. After the election, she took time off from work to 
     go to the courthouse and ask why her name had been removed 
     from the rolls. She was eventually informed that her name had 
     been removed as part of a redistricting--the first time she 
     had ever been notified of this fact. In the 2016 presidential 
     election, a Grenada County resident and Ole Miss student 
     attempted to vote absentee but was charged $10 for each 
     document she needed to get notarized, for a total of $20. She 
     had to spend her last $20 on the notary and points out that 
     this notarization requirement is ``equivalent to charging a 
     poll tax.'' A Harrison County resident moved in fall 2020 and 
     promptly re-registered to vote at her new address. On 
     Election Day 2020, she was turned away from her nearest 
     polling place and was told she needed to vote at another 
     location 30 minutes away. Once there, however, she was 
     required to vote using a provisional ballot and later 
     received a letter indicating her ballot had not been counted. 
     It ultimately took her three attempts to update her address 
     before she was finally able to receive her voter card. In the 
     2020 election, a Hinds County resident encountered delays and 
     overcrowding at her polling location, which was located on 
     the corner of two roads with no sidewalks. She and other 
     voters had to wait in line on the side of the road for about 
     an hour, which was difficult for many disabled and elderly 
     voters, including the voter in front of her in line, whose 
     wheelchair broke while waiting in line due to the poor road 
     conditions.
       Mississippi officials are relentless in curtailing the 
     right to vote for their constituents of color. Earlier this 
     year, House Bill 586 proposed that Mississippi direct its 
     voter registration system to identify registered voters who 
     may not be U.S. citizens by checking other unspecified 
     ``identification databases.'' Voters flagged as ``potential 
     non-citizens'' would have faced an immediate challenge to 
     their registrations: The bill ``mandated a 30-day period in 
     which flagged voters would have had to provide a birth 
     certificate, passport, or naturalization documents to the 
     relevant authority.'' Failure to do so would result in an 
     immediate purge from the registered voter roll. Under threat 
     of litigation by advocates, the bill ultimately failed, but 
     it demonstrates that many Mississippi lawmakers remain 
     determined to make it even more difficult to vote.
     North Carolina
       North Carolina's shameful history of racism in voting 
     includes the only successful violent municipal coup d`etat in 
     our nation's history in the Wilmington massacre of 1898; 
     enactment of a literacy test, poll tax, and felony-based 
     disenfranchisement; prohibitions on single-shot voting; and 
     discriminatory multi-member districts of 1982 that led to the 
     landmark Thornburg v. Gingles decision. Yet, as documented in 
     Forward Justice's report, ``The Struggle for Voting Rights in 
     North Carolina: 2006-2021,'' North Carolina's recent history 
     demonstrates the effectiveness of the Voting Rights Act prior 
     to Shelby County and the urgent need for its reinvigoration.
       In the two decades before Shelby County, the Voting Rights 
     Act was working in North Carolina. Prior to 2013, 40 out of 
     100 counties were covered by Section 5, primarily located in 
     Eastern North Carolina. As the report describes, ``[w]hile 
     the impact of Section 2 litigation since 1965 cannot be 
     underestimated, Section 5 was the critical legal protection 
     undergirding the fragile, but notable, gains by Black voters 
     in the state.'' From 1982 to 2013, more than 49 Section 5 
     objection letters were issued by the Department of Justice to 
     North Carolina and its local jurisdictions. By

[[Page H4432]]

     2012, African Americans were ``poised to act as a major 
     electoral force.''
       After Shelby County, North Carolina became ``a national 
     testing ground for modern manifestations of Jim Crow-era 
     voter suppression strategies and epicenter for a renewed 
     voting rights movement to prevent discrimination at the 
     ballot box.'' In just a matter of hours after Shelby County 
     was handed down, leadership of the North Carolina General 
     Assembly announced that because the decision had rid them of 
     the ``headache'' of the Voting Rights Act's preclearance 
     protections, they could now move forward with the ``full 
     bill.'' H.B. 589 became known as the ``monster'' voter 
     suppression law--and was more restrictive than bills seen in 
     any other state. Among other changes, the law eliminated 
     same-day registration, pre-registration for 16- and 17-year-
     olds, out-of-precinct ballots, and the first week of early 
     voting, and instituted one of the nation's most stringent 
     voter ID requirements.
       More than three years after H.B. 589's passage, the U.S. 
     Court of Appeals for the Fourth Circuit invalidated the 
     omnibus suppression legislation, holding that the State of 
     North Carolina illegally and intentionally targeted the right 
     to vote of African Americans ``with almost surgical 
     precision'' in violation of Section 2 and the Fourteenth and 
     Fifteenth Amendments. The Court concluded ``in sum, relying 
     on . . . racial data, the General Assembly enacted 
     legislation restricting all--and only--practices 
     disproportionately used by African Americans'' and ``that, 
     because of race, the legislature enacted one of the largest 
     restrictions of the franchise in modern North Carolina.''
       As described in Forward Justice's report, North Carolinians 
     have labored for close to a decade defending against an all-
     out attack on voting rights. On top of the ``surgical 
     precision'' of the omnibus voter suppression legislation, 
     North Carolina's racially discriminatory redistricting 
     following the 2010 decennial census represents some of the 
     most egregious gerrymandering violations in the country to 
     dilute and suppress the power of voters of color. Two federal 
     decisions, Covington v. North Carolina and Cooper v. Harris, 
     held that, in drawing the state legislative districts, the 
     state manufactured one of the ``largest racial gerrymanders 
     ever encountered by a Federal Court'' and, in constructing 
     both Congressional District 1 and 12, the General Assembly 
     illegally used a ``racial target that subordinated other 
     districting criteria and produced boundaries amplifying 
     divisions between blacks and whites.'' These cases are among 
     the most prominent of the state's complex web of voting 
     rights violations since 2013, many documented in state and 
     federal court challenges, which dominated the past decade.
       Voting rights litigation, voter outreach and education, and 
     voter protection work over the last decade yielded a detailed 
     body of evidence summarized in the Forward Justice report, 
     including in the form of coordinated third-party challenges 
     to voter eligibility, significant reductions to polling 
     locations and hours available in formerly covered counties, 
     and county-level efforts to change methods of elections from 
     single-member to at-large. As North Carolina's elections 
     developed into a federal battleground the state also 
     experienced continued racial appeals in campaigning, and 
     incidents of harassment and voter intimidation by both third-
     party groups and partisan actors, particularly heightened in 
     the 2020 election cycle. One shocking incident took place on 
     the last day of early voting on October 31, 2020, when a 
     peaceful ``Souls to the Polls'' march in Graham, North 
     Carolina, organized by Black clergy, ended with those 
     gathered, including the elderly and children, being pepper-
     sprayed and prevented from completing their walk to the early 
     voting site in Alamance County.
       Without the preventative umbrella of Section 5, North 
     Carolinians were left working overtime to seek after-the-fact 
     remedies, and equal democracy in the state suffered. North 
     Carolina's General Assembly remains in legislative session 
     today, with legislation pending that threatens the right to 
     vote. Following the census data release, the 2021 
     redistricting process is officially underway. The state 
     produced remarkable leaders in the modern struggle for voting 
     rights, including elders Mother Rosa Eaton and Mother Grace 
     Hardison, who represent the best of America, as they fought 
     under the banner of the Forward Together Moral Mondays 
     Movement to realize the full promise of our democracy. But, 
     as Rev. Dr. William Barber, II, a leading architect of that 
     movement described, ``these battles should never have 
     occurred at all.'' Without urgent congressional action, North 
     Carolinians are bracing for another decade of struggle for 
     the equal ballot, recognizing that the state's past is a 
     harbinger of the scope and scale of voter suppression to 
     come.
     South Carolina
       South Carolina, where Black residents represent more than 
     one quarter of the state's population, has a long and deep 
     history of racial discrimination in voting. It was the first 
     state to challenge the constitutionality of the Voting Rights 
     Act, in South Carolina v. Katzenbach, almost immediately 
     after its passage in 1965. As the South Carolina report by 
     veteran voting rights lawyer Mark Posner makes clear, that 
     legacy of discrimination continues today, both in how the 
     state runs elections and in structural election practices. 
     The state has one of the most restrictive voter registration 
     deadlines in the country; one of the most restrictive systems 
     regarding the opportunity for voters to cast their ballot 
     ahead of Election Day, either by mail or in person; and one 
     of the worst recent records for wait times at the polls.
       While some advances have been made in safeguarding the 
     freedom to vote, particularly for Black Americans, they have 
     largely been the result of Section 5 objections and 
     litigation. Between 1996 and the Shelby County ruling, the 
     Department of Justice issued 14 objections to voting changes 
     which jurisdictions, including the state itself, were seeking 
     to implement. The glaring example of the challenge to the 
     state's restrictive photo ID law is a case in point. It 
     illustrates the power and the efficacy of the Voting Rights 
     Act to block discriminatory voting changes and to deter 
     jurisdictions from seeking to implement such changes.
       In 2011, South Carolina adopted an exceedingly onerous 
     photo ID law for voting in person and for in-person absentee 
     voting. It recognized only five limited forms of ID: a South 
     Carolina driver's license, another form of photo ID issued by 
     the South Carolina Department of Motor Vehicles, a voter 
     registration card with a photograph (issued only by visiting 
     a local board of registration office); a federal military 
     photo ID; and a passport. Voters without ID could cast a 
     provisional ballot by presenting a non-photo voter 
     registration card and signing an affidavit that ``the elector 
     suffers from a reasonable impediment that prevents him from 
     obtaining a photo ID.''
       The Department of Justice blocked the new requirement from 
     being implemented on the basis that it would disenfranchise 
     tens of thousands of voters of color. It concluded that 
     ``[n]on-white voters were . . . disproportionately 
     represented . . . in the group of registered voters who . . . 
     would be rendered ineligible to go to the polls and 
     participate in the election.'' The state filed a Section 5 
     declaratory judgement seeking preclearance from a three-judge 
     court but failed to demonstrate that the limited roster of 
     acceptable IDs would not have a discriminatory effect.
       Facing a likely denial of preclearance, South Carolina 
     reinterpreted the law to liberally construe the ``reasonable 
     impediment'' exception to the photo ID requirement in an 
     effort to neutralize the discriminatory effect. Under this 
     new subjective test, the reasonableness of the impediment was 
     ``to be determined by the individual voter, not by a poll 
     manager or county board.'' Based on this interpretation, the 
     district court precleared the revised photo ID provision for 
     elections after 2012 but denied preclearance for the 2012 
     general election on the ground that there was too little time 
     to properly implement the new provision.
       In a concurring opinion, U.S. Judge John Bates famously 
     emphasized the key role Section 5 had played in South 
     Carolina ultimately putting forth a nondiscriminatory photo 
     ID provision: ``[O]ne cannot doubt the vital function that 
     Section 5 of the Voting Rights Act has played here . . . . 
     Congress has recognized the importance of such a deterrent 
     effect.  . . . Rather, the history of [the new law] 
     demonstrates the continuing utility of Section 5 of the 
     Voting Rights Act in deterring problematic, and hence 
     encouraging nondiscriminatory, changes in state and local 
     voting laws.''
     Texas
       They say that everything's bigger in Texas. The battle for 
     voting rights is no exception, as documented in the Texas 
     report submitted with this testimony. Last week's census 
     results illustrate that Texas gained more residents than any 
     other state since 2010, with people of color accounting for 
     over 95 percent of this growth. Non-Hispanic White Texans now 
     make up just 39.8 percent of the state's population--down 
     from 45 percent in 2010. Meanwhile, the share of Hispanic 
     Texans has grown to 39.3 percent. The state's growth of Black 
     and Asian populations also significantly outpaced that of the 
     White population since 2010. These changes will no doubt 
     affect the electorate for decades to come. Nearly half of all 
     Texans under age 18 are Latino, and two million more will 
     become eligible to vote in the next decade. Not surprisingly, 
     Texas added a record number of new voters between last two 
     presidential elections.
       These dramatic demographic shifts in the electorate 
     coincide with continuing and harmful attacks on voting rights 
     in the state. At the end of last year, researchers examining 
     the time and effort required to vote in different states 
     ranked Texas as the worst for voting.The creation of--in 
     their words--``the state with the most restrictive electoral 
     climate'' in light of unparalleled expansion and 
     diversification of the electorate reflects the state's past 
     and foreshadows its future without federal oversight. Indeed, 
     the pattern here is familiar one: Gains in minority 
     participation in voting are met with concerted efforts to 
     impose new barriers in the path of those voters. As Justice 
     Kennedy observed in LULAC v. Perry,
       ``Texas has a long, well-documented history of 
     discrimination that has touched upon the rights of African-
     Americans and Hispanics to register, to vote, or to 
     participate otherwise in the electoral process. Devices such 
     as the poll tax, an all-white primary system, and restrictive 
     voter registration time periods are an unfortunate part of 
     this State's minority voting rights history. . . . [T]he 
     `political, social, and economic legacy of past 
     discrimination' for Latinos in Texas

[[Page H4433]]

     may well `hinder their ability to participate effectively in 
     the political process.' ''
       Tory Gavito, a minority politics movement builder and 
     founder of the Texas Futures Project and Way To Win, 
     described that: ``Texas is where the South meets the West. We 
     have a legacy of slavery in the state. We have a legacy of 
     stealing lands and killing Mexican landowners who lived here 
     from before the state was part of the United States of 
     America.'' Its shared history demonstrates how the expansion 
     or restriction of voting rights in Texas has implications 
     across the country. In 1944, Thurgood Marshall successfully 
     argued in Smith v. Allwright that the Texas Democratic 
     Party's policy of prohibiting Black people from voting in 
     primary elections violated the Fourteenth and Fifteenth 
     Amendments. Black voter registration markedly improved 
     immediately following the Court's ruling in Smith, causing 
     Marshall to recognize the case as ``a giant milestone in the 
     progress of Negro Americans toward full citizenship.'' Though 
     the white primary was struck down, several features of vote 
     denial and abridgement in Texas remain: redistricting, the 
     imposition of additional candidate qualifications, new at-
     large voting arrangements, photo ID laws, onerous voter 
     registration procedures, voter roll purges, relocation, 
     closures and overcrowded polling sites, and hurdles related 
     to mail-in voting.
       The wave of new voters of color in Texas have been met with 
     the ``most restrictive pre-registration law in the country.'' 
     In particular, Texas has an in-person voter registration 
     deadline 30 days prior to Election Day and prohibits online 
     voter registration. Voters must print their registration and 
     bring it to the county voter registrar. Texas also does not 
     offer simultaneous registration for the 1.5 million Texans 
     who renew or update their driver's licenses online. In 
     contrast, other states permit an automatic voter registration 
     process, same-day registration during early voting, and 
     online registration options.
       These same voters may need to journey to polling places 
     that are distant from minority neighborhoods. A report by The 
     Leadership Conference Education Fund recently noted that 
     Texas ``stands out for the volume, scale, and breadth of its 
     polling place closures since Shelby County.'' This study 
     shows that Texas has closed more polling places since Shelby 
     County than any other state. The 750 polls closed constituted 
     approximately 50 percent of the state's total polling places, 
     and 590 were closed before the 2016 presidential election--
     the first presidential election after Shelby County. 
     Furthermore, five of the six largest county closers of 
     polling places are in Texas. Unsurprisingly, these counties--
     Dallas, Harris, Brazoria, and Nueces--are all majority-
     minority jurisdictions with significant Latino and Black 
     population.
       Courts have previously found Texas' voting restrictions to 
     bear racial animus and hinder the ability of minorities to 
     effectively participate in the political process. One recent 
     example is from Texas' photo ID law. In 2011, Texas adopted a 
     voter ID law that courts later found to have been passed with 
     discriminatory intent. Senate Bill 14 required voters to 
     present one of the specified types of photo ID when voting at 
     the polls. The Justice Department successfully blocked the 
     implementation of the law in 2012 under its Section 5 
     preclearance authority. However, Texas began enforcing S.B. 
     14 shortly after the Shelby County decision. Although the 
     bill's proponents asserted that the law was necessary, both 
     the district court and Fifth Circuit held that it violated 
     Section 2 of the Voting Rights Act by intentionally 
     discriminating against Black and Hispanic voters who were 
     less likely to hold a required photo ID.
       The Texas House just passed what must be regarded as a 
     voter suppression bill, after Texas Republicans issued civil 
     arrest warrants for 52 of their Democratic colleagues who 
     refused to show up to legislative votes because they oppose 
     the legislation. If enacted, the bill would create stricter 
     vote-by-mail rules, add new requirements to the voting 
     process, ban drive-thru and 24-hour voting, bolster access 
     for partisan poll watchers, and curb local voting options 
     that would make voting easier. These requirements only build 
     on some of the most restrictive voting laws in the nation 
     from the last election cycle. That election night, Jolt 
     Action, a group aimed at building political momentum among 
     Latinos in Texas, held a get together at its headquarters. 
     Artwork of youth of color adorned the walls of the office. 
     One painting showed children holding hands before a wall, 
     with the caption ``They tried to bury us. They didn't know we 
     were seeds.'' The question remains: Will voting restrictions 
     scorch the earth upon which these seeds seek to grow, or will 
     we see a garden of vibrant democracy, one tended to by 
     federal and state protections, over decades to come?
     Virginia
       The post-Shelby County landscape in Virginia is devastated 
     by rollbacks of protections for the right to vote. The 
     Virginia report prepared by Campaign Legal Center details 
     ongoing discrimination exposed through litigation, as well as 
     anti-voter laws, voter intimidation and disinformation 
     campaigns, and other tactics that disproportionately burden 
     and disenfranchise voters of color.
       Very recent litigation in Virginia Beach powerfully 
     demonstrates the toll that discrimination in voting takes on 
     communities of color in the state. In March 2021, a federal 
     court held that Virginia Beach's at-large system for electing 
     city council members violates Section 2 of the Voting Rights 
     Act because it dilutes the voting strength of Black, Latino, 
     and Asian American voters. The state's largest city had an 
     11-member city council, composed of the mayor and 10 
     councilmembers, each elected at-large for four-year staggered 
     terms. The city had relied upon an at-large system since 
     1966, but in 50 years, the city's racial composition had 
     changed dramatically: People of color now constitute 31.6 
     percent of the city's population. Despite sizable communities 
     of color, only six candidates of color have ever been elected 
     to Virginia Beach's city council, and barring special 
     circumstances triggered by the pendency of litigation under 
     the Voting Rights Act, no Black candidate has ever been re-
     elected to serve a second term.
       In enjoining the at-large system, the federal court 
     recognized that its discriminatory effects reflect a broader 
     culture of racial discrimination in the city and the state 
     that continues to impact residents of color today: ``[t]he 
     Commonwealth of Virginia and the City have histories of voter 
     discrimination as it pertains to registration, voter 
     suppression, gerrymandering, and other forms of 
     discrimination.'' The Campaign Legal Center powerfully 
     documents the many facets of this discrimination and 
     concludes: ``The vast evidence of racial discrimination this 
     case has uncovered alone demonstrates the need for 
     preclearance and other means of federal oversight to protect 
     the right of all Americans to vote.''
       The Campaign Legal Center's report also sets forth 
     discriminatory barriers to in-person voting, such as the 
     closing, consolidating, and relocating of polling places 
     documented in The Leadership Conference Education Fund's 
     reports in 2016 and 2019. These changes no longer require 
     preclearance and disproportionately impact communities of 
     color. Because Virginia law caps the number of registered 
     voters each precinct can serve, localities must create new 
     precincts. But more precincts do not necessarily mean more 
     polling locations in communities of color. Some localities 
     opt for one polling location to serve multiple precincts, 
     increasing the voters assigned to a single polling place. 
     This increases poll wait times and transportation burdens to 
     and from the polls. During the November 2020 election, 
     Henrico County--30.9 percent of which is Black--consolidated 
     four polling places into existing sites. Because state law 
     allows multiple precincts to be assigned to the same polling 
     place, the county maintained separate precincts in the same 
     building: each had their own poll workers and entrances, 
     heightening voter confusion.


  The Time Is Now to Pass the John Lewis Voting Rights Advancement Act

       When President Lyndon Johnson signed the Voting Rights Act 
     of 1965, he declared the law a triumph and said, ``Today we 
     strike away the last major shackle of . . . fierce and 
     ancient bonds.'' But 56 years later, the shackles of white 
     supremacy still restrict the full exercise of our rights and 
     freedom to vote.
       For democracy to work for all of us, it must include us 
     all. When certain communities cannot access the ballot and 
     when they are not represented in the ranks of power, our 
     democracy is in peril. The coordinated, anti-democratic 
     campaign to restrict the vote targets the heart of the 
     nation's promise: that every voice and every eligible vote 
     count. Congress must meet the urgency of this moment and pass 
     the John Lewis Voting Rights Advancement Act. This bill will 
     restore the essential portion of the Voting Rights Act that 
     blocks discriminatory voting policies before they go into 
     effect, putting a transparent process in place for protecting 
     the right to vote. It will also bring down the barriers 
     erected to silence Black, Indigenous, young, and new 
     Americans and ensure everyone has a voice in the decisions 
     impacting our lives.
       On March 7, 1965, just a few months before President 
     Johnson would sign the Voting Rights Act into law, then 25-
     year-old John Lewis led more than 600 people across the 
     Edmund Pettus Bridge to demand equal voting rights. State 
     troopers unleashed brutal violence against the marchers. 
     Lewis himself was beaten and bloodied. But he never gave up 
     the fight. For decades, the congressman implored his 
     colleagues in Congress to realize the promise of equal 
     opportunity for all in our democratic process. Before his 
     death, he wrote: ``Time is of the essence to preserve the 
     integrity and promises of our democracy.'' Members of this 
     body must now heed his call with all the force they can 
     muster.
       Thank you for inviting me to testify today. I am pleased to 
     answer any questions you may have, and I look forward to 
     working with you to ensure all of us, no matter race or 
     place, have an equal say in our democracy.
                                  ____


   Testimony of Peyton McCrary, Professorial Lecturer in Law, George 
   Washington University Law School, Before the Subcommittee on the 
   Constitution, Civil Rights and Civil Liberties of the U.S. House 
                       Committee on the Judiciary


  oversight of the voting rights act: potential legislative reforms--
                            august 16, 2021

       Chair Cohen, Vice Chair Raskin, Ranking Member Johnson, and 
     distinguished Members, thank you for inviting me to testify 
     before you today.

[[Page H4434]]

       My name is Peyton McCrary. Although I have retired from 20 
     years of full-time university teaching and 26 years of 
     government service in the U.S. Department of Justice, I still 
     co-teach a course on voting rights law each fall at the 
     George Washington University Law School, where adjunct 
     faculty bear the title Professorial Lecturer in Law. My 
     testimony today is offered in my personal capacity as a 
     historian, not as a representative of any organization.
       The focus of my testimony is evidence regarding the 
     jurisdictions that would be covered by a new form of federal 
     preclearance of voting changes, which I understand is being 
     contemplated by this chamber. Representatives of the Brennan 
     Center for Justice and the Leadership Conference Education 
     Fund asked me some months ago to investigate the preclearance 
     coverage formula that is being considered for inclusion in 
     the John Lewis Voting Rights Advancement Act (VRAA). An 
     earlier version of the VRAA passed the House of 
     Representatives December 6, 2019, as H.R. 4 and is now under 
     consideration in a new Congress. The VRAA is designed to 
     restore the preclearance provisions of the 1965 Voting Rights 
     Act by revising the coverage formula invalidated by the 
     Supreme Court in its 2013 decision in Shelby County v. 
     Holder. Preclearance refers to the process of receiving prior 
     federal approval from the Department of Justice or the U.S. 
     District Court for the District of Columbia before 
     implementing any change affecting voting. My task was to 
     identify the jurisdictions that would be subject to 
     preclearance should the VRAA become law. This task required 
     the use of research methods I have employed--both in my 
     scholarly publications and in expert witness testimony--over 
     the last four decades. For example, it calls among other 
     things for methodology I applied in my sworn Declaration 
     filed by the United States in Shelby County v. Holder in 
     2010.
       The new formula for determining the jurisdictions that 
     would be subject to preclearance under the VRAA would be 
     triggered by the record of voting rights enforcement. My 
     analysis generally focuses on the last 25 years, currently 
     from 1996 through 2020, although the conclusions would change 
     if the review period changed. Under some circumstances entire 
     states would be covered; even if the entire state is not 
     subject to preclearance, any individual political subdivision 
     within a state could be covered if the record of voting 
     rights violations in that subdivision meets the criteria of 
     the VRAA.
       My analysis derives from the last VRAA, which contained a 
     coverage formula in which an entire state would be subject to 
     preclearance if either of two patterns of violations applied: 
     a) if 15 or more voting rights violations occurred within the 
     state during the previous 25 years; or b) if 10 or more 
     violations occurred in the state during the last 25 years, at 
     least one of which was committed by the state itself, rather 
     than by local subdivisions within the state. I also 
     understand that even if an entire state were not subject to 
     preclearance, any political subdivision would be covered if 
     it had three or more violations during the previous 25 years. 
     Relying on that understanding, my count of violations 
     includes: a) final judgments of a voting rights violation by 
     the federal courts; b) objections to voting changes by the 
     Attorney General; and c) a consent decree or other settlement 
     causing a change favorable to minority voting rights.
       I understand that Congress may consider other specifics for 
     the coverage formula. While I am not testifying as to any 
     approach Congress should take, I note that changes to the 
     formula could lead to different conclusions than those I have 
     reached.


                             qualifications

       I am an historian by training and taught history at the 
     university level from 1969 until 1990. During the 1980s I 
     served as an expert witness in numerous voting rights cases 
     in the South. I was employed as a social science analyst by 
     the Voting Section, Civil Rights Division, of the U.S. 
     Department of Justice, from 1990 until my retirement in 
     December 2016. My responsibilities in the Civil Rights 
     Division included the planning, direction, coordination, and 
     performance of historical research and empirical analysis for 
     voting rights litigation, including the identification of 
     appropriate expert witnesses to appear for the government at 
     trial. In some instances, I was asked to provide written or 
     courtroom testimony on behalf of the United States. Since 
     retiring from government service, I have served as an expert 
     in several voting rights cases brought by private plaintiffs.
       I received B.A. and M.A. degrees from the University of 
     Virginia in 1965 and 1966, respectively, and obtained my 
     Ph.D. from Princeton University in 1972. My primary training 
     was in the history of the United States, with a 
     specialization in the history of the South during the 19th 
     and 20th centuries. For 20 years I taught courses in my 
     specialization at the University of Minnesota, Vanderbilt 
     University, and the University of South Alabama. In 1998-99 I 
     took leave from the Department of Justice to serve as the 
     Eugene Lang Professor of Social Change in the Department of 
     Political Science at Swarthmore College. For the last 
     fourteen years, both during government service and since 
     retiring from the Department of Justice, I have co-taught a 
     course on voting rights law as an adjunct professor at the 
     George Washington University Law School.
       I have published a prize-winning book, Abraham Lincoln and 
     Reconstruction: The Louisiana Experiment (Princeton, N.J., 
     Princeton University Press, 1978), six law review articles, 
     seven articles in refereed journals, and seven chapters in 
     refereed books. Over the last three and a half decades my 
     published work has focused on the history of discriminatory 
     election laws in the South, evidence concerning 
     discriminatory intent or racially polarized voting presented 
     in the context of voting rights litigation, and the impact of 
     the Voting Rights Act in the South. One of these studies was 
     made part of the record before Congress regarding the 
     adoption of the 2006 Voting Rights Reauthorization Act. I 
     continued to publish scholarly work in my areas of expertise 
     while employed by the Department of Justice and expect to 
     continue my scholarly writing now that I have retired from 
     government service. A detailed record of my professional 
     qualifications is set forth in the attached curriculum vitae 
     (Attachment 1), which I prepared and know to be accurate.
       Although I write about the history of voting rights law in 
     my scholarly publications and teach in a law school, I am not 
     an attorney. However, the findings reflected in court 
     opinions often provide valuable evidence for investigations 
     by experts. I routinely utilize the factual evidence provided 
     by court decisions in my scholarly writing. As I observed in 
     a recent journal article: ``The factual evidence presented in 
     court proceedings--in voting rights cases key evidence often 
     comes in through expert witness testimony by political 
     scientists or historians--is an invaluable resource for 
     historical and social science research.''


         the methodology i have employed in this investigation

       Identifying final judgments in reported cases--and Section 
     5 objections interposed by the Attorney General--was my first 
     task. In my files I already had both hard copies and 
     electronic copies of many of the Section 2 cases from 1982 to 
     the present, and of the voting rights cases decided under the 
     14th Amendment before the amendment of Section 2 in 1982. I 
     utilized the detailed study by Professor Ellen Katz and her 
     students at the University of Michigan Law School, which 
     became part of the record before Congress for the 2006 
     Reauthorization Act (and subsequently published as a law 
     review article). The website of the Civil Rights Division's 
     Voting Section--where I worked for 26 years--gave ready 
     access to the large number of final judgments and settlement 
     documents in cases involving the United States (under Section 
     2, Section 4(e), Section 5, Section 11(b), and Section 203). 
     Access to Westlaw through GW Law School facilitated 
     identification of other reported decisions brought on behalf 
     of private plaintiffs that I counted as violations. The 
     Voting Section's website also included links to all the 
     Attorney General's Section 5 objections from the 1960s 
     through the Shelby County decision in 2013.
       Identifying consent decrees and other settlements in voting 
     rights cases was perhaps the most time-consuming part of the 
     investigation. The library resources of GW Law School gave me 
     access to LexisNexis Court Link, a database with a 
     comprehensive collection of dockets from voting rights 
     litigation. This was the same database I had used to identify 
     settlement documents in my 2010 declaration in Shelby County 
     v. Holder (cited in Note 2 above). Many Court Link dockets 
     included links to electronic copies of consent decrees, 
     consent orders, and other settlement documents. Where no 
     links were available through Court Link, I had to pursue 
     further research to locate the needed evidence of violations 
     (for which the internet proved invaluable). Numerous publicly 
     available reports and scholarly publications also helped 
     document court-ordered settlements of voting rights lawsuits.
       I expect to finalize a more detailed report to the Brennan 
     Center and the Leadership Conference soon. In my testimony 
     today, however, I will summarize my findings and attach a 
     listing of each violation. I hope the subcommittee finds this 
     testimony useful in considering how to proceed with the VRAA.


                                findings

       Let me begin by focusing on the eight states that--
     according to my analysis--are most likely to be subject to 
     preclearance of voting changes. Recall that under my working 
     understanding of the coverage formula, an entire state would 
     be subject to preclearance if either of two patterns of 
     violations applied: a) if 15 or more voting rights violations 
     occurred within the state during the previous 25 years; or b) 
     if 10 or more violations occurred in the state, at least one 
     of which was committed by the state itself, rather than by 
     local political subdivisions within the state. I treated as a 
     violation, based on the last VRAA: a) a final judgment 
     that a jurisdiction has violated the 14th or 15th 
     Amendments, violated a provision of the Voting Rights Act, 
     or been denied preclearance by a three-judge federal 
     district court in the District of Columbia; b) an 
     objection to voting changes by the Attorney General; or c) 
     a consent decree or other settlement in a lawsuit where 
     the defendants agreed to change the challenged election 
     practice at issue in a manner that was favorable to 
     minority plaintiffs. The exhibits summarize the number and 
     type of violations that in my analysis would require 
     federal preclearance of states if the current version of 
     the coverage formula were enacted into law. Those states 
     are Alabama, Florida,

[[Page H4435]]

     Georgia, Louisiana, Mississippi, North Carolina, South 
     Carolina, and Texas. Exhibit 1 identifies the violations 
     in each of these states that I counted.
       Although I believe they are likely to be covered, there are 
     several states that could drop out of coverage depending on 
     how Congress drafts the bill. Alabama, Florida, North 
     Carolina, and South Carolina are the closest to the minimum 
     threshold, so changes that limit what counts as a violation 
     could drop them below 10 violations. Additionally, shortening 
     the review period would cause many states to drop out. For 
     example, if the review period is shortened to 20 years, I 
     calculate that only Georgia, Louisiana, and Texas would 
     likely be covered. At 15 years, only Georgia and Texas would 
     likely qualify. This is not because the other states are 
     covered only by virtue of ancient violations. To the 
     contrary, most states I list here would still have numerous 
     violations in recent years but would not meet the high 
     numerical threshold under a shorter time period. This high 
     numerical threshold ensures only states with established 
     patterns of discrimination are covered, patterns that require 
     a sufficient review period to capture.
       On the other hand, barring wholesale changes to the 
     coverage formula or review period, I have concluded that 
     Georgia, Louisiana, Mississippi, and Texas are highly likely 
     to be covered.
       There are also several states that I do not think will be 
     covered--but they could be, depending on subsequent changes 
     in the formula. Virginia could meet the threshold of 10 
     violations where at least one was committed by the state, for 
     example, if multiple findings of independent violations 
     within one case are counted as multiple violations, although 
     I currently calculate that Virginia has only 8 violations. 
     New York and California are each between 10-15 violations, 
     but none were committed by the state. If either state were to 
     commit new violations, it would likely bring the state into 
     coverage.
       As I understand the current formula, even if an entire 
     state would not be subject to preclearance, any political 
     subdivision of that state in which three or more violations 
     occurred in the preceding 25 years would be covered. The 
     relevant political subdivision under this provision is the 
     governmental unit responsible for voter registration--in most 
     instances a county. Five political subdivisions in non-
     covered states which have three or more violations--which 
     would therefore need to preclear voting changes--are itemized 
     in Exhibit 3. The five counties are: Los Angeles County, 
     California; Cook County, Illinois; Westchester County, New 
     York; Cuyahoga County, Ohio; and Northampton County, 
     Virginia.


                               conclusion

       I hope my analysis of the proposed coverage formula is 
     helpful to the subcommittee's current deliberations. My 
     testimony today has focused on empirical analysis of court 
     decisions, Section 5 objections, and consent decrees 
     favorable to minority voters. For a moment, however, I want 
     to emphasize the importance of the challenge Congress 
     currently faces. When the Section 5 preclearance process was 
     still functional--before June 2013--it was a powerful tool 
     for protecting minority voting rights. The bill you are 
     considering can play a key role in confronting current 
     efforts to limit voter registration and voting by minority 
     citizens, as well as diluting minority voting strength. Based 
     on my 41 years of experience in voting rights litigation, I 
     believe firmly that strengthening enforcement of the Voting 
     Rights Act is a critical need for our democracy.

 Exhibit 1: States Covered Under the Preclearance Formula in H.R. 4 If 
                            Enacted into Law


            alabama: 10 violations--1 violation by the state

     Court Decisions: (2)
       Allen v. City of Evergreen, Alabama, 2014 WL 12607819 (S.D. 
     Ala. 2014).
       Ala. Legislative Black Caucus v. Alabama, 231 F. Supp. 3d 
     1026 (M.D. Ala. 2017), State of Alabama.
     Section 5 Objections: (4)
       02-06-1998: Tallapoosa County (Redistricting Plan), 97-
     1021.
       08-16-2000: Shelby County (City of Alabaster), Annexations, 
     2000-2230.
       01-08-2007: Mobile County (MOE change for filling county 
     commission vacancies), 2006-6792.
       08-25-2009: Shelby County (City of Calera), Annexations and 
     redistricting plan, 2008-1621.
     Consent Decrees/Settlements: (4)
       Dillard v. City of Greensboro, Ala., 956 F. Supp. 1576 
     (M.D. Ala. 1997) (consent decree).
       Dillard v. Chilton County Commission, 495 F.3d 1324 (11th 
     Cir. 2007) (consent decree).
       Jones v. Jefferson Bd. Of Education, 2019 WL 7500528 (N.D. 
     Ala. 2019) (court-approved settlement).
       Ala. State Conf. NAACP v. Pleasant Grove, Ala., 2019 WL 
     5172371 (N.D. Ala. 2019) (consent decree).


           florida: 10 violations--3 violations by the state

     Court Decisions: (3)
       Stovall v. City of Cocoa, Fla., 117 F.3d 1238 (11th Cir. 
     1997).
       U.S. v. Osceola County, Fla., 475 F. Supp. 2d 1254 (M.D. 
     Fla. 2006).
       Florida v. United States, 885 F. Supp. 2d 299 (D.D.C. 
     2012). State of Florida.
     Section 5 Objections/Settlements: (2)
       08-14-1998: State of Florida. (Changes in absentee voting 
     certificate & absentee ballot), 98-1919.
       07-01-2002: State of Florida. (2002 redistricting plan for 
     state house), 2002-2637.
     Consent Decrees/Settlements: (5)
       U.S. v. Orange County, FL, No. 6:02-cv-787 (M.D. Fla. 2002) 
     (consent decree).
       U.S. v. Osceola County, FL, No. 6:02-cv-738 (M.D. Fla. 
     2002) (consent decree).
       U.S. v. School Board of Osceola County, FL, No. 6:08-cv-582 
     (M.D. Fla. 2008) (consent decree).
       U.S. v. Town of Lake Park, FL, C.A. No. 09-80507 (S.D. Fla. 
     2009) (consent decree).
       Perez-Santiago v. Volusia County, No. 6:08-cv-1868 (M.D. 
     Fla. 2010) (court-ordered settlement).


           georgia: 25 violations--4 violations by the state

     Court Decisions: (4)
       Cofield v. City of LaGrange, Ga., 969 F. Supp. 749 (N.D. 
     Ga. 1997).
       Common Cause v. Billups, 406 F. Supp. 2d 1326 (N.D. Ga., 
     2005).
       Wright v. City of Albany, 306 F. Supp. 2d 1228 (M.D. Ga., 
     2003).
       Wright v. Sumter County Bd. Of Elections, 301 F. Supp. 3d 
     1297 (M.D. Ga. 2018).
     Section 5 Objections: (13)
       03-15-1996: State of Georgia (1995 redistricting plans, 
     state house & senate), 95-3656.
       01-11-2000: Webster County (Redistricting plan, county 
     school district), 98-1663.
       03-17-2000: Wilkes County (MOE Tignall city council 
     members), 99-2122.
       10-01-2001: Turner County (MOE change, Ashburn), 94-4606.
       08-09-2002: Putnam County (2001 redistricting plans, county 
     commission & school board), 2002-2987, 2002-2988.
       09-23-2002: Dougherty County (2001 Albany city council 
     redistricting plan), 2001-1955.
       10-15-2002: Marion County (2002 school district 
     redistricting plan), 2002-2643.
       09-12-2006: Randolph County (Change in voter registration & 
     candidate eligibility), 2006-3856.
       05-29-2009: State of Georgia (Voter verification program), 
     2008-5243.
       11-30-2009: Lowndes County (2009 redistricting plan), 2009-
     1965.
       04-13-2012: Greene County (2011 redistricting of commission 
     & school board), 2011-4687.
       08-27-2012: Long County (2012 redistricting of commission & 
     school board), 2011-4687.
       12-21-2012: State of Georgia (Change of election date), 
     2012-3262.
     Consent Decrees/Settlements: (8)
       McIntosh County NAACP v. McIntosh County, Ga., No. 2:77CV70 
     (S.D. Ga. 1977) (consent decree).
       Stafford v. Mayor & Council of Folkston, Ga., No. 
     5:96CV00111 (S.D. Ga. 1997) (consent decree).
       Simpson v. Douglasville, No. 1:96-cv-01174 (N.D. Ga. 1999) 
     (consent decree).
       McBride and U.S. v. Marion County, No. 4:99cv151 (M.D. Ga. 
     2000) (consent decree).
       U.S. v. Long County, GA (S.D. Ga. 2006), No. CV206-040 
     (S.D. Ga. 2006) (consent decree).
       Georgia State Conf. NAACP v. Fayette County, Ga., 118 F. 
     Supp. 3d 1338 (N.D. Ga. 2015) (consent decree).
       Georgia State Conf. NAACP v. Kemp, N. 2:16CV219 (N.D. Ga. 
     2017) (settlement agreement). State of Georgia.
       Georgia State Conf. NAACP v. Hancock County, Ga., No. 5:15-
     CV-00414 (M.D. Ga. 2018) (consent decree).


                louisiana: 16--1 violation by the state

     Court Decisions: (2)
       St. Bernard Citizens for a Better Govt. v. St. Bernard 
     Parish School Board, 2002 WL 2022589 (E.D. La. 2002).
       Guillory v. Avoyelles Parish School Board, 2011 WL 499196 
     (W.D. La. Feb. 7, 2011).
     Section 5 Objections: (13)
       10-06-1997: St. Martin Parish (1997 redistricting, St. 
     Martinsville council elections), 97-0879.
       04-27-1999: Washington Parish (redistricting plan), 98-
     1475.
       07-02-2002: Webster Parish (2001 Minden city council 
     redistricting plan), 2002-1011.
       10-04-2002: Pointe Coupee Parish (2002 redistricting, 
     school district), 2002-2717.
       12-31-2002: DeSoto Parish (2002 redistricting plan, school 
     district), 2002-2926.
       05-13-2003: Richland Parish (2002 redistricting plan, 
     school district), 2002-3400.
       10-06-2003: Tangipahoa Parish (2003 redistricting plan), 
     2002-3135.
       12-12-2003: Iberville Parish (2003 redistricting plan, city 
     of Plaquemine), 2003-1711.
       06-04-2004: Evangeline Parish (2003 redistricting plan, 
     city of Ville Platte), 2003-4549.
       04-25-2005: Richland Parish (2003 redistricting, city of 
     Delhi), 2003-3795.
       08-10-2009: State of Louisiana (designating length of time 
     when parish precinct boundaries are frozen during the 
     preparation of the U.S. decennial census), 2008-3512.
     Consent Decrees/Settlements: (1)
       U.S. v. Morgan City, LA, No. CV00-1541 (W.D. La. 2000) 
     (consent decree).


               Mississippi: 18--2 violations by the state

     Court Decisions: (7)
       Teague v. Attala County, MS, 92 F.3d 283 15th Cir. 1996).
       Clark v. Calhoun County, MS, 88 F.3d 1393 (5th Cir. 1996).
       Gunn v. Chickasaw County, 1997 WL 1:02CV33426761 (N.D. 
     Miss. 1997).

[[Page H4436]]

       Citizens for Good Govt. v. Quitman, Ms., 148 F.3d 472 (5th 
     Cir. 1998).
       Houston v. Lafayette County, Ms., 20 F. Supp. 2d 996 (N.D. 
     Miss. 1998).
       U.S. v. Ike Brown, 494 F. Supp. 2d 440 (S.D. Miss. 2007).
       Jamison v. Tupelo, 471 F. Supp. 2d 706 (N.D. Miss. 2007).
     Section 5 Objections: (8)
       09-22-1997: State of Mississippi (NVRA implementation 
     plan), 95-0418.
       06-28-1999: Pike County (McComb, changing polling place to 
     American Legion), 97-3795.
       12-11-2001: Montgomery County (Cancellation of election, 
     Kilmichael), 2001-2130.
       03-24-2010: State of Mississippi (majority vote requirement 
     for county school boards, etc.), 2009-2022.
       10-04-2011: Amite County (2011 redistricting plan for 
     supervisor & election commission), 2011-1660.
       04-30-2012: Adams County (2011 Natchez redistricting plan), 
     2011-5368.
       12-03-2012: Hinds County (Redistricting plan, city of 
     Clinton), 2012-3120.
     Consent Decrees/Settlements: (3)
       Coffee v. Calhoun City, MS., No. 300-cv-00103 (N.D. Miss. 
     2000) (consent decree).
       Thornton v. City of Greenville, No. 4:93CV276 (N.D. Miss. 
     1998) (settlement agreement).
       Tryman v. City of Starkville, No. 1:02-cv-111 (N.D. Miss. 
     2003) (consent decree).


             North Carolina: 11--4 violations by the state

     Court Decisions: (3)
       North Carolina Conf. NAACP v. McCrory, 831 F. 3d 204 (4th 
     Cir. 2016), State of North Carolina.
       Cooper v. Harris, 137 S. Ct. 1455 (2017), State of North 
     Carolina.
       Covington v. North Carolina, 138 S. Ct. 2548 (2018), State 
     of North Carolina.
     Section 5 Objections: (6)
       02-13-1996: State of North Carolina prohibits state 
     legislative & congressional districts from crossing precinct 
     lines, absent Section 5 objections, 95-2922.
       07-23-2002: Harnett County (2001 redistricting plan for 
     school district), 2001-3769.
       07-23-2002: Harnett County (2001 redistricting plan for 
     commissioners), 2001-3768.
       06-25-2007: Cumberland County (Change in MOE for 
     Fayetteville city council), 2007-2233.
       08-17-2009: Lenoir County (Change to non-partisan election, 
     City of Kinston), 2009-0216.
       04-30-2012: Pitt County (Change in MOE, county school 
     district), 2011-2474.
     Consent Decrees/Settlements (2)
       Wilkins v. Washington County Commissioners, No. 2:93-cv-
     00012 (E.D.N.C. 1996) (consent decree).
       Hall v. Jones County Bd. Of Commissioners, No. 4:17-cv-
     00018 (ED.N.C. 2017) (consent decree).


              South Carolina: 15--1 violation by the state

     Court Decisions: (1)
       U.S. v. Charleston County, SC, 365 F.3d 341 (4th Cir. 
     2004).
     Section 5 Objections: (13)
       03-05-1996: Cherokee County (Change in method of electing 
     Gaffney Bd. Of Public Works), 95-2790.
       04-01-1997: State of South Carolina (1997 senate 
     redistricting plan), 97-0529.
       05-20-1998: Horry County (1997 county council redistricting 
     plan), 97-3787.
       10-12-2001: Charleston & Berkeley Counties (2012 Charleston 
     council redistricting), 2001-1578.
       11-02-2001: Greenville & Spartanburg Counties (2001 
     redistricting for town of Greer), 2001-1777.
       06-27-2002: Sumter County (2001 redistricting plan), 2001-
     3865.
       09-03-2002: Union County (2002 redistricting plan for 
     county school board), 2002-2379.
       12-09-2002: Laurens County (Annexations & district 
     assignment, Clinton), 2002-1512, 2002-2706.
       06-16-2003: Cherokee County (Reduction in size of school 
     board), 2002-3457.
       09-16-2003: Orangeburg County (Annexations by town of 
     North), 2002-5306.
       02-26-2004: Charleston County (From nonpartisan to partisan 
     school board elections), 2003-2066.
       06-25-2004: Richland & Lexington Counties (MOE change for 
     School District No. 5), 2002-3766.
       08-16-2010: Fairfield County (MOE & number of members, 
     county school board), 2010-0970.
     Consent Decrees/Settlements: (1)
       U.S. v. Georgetown County School District, SC, No. 2:08-889 
     (D.S.C. 2008) (consent decree).


                  Texas: 34--3 violations by the state

     Court Decisions: (5)
       LULAC v. Perry, 548 U.S. 399 (2006).
       Benevidez v. City of Irving, TX, 638 F. Supp. 2d 709 (N.D. 
     Tex. 2009).
       Fabela v. City of Farmers' Branch, 2012 WL 3135545 (N.D. 
     Texas).
       Benevidez v. Irving ISD, 2014 WL 4055366 (N.D. Texas).
       Patino v. City of Pasadena, TX, 230 F. Supp. 3d 667 (S.D. 
     Tex. 2017).
     Section 5 Objections: (18)--3 violations by the state
       01-16-1996: State of Texas (Authorizing employees to 
     determine voter eligibility based on Citizenship information 
     in files), 95-2017.
       03-17-1997: Harris County (Annexations, town of Webster), 
     95-2017.
       12-04-1998: Galveston County (Adding numbered posts to at-
     large seats, Galveston), 98-2149.
       07-16-1999: Dawson County (De-annexation, city of Lamesa), 
     99-0270.
       06-05-2000: Austin County (Adding numbered posts, Sealy 
     ISD), 99-3828.
       09-24-2001: Haskell Consolidated ISD (Cumulative voting 
     with staggered terms), 2000-4426.
       11-16-2001: State of Texas (2001 redistricting, state 
     house), 2001-2430.
       06-21-2002: Waller County (Redistricting plans, 
     commissioners court, constable districts), 2001-2430.
       08-12-2002: Brazoria County (MOE, Freeport city council), 
     2002-1725.
       05-05-2006: North Harris Montgomery Community College 
     District (reduction in polling place & early voting 
     locations), 2006-2240.
       03-24-2009: Gonzales County (Bi-lingual election 
     procedures), 2008-3588.
       03-12-2010: Gonzales County (Bi-lingual election 
     procedures), 2009-3078.
       06-28-2010: Runnels County (Bilingual election procedures), 
     2009-3672.
       02-07-2012: Nueces County (Redistricting, county 
     commissioners court), 2011-3992.
       03-05-2012: Galveston County (Redistricting, county 
     commissioners court), 2011-4317.
       03-12-2012: State of Texas (Voter registration & photo id 
     procedures, SB 14), 2011-2775.
       12-21-2012: Jefferson County (Beaumont ISD, reduction in 
     single member districts), 2012-4278.
       04-08-2013: Jefferson County (Beaumont ISD, change in term 
     of office, qualification procedures), 2013-0895.
     Consent Decrees/Settlements: (11)
       U.S. v. Ector County, TX, No. M005CV131 (W.D. Tex. 2005) 
     (consent decree).
       U.S. v. Brazos County, TX, No. H-06-2165 (S.D. Tex.2006) 
     (consent decree).
       U.S. v. Hale County, TX, No. 5:06-CV-43 (N.D. Tex. 2006) 
     (consent decree).
       U.S. v. City of Earth, TX, 5:07-CV-144 (N.D. Tex. 2007) 
     (consent decree).
       U.S. v. Galveston County, TX, No. 3:07-CV-377 (S.D. Tex. 
     2007) (consent decree).
       U.S. v. Littlefield ISD, TX, No. 5:07-cv-145 (N.D. Tex. 
     2007) (consent decree).
       U.S. v. Post ISD, TX, No. 5:07-CV-146-C (N.D. Tex. 2007) 
     (consent decree).
       U.S. v. Seagraves ISD, TX, No. 5:07-CV-147 (N.D. Tex. 2007) 
     (consent decree).
       U.S. v. Smyer ISD, TX, No. 5:07-CV-148-C (N.D. Tex. 2007) 
     (consent decree).
       U.S. v. Waller County, TX, No. 4:08-cv-3022 (S.D. Texas 
     2008) (consent decree).
       U.S. v. Fort Bend County, TX, No. 4:09-cv-1058 (S.D. Tex. 
     2009) (consent decree).

Exhibit 2: States Not Covered Under the Current Preclearance Formula in 
                                  HR 4


                          Alaska: 2 violations

     Consent Decrees/Settlements: (2)
       Nick v. Bethel, No. 3:07-cv-00098 (D. Alaska) (consent 
     decree).
       Toyukak v. Treadwell, No. 3:13-CV-00137 (D. Alaska) (court-
     approved settlement).


                         Arkansas: 2 violations

     Court Decisions: (0)
     Consent Decrees/Settlements: (2)
       Cox v. Donaldson, No. 5:02CV319 (E.D. Ark. 2003) (consent 
     decree)
       Townsend v. Watson, No. 1:89-cv-1111 (W.D. Ark. 2013) 
     (consent decree).


                         Arizona: 4 violations

     Section 5 Objections: (2)
       05-20-2002: State of Arizona (2001 legislative 
     redistricting plan), 2002-0276.
       02-04-2003: Coconino County (MOE, Coconino Association for 
     Vocations, Industry, and Technology), 2002-3844.
     Consent Decrees/Settlements: (2)
       U.S. v. Cochise County, AZ, No. CV 06-304 (D. Ariz. 2006) 
     (consent decree).
       Navajo Nation v. Brewer, No. CV 06-1575 (D. Ariz. 2008) 
     (court-approved settlement).


                       California: 12 violations

     Court Decisions: (1)
       Luna v. County of Kern, CA, 291 F. Supp. 3d 1088 (E.D. Cal. 
     2018).
     Section 5 Objections: (1)
       03-29-2002: Monterey County (MOE, Chualar Union Elementary 
     School District), 2000-2967.
     Consent Decrees/Settlements: (10)
       U.S. v. San Benito County, CA, No. 5:04-cv-2056 (N.D. Cal. 
     2004) (consent decree).
       U.S. v. Ventura County, CA, No. CV04-6443 (C.D. Cal. 2004) 
     (consent decree).
       U.S. v. City of Azusa, CA, No. CV05-5147 (C.D. Cal. 2005) 
     (consent decree).
       U.S. v. City of Paramount, CA, No. 05-05132 (C.D. Cal. 
     2005) (consent decree).
       U.S. v. City of Rosemead, CA, No. CV05-5131 (C.D. Cal. 
     2005) (consent decree).
       U.S. v. City of Walnut, CA, No: CV 07-2437 (C.D. Cal. 2007) 
     (consent decree).
       U.S. v. Riverside County, CA, CV 10-1059 (C.D. Cal. 2010) 
     (consent decree).
       U.S. v. Alameda County, CA, No. 311-cv-3262 (N.D. Cal. 
     2011) (court-approved settlement agreement).
       U.S. v. San Diego County, CA, No. 04cv1273 (S.D. Cal. 2004) 
     (consent decree).
       U.S. v. Upper San Gabriel Valley Municipal Water District, 
     No. CV 00-07903 (C.D. Cal. 2000) (consent decree).


                         Colorado: 2 violations

     Court Decisions: (2)
       Sanchez v. State of Colorado, 97 F.3d 1303 (10th Cir. 
     1996).
       Cuthair v. Montezuma-Cortez School District, 7 F. Supp. 2d 
     1152 (D. Colorado 1998).

[[Page H4437]]

  



                               Hawaii: 1

     Court Decisions: (1)
       Arakaki v. Hawaii, 314 F. 3d 1091 (9th Cir. 2002).


                              Illinois: 4

     Court Decisions: (3)
       U.S. v. Town of Cicero, Illinois, 2000 WL 34342276 (N.D. 
     Ill. 1996).
       Barnett v. City of Chicago, 17 F. Supp. 2d 753 (N.D. Ill. 
     1998).
       Harper v. Chicago Heights, IL, 223 F.3d 593 (7th Cir. 
     2000).
     Consent Decrees/Settlements: (1)
       U.S. v. Kane County, IL, No. 07-v-5451 (N.D. Ill. 2007) 
     (memorandum of agreement).


                            Massachusetts: 5

     Court Decisions: (1)
       Black Political Task Force v. Galvin, 300 F. Supp. 2d 291 
     (D. Mass. 2004).
     Consent Decrees/Settlements: (4)
       U.S. v. City of Boston, No. 1:05-cv-11598 (D. Mass. 2005) 
     (consent decree).
       U.S. v. City of Springfield, MA, No. 06-30123 (D. Mass. 
     2006) (consent decree).
       Huot v. City of Lowell, Mass., No. 1:17-cv-10895 (D. Mass. 
     2019) (consent decree).
       City of Lawrence, No. 98cv12256 (D. Mass. 1998) (settlement 
     agreement).


                              Michigan: 3

     Section 5 Objections: (1)
       12-26-2007: Saginaw County (Buena Vista Township, closure 
     of voter registration branch office), 2007-3837.
     Consent Decrees/Settlements: (2)
       U.S. v. City of Hamtramck, MI, No. 00-73541 (E.D. Mich. 
     2000) (consent decree).
       U.S. v. City of Eastpointe, MI, No. 4:17-CV-10079 (2019) 
     (consent decree).


                              Missouri: 1

     Court Decisions: (1)
       Missouri State Conf. NAACP v. Ferguson-Florrissant School 
     District, 201 F. Supp. 3d 1006 (E.D. Mo. 2016).


                               Montana: 5

     Court Decisions: (1)
       U.S. v. Blaine County, MT, 363 F.3d 897 (9th Cir. 2004).
     Consent Decrees/Settlements: (4)
       Matt v. Ronan School District, No. 99-94 (D. Mont. 2000) 
     (settlement agreement).
       U.S. v. Roosevelt County, MT, No. 00-50 (D. Mont. 2000) 
     (consent decree).
       Alden v. Rosebud County Board of Commissioners, No. 99-148 
     (D. Mont. 2000) (consent decree).
       Blackfeet Nation v. Stapleton, No. 4:20-cv-95 (D. Mont. 
     2020) (consent decree).


                              Nebraska: 2

     Court Decisions: (1)
       Stable v. Thurston County, NE, 129 F. 3d 1015 (8th Cir. 
     1997).
     Consent Decrees/Settlements: (1)
       U.S. v. Colfax County, NE, No. 8:12-CV-84 (D. Neb. 2012) 
     (consent decree).


                               Nevada: 1

     Court Decisions:
       Sanchez v. Cevaske, 214 F. Supp. 3d 961 (D. Nevada 2016).


                             New Jersey: 2

     Consent Decrees/Settlements: (2)
       U.S. v. Salem County and Borough of Penns Grove, N.J., No. 
     1:08-cv-03276 (D.N.J. 2008) (court-approved settlement).
       U.S. v. Passaic City and Passaic County, N.J., No. 99-2544 
     (D.N.J. 1999) (consent decree).


                             New Mexico: 3

     Consent Decrees/Settlements: (3)
       U.S. v. Bernalillo County, N.M., No. CV-98-156 (D.N.M. 
     1998) (consent decree).
       U.S. v. Cibola County, N.M. No. CIV 93 1134 (D.N.M. 2004) 
     (court-approved settlement).
       U.S. v. Sandoval County, N.M., No. 88-CV-1457 (D.N.M. 2004) 
     (consent decree).


                              New York: 12

     Court Decisions: (5)
       Goosby v. Town of Hempstead, NY, 180 F.3d 476 (2nd Cir. 
     1999).
       New Rochelle Voter Defense v. New Rochelle, NY, 308 F. 
     Supp. 2d 152 (S.D.N.Y. 2003).
       U.S. v. Village of Port Chester, NY, 704 F. Supp. 2d 411 
     (S.D.N.Y. 2010).
       Pope v. County of Albany, N.Y., 94 F. Supp. 3d 302 
     (N.D.N.Y. 2013).
       Molina v. Orange County, NY, 2013 WL 3009716 (S.D.N.Y. 
     2013).
     Objections: (2)
       11-15-1996: Temporary replacement of all nine elected board 
     members of Community School District 12 by three appointed 
     trustees and their permanent replacement by five appointed 
     trustees: 96-3759.
       02-04-1999: Change in method of election from single 
     transferable vote to limited voting with four votes per voter 
     for community school boards in Bronx, Kings, and New York 
     Counties: 98-3193.
     Consent Decrees/Settlements: (5)
       U.S. v Suffolk County, NY, No. CV 04-2698 (E.D. N.Y. 2004) 
     (consent decree).
       Arbor Hill Concerned Citizens v. Albany County, NY, 281 F. 
     Supp. 2d 456 (N.D.N.Y. 2004) (consent decree).
       U.S. v. Westchester County, NY, No. 05 CIV. 0650 (S.D.N.Y. 
     2005) (consent decree).
       U.S. v. Orange County, NY, 12 Civ 3071 (S.D.N.Y. 2012) 
     (consent decree).
       Flores v. Town of Islip, NY, No. 2:18-cv-3549 (E.D.N.Y. 
     2020) (consent decree).


                            North Dakota: 2

     Court Decisions: (1)
       Spirit Lake Tribe v. Benson County, N.D., 2010 WL 4226614 
     (D.N.D. 2010).
     Consent Decrees/Settlements: (1)
       U.S. v. Benson County, N.D., No. A2-00-30 (D.N.D. 2000) 
     (consent decree).


                                Ohio: 4

     Court Decisions: (1)
       U.S. v. City of Euclid, Ohio, 580 F. Supp. 2d 584 (N.D. 
     Ohio 2008).
     Consent Decrees/Settlements: (3)
       U.S. v. Euclid City School Board, 632 F. Supp. 2d 740 (N.D. 
     Ohio 2009) (court-approved settlement).
       U.S. v. Cuyahoga County, OH, No.1:10-cv-1940 (N.D. Ohio 
     2010) (court-approved settlement).
       U.S. v. Lorain County, OH, No. 1:11-cv-02122 (N.D. Ohio 
     2011) (memorandum of agreement).


                            Pennsylvania: 2

     Court Decisions: (1)
       U.S. v. Berks County, PA, 277 F. Supp. 2d 570 (E.D. Pa. 
     2003).
     Consent Decrees/Settlements: (1)
       U.S. v. City of Philadelphia, PA, No.2:06cv4592 (E.D. Pa. 
     2007) (settlement agreement).


                            South Dakota: 2

     Court Decisions: (1)
       Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976 (D.S.D. 2004).
     Section 5 Objections: (1)
       02-11-2008: Charles Mix County (Increase in size & 
     redistricting of county commission), 2007-6012.


                              Tennessee: 2

     Court Decisions: (1)
       Rural West Tenn. v. Sundquist, 29 F. Supp. 2d 448 (W.D. 
     Tenn. 1998).
     Consent Decrees/Settlements: (1)
       U.S. v. Crockett County, TN, No. 1-01-1129 (W.D. Tenn. 
     2001).


                        Virginia: 8--2 by State

       Personhuballah v. Alcorn, 155 F. Supp. 3d 552 (E.D. Va. 
     2016), State of Virginia.
       Bethune-Hill v. Va. State Bd. Of Elections, 326 F. Supp. 3d 
     128 (E.D. Va. 2018), State of Virginia.
     Section 5 Objections: (6)
       10-27-1999: Dinwiddie County (Polling place change), 99-
     2229.
       09-28-2001: Northampton County (MOE & redistricting, board 
     of supervisors), 2001-1495.
       04-29-2002: Pittsylvania County (Redistricting, county 
     supervisors & school board), 2001-2026, 2501.
       07-09-2002: Cumberland County (Redistricting plan, county 
     supervisors), 2001-2374.
       05-19-2003: Northampton County (2002 redistricting plan, 
     county supervisors), 2002-5693.
       10-21-2003: Northampton County (2003 redistricting plan, 
     county supervisors), 2003-3010.
     Consent Decrees/Settlements: (0)


                             Washington: 3

     Court Decisions: (1)
       Montes v. City of Yakima, 40 F. Supp. 3d 1377 (E.D. Wash. 
     2014).
     Consent Decrees/Settlements:
       U.S. v. Yakima County, WA, No. CV-04-3072 (E.D. Wash. 2004) 
     (settlement agreement).
       Glatt v. City of Pasco, WA, No. 4:16-CV-5108 (E.D. 
     Wash.2017) (consent decree).


                              Wisconsin: 1

     Court Decisions:
       Baldus v. Wisc. Govt. Accountability Bd., 849 F. Supp. 2d 
     840 (E.D. Wisc. 2012).


                               Wyoming: 1

     Court Decisions:
       Large v. Fremont County, Wy., 709 F. Supp. 2d 1176 (D. Wyo. 
     2010).

   Exhibit 3: Political Subdivisions Covered Under the Preclearance 
                            Formula in HR 4


                              California:

     Los Angeles County: 5 violations
       U.S. v. City of Azusa, No. CV05-5147 (C.D. Cal. 2005) 
     (consent decree).
       U.S. v. City of Paramount, No. 05-05132 (C.D. Cal. 2005) 
     (consent decree).
       U.S. v. City of Rosemead, No. CV05-5131 (C.D. Cal. 2005) 
     (consent decree).
       U.S. v. City of Walnut, No. CV 07-2437 (C.D. Cal. 2007) 
     (consent decree).
       U.S. v. Upper San Gabriel Valley Municipal Water District, 
     No. CV 00-07903 (C.D. Cal. 2000) (consent decree).


                               Illinois:

     Cook County: 3 violations
       Barnett v. City of Chicago, 17 F. Supp. 2d 753 (N.D. Ill. 
     1998).
       Harper v. Chicago Heights, 223 F.3d 593 (7th Cir. 2000).
       U.S. v. Town of Cicero, 2000 WL 34342276 (N.D. Ill. 1996).


                               New York:

     Westchester County: 3 violations
       New Rochelle Voter Defense v. New Rochelle, 308 F. Supp. 2d 
     152 (S.D.N.Y. 2003).
       U.S. v. Village of Port Chester, 704 F. Supp. 2d 411 
     (S.D.N.Y. 2010).
       U.S. v. Westchester County, No. 05 CIV. 0650 (S.D.N.Y. 
     2005) (consent decree).


                                 Ohio:

     Cuyahoga County: 3 violations
       U.S. v. Cuyahoga County, No. 1:10-cv-1940 (N.D. Ohio 2010) 
     (court-approved settlement).
       U.S. v. Euclid, 580 F. Supp. 2d 584 (N.D. Ohio 2008).
       U.S. v. Euclid City School Board, 632 F. Supp. 2d 740 (N.D. 
     Ohio 2009) (court-approved settlement).

[[Page H4438]]

  



                               Virginia:

     Northampton County: 3 violations
       09-28-2001: Northampton County (MOE & redistricting, board 
     of supervisors), 2001-1495.
       05-19-2003: Northampton County (2002 redistricting plan, 
     county supervisors), 2002-5693.
       10-21-2003: Northampton County (2003 redistricting plan, 
     county supervisors), 2003-3010.
                                  ____


 Written Statement of Sophia Lin Lakin, Deputy Director, Voting Rights 
                Project, American Civil Liberties Union


 Hearing on Oversight of the Voting Rights Act: Potential Legislative 
                        Reforms--August 16, 2021

 Submitted to the Subcommittee on the Constitution, Civil Rights, and 
 Civil Liberties of the U.S. House Committee on the Judiciary, August 
                                14, 2021


                              Introduction

       Chairman Cohen, Ranking Member Johnson, and Members of the 
     Committee, thank you for the opportunity to testify before 
     you on the critical issue of legislative reforms to restore 
     and strengthen the Voting Rights Act.
       The ACLU Voting Rights Project was established in 1965--the 
     same year that the historic Voting Rights Act (VRA) was 
     enacted--and has litigated more than 350 cases since that 
     time. Its mission is to build and defend an accessible, 
     inclusive, and equitable democracy free from racial 
     discrimination. The Voting Rights Project's recent docket has 
     included more than 30 lawsuits last year alone to protect 
     voters during the 2020 election; a pair of recent cases in 
     the Supreme Court challenging the last administration's 
     discriminatory census policies: Department of Commerce v. New 
     York (successfully challenging an attempt to add a 
     citizenship question to the 2020 Census), and Trump v. New 
     York (challenging the exclusion of undocumented immigrants 
     from the population count used to apportion the House of 
     Representatives); challenges to voter purges and documentary 
     proof of citizenship laws; and challenges to other new 
     omnibus legislation restricting voting rights in states like 
     Georgia and Montana.
       In my capacity as Deputy Directory of the ACLU Voting 
     Rights Project, I assist in the planning, strategy, and 
     supervision of the ACLU's voting rights litigation 
     nationwide, which focuses on ensuring that all Americans have 
     access to the franchise, and that everyone is equally 
     represented in our political processes. I recently argued 
     successfully before the U.S. Court of Appeals for the Seventh 
     Circuit in League of Women Voters of Indiana v. Sullivan, a 
     case that challenged an Indiana purge program that failed to 
     follow the procedural safeguards mandated by the National 
     Voter Registration Act. I am currently litigating or have 
     litigated numerous cases challenging racially discriminatory 
     laws under Section 2 of the Voting Rights Act, including 
     Sixth District of the African Methodist Episcopal Church v. 
     Kemp, a challenge to Georgia's sweeping voter suppression law 
     enacted in the wake of the 2020 elections; Thomas v. Andino, 
     a challenge to South Carolina's absentee ballot witness 
     requirement and required ``excuse'' for absentee voting 
     during the COVID-19 pandemic; MOVE Texas v. Whitley, a 
     challenge to a discriminatory purge program in Texas; 
     Missouri State Conference of the NAACP v. Ferguson-Florissant 
     School District, a challenge to the discriminatory at-large 
     method of electing school board members; Frank v. Walker, a 
     challenge to Wisconsin's voter ID law; and North Carolina 
     State Conference of the NAACP v. McCrory, a challenge to 
     North Carolina's monster voter suppression law passed in the 
     immediate aftermath of Shelby County v. Holder.
       More than a century ago, the Supreme Court famously 
     described the right to vote as the one right that is 
     preservative of all others. As Chief Justice John Roberts has 
     explained, ``[t]here is no right more basic in our democracy 
     than the right to participate in electing our political 
     leaders.'' We are not truly free without self-government, 
     which requires a vibrant participatory democracy, in which 
     everyone is treated fairly in the process and equally 
     represented. Unfortunately, our nation has a long and well-
     documented record of fencing out certain voters--Black voters 
     and other voters of color, in particular--and today that 
     racial discrimination in voting remains a persistent and 
     widespread problem.
       The landmark Voting Rights Act (``VRA''), one of the 
     signature achievements of the Civil Rights Movement, has been 
     critical in the efforts to combat this enduring blight. 
     Passed initially in 1965, and reauthorized and amended (with 
     bipartisan support) in 1970, 1975, 1982, 1992, and 2006, it 
     is one of the most effective pieces of federal civil rights 
     legislation. But eight years ago, in Shelby County v. Holder, 
     the Supreme Court struck down the formula used to determine 
     which jurisdictions were covered by a federal preclearance 
     regime. This meant that the heart of the VRA--the requirement 
     that jurisdictions with a long record of voter suppression 
     submit proposed changes to election laws to federal officials 
     before they went into effect--functionally ended. After 
     Shelby County, the main protection afforded by the VRA is 
     Section 2, which imposes a nationwide ban on the use of any 
     ``voting qualification or prerequisite to voting . . . which 
     results in a denial of abridgment of the right of any citizen 
     of the United States to vote on account of race or color.'' 
     Section 2 provides only post-enactment relief, i.e., it 
     authorizes challenges that can be brought only after a law 
     has been passed or a policy implemented.
       The inadequacy of Section 2 post-enactment relief as the 
     principal means to protect against discrimination in voting 
     cannot be overstated, and the ACLU and other civil rights 
     organizations have discussed the need for the restoration of 
     the prophylactic preclearance regime innumerable times. Even 
     if not sufficient on its own, however, Section 2 remains an 
     important and necessary tool to protect voting rights, and 
     its continuing vitality is critical. My written testimony 
     will focus on three issues that have substantially weakened 
     the force of post-enactment relief as a bulwark against 
     discrimination: the standard for obtaining preliminary 
     injunctive relief in voting rights cases, the use of the so-
     called Purcell principle as an additional barrier to relief, 
     and the Supreme Court's recent decision in Brnovich v. 
     Democratic National Committee.
       The Supreme Court's reasoning in Shelby County in 
     dismantling preclearance was premised in part on the idea 
     that plaintiffs could still challenge discriminatory voting 
     laws under Section 2 and win relief, including preliminary 
     relief, before an election occurs with a discriminatory 
     practice in effect. Unfortunately, this premise was deeply 
     mistaken. Section 2 cases are expensive, difficult to bring, 
     and frequently take years to litigate to completion--to say 
     nothing of the meritorious cases that are never brought at 
     all due to these costs. Theoretically, plaintiffs can win 
     preliminary relief while a case is being litigated--freezing 
     the status quo, while the court determines whether an 
     election practice violates federal law--but this too works 
     better in theory. In practice, the standard for winning a 
     preliminary injunction, which includes proving a substantial 
     likelihood of success on the merits, poses a particularly 
     high bar to relief in voting rights cases, due to their 
     complexity and fact-intensive nature. This means that 
     elections proceed under regimes ultimately found to be 
     discriminatory, with no way to compensate voters for that 
     harm, and with the victors of those tainted elections 
     enacting policy and accruing the benefits of incumbency.
       Compounding the problem is the metastasization of the so-
     called Purcell principle. Named after a short, unsigned 
     Supreme Court order from 2006, which reminded courts to 
     consider the potential confusion that may ensue if court 
     orders, especially conflicting ones, issue close to an 
     election, this restatement of common sense has grown into an 
     almost per se bar used to deny relief in voting cases. Over 
     the past decade, federal courts have applied Purcell ever 
     more aggressively, even when the putative concerns of voter 
     confusion or administrative burden on elections officials 
     that originally animated the doctrine are wholly absent, and 
     in a way that tends to work in one direction: against voters 
     and voting rights. Compounding the issue is the frequent lack 
     of explanation of a court's reasoning: applications of 
     Purcell often appear in the form of unsigned orders, leaving 
     the parties and the voting public with little clarity. In 
     short, the expansion of Purcell has made the already 
     difficult task of halting a discriminatory regime before it 
     can taint an election even harder, blocking relief even where 
     voting rights plaintiffs are ultimately successful--and even 
     when they have demonstrated as much early in their case.
       Finally, the Supreme Court's recent decision in Brnovich v. 
     Democratic National Committee will make it significantly more 
     difficult for voters to bring successful lawsuits to block 
     discriminatory voting laws under Section 2. Under the guise 
     of interpreting the statute, the Supreme Court articulated 
     five ``guideposts'' that will inevitably make showing a 
     discriminatory burden more difficult for Plaintiffs, while 
     putting a thumb on the scale for government defendants by 
     allowing for the mere specter of voter fraud--without any 
     evidence--to justify discriminatory practices.
       Fortunately, for all three of these issues, Congress has 
     the power to act to protect voting rights. It has the clear 
     authority to set standards for the issuance of preliminary 
     relief and injunctions in voting rights cases, and the clear 
     ability to correct the misinterpretation of the VRA contained 
     within Brnovich. Not only does Congress have the power to do 
     so, it also has the responsibility. Under both the Fourteenth 
     and Fifteenth Amendments, which promise equal protection 
     under the law and the right to vote free of racial 
     discrimination, respectively, Congress is expressly 
     authorized--and given the duty--to make these guarantees 
     real. The John Lewis Voting Rights Advancement Act 
     (``JLVRAA''), which passed the House of Representatives in 
     the 116th Congress, with additions to address the explosive 
     growth of Purcell in the 2020 election cycle and repair the 
     damage to Section 2 wrought by the recent Brnovich decision, 
     would fight the serious threats to voting rights that we see 
     today.
     I. The Standard for Obtaining Preliminary Injunctive Relief
       Following Shelby County, Section 2 of the VRA is the heart 
     of federal protections for the right to vote. Unlike the 
     VRA's preclearance regime, which applies before a law goes 
     into effect, a Section 2 claim can only be brought after a 
     law is already enacted or a policy announced. In the paradigm 
     course of civil litigation, plaintiffs will file a lawsuit, 
     and then after a trial on the merits, a court will impose 
     money damages or issue

[[Page H4439]]

     an injunction, i.e., an order to take or forebear from taking 
     some action. Commonly in civil rights litigation, these 
     injunctions bar a government actor from enforcing a law found 
     to violate civil rights law or the U.S. Constitution. Thus, 
     under Section 2 plaintiffs must go to court and litigate 
     their claims--a process that costs hundreds of thousands, if 
     not millions, of dollars and often takes years--before a 
     judge will strike down the law or order the practice stopped. 
     In the interim, the law or practice remains in effect. In the 
     context of voting rights litigation, this means multiple 
     elections involving hundreds of elected officials may be 
     irrevocably tainted by taking place under a discriminatory 
     regime.
       In some circumstances, however, plaintiffs can move for a 
     preliminary injunction, which is an order that preserves the 
     status quo while the lawsuit plays out. But these are 
     particularly difficult to win in voting rights cases. One 
     prong of the standard for the issuance of a preliminary 
     injunction is a showing of substantial likelihood of success 
     on the merits. This standard makes sense in many contexts: 
     before a court acts, prior to a full hearing of the evidence 
     at trial or a settlement, it should be confident that it has 
     a good basis to do so. But the difficulties in obtaining 
     preliminary relief under this standard in the voting rights 
     context have imperiled the ability to protect voters from 
     being irrevocably harmed by discriminatory electoral regimes.
       Voting rights cases are extremely complex and fact 
     intensive, which is reflected in the significant expense in 
     money and time required to litigate these cases successfully. 
     And courts have required voting rights plaintiffs to make a 
     substantial showing of this full panoply of proof in order to 
     meet the likelihood of success on the merits standard before 
     it will grant preliminary relief. This is incredibly 
     difficult to do in a truncated time period, not least because 
     voting rights cases frequently involve extensive statistical 
     analysis of voting patterns and practices and plaintiffs have 
     limited access to the information necessary to meet this 
     showing. As a result, regimes that are ultimately found to be 
     discriminatory can irrevocably taint an election even where 
     plaintiffs do whatever they can to prevent that from 
     happening.
       My prior written testimony before this subcommittee 
     identifies 15 Section 2 cases, brought after the Shelby 
     County decision, where plaintiffs sought a preliminary 
     injunction unsuccessfully--only to go on to win at trial or 
     reach a favorable settlement. On average, those cases took 27 
     months to litigate to the grant of relief (to say nothing of 
     unsuccessful appeals and disputes over attorneys' fees). In 
     the interim, multiple elections took place, millions of 
     voters cast ballots, and hundreds of elected officials took 
     office, under regimes courts ultimately found were 
     discriminatory or that were abandoned. For example, in a case 
     the ACLU and partners brought challenging an omnibus voter 
     suppression bill, North Carolina NAACP v. McCrory, despite 
     plaintiffs moving as quickly as possible and seeking a 
     preliminary injunction, voters in North Carolina chose 188 
     federal and state elected officials under election rules that 
     would be subsequently struck down.
       The deficiencies of litigation, with the difficulty of 
     securing preliminary relief, are particularly acute in the 
     voting rights context because voting is different than other 
     civil rights litigation. In cases of employment or housing 
     discrimination based on membership in a protected class, at 
     least in theory, going through the legal process can restore 
     that person's job or apartment, or make them whole through 
     backpay or money damages. Elections are different: once an 
     election transpires under a discriminatory regime, it is 
     impossible to compensate the victims of voting 
     discrimination. Their voting rights have been compromised 
     irrevocably because the election has already happened and 
     cannot be re-run. While those voters may be able to freely 
     vote in future elections, winners of the elections conducted 
     under unlawful practices gain the benefits of incumbency, 
     making it harder to dislodge them from office. Those elected 
     officials will make policy while in office, and courts cannot 
     (and should not) dislodge those decisions, even if the 
     mechanism under which they took office is later found to be 
     unconstitutional or to violate the VRA.
       The JLVRAA appropriately addresses these particular 
     challenges by creating a standard for the issuance of 
     preliminary relief in voting rights cases. First, plaintiffs 
     must ``raise[] a serious question'' as to whether the 
     challenged practice violates the VRA or the U.S. 
     Constitution. This standard appropriately seeks to balance 
     the needed prophylactic measures to protect the right to vote 
     without inviting frivolous litigation. Then, the court must 
     find that the hardship imposed on the defendant (generally a 
     government actor) is less than the hardship imposed on the 
     plaintiff (the voter), giving ``due weight to the fundamental 
     right to cast an effective ballot.'' This further ensures 
     that courts are not compelled to issue injunctions at the 
     drop of the hat: they must keep in mind, in addition to 
     whether the claims are meritorious, whether the relief would 
     be burdensome on the defendant.
       Congress has the clear power to act here. The general 
     standard for issuing preliminary injunctions is a judicial 
     creation, which over time has developed from equitable 
     principles into a four-pronged test familiar to lawyers and 
     judges. However, the Supreme Court has made it clear--
     repeatedly and unequivocally--that Congress has the authority 
     to alter the considerations for granting equitable relief, 
     which includes the issuance of injunctions. The Court has 
     further explicitly recognized that this reasoning covers 
     preliminary relief, and that Congress can even make the 
     issuance of certain injunctions automatic--an extreme measure 
     compared to the much more modest one contained in the JLVRAA. 
     In other words, ``Congress may intervene and guide or control 
     the exercise of the courts' discretion''--as long as it does 
     so clearly. This reasoning has been applied in federal court 
     cases acknowledging--and upholding--the legislatively 
     modified standard for the issuance of preliminary 
     injunctions. These cases interpret federal laws such as the 
     Petroleum Marketing Practices Act, Endangered Species Act, 
     National Labor Relations Act, Federal Trade Commission Act, 
     and the Securities Exchange Acts of 1933 and 1934. All of 
     which is to say: there is a long-running history and 
     unambiguous precedent blessing Congress' ability to specify 
     the conditions under which a preliminary injunction issues.
     II. The Purcell Principle
       The current standard for obtaining a preliminary injunction 
     makes it difficult enough for plaintiffs to ensure that 
     discriminatory regimes are blocked before they can taint an 
     election. But the problem has worsened due to the expansion 
     of the so-called ``Purcell principle.'' As described in more 
     detail in my prior testimony, the Purcell principle stood at 
     one point for the commonsense idea that courts should be 
     cautious in issuing orders which change election rules in the 
     period right before an election. In recent years, however, 
     the use of Purcell to block relief has skyrocketed and the 
     doctrine has become something much broader, bearing little 
     resemblance to the guidance given in the brief, unsigned 
     order that is its namesake. The Purcell of today displaces 
     the case-specific analysis required for injunctions and 
     operates as an almost per se bar on granting relief in 
     voting rights cases, in some (nebulously defined) period 
     before an election. This has real effects: as outlined in 
     my prior testimony, injunctions are frequently blocked by 
     Purcell, even in cases where plaintiffs ultimately to go 
     on--after the lengthy process of litigation--to win 
     relief. The use of Purcell is only expanding, and left 
     unchecked, it threatens to kneecap voting rights 
     litigation nationwide.
       First, Purcell today is invoked even when there is no risk 
     of voter confusion, zero or minimal administrative burden, 
     and where plaintiffs have acted quickly. An illustrative 
     example is Republican National Committee v. Democratic 
     National Committee. As the COVID-19 pandemic spread, 
     Wisconsin saw a last-minute deluge of absentee ballot 
     applications for primary elections held April 7, 2020, and 
     elections officials struggled to process them quickly. 
     Finding that the requirement for a witness signature as 
     applied to a subset of voters and the absentee ballot receipt 
     deadline were likely unconstitutional under the 
     circumstances, the court preliminarily enjoined the witness 
     requirement for those voters and extended the absentee ballot 
     receipt deadline by six days, requiring the state to count 
     ballots so long as they were received by April 13th (even if 
     postmarked after Election Day). Although elections officials 
     did not contest the injunction, private intervenors won 
     partial stays of the injunction at the Seventh Circuit (as to 
     the witness signature) and the Supreme Court (as to the 
     postmark requirement), with both courts relying on Purcell. 
     There was, however, no risk of voter confusion: voters were 
     merely waiting to receive their ballot, and the district 
     court's order would merely allow it to be counted. Nor was 
     there risk of administrative burden: instead, elections 
     officials had a few extra days to process an unprecedented 
     number of absentee ballot applications. Indeed, the two 
     applications of Purcell themselves imposed additional burdens 
     on elections officials--during the first weeks of an 
     unprecedented, deadly pandemic--and created the chaotic, 
     confusing dynamic that Purcell theoretically counsels 
     against. My prior written testimony includes several other 
     examples that, taken together, show how the Purcell principle 
     has been used to block relief frequently in cases where the 
     stated concerns of the Purcell decision itself--the need to 
     avoid confusing voters and imposing burdens on election 
     officials and the election system--are not present.
       Second, the use of the Purcell principle appears to apply 
     primarily in one direction only: to bar efforts to expand 
     access to the ballot. Here, the cases in which Purcell does 
     not apply can be just as revealing as the situations in which 
     it does. For example, in Minnesota in the lead-up to the 2020 
     general election, voting rights plaintiffs and state 
     officials entered into a consent decree in state court that 
     allowed all ballots postmarked on or before Election Day, and 
     received within seven days after, to be counted. In Carson v. 
     Simon, a new set of plaintiffs sued, seeking a preliminary 
     injunction blocking implementation of the consent decree on 
     September 24--almost eight weeks after the decree was 
     entered--which was denied on October 12. On appeal, the 
     Eighth Circuit reversed, enjoining the state court order and 
     therefore moving up the absentee ballot deadline, in an 
     opinion issued five days before the general election. It is 
     hard to imagine a situation where Purcell is more applicable: 
     here, the requested order came at the eleventh hour, risked a 
     great deal of voter confusion, and imposed serious 
     administrative burdens as

[[Page H4440]]

     state officials subsequently struggled to comply with the new 
     ballot receipt deadline. Nevertheless, the court declined to 
     apply Purcell. Other examples demonstrating this one-
     directional application are described in my prior written 
     testimony.
       Third, in some instances, too, appeals courts invoking 
     Purcell to stay relief granted by a district court (and the 
     increasing regularity of such stays) create the very voter 
     confusion and administrative burdens that the Purcell 
     principle in theory aims to avoid. For example, in Frank v. 
     Walker, the district court issued a preliminary injunction 
     against Wisconsin's voter ID law, and nearly 12,000 absentee 
     ballots were mailed to voters without instructions on 
     providing identification, hundreds of which were cast without 
     the required documents. The Seventh Circuit stayed this 
     order, without any mention of the voters who were merely 
     following instructions given to them by the state; 
     fortunately, the Supreme Court lifted the stay. But as 
     elections have become increasingly litigated, and Purcell has 
     become an increasingly prominent doctrine, these situations 
     will reoccur. Most concerningly, in a 2020 challenge to South 
     Carolina's absentee ballot witness requirement, the Supreme 
     Court stayed an injunction that had been affirmed by the en 
     banc Fourth Circuit, with three members of the Supreme Court 
     expressing the view that any votes that had already been cast 
     in reliance on the injunction should not be counted. It 
     should be beyond debate that voters who merely relied in good 
     faith on instructions from elections officials in casting 
     their ballots should not be disenfranchised due to Purcell.
       Finally, all these problems are exacerbated by the fact 
     that in Purcell-based orders, courts have frequently failed 
     to explain their decisions; instead, the parties and the 
     public are made to guess at basic parameters of the doctrine, 
     such as how long the relevant period is, what counts as an 
     election rule, and how to factor in voters' reliance 
     interests. Typically, orders in federal courts follow full 
     briefing, oral argument (as need be), and judicial research 
     and drafting, a process which can often take months. The 
     product of this is a reasoned opinion that assures the 
     parties that their arguments got a fair hearing and provides 
     guidance as to the rules of the road going forward. Purcell 
     departs sharply from this practice, and in fact, the 
     development of the principle occurred almost entirely in a 
     series of four unsigned orders in the 2014 election. These 
     brief orders provide little guidance to voters or 
     litigations--and feed speculation that decisions are based on 
     political concerns. While the exigent nature of election 
     cases may sometimes leave courts with little time to craft a 
     lengthy opinion, courts can always issue an order and follow 
     up with an opinion explaining their reasoning. Instead, the 
     lack of written opinions means there is no way to ensure the 
     Purcell principle is being applied consistently--or even 
     define what the Purcell principle is.
       As with the preliminary injunction standard, Congress' 
     ability to act here is clear. The manner under which 
     injunctions issue, the concerns courts should take into 
     consideration (and those they should not), and the way to 
     weigh competing interests are all matters within Congress' 
     power to define. In the context of Purcell, this could look 
     like defining a specific, measurable period in which changes 
     are disfavored, for legitimate reasons--to avoid the Purcell 
     window growing ever larger and even more unmoored from its 
     foundations. Congress could also clearly state the public's 
     interest in ensuring free and fair access to the ballot, and 
     how that interest should be weighed against administrative 
     concerns. It could specify exactly what forms of voter 
     confusion courts should keep in mind and how to best minimize 
     that confusion. Finally, it could provide guidance to courts 
     reflecting the reality that sometimes, unforeseen events--
     whether an unprecedented pandemic or the actions of elections 
     officials--occur and that this is no reason to abdicate their 
     responsibility to safeguard the constitutional right to vote.
     III. Brnovich v. Democratic National Committee and Potential 
         Fixes
       On July 1, 2021, the Supreme Court released its decision in 
     Brnovich v. Democratic National Committee, and in doing so, 
     weakened federal protections for voting rights even further. 
     The case concerned two Arizona restrictions that had a 
     disproportionate impact on Native American and other 
     communities of color, and which the plaintiffs challenged as 
     violating Section 2: a ban on the collection of early ballots 
     and a rule mandating that ballots cast in person at the wrong 
     precinct be discarded entirely, rather than counted for the 
     offices for which that voter is eligible to vote. In the 
     decision, reversing an en banc panel of the Ninth Circuit 
     striking down the two requirements under Section 2, the 
     Supreme Court set out five so-called ``guideposts''--
     untethered to the actual text of the statute--in assessing 
     Section 2 claims. The decision and these guideposts will make 
     it harder to bring successful Section 2 claims.
       The Court's decision in Brnovich undermines the purpose of 
     Section 2 to provide a powerful tool to root out 
     discrimination in voting--no matter how blunt or subtle--in 
     numerous ways. But broadly speaking, the Court's decision did 
     two things to make it harder to bring successful Section 2 
     claims.
       First, the Court ratcheted up the bar for plaintiffs to 
     establish a discriminatory burden on the right to vote. 
     Section 2 calls for an inquiry based on ``the totality of the 
     circumstances,'' into whether ``political processes . . . are 
     not equally open'' to people of color--or, in other words, 
     whether a practice imposes a burden on voters of color. 
     Brnovich introduced into this inquiry whether the burden 
     imposed by a challenged practice is, in a court's view, akin 
     to the ``usual burdens of voting,'' finding those to be 
     essentially per se permissible under Section 2. Absent from 
     the analysis is a discussion of whether the so-called 
     ``usual'' burdens of voting are equally burdensome to all 
     voters, particularly to voters of different racial groups. 
     Though the decision refers to ``mere inconvenience,'' the 
     difficulty of, say, driving to a mail box is very different 
     on a remote Native American reservation where residents do 
     not receive postal service at their doors, and are also 
     much less likely to have access to cars than it is for 
     other voters. The Court also found relevant ``the degree 
     to which a voting rule departs from what was standard 
     practice . . . in 1982.'' But this ignores that the 
     reauthorization of the VRA in 1982, just as in 1965, was 
     motivated by a desire to change state election rules and 
     eradicate the racially discriminatory measures that 
     remained--not grandfather them into law. By introducing 
     these irrelevant considerations into the Section 2 
     analysis, Brnovich will make it more difficult for 
     plaintiffs to prove their cases.
       Second, the Court also ratcheted down the bar for 
     jurisdictions to defend restrictions on voting with a 
     disparate impact. In particular, Brnovich imports into this 
     inquiry--without any grounding in text or history--a state's 
     asserted interest in preventing election fraud, even when 
     wholly unsubstantiated with actual evidence, which it 
     gratuitously referred to as ``strong and entirely 
     legitimate,'' before concluding that rules justified with 
     reference to these interests are ``less likely to violate 
     Sec.  2.'' The lower court in Brnovich found the offered 
     justification of voter fraud for the ban on ballot 
     collection--particularly important to Native American 
     communities, who often lack adequate transportation or 
     regular postal service--to be tenuous, due to the utter 
     absence of voter fraud in Arizona. On this point, the Supreme 
     Court again disagreed, and went further: holding that states 
     are under no obligation to provide any evidence of an actual 
     history or risk of fraud within their borders, or to show how 
     a challenged rule actually would prevent election fraud.
       Fortunately, Brnovich was a decision based on a statutory 
     interpretation, rather than a constitutional holding. This 
     means Congress can correct the Court's misinterpretation of 
     Section 2 and restore the VRA's full protections against 
     discrimination in voting. We urge Congress to add such a 
     legislative response to the JLVRAA.
       At a minimum, any efforts to respond to Brnovich should 
     make clear that any voting practice that interacts with 
     historical and socioeconomic factors to result in 
     discrimination against voters of color runs afoul of Section 
     2. This is the case whether or not the practice existed or 
     was widespread in 1982, or any other year. Further, whether 
     or not a court finds a burden to be one of the so-called 
     ``usual'' burdens of voting should not factor into the 
     analysis. A voting practice could well be a mere 
     inconvenience for some voters, but a serious burden for 
     others, to the point where they cannot meet it and are thus 
     disenfranchised.
       Any statutory language addressing Brnovich should also 
     directly give courts guidance on how to weigh racially 
     discriminatory burdens against state arguments that a measure 
     is necessary to protect election integrity. Congress must 
     establish that jurisdictions must do more than simply 
     articulate unsubstantiated fears to justify discriminatory 
     restrictions on voting. If a law imposes a discriminatory 
     burden on voters of color, jurisdictions should, at a 
     minimum, be required to submit evidence that the restriction 
     actually advances a particular and important governmental 
     interest. But the analysis should not end there: voters 
     should also be allowed to prove how the challenged measure is 
     pretextual or how there are alternative means to get at the 
     same goal--without imposing the same racially discriminatory 
     burden.
       There are different ways Congress can do this. Congress 
     could, for example, adopt an approach that codifies the 
     relevant factors (e.g., the practice's interaction with 
     historical and socioeconomic factors), and non-relevant 
     factors (e.g., whether the practice existed in 1982). It 
     could also adopt a burden-shifting approach modeled on the 
     frameworks for addressing employment discrimination in Title 
     VII of the Civil Rights Act of 1965 or housing discrimination 
     in the Fair Housing Act, which could give guidance to courts 
     as to what evidence a state needs to support an asserted 
     interest, and how to weigh that interest against evidence of 
     a discriminatory result. But Congress should act to restore 
     Section 2 to the powerful weapon to combat discrimination 
     that it was intended to be.


                               Conclusion

       For each of these three issues--the difficulty winning 
     preliminary relief, the aggressive expansion of Purcell, and 
     the misinterpretation of Section 2 in Brnovich--there is a 
     common thread: Congress has the power to act. Congress has 
     clear authority to set the standards for the issuance of 
     preliminary relief and has repeatedly done so in numerous 
     federal statutes to address different contexts. The JLVRAA 
     would make preliminary injunctions available if plaintiffs 
     raise

[[Page H4441]]

     ``a serious question'' as to the merits, which would act as a 
     prophylactic to safeguard the right to vote, and is 
     appropriate given the impossibility of remedying voting 
     discrimination after the fact. Congress further has the power 
     to define the public interest to include the public's 
     interest in representative government, elected by the 
     broadest swath of eligible voters possible, and to provide 
     guidance to federal courts on the period in which election-
     related injunctions can be issued. And finally, Congress has 
     the unquestioned authority to clarify its intent and fix 
     erroneous interpretations of its laws, such as the recent 
     Brnovich decision. In fact, the current version of Section 2 
     was enacted by Congress in 1982 to respond directly to a 
     Supreme Court case that similarly misgauged Congress' 
     meaning. The 1982 amendments to Section 2 thus provides a 
     model for Congress to act again to ensure that voting rights 
     are subject to robust protections consistent with this body's 
     intent.
       These amendments to the VRA are not merely within Congress' 
     power--they are its responsibility. The Fourteenth and 
     Fifteenth Amendments, which respectively guarantee the right 
     to due process and equal protection under the law and the 
     right to vote without discrimination based on race, expressly 
     give Congress the power to enforce their guarantees. This is 
     no accident: the Reconstruction Amendments were passed in the 
     wake of a Civil War which was in part precipitated by a 
     Supreme Court decision. The drafters of the amendments were 
     well aware that the responsibility to protect voting rights 
     could not be left entirely with the court system, and 
     therefore purposely gave this duty to Congress. Although this 
     country has made incredible progress since the enactment of 
     those amendments, this obligation is ongoing. When other 
     institutions tasked with protecting constitutional rights, 
     such as courts and state governments, fail to do so, this 
     body has the responsibility to intervene.
       I thank you again for the opportunity to testify in front 
     of this subcommittee on these issues.
                                  ____


Testimony of Wendy Weiser, Vice President for Democracy at the Brennan 
                Center for Justice at NYU School of Law


 HEARING ON OVERSIGHT OF THE VOTING RIGHTS ACT: POTENTIAL LEGISLATIVE 
 REFORMS BEFORE THE HOUSE COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON 
   THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES IN THE UNITED 
            STATES HOUSE OF REPRESENTATIVES--AUGUST 16, 2021

       Thank you for the opportunity to testify in support of 
     strengthening the Voting Rights Act (``VRA''), a law that has 
     played a critical role in safeguarding American democracy 
     against pernicious, persistent threats of discrimination in 
     the election system. The Brennan Center for Justice at NYU 
     School of Law strongly supports this Committee's efforts to 
     restore and revitalize the VRA, through the John Lewis Voting 
     Rights Advancement Act (``VRAA'').
       The VRA is widely considered the most successful civil 
     rights legislation in our nation's history. Unfortunately, 
     the Supreme Court has seriously hampered its effectiveness. 
     First, in Shelby County v. Holder, the Court rendered 
     inoperable the law's preclearance provisions, which had 
     stopped many discriminatory voting practices from ever going 
     into effect in selected jurisdictions with a history of 
     discrimination. More recently, in Brnovich v. DNC, the Court 
     sharply limited voters' ability to challenge discriminatory 
     practices under the nationwide protections against voting 
     discrimination in Section 2 of the law. Although these 
     decisions have seriously wounded the VRA, they also make 
     clear that Congress has the power to restore and bolster the 
     law.
       The need to strengthen the VRA is especially urgent now, as 
     a decade's worth of efforts to restrict voting rights have 
     reached a fever pitch. As I previously testified, states 
     across the country are rapidly passing new laws rolling back 
     voting access--many of them targeting voters of color. These 
     new laws are being implemented on top of a host of other 
     discriminatory voting practices that have been put in place 
     or attempted in recent years. We are also headed into a 
     redistricting cycle, following last week's release of Census 
     data, that is expected to be characterized by racial 
     discrimination and severe gerrymandering targeting 
     communities of color.
       The VRAA is designed to address these current problems and 
     meet current needs, while taking account of the concerns the 
     Supreme Court identified with the 2006 reauthorization of the 
     law. I submit this testimony to supplement the record of 
     persistent race discrimination in voting that creates the 
     need for the VRAA, and to explain how the VRAA is an 
     appropriate, carefully tailored exercise of congressional 
     authority to combat that discrimination.
     I. New Evidence that Race Discrimination in Voting, and its 
         Effects, Persist
       Despite the progress made in the decades following the 
     VRA's initial enactment, race discrimination in voting is 
     still a very real--and in some places a growing--problem. The 
     record this Committee has amassed in recent months, including 
     evidence submitted by the Brennan Center, shows overwhelming 
     evidence of contemporary voting discrimination. While the 
     evidence shows that race discrimination in voting is 
     widespread, it also shows that it is especially powerful and 
     persistent in certain geographic areas, including in a number 
     of states that were previously covered by Section 5 of the 
     VRA because of their past histories of discrimination in 
     voting.
       Our recent and forthcoming research provides even more 
     evidence of the impact and persistence of discrimination in 
     voting, underscoring the acute need for the VRAA.
       A. Persistent Racial Turnout Gaps
       A recently published analysis by the Brennan Center's Kevin 
     Morris and Coryn Grange demonstrates that turnout among 
     nonwhite voters remains significantly lower than that among 
     white voters. Even with record overall turnout in the 2020 
     election, there was a significant turnout gap between white 
     and nonwhite voters. Overall, 70.9 percent of eligible white 
     voters cast ballots in the 2020 election, compared to only 
     58.4 percent of nonwhite voters. In fact, as the graph 
     below--reproduced from the Brennan Center's published 
     analysis--demonstrates, the turnout gap between white and 
     nonwhite voters has gone virtually unchanged since 2014, and 
     it has grown since its modern-era lows in 2008 and 2012. And 
     even when the gap between Black and white voters was 
     closing--a trend that has sadly reversed course in recent 
     years--Latino and Asian American voters lagged far behind 
     their white counterparts in participation. (This is true of 
     Native American voters as well, though their numbers are too 
     small for inclusion in the census data.)
       While our research does not examine whether or the extent 
     to which voter suppression efforts caused this gap to 
     persist--and at some points, widen--it does demonstrate that 
     the temporary closure of the Black-white voting gap in 2008 
     and 2012 was anomalous. This is particularly significant in 
     light of the Shelby County Court's reliance on evidence that 
     this gap had supposedly closed by 2013 to question Congress's 
     justification for preclearance.
       B. Larger Turnout Gaps in Previously Covered Jurisdictions
       According to more recent census data, described in a 
     forthcoming Brennan Center analysis by Coryn Grange, Peter 
     Miller, and Kevin Morris, the racial turnout gaps are even 
     starker in the states likely to be subject to preclearance 
     under the VRAA. In recent years, white voter turnout has 
     vastly exceeded nonwhite turnout in virtually every state 
     previously subject to preclearance, and in some areas, the 
     progress made in the decades leading up to Shelby County has 
     all but vanished.
       Our analysis finds that, after hitting historic lows 
     immediately before Shelby County in 2012, the white-Black 
     turnout gap has significantly grown in almost every state 
     previously covered by the VRA. In South Carolina, for 
     example, the white-Black turnout gap has grown by 21 
     percentage points since 2012, to 15 percent. In Texas and 
     Virginia, the gap has grown by 13 percentage points, to 11 
     percent and 13 percent, respectively. In Louisiana, the gap 
     has grown by 11 percentage points, to 7 percent. And in North 
     Carolina, which was not covered in its entirety but had a 
     number of covered political subdivisions, the gap has grown 
     by 17 percentage points, to 3 percent. These are dramatic 
     shifts in only eight years. In most of the states mentioned 
     here, the turnout gap between Black and white voters grew 
     from a slight gap in favor of Black voters to a significant 
     gap in favor of white voters.
       The data also indicates that the post-Shelby County racial 
     turnout gaps are more than a Black and white issue. The total 
     white-nonwhite turnout gap has grown since 2012 in five of 
     the eight states likely to be covered under the VRAA. And the 
     racial turnout gap is especially large for Hispanics. In 
     Georgia and Virginia, for example, the non-Hispanic white-
     Hispanic turnout gap was 26 percentage points in 2020. In 
     Texas, it was 19 percentage points.
       C. Discriminatory Voting Barriers in 2020
       In addition to a growing turnout gap among white and 
     nonwhite voters, the 2020 election saw a proliferation of 
     discriminatory voting barriers. A forthcoming report by the 
     Brennan Center's Will Wilder catalogs the wide range of 
     barriers, disparate burdens, and discrimination voters of 
     color faced during the 2020 election cycle. These included 
     new restrictive voting laws, racially discriminatory voter 
     roll purges, disparities in mail delivery and in mail ballot 
     processing times that were exacerbated by the Covid-19 
     pandemic, long lines and closed polling places, racially-
     targeted voter intimidation, and targeted misinformation 
     campaigns.
       Perhaps more than in any other year in recent history, 
     elected officials and political operatives were direct about 
     their intentions to shrink the electorate in 2020, at times 
     with explicit or thinly-veiled references to race. These 
     statements of discriminatory intent are important context 
     for the range of discriminatory results seen in 2020.
       As we have previously testified, the push to disenfranchise 
     voters of color continued after the election, as the Trump 
     campaign and others filed frivolous lawsuits aimed at tossing 
     out the votes of Black voters in urban centers and other 
     voters of color. This litigation and the lies used to justify 
     it helped spur on violent attacks on the Capitol. The same 
     lies laid the rhetorical groundwork for a new wave of 
     restrictive voting legislation this year unlike anything we 
     have seen since the VRA's enactment in 1965. Our most up-to-
     date research shows

[[Page H4442]]

     that 18 states enacted 30 new laws restricting access to 
     voting between January 1 and July 14, 2021.
       D. Discriminatory Plans to Reduce Representation
       The Brennan Center's recent report, ``Representation for 
     Some,'' authored by Yurij Rudensky et al., offers additional 
     evidence of the growing risk of race discrimination in 
     voting. This study analyzes the impact of a voting change 
     that is being pushed in a number of states--namely, the 
     exclusion of non-citizens and children under 18 from the 
     population base used to draw electoral districts. Using data 
     from Texas, Georgia, and Missouri, the report finds that 
     adopting an adult citizen redistricting base would have a 
     substantial and disparate effect on communities of color, 
     particular Latino communities.
       While to date no state has adopted an adult citizen 
     redistricting base, these findings are relevant to Congress's 
     inquiry because there is an ongoing effort to adopt such a 
     change, including in states that were previously subject to 
     preclearance and would likely be covered under the VRAA. This 
     change is being pursued with the express knowledge that its 
     principal impact would be to disadvantage communities and 
     voters of color. For example, Thomas Hofeller, a prominent 
     conservative redistricting strategist who helped draw maps 
     after the 2010 census in Alabama, Florida, North Carolina, 
     and Texas that were later struck down by courts as 
     discriminatory, indicated in a memo shared with conservative 
     strategists that changing the apportionment base would be 
     ``advantageous to Republicans and non-Hispanic Whites.'' The 
     substantial risk that states and localities will adopt a 
     discriminatory adult citizen redistricting base further 
     underscores the need for robust protections under the Voting 
     Rights Act.
     II. The VRAA's Preclearance Provisions Effectively Target the 
         Problem of Voting Discrimination
       The VRAA's preclearance provisions are well designed to 
     target the persistent problem of voting discrimination in a 
     manner consistent with constitutional requirements. The bill 
     includes a coverage formula that will effectively remedy and 
     deter illegal discrimination without casting the net so 
     widely that it imposes burdens on jurisdictions where 
     ordinary litigation is sufficient to stop discrimination. It 
     does so by carefully targeting coverage to jurisdictions and 
     conduct where discrimination is most prevalent, reflecting 
     current conditions and recent historical experience, as the 
     original formula did in 1965. It introduces a geographic 
     coverage formula that triggers only in jurisdictions with 
     recent histories of verifiable voting discrimination. It also 
     establishes limited nationwide preclearance for certain 
     practices that have been used frequently to discriminate 
     against voters of color.
       A. The VRA's Preclearance Provisions Are Necessary and 
           Warranted
       These preclearance provisions are well justified by the 
     extensive record before Congress.
       First, the record before Congress makes clear that 
     preclearance is, unfortunately, still necessary to root out 
     persistent discrimination. As we have previously testified 
     (and as the Supreme Court previously recognized), litigation 
     is emphatically not enough to prevent discrimination where it 
     is repeated; preclearance is necessary. Litigation is costly, 
     slow, and often allows discriminatory rules to govern pending 
     a decision. In some cases, like our recently completed 
     lawsuit challenging Texas's strict voter ID law, multiple 
     elections occur under discriminatory practices before a 
     judicial resolution alters or eliminates them. A favorable 
     decision in such a case cannot un-suppress lost votes, 
     reallocate spent resources, or restore confidence in citizens 
     whose efforts to register and vote were wrongfully denied. 
     Preclearance, by comparison, is a fast process that prevents 
     certain discriminatory measures from taking effect in the 
     first place. The pre-Shelby regime showed the effectiveness 
     of cutting off discriminatory laws and practices at the pass 
     rather than leaving citizens to pick up the burden of 
     challenging them. The last eight years have shown the harm 
     that can be done without the specter of preclearance 
     deterring and blocking harmful laws. Indeed, in many 
     jurisdictions, as soon as a discriminatory law or practice 
     was successfully challenged, the legislature or other public 
     officials took steps to put another voting restriction in its 
     place. As voting barriers have proliferated, so have voting 
     rights lawsuits, reaching unprecedented highs in recent 
     years. Without congressional action, this trend shows no 
     signs of abating.
       Second, the record before Congress shows the importance of 
     applying preclearance to elections at the federal, state, and 
     local levels. Discriminatory laws and practices do not just 
     plague federal elections. They also exist in school board, 
     county commission, and state house elections, as the 
     extensive testimony compiled by Professor Peyton McCrary 
     shows. These elections have significant consequences; they 
     can determine issues ranging from the educational resources 
     provided to minority voters' children to whether 
     representatives of minority communities are present at the 
     redistricting table. Unless all eligible voters are able to 
     participate in all elections free from discrimination, our 
     society is not achieving the promise of equal justice for 
     all.
       Third, as discussed below, the record before Congress 
     supports the application of a geographic coverage formula to 
     target jurisdictions where voting discrimination is most 
     rampant. And while I do not cover this in my testimony, I 
     believe that the record also supports a practice-based 
     trigger to target practices that are frequently applied to 
     discriminate against minority voters. Requiring preclearance 
     for certain voting practices that are known to be inherently 
     discriminatory is an effective way to target the VRAA as 
     efficiently as possible at the worst forms of discrimination.
       B. The VRAA's Geographic Coverage Formula Is Well Designed 
           to Target and Root Out Rampant Discrimination
       While discrimination in voting is widespread overall, the 
     record before this Committee shows that certain jurisdictions 
     tend to perpetrate voting discrimination much more than 
     others. It is therefore appropriate for Congress to include a 
     geographic-based trigger for preclearance so as to focus 
     remedial attention on the places where discrimination is 
     persistent and pervasive.
       The VRAA's geographic coverage formula is effectively 
     designed to target places where discrimination is recent, 
     widespread, and persistent.
       i. The formula relies on the best evidence of 
     discrimination. The formula identifies those jurisdictions 
     where the problem of discrimination is the greatest by 
     focusing on the best evidence for determining where there is 
     a problem to remedy: a jurisdiction's recent violations of 
     laws prohibiting race discrimination. Specifically, the VRAA 
     looks to law violations reflected in court orders, DOJ 
     objection letters, or settlements that were either entered by 
     a court or contained an admission of liability and lead to a 
     change in voting practices. The volume of litigation in and 
     of itself is a probative way to identify where persistent 
     discrimination is taking place; where a jurisdiction is 
     repeatedly discriminating against its citizens, one would 
     expect those citizens to file repeated lawsuits.
       But the mere filing of a lawsuit is not enough to trigger 
     coverage under the VRAA; there must also be formal findings 
     that a violation occurred. In other words, the bill looks to 
     objective indicia that discrimination actually occurred. Not 
     surprisingly, legal findings of voting discrimination are 
     more common in jurisdictions that were previously covered 
     under the VRA's preclearance regime. As Professors Morgan 
     Kousser and William Kenan testified, more than five out of 
     every six successful voting rights lawsuits between 1957 and 
     2019 occurred in places that were previously covered, even 
     though for most of that time preclearance prevented the 
     implementation of discriminatory laws in those jurisdictions.
       ii. The formula's high numeric threshold for violations 
     over a 25-year review period identifies persistent patterns 
     of discrimination. The VRAA sets numeric thresholds to 
     capture only those states with an established pattern of 
     discriminatory conduct. Specifically, as previously 
     introduced, the bill would capture only those states with 10 
     violations, at least one of which was statewide, or 15 total 
     violations, over the prior 25 years. These high numeric 
     thresholds mean that the VRAA's geographic coverage for 
     preclearance will apply only to those jurisdictions that 
     continue to exhibit discrimination despite successful 
     litigation. In other words, the preclearance coverage formula 
     is specifically tailored to remedy race discrimination where 
     case-by-case litigation has proven ineffective or 
     inefficient. (While the bill's requirement of 10 separate, 
     independent findings of discrimination is helpful to identify 
     the states where the problem has been most difficult to root 
     out, it also means that some states with quite a bit of 
     discrimination will not be covered unless the discrimination 
     continues over time. In those states, voters will have to 
     rely on the other remedies in the VRA.)
       The geographic coverage formula's 25-year review period is 
     necessary to assess which of those jurisdictions with current 
     records of discrimination also exhibit a persistent, 
     longstanding pattern of discrimination justifying 
     preclearance. This time period encompasses two redistricting 
     cycles and a sufficient number of electoral cycles to 
     identify patterns of discrimination. The length of the review 
     period justifies the high numeric threshold for violations, 
     and vice versa.
       iii. The formula limits coverage to states with recent 
     discrimination. The geographic coverage formula is also 
     designed to ensure that only those states with a continuing, 
     current problem of discrimination are covered. As discussed 
     further below, the 25-year review period works in tandem with 
     other provisions of the bill to ensure that jurisdictions 
     will only be covered if they have committed violations 
     recently. First, states that meet the coverage threshold are 
     only subject to preclearance for 10 years, after which older 
     violations will no longer be considered. Second, as also 
     discussed below, states that do not have any violations 
     within the past 10 years can easily bail out of preclearance, 
     and Congress can streamline the bail-out process even 
     further.
       As a factual matter, the formula will not cover 
     jurisdictions that only committed violations a long time ago, 
     nor will it cover jurisdictions that only committed a small 
     number of violations over a short period of time.

[[Page H4443]]

       Based on Peyton McCrary's testimony submitted for this 
     hearing, the VRAA will likely cover eight states, all of 
     which were covered under the VRA pre-Shelby County: Alabama, 
     Florida, Georgia, Louisiana, Mississippi, North Carolina, 
     South Carolina, and Texas. Assuming Congress also authorizes 
     coverage of political subdivisions with at least three of 
     their own violations, the following local jurisdictions would 
     also be covered, only one of which was previously covered 
     (because it was within a covered state): Los Angeles County, 
     California, Cook County, Illinois, Westchester County, New 
     York, Cuyahoga County, Ohio, and Northampton County, 
     Virginia. Each of these states and political subdivisions has 
     large minority populations. (Mr. McCrary's testimony also 
     concludes that California, New York, and Virginia are close 
     to coverage. Were California or New York to have one 
     statewide violation, it would bring either state into 
     coverage. While Virginia only has eight violations by Mr. 
     McCrary's count, two statewide, that number could rise to 10 
     if Congress drafts the bill to count independent findings of 
     violations within one case or objection letter as independent 
     violations.)
       Each of the covered states has at least one violation 
     within the past decade, and most have multiple violations. In 
     addition, each covered state has seen violations spread over 
     a long time period; in no state are the violations 
     concentrated in a time period shorter than 14 years. Each 
     state is treated equally, and each has an equal opportunity 
     to roll out of preclearance if it stops engaging in a pattern 
     of discrimination.
       iv. The formula appropriately targets local jurisdictions 
     where discrimination is prevalent. The VRAA's geographic 
     coverage formula is designed to cover states with consistent 
     patterns of discrimination. Some have argued that subjecting 
     political subdivisions within states to preclearance based on 
     violations committed by the state itself and by other 
     subdivisions is not fair. However, as I explain here, doing 
     so is both reasonable on principle and consistent with past 
     practice.
       Local jurisdictions do not exist in isolation. They are 
     embedded within larger communities and larger jurisdictions, 
     including states. From a legal standpoint, as I discuss 
     further below, political subdivisions are ``mere creatures of 
     the State''; as one court noted, ``no legal distinction 
     exists between State and local officials'' for the purpose of 
     preclearance. Our electoral system distributes election 
     administration responsibility between local and state 
     election officials. When a person votes, their selections for 
     local, state, and federal offices are often recorded on the 
     same ballot, and they are subject to the same policies and 
     burdens when casting each of these votes. Perhaps more 
     importantly, when a voter casts their ballot, they are 
     participating in and affected by a political culture that 
     does not necessarily stop at their town or county's borders. 
     When this political culture has a demonstrated record of 
     discrimination, it is not unreasonable to presume that all 
     jurisdictions within it should be subject to preclearance. 
     Indeed, state officeholders that engage in discriminatory 
     practices are elected by people within each of the state's 
     political subdivisions.
       Past practice under the VRA demonstrates that state 
     coverage is a reasonable way to identify local jurisdictions 
     where discrimination is prevalent. The VRA previously 
     subjected states and all their political subdivisions to 
     preclearance based on statewide turnout figures and the use 
     of tests and devices, regardless of the specific figures and 
     practices within each subdivision. In practice, this 
     successfully identified those jurisdictions where 
     discrimination was most likely to occur. A quick review of 
     the Justice Department's objections to voting policies 
     demonstrates that the vast majority of objections were to 
     local-level policies in covered states. For example, the 
     Department of Justice objected to at least 104 voting changes 
     in Alabama while preclearance was in effect in that state; 
     all but 18 of these objections were to local- and county-
     level policies spread across a wide variety of political 
     subdivisions.
       Peyton McCrary's analysis of the states likely to be 
     covered under the VRAA shows that it is fair to conclude that 
     discrimination pervades the local jurisdictions in those 
     states as well. According to his testimony, every 
     jurisdiction likely to be covered by the VRAA has at least 
     one statewide violation, violations across at least five 
     local jurisdictions in a broad geographic area, and 
     violations distributed across the entire 25-year period. Take 
     Georgia for example. Professor McCrary estimates that Georgia 
     has 25 total violations over the 25-year period. These 
     include four statewide violations and violations involving 19 
     different cities, counties, and school boards. In other 
     words, the formula captures geographic areas where 
     discrimination is widespread, persistent, and continues to 
     the present day, regardless of the political subdivisions.
       v. The VRA's bail-out provisions prevent over-inclusion. 
     The bail-out provisions in Section 4(a) of the VRA ensure 
     that local jurisdictions where discrimination is not 
     prevalent will not be unfairly subject to coverage. Political 
     subdivisions that have not engaged in discriminatory conduct 
     for ten years can petition for relief from the preclearance 
     process even if the state as a whole and its other 
     subdivisions are still covered.
       The VRA's bail-out process is easy and efficient. Since 
     1997, 50 jurisdictions across seven states have successfully 
     bailed out of preclearance, according to the Department of 
     Justice. All but one of these jurisdictions (the Northwest 
     Austin Municipal Water District No. 1) did so via a consent 
     decree with the Department of Justice, without contested 
     litigation. Since the 1982 amendments to the VRA, every 
     jurisdiction that requested bailout succeeded. According to 
     election law expert Gerry Hebert, who represented the 
     majority of jurisdictions that bailed out between the 
     implementation of the 1982 amendments and Shelby County, the 
     bailout process became more efficient over time as more 
     jurisdictions used it.
       Congress has an opportunity to make the bailout process 
     even more efficient by creating an administrative bailout 
     process that largely circumvents judicial review. We 
     recommend that Congress create an administrative process for 
     jurisdictions to seek bailout without having to file an 
     action in court. Political subdivisions without recent 
     violations could file requests directly with the Department 
     of Justice. If the Department of Justice agrees that the 
     jurisdiction qualifies for bailout under the VRA's criteria, 
     the Attorney General could publish a Federal Register Notice 
     that the jurisdiction is eligible for administrative bailout. 
     If there are no objections within a specified time period, 
     the jurisdiction could be bailed out automatically via a 
     second Federal Register Notice, without any judicial action. 
     Jurisdictions that are denied or face local opposition to 
     bailout would still be able to use the existing bailout 
     mechanism by filing an action in the District Court for the 
     District of Columbia. Because the objective bailout criteria 
     from the 1982 amendments closely mirror the preclearance 
     criteria in the VRAA, Congress could also automatically 
     ``grandfather in'' all jurisdictions that bailed out under 
     the 1982 amendments pre-Shelby County out of coverage, unless 
     they commit the requisite number of new violations to subject 
     them to future coverage.
     III. The VRAA's Geographic Coverage Formula Is a 
         Constitutional Exercise of Congress's Powers
       The VRAA's geographic coverage formula, updating Section 
     4(b) of the VRA, is constitutional under Supreme Court 
     precedent. As an initial matter, the Supreme Court has 
     repeatedly held that the preclearance regime in Section 5 of 
     the VRA is constitutional--and it remains constitutional 
     today. The Court has upheld preclearance under the Fourteenth 
     and Fifteenth amendments, which give Congress significant 
     leeway to craft broad remedial legislation to protect against 
     racial discrimination in voting. These amendments permit 
     Congress to remedy and to deter voting rights violations by 
     prohibiting conduct that is not itself strictly 
     unconstitutional. Although the Court has recognized that 
     preclearance is an extraordinary legislative approach that 
     stretches ordinary principles of federalism, it has also 
     affirmed that such ``strong medicine'' is necessary and 
     constitutionally justified to address pervasive and 
     persistent race discrimination in voting.
       As I discuss above and as the record before Congress makes 
     clear, such discrimination remains pervasive today, 
     especially in the jurisdictions that would likely be covered 
     under the VRAA. In expressing doubt about the continued need 
     for preclearance roughly a decade ago, the Supreme Court 
     observed that ``[v]oter turnout and registration rates now 
     approach parity,'' ``[b]latantly discriminatory evasions of 
     federal decrees are rare,'' and ``minority candidates hold 
     office at unprecedented levels.'' Simply put, these 
     observations no longer hold true. Today, the registration and 
     turnout gaps between white voters and voters of color are 
     substantial and persistent, especially in jurisdictions 
     likely to be covered. Indeed, the gaps between Hispanic and 
     Non-Hispanic white voters rivals the registration and turnout 
     gaps between Black and white voters from 1965. It is not rare 
     to see states pile voting restriction after voting 
     restriction, even as earlier restrictions are struck down by 
     the courts in what amounts to judicial whack-a-mole. And 
     while there are more minority candidates than ever before, 
     minorities are still dramatically underrepresented relative 
     to their population in the halls of congress, state 
     legislatures, and state courts, with some states trending 
     toward less, not more, minority representation. In short, the 
     justification for preclearance remains powerful.
       The VRAA's primary mode of imposing preclearance--its 
     geographic coverage formula--is likewise constitutional. In 
     Shelby County, the Supreme Court explained that there are 
     constraints on when and how Congress can adopt preclearance. 
     Most significantly, the Court said that any attempt to target 
     states for preclearance coverage ``must be justified by 
     current needs'' and the formula rationally related to the 
     problem it is trying to address. Relying on this principle, 
     the Shelby County Court struck down the prior geographic 
     coverage formula, finding that it was improper for Congress 
     to rely on obsolete practices, such as literacy tests, along 
     with outdated information, such as 1960s- and 1970s-era voter 
     registration rates, rather than current conditions and voting 
     rights violations. The old coverage formula, the Court 
     observed, bore no ``no logical relation to the present day.'' 
     And the record of voting discrimination before Congress, 
     according to the Court, ``played no role in shaping'' the 
     coverage formula. But even as the Court struck down the prior 
     coverage formula, it invited Congress to craft an updated 
     coverage formula responding to these

[[Page H4444]]

     concerns. Under the Court's recent precedents, therefore, a 
     formula that is justified by current needs and is 
     sufficiently related to the problem it targets should pass 
     constitutional muster.
       The VRAA's updated coverage formula clearly meets that 
     test. It is ``rational in both practice and theory,'' as the 
     Shelby County Court explained was required, and its remedies 
     are ``aimed at areas where voting discrimination has been 
     most flagrant.'' The VRAA's preclearance regime draws on 
     recent history of racial discrimination in voting. The 
     updated formula looks to voting discrimination over the past 
     25 years, and it ensures that only states that have 
     violations in the past 10 years will be covered. This 25-year 
     time period, which covers two redistricting cycles and up to 
     five presidential elections, is tailored to identify those 
     jurisdictions with a persistent record of discrimination--
     precisely what the Court requires to justify disparate 
     geographic coverage. A shorter period of review would not be 
     long enough to identify a sustained pattern of misconduct and 
     could risk subjecting to preclearance states and 
     jurisdictions with only sporadic violations. Indeed, as 
     discussed above, all the potentially covered jurisdictions 
     have a steady and consistent stream of violations, showing 
     that the formula is in fact well-tailored.
       Critical features of the coverage formula, moreover, ensure 
     that the VRAA captures only current violators, not just 
     jurisdictions that had problems 25 years ago. Two particular 
     features of the VRAA make that so. First, the VRAA covers 
     jurisdictions for only ten years at a time. After ten years 
     of coverage, jurisdictions are automatically freed from 
     preclearance, unless their continuing violations merit 
     renewed coverage. So, jurisdictions that improve their recent 
     records of discrimination will systematically drop out of 
     coverage, while jurisdictions that have increased instances 
     of discrimination will enter it. Thus, the VRAA has an 
     implicit sunset provision: when a jurisdiction no longer 
     engages in a pattern of discrimination in voting, it will no 
     longer be subject to coverage. And should the day come when 
     voting discrimination no longer plagues our country, the VRAA 
     will become dead letter, no longer subjecting any states or 
     localities to preclearance. In addition to the ten-year 
     coverage period, the VRAA's bail-out regime ensures that any 
     jurisdiction without violations over the past decade will be 
     able to quickly and efficiently escape preclearance. And the 
     proposed modifications to the bail-out regime that I discuss 
     above would further ensure that the coverage formula is 
     laser-focused on present-day discrimination. This responsive 
     focus on current conditions is exactly what the Court asked 
     for in Shelby County.
       The VRAA modernizes the coverage formula and, as the Shelby 
     Court requested, uses a ``narrowed scope'' to reflect both 
     current problems and progress made to date. While the states 
     that are likely to be covered under the VRAA's updated 
     formula were all previously covered, some states that were 
     previously covered--Alaska, for example--will likely not be 
     covered. And it is not surprising that the list of states 
     with a past history of discrimination overlaps substantially 
     with the list of states with current problems of persistent 
     discrimination. On the other hand, the local jurisdictions 
     that will be captured by this formula are largely 
     jurisdictions that were not previously covered. They are all 
     jurisdictions with large and growing minority populations. 
     This shows that Congress has indeed updated the law to be 
     dynamic and responsive to modern conditions. Clearly, the 
     record before this Congress is playing a substantial ``role 
     in shaping the statutory formula'' that will be included in 
     the VRAA.
       The VRAA also tracks discrimination more directly than the 
     coverage formula struck down in Shelby County. The VRAA's 
     coverage formula ``limit[s] its attention to the geographic 
     areas where immediate action seem[s] necessary''--
     specifically, areas where there is actual ``evidence of 
     actual voting discrimination,'' that are ``characterized by 
     voting discrimination `on a pervasive scale.' '' To that end, 
     the VRAA's touchstone is not registration and turnout 
     numbers--it is actual, proven acts of discrimination. Such 
     acts are self-evidently ``relevant to voting 
     discrimination.'' By linking coverage to objective findings 
     of discrimination, the VRAA targets only those places where 
     proven discrimination against voters of color persists. In 
     this regard, the VRAA's coverage formula is similar to the 
     uncontroversial bail-in provision found in Section 4 of the 
     VRA: covering those states and localities where there are, in 
     the words of the 1965 House Report, ``pockets of 
     discrimination.''
       Concerns regarding the coverage formula's potential 
     overbreadth are misplaced. As noted above, the coverage 
     formula effectively targets geographic areas where 
     discrimination is prevalent, and the bail-out regime would 
     enable any political subdivision without discrimination to 
     escape preclearance. The prior geographic coverage formula 
     that the Supreme Court repeatedly upheld subjected all 
     political subdivisions to preclearance based on a statewide 
     inquiry. In any event, the Supreme Court has made clear time 
     and again that the benefits of state sovereignty do not 
     extend to its political subdivisions. This is because ``the 
     law ordinarily treats municipalities as creatures of the 
     State.'' On this basis, one district court held it reasonable 
     to bring all subdivisions and a state itself into 
     preclearance based on a pattern of violations by some of its 
     subdivisions. In reviewing a request to bail the state of 
     Arkansas and all its subdivisions into coverage for certain 
     electoral processes, that court found that because 
     ``[c]ities, counties, and other local subdivisions are mere 
     creatures of the State'' that the State may ``create or 
     abolish . . . at will,'' ``no legal distinction exists 
     between State and local officials'' for the purpose of 
     preclearance. The court also found that because the use of 
     the relevant voting practice was clearly a ``pattern'' and a 
     ``systematic and deliberate attempt to reduce black political 
     opportunity,'' it was reasonable to hold all other 
     jurisdictions in the state to the preclearance requirement. 
     The Supreme Court has never questioned this approach to sub-
     state preclearance.
       Although not the focus of my testimony, there are two other 
     points relevant to the VRAA's constitutionality. First, in 
     addition to the geographic coverage formula, the VRAA also 
     features a practice-based preclearance regime with nationwide 
     application. This practice-based preclearance regime singles 
     out often discriminatory practices--such as changes in 
     methods of election, annexations, polling place relocations, 
     and interference with language assistance--for federal 
     oversight. Because it has no specific geographic scope and 
     does not impose continuing coverage, it does not implicate, 
     much less offend, the principle of equal sovereignty 
     articulated in the Shelby County opinion.
       Second, separate and apart from the Fourteenth and 
     Fifteenth Amendments, Congress has extremely strong powers 
     under the Elections Clause to set the ``times, places and 
     manner'' of federal elections--powers the Supreme Court has 
     said include ``authority to provide a complete code for 
     congressional elections.'' Congress has invoked those powers 
     to enact voting legislation like the National Voter 
     Registration Act, which the Supreme Court has determined 
     permissibly overlays a ``superstructure of federal regulation 
     atop state voter-registration systems.'' And just a few years 
     ago, the Supreme Court approvingly discussed how Congress has 
     used the Elections Clause to ``enact[] a series of laws to 
     protect the right to vote through measures such as the 
     suspension of literacy tests and the prohibition of English-
     only elections.'' The Elections Clause, therefore, 
     independently justifies the VRAA to the extent that it 
     regulates federal elections. The Supreme Court's concerns in 
     Shelby County--which were based on Court's interpretation of 
     the Fourteenth and Fifteenth Amendments--have no bearing on 
     the constitutionality of the VRAA as it pertains to federal 
     elections.
     IV. Congress Should Restore and Strengthen Section 2 of the 
         VRA in the Wake of the Supreme Court's Recent Brnovich 
         Decision
       As my colleague Sean Morales-Doyle recently testified at 
     length, we also strongly urge Congress to use this 
     opportunity to restore Section 2 of the Voting Rights Act in 
     the wake of the Supreme Court's recent decision in Brnovich 
     v. Democratic National Committee. Section 2 is critical for 
     fighting voting discrimination in jurisdictions not subject 
     to preclearance (and for fighting certain forms of voting 
     discrimination in covered jurisdictions as well). The 
     Brnovich decision seriously diminished Section 2's strength, 
     making it much less effective a tool for rooting out modern 
     discriminatory voting laws and practices. In doing so, it 
     undermined Congress's clear intent in 1982 to create a 
     powerful remedy to attack electoral laws and practices that 
     interact with the ongoing effects of discrimination to 
     produce discriminatory results in the voting process.
       There are a number of approaches to restoring Section 2 to 
     its full strength, but they all share two basic features. 
     First, they would codify the so-called ``Senate Factors'' 
     that courts have long used to assess whether a voting law or 
     practice results in unlawful discrimination under Section 2, 
     and make clear that courts should consider those factors in 
     both vote dilution (redistricting) and vote denial (vote 
     suppression) cases. Second, they would disclaim the 
     artificial limitations the Brnovich opinion placed on courts 
     considering Section 2 claims--such as the suggestion that 
     voting practices that were in place in 1982 should be treated 
     as presumptively valid under Section 2, and the suggestion 
     that unequal access to one method of voting can be excused if 
     other methods of voting are freely available. These two fixes 
     would ensure that Section 2 comports with both Congress's 
     original intent in amending Section 2 in 1982 and with prior 
     practice in federal courts. The Supreme Court was clear in 
     Brnovich that its ruling was based in statutory 
     interpretation. Congress can therefore easily correct the 
     Court's misinterpretation and restore Section 2 to its 
     intended strength.
       While the Brnovich decision applies only to ``vote denial'' 
     claims, it is important that any statutory fix address ``vote 
     dilution'' or redistricting claims as well. Section 2 has 
     long been a vital tool for ensuring fair electoral maps. 
     According to a recent Brennan Center analysis, Section 2 has 
     played a critical role in addressing discrimination in 
     redistricting, as evidenced by the more than 20 successful 
     redistricting cases since the 2006 reauthorization of the 
     VRA.
       The VRAA would work in tandem with another piece of 
     legislation, the For the People Act (H.R. 1). H.R. 1 sets 
     national standards for fair, secure, and accessible 
     elections; the VRAA targets jurisdictions and practices

[[Page H4445]]

     with a history of discrimination. H.R. 1 would override 
     existing discriminatory state laws and practices and replace 
     them with a fair alternative; the VRAA would establish 
     preclearance for future such laws and practices. Both are 
     vitally needed to strengthen our democracy.
     V. Conclusion
       As the record before this Committee shows, the scourge of 
     voting discrimination has exploded across the country, and it 
     is especially acute and pervasive in selected jurisdictions. 
     The John Lewis Voting Rights Advancement Act is carefully 
     crafted to target and root out that discrimination where it 
     is most persistent. The VRAA's preclearance provisions are 
     not only eminently reasonable, justified, and consistent with 
     the Constitution; they are also necessary to stem the 
     relentless rise of discriminatory voting changes. Those 
     preclearance provisions, coupled with new provisions to 
     strengthen Section 2 of the VRA, would restore the VRA to its 
     full strength before the Supreme Court dramatically weakened 
     the law in Shelby County and Brnovich. That strength is badly 
     needed now. We strongly urge Congress to enact the VRAA, as 
     well as the For the People Act, into law.
                                  ____


Statement of Jon Greenbaum, Chief Counsel, Lawyers' Committee for Civil 
                            Rights Under Law


                 U.S. HOUSE COMMITTEE ON THE JUDICIARY

   SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND CIVIL LIBERTIES

Hearing on ``Oversight of the Voting Rights Act: Potential Legislative 
                       Reforms''--August 16, 2021


                              Introduction

       Chairman Cohen, Ranking Member Johnson, and Members of the 
     Subcommittee on the Constitution, Civil Rights and Civil 
     Liberties of the U.S. House of Representatives Committee on 
     the Judiciary, my name is Jon Greenbaum and I serve as the 
     Chief Counsel for the Lawyers' Committee for Civil Rights 
     Under Law (``Lawyers' Committee''). Thank you for the 
     opportunity to testify today on ways in which Congress can 
     remedy the damage to racial equality in voting caused by the 
     Supreme Court's decisions in Shelby County v. Holder, and 
     Brnovich v. Democratic National Committee.
       In 2013, the Shelby County decision effectively immobilized 
     the preclearance provisions of Section 5 of the Voting Rights 
     Act by finding its underlying coverage formula 
     unconstitutional. The more recent Brnovich decision, while 
     not gutting Section 2, makes it unnecessarily more difficult 
     for plaintiffs to bring Section 2 vote denial ``results'' 
     cases, running directly counter to Congress' intent in first 
     enacting the Voting Rights Act in 1965, and then in 
     broadening the scope of Section 2 of the Act in 1982. The 
     weakening of Section 2 protections by the Court in Brnovich 
     is particularly and sadly ironic, as the Court in Shelby 
     County had pointed to the continued existence of Section 2's 
     ``permanent, nation-wide ban on racial discrimination'' when 
     it eviscerated the Section 5 protections.
       The harm caused by Shelby County has been well-documented. 
     The effects of Brnovich remain to be seen. However, it is not 
     too late for Congress to act. The full protections of the 
     Voting Rights Act are desperately needed today, particularly 
     given the steps already taken--or about to be taken--by 
     legislatures in states such as Georgia, Florida, and Texas in 
     the aftermath of the 2020 election to raise additional 
     barriers to the vote that will impact voters of color more 
     severely than white voters. Moreover, there is a legitimate 
     concern that some state legislatures will be emboldened by 
     their reading of Brnovich, as they were by the decision in 
     Shelby, and view it as a signal from the Court to take even 
     more suppressive action. Congress should immediately reassert 
     its intention to fully protect the voting rights of voters of 
     color in Sections 2 and 5 of the Voting Rights Act.
       I come to this conclusion based on twenty-four years of 
     working on voting rights issues nationally. From 1997 to 
     2003, I served as a Senior Trial Attorney in the Voting 
     Section at the United States Department of Justice, where I 
     enforced various provisions of the Voting Rights Act, 
     including Section 5, on behalf of the United States. In the 
     eighteen years since, I have continued to work on voting 
     rights issues at the Lawyers' Committee for Civil Rights 
     Under Law as Chief Counsel, where I oversee our Voting Rights 
     Project, and prior to that, when I served as Director of the 
     Voting Rights Project.
       The Lawyers' Committee is a national civil rights 
     organization created at the request of President John F. 
     Kennedy in 1963 to pursue racial justice through mobilization 
     of the private bar. Voting rights has been an organizational 
     core area since the inception of the organization. During my 
     time at the Lawyers' Committee, among other things, I was 
     intimately involved in the constitutional defense of Section 
     5 and its coverage formula in Shelby County and its 
     predecessor case Northwest Austin Municipal Utility District 
     No. 1 v. Holder. I also staffed the National Commission on 
     the Voting Rights Act, which issued a report entitled The 
     National Commission on the Voting Rights Act, Protecting 
     Minority Voters: The Voting Rights Act at Work 1982-2005 
     (2006). The report and record of the National Commission on 
     the Voting Rights Act, which was submitted to the House 
     Judiciary Committee at the Committee's request, was the 
     largest single piece of the record supporting the Fannie Lou 
     Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act 
     Reauthorization and Amendments Act of 2006 (``2006 VRA 
     Reauthorization'').
       Our recommended responses to the Shelby County and Brnovich 
     decisions stem from the different scope and rationales of the 
     decisions themselves. The complete evisceration of Section 5 
     wrought by the Shelby County decision necessitates a 
     comprehensive remedy, but one that is instructed by the 
     reasoning of that decision and therefore considers both the 
     unfortunate history of discrimination in voting in particular 
     states and the current need for prophylactic measures to 
     ensure that no state or sub-jurisdiction can implement a 
     change in voting practices that discriminates against voters 
     of color. The more limited impact of the Brnovich decision 
     calls for a correspondingly focused response, one that zeroes 
     in on the specific deviations of the Court from the clear 
     intent of Congress in its 1982 amendments to Section 2.
       Thus, our recommended response to the Shelby County 
     decision starts with our support for provisions similar to 
     those in the bill passed by the U.S. House of Representatives 
     in the previous session of Congress: H.R. 4, 116th Congress, 
     the John Lewis Voting Rights Advancement Act, i.e., a 
     replacement coverage formula that would be applied to the 
     preclearance provisions of Section 5 and the federal observer 
     provisions of Section 8, and a transparency provision that 
     requires all jurisdictions--irrespective of any coverage 
     formula--to provide public notice of changes in voting 
     practices. But, we have an additional recommendation, tied to 
     the transparency provision: the creation of a ``retrogression 
     cause of action,'' that allows the Attorney General or 
     private parties an opportunity to stop changes in voting 
     practices anywhere in the country before they diminish the 
     voting rights of voters of color. As I will discuss more 
     fully in my testimony, the retrogression cause of action 
     would meet the current need to stop suppressive laws that 
     discriminate against voters of color, using a tried and true 
     standard, with limited interference with state sovereignty, 
     and without implicating issues relating to differentiation 
     among the states.
       Our recommended congressional response to Brnovich is more 
     limited, as Congress does not have to completely rewrite 
     Section 2. It simply has to remove any ambiguity in the 
     statute caused by the Brnovich opinion, which gave short 
     shrift to a substantial legislative record and decades of 
     jurisprudence which run counter to the Brnovich majority's 
     constricted view of this remedial statute. Congress 
     originally enacted and later amended Section 2 to stymie not 
     only blatant, explicit discrimination, but also facially 
     neutral voting laws that, through ingenious, sophisticated 
     methods, had a significant impact on minority citizens' right 
     to vote. Consistent with this purpose, prior to Brnovich, the 
     Supreme Court and several of the Circuit Courts of Appeal had 
     adopted a standard to ensure the effective implementation of 
     those protections. That standard recognized not only that the 
     Act applies broadly to all voting procedures and policies 
     that abridge the right to vote--whether expressly or subtly--
     but also that a challenged law cannot be viewed in isolation, 
     because a seemingly innocuous voting practice can interact 
     with underlying social conditions to result in pernicious 
     discrimination.
       Under that standard, Section 2 has worked for decades as a 
     judicially manageable mechanism to stop voting 
     discrimination. There has been no flood of questionable 
     Section 2 vote denial ``results'' cases, and no widespread 
     invalidation of voting regulations. Indeed, Brnovich marked 
     the first time since the 1982 amendments to the Act that the 
     Supreme Court reviewed a pure vote-denial claim. The reason 
     is clear: The lower courts have taken seriously the Court's 
     guidance, and carefully assessed the effects of challenged 
     voting policies or procedures within each specific 
     jurisdiction, based on the totality of the circumstances.
       Brnovich compels an immediate response from this Congress, 
     before some state legislators--intent on creating obstacles 
     that disproportionately result in a negative impact on the 
     rights of voters of color--hear it as a dog whistle to do 
     just that, and before lower courts apply the opinion in ways 
     that elevate unsubstantiated and untrue justifications for 
     new burdensome voting practices over genuine and proved 
     claims of racially discriminatory results.
     I. Why and How Congress Must Respond to Shelby County
       A. The State of Affairs Prior to the Shelby County decision
       Prior to the Shelby County decision, the combination of 
     Section 2 and Section 5 of the Voting Rights Act provided an 
     effective means of preventing and remedying minority voting 
     discrimination. Section 2, which is discussed more fully 
     below, remains as the general provision enabling the 
     Department of Justice and private plaintiffs to challenge 
     voting practices or procedures that have a discriminatory 
     purpose or result. Section 2 is in effect nationwide. Section 
     5 required jurisdictions with a history of discrimination, 
     based on a formula set forth in Section 4(b), to obtain 
     preclearance of any voting changes from the Department of 
     Justice or the District Court in the District of Columbia 
     before implementing the voting change. From its inception, 
     there was a sunset provision for the formula, and the sunset 
     provision for the 2006 Reauthorization was 25 years.

[[Page H4446]]

       Section 5 covered jurisdictions had to show federal 
     authorities that the voting change did not have a 
     discriminatory purpose or effect. Discriminatory purpose 
     under Section 5 was the same as the Fourteenth and Fifteenth 
     Amendment prohibitions against intentional discrimination 
     against minority voters. Effect was defined as a change which 
     would have the effect of diminishing the ability of minority 
     voters to vote or to elect their preferred candidates of 
     choice. This was also known as retrogression, and in most 
     instances was easy to measure and administer. For example, if 
     a proposed redistricting plan maintained a majority black 
     district that elected a black preferred candidate at the same 
     black population percentage as the plan in effect, it would 
     be highly unlikely to be found retrogressive. If, however, 
     the proposed plan significantly diminished the black 
     population percentage in the same district, it would invite 
     serious questions that it was retrogressive.
       Except in rare circumstances, covered jurisdictions would 
     first submit their voting changes to the Department of 
     Justice. DOJ had sixty days to make a determination on a 
     change, and if DOJ precleared the change or did not act in 60 
     days, the covered jurisdiction could implement the change. 
     The submission of additional information by the jurisdiction, 
     which often happened because DOJ requested such information 
     orally, would extend the 60 day period once by sending a 
     written request for information to the jurisdiction. This 
     often signaled to the jurisdiction that DOJ had serious 
     concerns that the change violated Section 5. If DOJ objected 
     to a change, it was blocked, but jurisdictions had various 
     options, including requesting reconsideration from DOJ using 
     Section 5 Procedures, seeking preclearance from the federal 
     court and modifying the change and resubmitting it.
       In the nearly seven years I worked at DOJ, I witnessed 
     first-hand how effective Section 5 was at preventing voting 
     discrimination and how efficiently DOJ administered the 
     process to minimize the burdens to its own staff of attorneys 
     and analysts, and to the covered jurisdictions. The Section 5 
     Procedures cited above provided transparency as to DOJ's 
     procedures and gave covered jurisdictions guidance on how to 
     proceed through the Section 5 process. Internal procedures 
     enabled DOJ staff to preclear unobjectionable voting changes 
     with minimal effort and to devote the bulk of their time to 
     those changes that required close scrutiny.
       The benefits of Section 5 were numerous and tangible. The 
     2014 National Commission Report provided the following 
     statistics and information regarding DOJ objections:
       ``By any measure, Section 5 was responsible for preventing 
     a very large amount of voting discrimination. From 1965 to 
     2013, DOJ issued approximately 1,000 determination letters 
     denying preclearance for over 3,000 voting changes. This 
     included objections to over 500 redistricting plans and 
     nearly 800 election method changes (such as the adoption of 
     at-large election systems and the addition of majority-vote 
     and numbered-post requirements to existing at-large systems). 
     Much of this activity occurred between 1982 (when Congress 
     enacted the penultimate reauthorization of Section 5) and 
     2006 (when the last reauthorization occurred); in that time 
     period approximately 700 separate objections were interposed 
     involving over 2,000 voting changes, including objections to 
     approximately 400 redistricting plans and another 400 
     election method changes.''
       ``Each objection, by itself, typically benefited thousands 
     of minority voters, and many objections affected tens of 
     thousands, hundreds of thousands, or even (for objections to 
     statewide changes) millions of minority voters. It would have 
     required an immense investment of public and private 
     resources to have accomplished this through the filing of 
     individual lawsuits.''
       In addition to the changes that were formally blocked, 
     Section 5's effect on deterring discrimination cannot be 
     understated. Covered jurisdictions knew that their voting 
     changes would be reviewed by an independent body and they had 
     the burden of demonstrating that they were non-
     discriminatory. By the time I began working at DOJ, Section 5 
     had been in effect for several decades and most jurisdictions 
     knew better than to enact changes which would raise obvious 
     concerns that they were discriminatory--like moving a polling 
     place in a majority black precinct to a sheriff's office. In 
     the post-Shelby County world, a jurisdiction is likely to get 
     away with implementing a discriminatory change for one 
     election (or more) before a plaintiff receives relief from a 
     court, as the Hancock County, Georgia voter purge and Texas 
     voter identification cases detailed later illustrate.
       The Section 5 process also brought notice and transparency 
     to voting changes. Most voting changes are made without 
     public awareness. DOJ would produce a weekly list of voting 
     changes that had been submitted, which individuals and groups 
     could subscribe to in order to receive this weekly list from 
     DOJ. For submissions of particular interest, DOJ would 
     provide public notice of the change if it believed the 
     jurisdiction had not provided adequate notice of the change. 
     But even more important, the Section 5 process incentivized 
     jurisdictions to involve the minority community in voting 
     changes. DOJ's Section 5 Procedures requested that 
     jurisdictions with a significant minority population provide 
     the names of minority community members who could speak to 
     the change, and DOJ's routine practice was to call at least 
     one local minority contact and to ask the individual whether 
     she or he was aware of the voting change and had an opinion 
     on it. Moreover, involved members of the community could 
     affirmatively contact DOJ and provide relevant information 
     and data.
       B. The Shelby County Decision
       In the Shelby County case, the Supreme Court decided in a 
     5-4 vote that the Section 4(b) coverage formula was 
     unconstitutional. The majority held that because the Voting 
     Rights Act `` `impose[d] current burdens,' '' it `` `must be 
     justified by current needs.' '' The majority went on to rule 
     that because the formula was comprised of data from the 1960s 
     and 1970s, it could not be rationally related to determining 
     what jurisdictions, if any, should be covered under Section 5 
     decades later. The four dissenting justices found that 
     Congress had demonstrated that regardless of what data was 
     used to determine the formula, voting discrimination had 
     persisted in the covered jurisdictions. The majority made 
     clear that ``[w]e issue no holding on Sec. 5 itself, only on 
     the coverage formula. Congress may draft another formula 
     based on current conditions.''
       The effect of the Shelby County decision is that Section 5 
     is effectively immobilized as, for now, preclearance is 
     limited only to those jurisdictions where it is imposed by a 
     court after a court previously made a finding of intentional 
     voting discrimination. This special preclearance coverage is 
     authorized by Section 3(c) of the Act. Courts have rarely 
     ordered Section 3(c) coverage, and when they do, it is 
     typically quite limited. Indeed, the only jurisdictions I am 
     aware of that have been subject to Section 3(c) coverage 
     since the Shelby County decision are Pasadena, Texas and 
     Evergreen, Alabama.
       As a result, Section 5 is essentially dead until Congress 
     takes up the Supreme Court's invitation to craft another 
     coverage formula. There are compelling reasons for Congress 
     to do so because voting discrimination has increased in the 
     absence of Section 5, and Section 2 cannot adequately 
     substitute for Section 5.
       C. The Effect of the Shelby County Decision
       The year after the Shelby County decision was issued, the 
     Executive Summary and Chapter 3 of the 2014 National 
     Commission Report discussed what was lost in the Shelby 
     County decision. We identified the following impacts:
       Voting rights discrimination would proliferate, 
     particularly in the areas formerly covered by Section 5;
       Section 2 would not serve as an adequate substitute for 
     Section 5 for numerous reasons:
       The statutes are not identical but were instead intended to 
     complement one another;
       Section 5 prevents a discriminatory voting change from ever 
     going into effect whereas discrimination can affect voters in 
     a Section 2 case prior to a court decision or a settlement;
       Section 2 litigation is time-consuming and expensive 
     compared to Section 5 which is efficient and less-resource 
     intensive;
       Section 2 is less likely to prevent discrimination than 
     Section 5 because:
       Under Section 2 plaintiffs have the burden whereas under 
     Section 5, jurisdictions have the burden of proof;
       Section 2 has a complicated multi-factor test that provides 
     numerous defenses for jurisdictions, whereas Section 5 has a 
     simple retrogression test.
       The Shelby County decision, and DOJ's interpretation that 
     it also bars use of the coverage formula for sending federal 
     observers, has left voting processes vulnerable to 
     discrimination.
       The subsequent years have demonstrated that all of the 
     negative impacts we anticipated have come to pass.
       D. Voting Rights Discrimination has Proliferated Since 
           Shelby County, Particularly in the Areas Formerly 
           Covered by Section 5
       The Lawyers' Committee's Voting Rights Project has never 
     been busier than in the post-Shelby County years, where we 
     have participated as a counsel to a party or as amici in more 
     than 100 voting rights cases. Because the Lawyers' Committee 
     has a specific racial justice mission, all of the cases we 
     have participated in implicate race in some fashion in our 
     view, even if there are no race claims in the case.
       In my 2019 testimony before this Subcommittee, I did a 
     deeper dive into the 41 post-Shelby County voting rights 
     cases the Lawyers' Committee had filed up to that time. My 
     testimony reflected that voting discrimination remains alive 
     and well, particularly in the states formerly covered by 
     Section 5. The findings included the following:
       In the thirty-seven cases where we sued state or local 
     governments, twenty-nine (78.3 percent) involved 
     jurisdictions that were covered by Section 5, even though far 
     less than half the country was covered by Section 5. 
     Moreover, we sued seven of the nine states that were covered 
     by Section 5 (Alabama, Arizona, Georgia, Louisiana, 
     Mississippi, Texas, Virginia), as well as the two states that 
     had were not covered but had a substantial percentage of the 
     population covered locally (North Carolina and New York).
       We achieved substantial success. Of the thirty-three cases 
     where there had been some result at the time, we achieved a 
     positive result in 26 of 33 (78.8 percent). In most

[[Page H4447]]

     of the seven cases where we were not successful, we had filed 
     emergent litigation--either on Election Day or shortly 
     before--where achieving success is most difficult.
       This data tells us that voting discrimination remains 
     substantial, especially considering that the Lawyers' 
     Committee is but one organization, and particularly in the 
     areas previously covered by Section 5.
       In 2019, the Lawyers' Committee did a 25 year look back on 
     the number of times that an official entity made a finding of 
     voter discrimination. This analysis of administrative actions 
     and court proceedings identified 340 instances between 1994 
     and 2019 where the U.S. Attorney General or a court made a 
     finding of voting discrimination or where a jurisdiction 
     changed its laws or practices based on litigation alleging 
     voting discrimination. We found that the successful court 
     cases occurred in disproportionally greater numbers in 
     jurisdictions that were previously covered under Section 5.
       E. Why Section 2 is an inadequate substitute for Section 5
       Prior to the Shelby County decision, critics of Section 5 
     frequently minimized the negative impact its absence would 
     have by pointing out that DOJ and private parties could still 
     stop discriminatory voting changes by bringing affirmative 
     cases under Section 2 of the Voting Rights Act. Indeed, in 
     the same paragraph of Shelby County where the Supreme Court 
     majority states that Congress could adopt a new formula for 
     Section 5, it also notes that its ``decision in no way 
     affects the permanent, nation-wide ban on racial 
     discrimination in voting found in Sec. 2.''
       During the Shelby County litigation and the reauthorization 
     process preceding it, defenders of Section 5 repeatedly 
     pointed out why Section 2 was an inadequate substitute. Eight 
     years of experience demonstrate this.
       This is hardly a surprise given that Section 5 and Section 
     2 were designed by Congress to complement one another as part 
     of a comprehensive set of tools to combat voting 
     discrimination. Section 5 was designed to prevent a specific 
     problem--to prevent jurisdictions with a history of 
     discrimination from enacting new measures that would 
     undermine the gains minority voters were able to secure 
     through other voting protections, including Section 2. The 
     Section 5 preclearance process was potent, but also efficient 
     and surgical in its limited geographic focus and sunset 
     provisions. It was also relatively easy to evaluate because 
     the retrogressive effect standard--whether minority voters 
     are made worse off by the proposed change--is simple to 
     determine in all but the closest cases. Section 5 is designed 
     to protect against discriminatory changes to the status quo.
       Section 2 is quite different. It evaluates whether the 
     status quo is discriminatory and thus must be changed. The 
     test for liability should be, and is, rigorous because it is 
     a court-ordered change. Although Section 2 (results) and 
     Section 5 (retrogression) both have discriminatory impact 
     tests, they are distinct. As discussed above, the Section 5 
     retrogression test is quite straightforward in determining 
     whether a jurisdictional-generated change should be blocked--
     will minority voters be worse off because of the change?
       In contrast, the Section 2 results inquiry is complex and 
     resource intensive to litigate. As will be discussed in 
     greater detail below in the context of the Brnovich decision, 
     the ``totality of circumstances'' test set forth in the 
     statute is fact-intensive by its own definition. The Senate 
     Report supporting the 1982 amendment to Section 2 lists 
     factors that courts have used as a starting point in applying 
     the totality of circumstances test to include seven such 
     factors (along with two factors plaintiffs have the option to 
     raise). On top of the Senate factors, courts have introduced 
     additional requirements. For example, in vote dilution cases, 
     which typically involve challenges to redistricting plans or 
     to a method of election, the plaintiff must first satisfy the 
     three preconditions set forth by the Supreme Court in 
     Thornburg v. Gingles, before even getting to the Senate 
     factors. These Gingles preconditions require plaintiffs to 
     show that a minority group is compact and numerous enough to 
     constitute a majority of eligible voters in an illustrative 
     redistricting plan and whether there is racially polarized 
     voting (minority voters are cohered in large number to 
     support certain candidates and those candidates are usually 
     defeated because of white bloc voting) and are necessarily 
     proven by expert testimony. In vote denial cases, which 
     involve challenges to practices such as voter identification 
     laws, courts have also added an additional test, with the 
     developing majority view requiring that plaintiffs 
     demonstrate that the challenged law imposes a discriminatory 
     burden on members of a protected class and that this ``burden 
     must be in part caused by or linked to social conditions that 
     have or currently produce discrimination against members of 
     the protected class.
       The result is that Section 2 cases are extremely time-
     consuming and resource-intensive, particularly when 
     defendants mount a vigorous defense. For example, United 
     States v. Charleston County, which I litigated at the 
     Department of Justice, was a successful challenge to the at-
     large method of electing the Charleston (South Carolina) 
     County Council. The litigation took four years, and it 
     involved more than seventy witness depositions and a four-
     week trial, even though we had prevailed on the Gingles 
     preconditions on summary judgment, and needed to litigate 
     only the totality of circumstances in the district court.
       Four specific examples from the Lawyers' Committee's 
     litigation record illustrate why Section 2 is an inadequate 
     substitute for Section 5. The first and most prominent 
     example is the Texas voter identification law, which 
     illustrates the time and expense of litigating a voting 
     change under Section 2 that both DOJ and the federal district 
     court found violated Section 5 prior to the Shelby County 
     decision. The afternoon that Shelby County was decided, then-
     Texas Attorney General Greg Abbott announced that the State 
     would immediately implement the ID law. Several civil rights 
     groups, including the Lawyers' Committee, filed suit in Texas 
     federal court, challenging SB 14 under several theories, 
     including Section 2, and DOJ filed its own suit under Section 
     2, and ultimately all of the cases were consolidated. The 
     parties then embarked on months of discovery, leading to a 
     two-week trial in September 2014, where dozens of witnesses, 
     including 16 experts--half of whom were paid for by the civil 
     rights groups--testified. Prior to the November 2014 
     election, the District Court ruled that SB 14 violated the 
     ``results'' prong of Section 2 of the Voting Rights Act, 
     because it had a discriminatory result in that Black and 
     Hispanic voters were two to three times less likely to 
     possess the SB 14 IDs and that it would be two to three times 
     more burdensome for them to get the IDs than for white 
     voters. The District Court's injunction against SB 14, 
     however, was stayed pending appeal by the Fifth Circuit, so 
     the law--now deemed to be discriminatory--remained in effect. 
     Subsequently, a three-judge panel and later an en banc panel 
     of the Fifth Circuit Court of Appeals, affirmed the District 
     Court's finding. As a result, elections that took place from 
     June 25, 2013 until the Fifth Circuit en banc opinion on July 
     20, 2016 took place under the discriminatory voter ID law. 
     Had Section 5 been enforceable, enormous expense and effort 
     would have been spared. The district court awarded private 
     plaintiffs $5,851,388.28 in attorneys' fees and $938,945.03 
     in expenses, for a total of $6,790,333.31. The fee award is 
     currently on appeal. As of June 2016, Texas had spent $3.5 
     million in defending the case. Even with no published 
     information from DOJ, more than $10 million in time and 
     expenses were expended in that one case.
       Second, in Gallardo v. State, the Arizona legislature 
     passed a law that applied only to the Maricopa County 
     Community College District and added two at-large members to 
     what was previously a five-member single district board. The 
     legislature had submitted the change for Section 5 
     preclearance. The Department of Justice issued a more 
     information letter based on concerns that the addition of two 
     at-large members, in light of racially polarized voting in 
     Maricopa County, would weaken the electoral power of minority 
     voters on the board. After receiving the more information 
     letter, Arizona officials did not seek to implement the 
     change. Only after the Shelby County decision did they move 
     forward, precipitating the lawsuit brought by the Lawyers' 
     Committee and its partners. We could not challenge the change 
     under Section 2, especially because we would not have been 
     able to meet the first Gingles precondition. Instead we made 
     a claim in state court alleging that the new law violated 
     Arizona's constitutional prohibition against special laws 
     because the board composition of less populous counties was 
     not changed. Reversing the intermediate court of appeal, the 
     Arizona Supreme Court rejected our argument, holding that the 
     special laws provision of the state constitution was not 
     violated. Unsurprisingly, the Latino candidate who ran for 
     the at-large seat in the first election lost and the two at-
     large members are white.
       Third, in 2015, the Board of Elections and Registration, in 
     Hancock County, Georgia, changed its process so as to 
     initiate a series of ``challenge proceedings'' to voters, all 
     but two of whom were African American. This resulted in the 
     removal of 53 voters from the register. Later that year, the 
     Lawyers' Committee, representing the Georgia State Conference 
     of the NAACP and the Georgia Coalition for the Peoples' 
     Agenda and individual voters, challenged this conduct as 
     violating the Voting Rights Act and the National Voter 
     Registration Act, and obtained relief which resulted in the 
     placement of unlawfully-removed voters back on the register. 
     Ultimately, plaintiffs and the Hancock County Board agreed to 
     the terms of a Consent Decree that would remedy the 
     violations, and required the county's policies to be 
     monitored for five years. But after the purge and prior to 
     the court order, Sparta, a predominantly black city in 
     Hancock County, elected its first white mayor in four 
     decades. And before the case was settled, and the wrongly-
     purged voters placed back on the rolls, at least one of them 
     had died.
       The fourth matter is ongoing and reflects the significant 
     present-day impact of the Shelby County decision and the loss 
     of Section 5. It involves a law that Georgia, a previously 
     covered jurisdiction, enacted this year, SB 202, a 53 
     section, 98-page law that changes many aspects of Georgia 
     elections. It has spawned several federal lawsuits, most of 
     which include voting discrimination claims. The Lawyers' 
     Committee is counsel in the one of these suits.
       The litigation will unquestionably be resource intensive 
     even if the various cases are fully or partially consolidated 
     and the Plaintiffs engage in substantial coordination. It

[[Page H4448]]

     will require numerous experts and extensive fact discovery. 
     There will be elections--and possibly multiple cycles of 
     elections--that will occur before Plaintiffs will have the 
     evidence needed to establish a constitutional or Section 2 
     violation and the court will set aside the time to hear and 
     decide the claims. If Plaintiffs prevail, Georgia will 
     undoubtedly appeal and even more time will pass.
       But for the Shelby County decision, there would be no SB 
     202, at least not in its current form, because at least some 
     aspects of SB 202 appear to be clearly retrogressive and 
     probably would not have been proposed in the first place. 
     This is perhaps most clearly demonstrated by Georgia 
     introducing several restrictions focused on voting by mail:
       The new absentee ballot ID requirements mandate that voters 
     include a Georgia Driver's license number or Georgia State ID 
     number on their absentee ballot application. If they have 
     neither, voters are required to copy another form of 
     acceptable voter ID and attach the copies of ID documents 
     along with other identifying information to both their 
     absentee ballot applications and inside the absentee ballot 
     envelope when returning the voted ballot.
       The bill also prohibits public employees and agencies from 
     sending unsolicited absentee ballot applications to voters, 
     yet threatens private individuals and organizations who are 
     not so prohibited with a substantial risk of incurring hefty 
     fines for every application they send to an individual who 
     has not yet registered to vote or who has already requested a 
     ballot or voted absentee.
       SB 202 significantly limits the accessibility of absentee 
     ballot drop boxes to voters. While all counties would be 
     required to have at least one, the placement of drop boxes is 
     limited to early voting locations and drop boxes are 
     available only to voters who can enter the early voting 
     location during early voting hours to deposit their ballot 
     inside the box. Thus, drop boxes are essentially useless to 
     voters who can vote early in-person or who cannot access 
     early voting hours at all due to work or other commitments 
     during early voting hours.
       The bill also mandates an earlier deadline of 11 days 
     before an election to request an absentee ballot, leaving 
     some voters who become ill or have to travel out of the area 
     in the lurch if they cannot vote during early voting and are 
     unable to meet the earlier deadline to apply for a ballot.
       These restrictions were adopted right after the November 
     2020 election, where voters of color used absentee ballots to 
     an unprecedented degree, and in the cases of Black (29.4 
     percent) and Asian (40.3 percent) voters, at higher rates 
     than white (25.3 percent) voters. Given this seemingly 
     disproportionate impact on voters of color, I believe that if 
     Georgia were subject to Section 5, these provisions would 
     have been found retrogressive, and never would have been in 
     effect. Instead, these provisions will be contested through 
     time and resource intensive litigation under complex legal 
     standards.
       F. The Impact of Shelby County on the Loss of Observer 
           Coverage
       A less discussed impact of the Shelby County decision is on 
     the loss of federal observer coverage. Under Section 8 of the 
     Voting Rights Act, the federal government had the authority 
     to send federal observers to monitor any component of the 
     election process in any Section 4(b) jurisdiction provided 
     that the Attorney General determined that the appointment of 
     observers was necessary to enforce the guarantees of the 14th 
     and 15th Amendments. A federal district court can also 
     authorize the use of observers when the court deems it 
     necessary to enforce the guarantees of the 14th or 15th 
     Amendments as part of a proceeding challenging a voting 
     law or practice under any statute to enforce the voting 
     guarantees under the 14th or 15th Amendment.
       In the 2014 National Commission report, we determined that 
     the Attorney General had certified 153 jurisdictions in 
     eleven states for observer coverage and that the Department 
     of Justice had sent several thousand observers to observe 
     several hundred elections from 1995 to 2012.
       While officially not stating this, the practice of the 
     Department of Justice has been to apply the Supreme Court's 
     finding that the Section 4(b) coverage formula is 
     unconstitutional not just to preclearance, but to observer 
     coverage. The Shelby County decision has reduced observer 
     coverage to a trickle. The Department of Justice has instead 
     employed what it calls ``monitors.''
       The difference between federal observers and monitors is 
     dramatic. Under the Voting Rights Act, ``Observers shall be 
     authorized to--(1) enter and attend at any place for holding 
     an election in such subdivision for the purpose of observing 
     whether persons who are entitled to vote are being permitted 
     to vote; and (2) enter and attend at any place for tabulating 
     the votes cast at any election held in such subdivision for 
     the purpose of observing whether votes cast by persons 
     entitled to vote are being properly tabulated.'' Monitors 
     have no such rights: a jurisdiction does not need to provide 
     any access to the voting process to any monitor.
       It is not difficult to see the difference in how this plays 
     out in practice. In a year where legislatures in formerly 
     covered states like Arizona and Texas are conducting audits 
     of election results or considering restricting the ability of 
     election officials to limit the conduct of partisan poll 
     watchers, it becomes vitally important for the federal 
     government to have discretion to send observers to places 
     with a history of voting discrimination for the purpose of 
     ensuring that processes are fair and that voters of color are 
     not disenfranchised.
       G. Proposed Congressional Response to Shelby County
       In 2019, the House passed H.R. 4, also known as the John 
     Lewis Voting Rights Advancement Act, named after one of the 
     true giants of our lifetimes, a person who literally put his 
     life on the line so that others could vote free of 
     discrimination on the basis of the color of their skin. Now 
     is the time for Congress to honor his memory with passage of 
     a bill that resuscitates Section 5.
       H.R. 4 contains many beneficial provisions. It creates a 
     new formula that determines which states would be subject to 
     the preclearance provisions of Section 5, based on clearly 
     defined incidents of voting rights violations; it creates a 
     practice-based preclearance process applicable nationwide, 
     based on clearly defined covered practices that have been 
     shown to be particularly susceptible to use in a 
     discriminatory fashion; it clarifies the authority of the 
     Attorney General to assign observers to enforce 
     constitutional and statutory protections of the right to 
     vote; and it creates a ``transparency'' requirement for all 
     states and political subdivisions to provide public notice of 
     any change in voting practices or procedures.
       We respectfully suggest that more is needed, and that the 
     ``transparency'' requirement provides the appropriate vehicle 
     for our recommendation. The ``transparency'' provision in the 
     prior H.R. 4, requires that any State or political 
     subdivision that makes any change in a voting practice or 
     procedure in any election for Federal office that results in 
     a difference with that which has been in place 180 days 
     before the date of the Federal election must provide 
     reasonable and detailed public notice of the change within 48 
     hours. Additional, specific requirements for notice are 
     provided as for polling place changes for Federal elections 
     and for the changes in the constituency that will participate 
     in any election through redistricting or reapportionment.
       We agree that notice by any state or political subdivision 
     of changes in voting practices or procedures and to any 
     prerequisite to voting is essential to any effective response 
     to the Shelby County decision, but we see no reason to limit 
     the notice requirement to changes affecting Federal 
     elections.
       Second, while notice is of overarching importance, more is 
     needed. There must be an opportunity for voters, and those 
     statutorily charged with protecting the civil rights of 
     voters, to analyze the proposed change, and, if necessary, 
     seek judicial relief if it appears that the change will be 
     discriminatory. Thus, we propose a relatively modest waiting 
     period of 30 days after notice is given before the change may 
     be implemented. This leads to our third, and most important, 
     recommendation. As is implicit in the creation of a waiting 
     period before a change in voting practices may take effect, 
     there must be the concomitant creation of a cause of action 
     that allows for a determination as to whether the change may 
     be implemented. For that, we recommend consideration of a 
     standard that has been time-tested in the context of the pre-
     Shelby County Section 5 litigation: the retrogression 
     standard. We recommend that the United States or an aggrieved 
     party be granted the right to bring an action if the voting 
     change would have the effect of diminishing the ability to 
     vote of any citizens of the United States on account of race 
     or color on in contravention of the guarantees set forth in 
     the language minority provisions of the Voting Rights Act. It 
     has long been settled that `` `the purpose of Sec. 5 has 
     always been to insure that no voting-procedure changes would 
     be made that would lead to a retrogression in the position of 
     racial minorities with respect to their effective exercise of 
     the electoral [process].' '' However, compared with Section 
     5, which requires the state to prove a lack of discriminatory 
     purpose or effect, the cause of action we recommend would 
     require the Attorney General or an aggrieved party to prove 
     retrogression.
       The ``retrogression cause of action'' provides an 
     additional, reasonable, and necessary weapon in the fight 
     against suppressive and discriminatory voting practices. 
     First, and most important, it responds to current needs, 
     which are not limited to those states and political sub-
     divisions that may be subject to geographic coverage or which 
     attempt to implement practices known to be susceptible to 
     discriminatory applications. As of July 14, 2021, at least 18 
     states had enacted laws this year that made it harder to 
     vote. These laws were passed not only in states like Georgia 
     and Arizona, that were previously covered by Section 4 of the 
     Voting Rights Act, but also by states not previously covered, 
     such as Indiana, Idaho, Kansas, Montana, Nevada, Oklahoma, 
     Utah, and Wyoming, and included provisions not captured in 
     the ``known practices'' category, including those that make 
     mail voting and early voting more difficult.
       We believe that these amendments, individually and 
     collectively, are constitutional under the current 
     constitutional framework under the Fourteenth and Fifteenth 
     Amendments. These amendments would respond to the current 
     problems of jurisdictions enacting retrogressive voting 
     changes that may be difficult to challenge under other 
     provisions. In comparison to the needs addressed under this 
     proposal, the burdens created under this proposal are 
     relatively modest. The requirement of providing notice of 
     changes provides

[[Page H4449]]

     almost no burden, as it would take little effort to provide 
     notice. The concept of a stand-still period before a 
     jurisdiction can implement a change is not unknown in our 
     laws, and is required when interests that have less or no 
     constitutional protection as compared with the right to vote, 
     are at stake. Given that most voting changes are not 
     instituted--and should not be instituted--too close to an 
     election, the 30-day stand-still would have limited adverse 
     impact on states and political subdivisions, but would 
     provide the substantial benefit of allowing voters time to 
     assess the potential effect of the change.
       Furthermore, the burden of creating a cause of action 
     prohibiting retrogressive voting changes is constitutionally 
     acceptable under the circumstances. The Supreme Court has 
     stated that Congress has the enforcement authority to address 
     voting changes that have a discriminatory effect. In 
     addition, because numerous other civil rights laws allow for 
     discriminatory effect causes of action, including Title VII 
     of the Civil Rights Act of 1964, involving employment 
     discrimination, and the Fair Housing Act of 1968, permitting 
     such a cause of action is hardly unusual.
       Finally, creating a cause of action for retrogression 
     nationally does not implicate the concerns about the equal 
     sovereignty of the States, expressed by the majority in the 
     Shelby County decision. The retrogression cause of action 
     should not be a threat to those jurisdictions whose proposed 
     voting practices changes are intended to make it easier for 
     voters to vote, because a party would have to successfully 
     bring suit in order to stop the change, which seems 
     implausible under the circumstances. The burden is placed on 
     the party challenging the change. Proving retrogression is 
     not as complicated as proving discriminatory results under 
     Section 2, but it is a high standard, and history has taught 
     us that it is perfectly suitable to assess the discriminatory 
     effects of proposed changes in voting practices.
     Why and How Congress Must Respond to Brnovich
       A. Section 2 of the Voting Rights Act
       From the ratification of the Fifteenth Amendment in 1870 
     through the 1960s, the federal government tried--and failed--
     to defeat the ``insidious and pervasive evil'' of ``racial 
     discrimination in voting,'' which had been ``perpetuated . . 
     . through unremitting and ingenious defiance of the 
     Constitution.'' Although Justice Frankfurter wrote long ago 
     that the Fifteenth Amendment targeted ``contrivances by a 
     state to thwart equality in the enjoyment of the right to 
     vote'' and ``nullifie[d] sophisticated as well as simple-
     minded modes of discrimination[,]'' prior to the VRA's 
     passage, this language proved largely aspirational.
       Responding to the states' tenacious ``ability . . . to stay 
     one step ahead of federal law,'' Congress passed the VRA to 
     provide a ``new weapon[] against discrimination.'' The Act 
     ``reflect[ed] Congress' firm intention to rid the country of 
     racial discrimination in voting.'' The essence of the VRA's 
     protections was exemplified in Section 2, which provided: 
     ``No voting qualification or prerequisite to voting, or 
     standard, practice, or procedure shall be imposed or applied 
     by any State or political subdivision to deny or abridge the 
     right of any citizen of the United States to vote on account 
     of race or color.''
       Notwithstanding Section 2's broad language, jurisdictions 
     sought to evade its reach by placing ``heavy emphasis on 
     facially neutral techniques.'' These ``techniques'' included 
     everything from ``setting elections at inconvenient times'' 
     to ``causing . . . election day irregularities'' to ``moving 
     polling places or establishing them in inconvenient . . . 
     locations.'' In one Mississippi county, voters were forced to 
     ``travel 100 miles roundtrip to register to vote.'' In one 
     Alabama county, ``the only registration office in the county 
     [was] closed weekends, evenings and lunch hours.'' These 
     regulations ostensibly governed the time, place, and manner 
     of voting in a neutral way, but they ``particularly 
     handicap[ped] minorities.''
       Against this backdrop, and responding to this Court's 
     plurality decision in City of Mobile v. Bolden, which had 
     read into Section 2 a ``discriminatory purpose'' element, 
     Congress expressly expanded Section 2, now codified at 52 
     U.S.C. Sec.  10301. As amended, Section 2 prohibits any 
     ``voting qualification or prerequisite to voting or standard, 
     practice, or procedure . . . which results in a denial or 
     abridgement of the right of any citizen of the United States 
     to vote on account of race or color.''Congress further 
     specified that, under Section 2, a violation is established 
     if, ``based on the totality of [the] circumstances,'' the 
     political processes leading to an election are not ``equally 
     open to participation'' by minority voters so that they have 
     less opportunity than white voters ``to particpate in the 
     political process and to elect representatives of their 
     choice.'' By adopting this ``results test,'' Congress 
     captured the ``complex and subtle'' practices which ``may 
     seem part of the everyday rough-and-tumble of American 
     politics'' but are ``clearly the latest in a direct line of 
     repeated efforts to perpetuate the results of past voting 
     discrimination.''
       Section 2 provides relief for both vote dilution--schemes 
     that reduce the weight of minority votes--and vote denial--
     standards, practices, or procedures that impede minority 
     citizens from casting votes or having their votes counted. 
     Vote-denial cases were the paradigmatic, ``first generation'' 
     cases brought under Section 2. Only later did the Supreme 
     Court ``determine[] that the Act applies to `vote dilution' 
     as well.''
       Thirty-five years ago, in Gingles v. Thornburg, the Court 
     recognized that Congress inserted the words ``results in'' to 
     frame the Section 2 inquiry. Instead of asking whether, in a 
     vacuum, a voting practice facially sounds as if it denies or 
     abridges the rights of minority voters, the question is: in 
     context, does the practice ``interact'' with pre-existing 
     social and historical conditions to result in that burden? 
     Answering this question requires courts to examine the 
     challenged practice not as a theoretical postulate, but as a 
     law or regulation that interacts with real-world conditions 
     and must be evaluated through a fact-heavy, ``intensely local 
     appraisal,'' that accounts for the ``totality of [the] 
     circumstances.''
       In Gingles, the Court explained the ``essence of a Sec.  2 
     claim is that a certain electoral law, practice, or structure 
     interacts with social and historical conditions to cause an 
     inequality in the [voting] opportunities enjoyed by black and 
     white voters.''80 Recognizing Section 2's command that courts 
     consider the ``totality of circumstances,'' the Gingles Court 
     looked to the Senate Report accompanying the 1982 amendments 
     to compile a list of relevant ``circumstances.'' These nine 
     social and historical conditions--the ``Senate Factors''--
     include considerations such as the history of official 
     discrimination in the jurisdiction (Factor One); the extent 
     of discrimination in the jurisdiction's education, 
     employment, and health systems (Factor Five); and whether the 
     challenged practice has a tenuous justification (Factor 
     Nine).
       Since Gingles, four different Circuits addressing vote-
     denial cases have used the foundation laid in Gingles to 
     analyze these matters. This formulation distills Section 2 
     liability into a two-part test: (1) there must be a disparate 
     burden on the voting rights of minority voters (``an 
     inequality in the opportunities enjoyed''); and (2) that 
     burden must be caused by the challenged voting practice (``a 
     certain electoral law, practice, or structure . . . cause[s] 
     an inequality'') because the practice ``interacts with social 
     and historical conditions'' of racial discrimination. No 
     other Circuit has put forth an alternative formulation.
       B. The Facts of Brnovich
       That was the situation until Brnovich. In Brnovich, the 
     Supreme Court reviewed two Arizona voting practices: one 
     mandated that votes cast out of the voter's precinct 
     (``OOP'') not be counted; the other prohibited the collection 
     of mail-in ballots by anyone other than an election official, 
     a mail carrier, or a voter's family member, household member 
     or caregiver. Plaintiffs had claimed that these practices 
     violated Section 2 of the Voting Rights Act.
       The United States District Court for the District of 
     Arizona had ruled against the plaintiffs on both claims, but, 
     applying the settled standards described above, the United 
     States Court of Appeals for the Ninth Circuit had reversed, 
     en banc, finding that the out-of-precinct policy violated the 
     ``results'' prong of Section 2 and that the limitations on 
     collections of absentee ballots violated both the ``results'' 
     and ``intent'' prongs of Section 2.
       As to the out-of-precinct policy, the Ninth Circuit 
     identified several factors, acknowledged by the district 
     court, leading to a higher rate of OOP voting by voters of 
     color than by white voters: frequent changes in polling 
     locations (polling places of voters of color experienced 
     stability at a rate 30 percent lower than the rate for 
     whites); confusing placement of polling locations (indigenous 
     populations in particular lived farther from their assigned 
     polling places than did white voters,); and high rates of 
     residential mobility. As a result, 1 in every 100 Black 
     voters, 1 in every 100 Latinx voter, and 1 in every 100 
     indigenous peoples voter cast an OOP ballot, compared to 1 in 
     every 200 white voters.
       As to the absentee-ballot collection limitation, the Ninth 
     Circuit relied on the district court's finding that voters of 
     color were more likely than white voters to return their 
     early ballots with the assistance of third parties. The 
     disparity was the result of the special challenges 
     experienced by communities that lack easy access to outgoing 
     mail services, socioeconomically disadvantaged voters who 
     lacked reliable transportation, and voters who had trouble 
     finding time to return mail because they worked multiple jobs 
     or lacked childcare services, all burdens that 
     disproportionately fall on Arizona's minority voters.
       Applying the ``totality of circumstances'' test, with 
     primary reliance on the Senate factors that demonstrated a 
     history of discrimination in Arizona that persists to this 
     day, the Ninth Circuit found that both the OOP policy and the 
     absentee-ballot collection law violated the ``results'' prong 
     of Section 2 of the VRA. The court also found that the 
     absentee ballot law had been enacted with discriminatory 
     intent, based on statements of the sponsor and a racist video 
     used to promote passage of the law.
       C. The Brnovich Decision: Its Meaning, and Its Consequences
       In Brnovich, a 6-3 Court reversed the Ninth Circuit's 
     decision. Had it done so by applying the settled standards, 
     we may not be here today. But, in writing for the Court's 
     majority, Justice Alito provided guidelines for future 
     treatment of Section 2 vote denial ``results'' cases that 
     were not only new, but also

[[Page H4450]]

     contrary--or at least dilutive of--the decades-long accepted 
     standards.
       I emphasize Brnovich does not spell the end of Section 2 
     cases. Rather, it unnecessarily and unreasonably makes it 
     more difficult for civil rights plaintiffs to win Section 2 
     actions, when they already were difficult to prevail. And it 
     does so in a way that flies in the face of congressional 
     intent. Further, it raises too many ambiguities in too many 
     important areas to leave it to the courts to fill in the 
     blanks. The greater difficulty and ambiguity threaten to 
     undermine the core purpose of the Voting Rights Act.
       1. Brnovich is a solution in search of a problem
       First, Brnovich purports to cure a non-existent problem. 
     One of the premises of Brnovich is that ``[i]n recent years, 
     [Section 2 vote denial claims] have proliferated in the lower 
     courts.'' In support of this statement, the Court relies on 
     the amicus curiae briefs of Sen. Ted Cruz, the State of Ohio, 
     and the Liberty Justice Center. However, those briefs 
     describe a total of perhaps 16 cases, dating back over 7 
     years, and only 3 of them led to a finding of Section 2 
     liability.
       The fact is that since Congress amended Section 2 in 1982 
     and since the Supreme Court supplied its test for 
     adjudicating Section 2 violations, the Supreme Court has 
     never deemed it necessary to review a single Section 2 vote-
     denial case. At the same time, there was absolutely no 
     evidence that courts were being overwhelmed by Section 2 vote 
     denial cases. And when such cases are brought, courts have 
     had no trouble applying the standard to separate 
     discriminatory voting practices from benign election 
     regulations. In short, the pre-existing standard had worked 
     well.
       2. Brnovich reads a remedial statute narrowly
       One of the most important canons of statutory 
     construction--and one that gives the greatest deference to 
     congressional intent--is that remedial statutes are to be 
     broadly construed, and there are few statutes in this 
     Nation's history more remedial than the Voting Rights Act of 
     1965. Yet, rather than read the Act expansively, the Court 
     created new stringent ``guideposts,'' most prominently 
     suggesting higher standards for both the size of the burden 
     and the size of the disparity, and a lower standard for the 
     State to meet to justify the burdens it is placing on the 
     right to vote.
       The purported touchstone of the Brnovich opinion is the 
     Court's construction of the requirement in Section 2(b) that 
     the political process be ``equally open'' as the ``core'' 
     requirement of the law. The concept of equal ``opportunity'' 
     as used in the same statute, the Court acknowledged somewhat 
     grudgingly, ``may stretch that concept to some degree to 
     include consideration of a person's ability to use the means 
     that are equally open.'' In that context, the Court turned to 
     the ``totality of the circumstances'' test, and said that 
     ``any circumstance that has a logical bearing on whether 
     voting is `equally open' and afford equal `opportunity' may 
     be considered,'' and proceeded to list five ``important 
     circumstances'' that were relevant.
       Some of these ``important circumstances'' seem fairly 
     innocuous on their face: e.g., the size of the burden, the 
     size of the disparity. Others not so much: e.g., the degree 
     of departure of the challenged practice from practices 
     standard when Section 2 was amended in 1982 or which are 
     widespread today, and the opportunities provided by the 
     electoral process as a whole. Another has never been deemed 
     relevant to Section 2 analysis: the strength of the state's 
     justification for the practice--except in connection with 
     assessment of the tenuousness of that justification. Overall, 
     however, the devil is in the details, and in the ambiguities 
     created by the Court's specific choice of language that may 
     pave the way for state legislatures to enact additional 
     discriminatory laws and for lower courts to apply Section 2 
     parsimoniously in vote denial ``results'' cases.
       3. The size of the burden should include factors specific 
           to the affected community resulting from discrimination
       The first factor that Justice Alito highlighted was the 
     ``size of the burden,'' emphasizing that voters ``must 
     tolerate the usual burden of voting.'' The application of 
     this ``guidepost'' by legislatures and lower courts might be 
     colored by a footnote at the end of the paragraph on burden, 
     where Justice Alito expounded on what ``openness'' and 
     ``opportunity'' might mean (as, say, with museums or school 
     courses that are open to all) as compared to the ``absence of 
     inconvenience'' (such as lack of adequate transportation or 
     conflicting obligations). The vagueness with which the Court 
     left this issue, and its relegation to a footnote, may limit 
     its precedential impact, but its practical impact may be 
     substantial.
       What Justice Alito does not acknowledge is that some of 
     these indicia of what he calls ``inconvenience'' are 
     themselves not simply subjective to an individual, but, are 
     reflective of a group's socio-economic circumstances, that 
     are themselves the product of a history of discrimination. In 
     the Texas Photo ID case, for example, we were able to 
     demonstrate that not only were Black and Latinx voters more 
     likely than white voters not to possess the required photo 
     ID, but that they were more likely than white voters not to 
     be able to get the ID because of, among other reasons, lack 
     of access to transportation.
       The same logic might apply to polling place location and 
     closure decisions that might make it just that much more 
     burdensome for voters of color than for white voters to vote. 
     Or, as in the new Georgia statute, SB 202, prohibiting line 
     relief--the provision of food and water to those waiting in 
     line to vote--particularly when voters of color are much more 
     often confronted with long wait-times than are white voters.
       Mandating additional voter ID requirements in order to 
     submit an application for an absentee ballot or to return a 
     voted absentee ballot is another new hurdle voters will now 
     face in Georgia under its new omnibus bill. Under this 
     provision, voters requesting an absentee ballot must submit 
     with their application their driver's license number, their 
     personal identification number on a state-issued personal 
     identification card, or a photocopy of other specified forms 
     of identification. For voters who do not have a Georgia's 
     driver license or state ID card number, voting absentee will 
     now require access to photocopy technology. Voters without 
     such access to technology will face a higher burden in 
     complying with these ID requirements. Recent data shows that 
     Black Georgians are 58 percent more likely and Latinx 
     Georgians are 74 percent more likely to lack computer access 
     in their homes as compared to their white counterparts. Thus, 
     we can expect voters of color to face a significantly higher 
     burden than white voters in complying with the ID 
     requirements for requesting and returning absentee ballots.
       If Brnovich is construed by state legislatures as 
     permitting them to impose barriers that affect different 
     racial or ethnic groups differently because of their relative 
     wealth--particularly when those differences are themselves 
     the product of historic discriminatory practices--it will 
     have a serious impact on the voting rights of persons of 
     color.
       4. 1982 Standards and Widespread Practice Are Not Important
       Second, Justice Alito said that other relevant factors 
     included the degree of departure of the challenged practice 
     from the ``standard practice when Sec. 2 was amended in 
     1982,'' a choice which is largely left unexplained, other 
     than in rebuttal to Justice Kagan's dissent, in which he 
     writes, somewhat tautologically, that ``rules that were and 
     are commonplace are useful comparators when considering the 
     totality of the circumstances.'' Although the Court 
     acknowledges that this would not apply to practices that 
     themselves were discriminatory in 1982, the fact is that such 
     benchmarks are neither necessary nor productive. If the 
     history of voter discrimination in this country has taught us 
     anything, it is that those who want to stop voters of color 
     from voting change their methods with the times, and with the 
     change in the ways voters of color are voting.
       Again, Georgia is illustrative. In Georgia, state 
     legislators responded to the record-shattering turnout of 
     2020 by passing omnibus legislation that restricts the right 
     to vote at nearly every step of the process and 
     disproportionately affects voters of color. Among its 
     provisions, the law requires voter identification in order to 
     request an absentee ballot and vote absentee; severely limits 
     access to absentee ballot drop boxes; and significantly 
     shortens the period in which voters can apply for and cast 
     absentee ballots. These restrictions were adopted right after 
     the November 2020 election where voters of color used 
     absentee ballots to an unprecedented degree, and in the cases 
     of Black (29.4 percent) and Asian (40.3 percent) voters, at 
     higher rates than white (25.3 percent percent) voters. But, 
     Justice Alito's reasoning may be construed as supporting the 
     proposition that, if in 1982, Georgia did not make absentee 
     ballots universally available, that could be a ``highly 
     important'' consideration, even if voters of color are more 
     heavily impacted than white voters by these changes. State 
     legislatures should not be led to believe that they can get 
     away with erecting new barriers to vote based on what they 
     did 40 years ago.
       Further, Justice Alito also observed that the 
     ``widespread'' present day acceptance of the voting practice 
     could justify its use. But it was precisely because certain 
     discriminatory practices were ``widespread'' that the Voting 
     Rights Act was necessary. It seems incongruous, if not 
     irrational, to justify discrimination by the majority 
     population against minority populations on the basis of 
     ``widespread'' acceptance.
       5. So-called ``small differences'' can be important
       Third, in explaining the importance of the size of the 
     disparities, Justice Alito indicates that ``small differences 
     should not be artificially magnified,'' again dealing 
     obliquely with the consequences of the differences being 
     caused by differences in wealth--which may themselves be the 
     result of historic racial discrimination. Specifically, the 
     Court criticized the Ninth Circuit for finding 
     disproportionate impact based on a relative comparison of the 
     percentage of voters whose votes were rejected because they 
     were cast out of precinct. In the case of Indigenous, Black, 
     and Latinx voters, the percentage was 1% for each group; in 
     the case of white voters, the percentage was .05.
       The Court neglected to note that the discriminatory out of 
     precinct practice meant that almost 4,000 votes cast by 
     voters of color had been rejected--and that if their 
     circumstances were equivalent to those of white voters, 2,000 
     of their votes would have counted.

[[Page H4451]]

       The Texas Photo ID case is illustrative. There, the court 
     found that, even though over 90 percent of all groups had the 
     required ID, Black voters were twice as likely as white 
     voters not to have the ID, and Latinx voters were about three 
     times as likely. In fact, the court found that 608,470 Texas 
     voters lacked the ID. Obviously, the Texas numbers are 
     meaningful no matter how viewed. But the point is that 
     smaller numbers may be too. Legislatures and lower courts 
     should not be led to believe that they can chip away at 
     electoral margins by reducing the likelihood of voters of 
     color being able to cast their votes, no matter how small the 
     effect. We need not dwell on the closeness of the 2020 
     presidential election in Arizona, Georgia, and Wisconsin to 
     underscore the importance of even small differentials in 
     impact.
       6. Other opportunities to vote do not necessarily 
           ameliorate discrimination in particular methods of 
           voting
       Fourth, Justice Alito explained that the opportunities 
     provided by the entire electoral system should be factored 
     into the equation, implying that, for example, access to 
     absentee ballots may be curtailed, as long as the voter can 
     still vote in person. But, if an advantageous means of voting 
     is curtailed as to one group more than it is to another, what 
     difference does it make that there may be other methods of 
     voting? If all methods of voting made voting equally 
     accessible, there would have to be only one method. 
     Obviously, expanding methods of voting makes it more likely 
     that people will vote. And, equally obviously, contracting 
     them makes it less likely that people will vote. Contracting 
     them in a way that affects some racial or ethnic groups more 
     than others is inconsistent with the language and 
     Congressional intent of Section 2. States should not be led 
     to believe that they have carte blanche to target specific 
     voting practices, when the effect is discriminatory, and try 
     to justify it by the availability of other means of voting.
       7. Justification for discriminatory practices must be based 
           on reality
       And, fifth, in explaining the state justification factor, 
     the Court seemed to open the door to a state's justifying 
     virtually any discriminatory action simply by parroting the 
     words ``fraud prevention.'' Again, while the Court did not 
     say so explicitly, the fear is that lower courts--and, worse, 
     state legislatures--may so interpret the Court's opinion.
       The incongruity of the Court's approach is seen in 
     comparing the hundreds of thousands of voters who were 
     potentially deprived from voting under Texas's prior Photo ID 
     law, with the infinitesimally small number of persons even 
     accused of fraudulently voting. A state's choice to prevent 
     non-existent fraud at the expense of thousands of votes, 
     disproportionately of person of color, is not legitimate. 
     Again, permitting such choice, is inconsistent with the 
     language of Section 2 and Congressional intent.
       8. The Senate Factors are relevant
       The Brnovich majority went on to raise questions as to 
     whether the Senate Factors are relevant to a Section 2 vote 
     denial case, implying they are not, but leaving ambiguous 
     precisely what the Court means as to how the few Factors the 
     Court deems potentially relevant fit in, other than 
     superficially.
       Although Gingles involved vote dilution, the decision 
     addressed Section 2 writ large, recognizing that ``Section 2 
     prohibits all forms of voting discrimination, not just vote 
     dilution.'' Further, Gingles recognized the applicability of 
     the various Senate Factors would naturally turn on the type 
     of Section 2 claim at issue. The Gingles Court's statement 
     that the Senate Factors will ``often be pertinent to certain 
     types of Sec.  2 violations,'' such as dilution, cannot be 
     reconciled with a conclusion that the Factors ``only'' inform 
     one specific type of Section 2 claim.
       D. The Growing Present Need
       As with the need for the resuscitation of Section 5, recent 
     events reflect the significant present-day need for an 
     immediate response to Brnovich. As detailed throughout this 
     testimony, for example, the recently enacted Georgia voter 
     suppression law, SB 202 increases the burdens for virtually 
     every aspect of voting from voting by mail through voting in 
     person. At least some aspects of SB 202 appear to be clearly 
     retrogressive and probably would not have been proposed in 
     the first place were it not for the decision in Shelby 
     County. The effect of the Brnovich decision on the challenge 
     to SB 202 remains to be seen, but already defendants have 
     moved to dismiss the complaints on the basis of Brnovich. 
     Although, we strongly believe that the complaints as drafted 
     fully and adequately plead a ``results'' claim under Section 
     2 even post-Brnovich, the very making of these arguments 
     demonstrates how those who support the erection of barriers 
     to vote intend on using that opinion.
       Georgia, of course, is not the only state that is 
     considering or has passed laws with new barriers to voting 
     that disproportionately affect voters of color. Florida did 
     so with SB 90, a law that--similar to Georgia's--imposes new 
     and unnecessary restrictions on absentee ballots, the use of 
     drop-boxes, and line-warming. And Texas appears poised at 
     this writing to pass an omnibus voting bill that would, among 
     other things, empower partisan poll watchers with virtually 
     unfettered access in polling places, while at the same time 
     tying the hands of election officials to stop the poll 
     watchers from engaging in intimidating conduct. Texas has a 
     well-documented history of voter intimidation by poll 
     watchers that has disproportionately affected voters of 
     color. The courts have acknowledged this pattern before--in 
     2014, a federal district court described this very issue: 
     ``Minorities continue to have to overcome fear and 
     intimidation when they vote. . . . [T]here are still Anglos 
     at the polls who demand that minority voters identify 
     themselves, telling them that if they have ever gone to jail, 
     they will go to prison if they vote. Additionally, there are 
     poll watchers who dress in law enforcement-style clothing for 
     an intimidating effect to which voters of color are often the 
     target.''
       As with Georgia's SB 202, some of these provisions might 
     have been stopped by an effective Section 5 and challenges to 
     some of them may be hampered by the effect of the Brnovich 
     decision. The bottom line, however, is that recent events 
     have only underscored the need for a robust Voting Rights 
     Act.
       E. The Appropriate Congressional Response
       The impact of Brnovich has yet to be measured, but common 
     sense and history instruct us that those who wish to target 
     voters of color will undoubtedly feel emboldened by a 
     decision that can be read as making it more difficult for 
     plaintiffs to prove a Section 2 violation, giving state 
     legislatures a ``Get Out of Jail'' card to pass voter 
     suppressive legislation and justify it simply by claiming 
     ``voter fraud.'' Although we firmly believe that the courts 
     should not apply Brnovich in such a manner, the threat is 
     there. Continued commitment to the core purpose of the Voting 
     Rights Act should not be left in the uncertainty created by 
     the ambiguous and problematic language of Brnovich. We 
     identify here a number of issues for consideration and would 
     be pleased to work with the Committee on legislative text.:
       Clarify that the ``totality of the circumstances'' to 
     support a Section 2 violation entails an intensely local 
     appraisal.
       Clarify that ``totality of the circumstances'' may include 
     any or all of the factors deemed relevant by Gingles, 
     including the Senate Factors, and that no factors are 
     exclusively pertinent to ``results'' claims or ``dilution'' 
     claims. These include Factors 1 and 5, which are important, 
     not for the back-of-the-hand reading given them by Justice 
     Alito, but because they go to the core issue of the 
     interaction between historic socio-economic discrimination 
     and the voting practice in question.
       Clarify that, in determining the extent to which a 
     challenged voting rule burdens minority voters, the absolute 
     number or the percent of voters affected or the presence of 
     non-minority voters in the affected area will not be 
     dispositive.
       Clarify that in determining whether the policy underlying 
     the use of a voting rule is tenuous--one of the Senate 
     factors--the court should consider whether the voting rule in 
     question was actually designed to advance and in fact 
     materially advances a valid and substantiated state interest. 
     That preventing voter fraud may be a valid state interest 
     should not lead to a determination that any voting practice 
     alleged to have been enacted to protect fraud is valid, 
     particularly if the instances of voter fraud are rare, if not 
     virtually non-existent, and the means chosen to combat the 
     alleged fraud scarcely further that aim, and, further, do so 
     at the expense of preventing eligible voters from voting.
       Clarify that a discriminatory law cannot be justified on 
     the basis that it was a standard practice at a particular 
     date, such as 1982, or is widespread today, but must be 
     judged solely on the totality of the circumstances in the 
     particular jurisdiction, as viewed at the time the action 
     under Section 2 is brought.
       Clarify that the availability of other methods of voting 
     not impacted by the voting rule at issue cannot weigh against 
     finding a violation.
       Put an end to any doubt, as raised by the concurring 
     opinion of Justices Gorsuch and Thomas in Brnovich, that 
     there is a private cause of action for a Section 2 violation, 
     as every Circuit Court of Appeals has held.
       I am not in favor of employing a burden-shifting approach 
     because I believe that Section 2 vote denial claims should be 
     restored to their pre-Brnovich state and burden-shifting has 
     not been part of the Section 2 inquiry. In addition, burden-
     shifting places the state's interest at the center of the 
     inquiry in the second and third prongs in the three-prong 
     analysis, whereas the focus should be on the impact on 
     voters.
     III. Conclusion
       The eight years since the Supreme Court's decision in 
     Shelby County v. Holder have left voters of color the most 
     vulnerable to voting discrimination they have been in 
     decades. The record since the Shelby County decision 
     demonstrates what voting rights advocates feared--that 
     without Section 5, voting discrimination would increase 
     substantially. The Brnovich decision--by creating new hurdles 
     for Section 2 claimants to overcome--raises the stakes 
     appreciably. Congress must act.

[[Page H4452]]

     
                                  ____
Testimony of Professor Bernard L. Fraga, Emory University, Atlanta, GA, 
 Before the Subcommittee on the Constitution, Civil Rights, and Civil 
         Liberties Of the U.S. House Committee on the Judiciary


  The Need to Enhance the Voting Rights Act: Practice--Based Coverage 
                             July 27, 2021

       Chair Cohen, Ranking Member Johnson, and distinguished 
     members of the committee, it is an honor to testify before 
     you today. My name is Bernard L. Fraga, and I am an associate 
     professor of political science, with tenure, at Emory 
     University in Atlanta, Georgia. My research focuses on the 
     quantitative analysis of elections in the United States, with 
     particular attention to the causes and consequences of 
     disparities in voter turnout. I received my B.A. in Political 
     Science and Linguistics from Stanford University and my Ph.D. 
     in Government and Social Policy from Harvard University.
       The right to vote is the cornerstone of representative 
     democracy. In the majority opinion for Reynolds v. Sims, 
     Chief Justice Earl Warren noted that as ``the right to 
     exercise the franchise in a free and unimpaired manner is 
     preservative of other basic civil and political rights, any 
     alleged infringement of the right of citizens to vote must be 
     carefully and meticulously scrutinized.'' The same year 
     Reynolds v. Sims was argued, however, John Lewis was arrested 
     for carrying a ``One Man, One Vote'' sign in Selma, Alabama 
     and Fannie Lou Hamer was beaten nearly to death by state 
     troopers in Montgomery County, Mississippi for her voting 
     rights activism. Less than a week after Chief Justice Warren 
     read the Reynolds v. Sims decision, Freedom Summer activists 
     James Chaney, Andrew Goodman, and Michael Schwerner were 
     murdered while trying to organize a voter registration drive. 
     Thus, at the same time voting can be recognized as central to 
     our system of government, the vote can be denied in places 
     where resistance to changing the existing power structure is 
     entrenched and unyielding.
       It took federal action through the Voting Rights Act of 
     1965 to change this pattern. However, a powerful tool of the 
     act for combatting efforts to restrict the right to vote was 
     rendered inactive after Shelby County v. Holder. In that 
     decision, the preclearance provisions of the Voting Rights 
     Act, which mandated federal oversight for election law 
     changes in a set of states and counties, were ruled 
     inoperable as the coverage formula was deemed 
     unconstitutional. Noting that while ``voting discrimination 
     still exists; no one doubts that,'' Chief Justice Roberts 
     called on Congress to ``draft another formula based on 
     current conditions.''
       In the attached report, I outline a flexible, forward-
     looking formula for practice-based preclearance that can 
     secure our rights far into the future. Drawing on a database 
     of over 3,500 legal cases or proceedings related to minority 
     voting rights, along with historical, theoretical, and 
     empirical evidence regarding where voting rights violations 
     are likely to occur, I show a strong relationship between the 
     racial/ethnic composition of a state or county and the 
     likelihood that that the jurisdiction will see a violation. 
     This pattern appears across racial/ethnic minority groups and 
     over time. Specifically, I find the following:
       1. Historical evidence indicates a clear relationship 
     between attempts to restrict the franchise and the size of 
     the racial/ethnic minority population in the jurisdiction. In 
     states and counties with a larger minority population, 
     efforts to limit the participation of racial/ethnic minority 
     citizens are substantial and persist absent federal 
     intervention to protect the right to vote. (Pgs. 2-7 of the 
     report)
       2. In recent years, voting rights-related litigation is 
     vastly more common in states and counties with sizeable 
     racial/ethnic minority populations. This pattern persists 
     even when isolating the analysis to litigation resulting in 
     successful prosecution of a voting rights case. (Pgs. 8-19 of 
     the report)
       3. Combined with a practice-based approach to preclearance, 
     a population-limited trigger for preclearance coverage can 
     ensure an appropriate balance between protecting voting 
     rights and creating additional requirements for election 
     officials. The threshold that best balances this tradeoff is 
     20%, such that practice-based preclearance would be required 
     for states or counties where at least two racial/ethnic 
     groups each make up at least 20% of the jurisdiction's 
     population. (Pgs. 19-23 of the report)
       I invite members of the committee to read the attached 
     report and the conclusions therein, and ask that the report 
     be officially entered into the record. In closing, I urge the 
     committee to reinvigorate the Voting Rights Act and renew the 
     promise of voting rights for all Americans. Indeed, no single 
     action taken by the members of this Congress may be more 
     consequential. It is up to you, and the other members of the 
     House and Senate, to heed the call.
                                  ____


A Population-Limited Trigger for Practice-Based Preclearance Under the 
                           Voting Rights Act

(By Bernard L. Fraga, Ph.D., Associate Professor of Political Science, 
                     Emory University, Atlanta, GA)


                            I. INTRODUCTION

       In 2013, the Shelby v. Holder decision invalidated the key 
     formula used to determine which jurisdictions would be 
     subject to the Section 5 ``preclearance'' provisions of the 
     Voting Rights Act. Writing for the 5-4 majority, Chief 
     Justice Roberts stated ``a statute's current burdens must be 
     justified by current needs, and any disparate geographic 
     coverage must be sufficiently related to the problem that it 
     targets. The coverage formula met that test in 1965, but no 
     longer does so.'' Instead, the Court indicates ``Congress may 
     draft another formula based on current conditions . . . Our 
     country has changed, and while any racial discrimination in 
     voting is too much, Congress must ensure that the legislation 
     it passes to remedy that problem speaks to current 
     conditions.''
       In this report, I outline the rationale for a current 
     population-limited trigger for additional scrutiny of 
     election practices that could be used to violate the voting 
     rights of Black, Hispanic, Asian American, Pacific Islander, 
     and American Indian/Alaska Native (AIAN) populations. I first 
     demonstrate that there is strong historical, theoretical, and 
     empirical evidence for a relationship between the share of 
     the electorate that is minority and potential violations of 
     minority voting rights. Using a detailed database of recent 
     voting rights act-related litigation, I then show that in 
     counties and states where two racial/ethnic groups separately 
     compose at least 20% of the voting-age population, ``current 
     conditions'' justify additional scrutiny of covered election 
     practices via the Voting Rights Act.
       By constructing a formula for coverage of specific election 
     practices based on contemporary demographics, I provide a 
     flexible trigger that both meets current needs and can adapt 
     to the changing conditions of the future. Combined with a 
     cogent analysis of which election practices should be subject 
     to additional scrutiny, and any further triggers based on 
     established, recent discriminatory practices, this formula 
     could be one part of a strengthened Voting Rights Act that 
     protects the voting rights of all Americans.


 II. HISTORICAL AND THEORETICAL BASIS FOR A POPULATION-LIMITED TRIGGER

       In this section, I discuss why a population-limited trigger 
     is justifiable based on the extant record of where minority 
     voting rights violations have occurred. I first begin by 
     outlining the history of federal oversight to protect racial/
     ethnic minority voting rights. Then, drawing on theoretical 
     understandings of elections and extant empirical evidence, I 
     discuss the circumstances where federal oversight may be most 
     necessary to safeguard voting rights.
     a. Reconstruction, Jim Crow, and the Role of Federal 
         Oversight in Ensuring Minority Voting Rights
       For most of U.S. history, the voting rights of racial/
     ethnic minority groups were curtailed by statutes and laws 
     restricting access to the franchise. At the start of the 
     Civil War, de jure exclusion of the African-American 
     population was nearly complete, as a handful of northern 
     states permitted African Americans to vote by law, but 
     whether enslaved or free, the much larger Black population of 
     the South was excluded from the franchise. Native 
     Americans on Indian lands and Asian Americans were de jure 
     barred from voting as they were ineligible for citizenship 
     or naturalization. Latinos held tenuous, but at times 
     electorally relevant voting rights, especially in the 
     former Mexican territories where nearly all Latinos 
     resided prior to 1900.
       After the Civil War, the historical record of minority 
     voting rights indicates periods of expansion, contraction, 
     and then expansion that directly coincides with federal 
     action to prevent states from de jure or de facto racial/
     ethnic discrimination in voting. The first notable expansion 
     of voting rights to African-Americans occurred with the 
     Reconstruction Acts of 1867 and 1868, which granted the vote 
     to formerly enslaved Black men and placed voter registration 
     under the control of Union (Northern) military commanders. 
     Over 700,000 African Americans registered to vote, 
     outnumbering White registrants in multiple Southern states 
     and ensuring election of a Congress and state legislatures 
     conducive to the 14th and 15th Amendments. However, the 14th 
     Amendment's de facto application to African-Americans alone 
     meant that most Native Americans, Latinos, and Asian 
     Americans remained barred from voting.
       White resistance to enfranchisement of Black men was 
     immediate, severe, and concentrated in the South where the 
     relatively high proportion of Black voters relative to white 
     voters meant that Black men could exert significant influence 
     on election outcomes. The ``Redeemer'' movement, as it was 
     called, viewed ending Black suffrage as the proximate goal to 
     regain political power for former Confederates and 
     sympathizers, resorting first to violence and then de facto 
     disenfranchising policies implemented by local election 
     officials. These policies, including poll taxes, literacy 
     tests, and residency requirements, were administered in a 
     racially discriminatory manner but were ruled as beyond 
     federal oversight by the Supreme Court in U.S. v. Reese. The 
     removal of remaining federal troops from the South in 1877, 
     and Congress's failure to pass legislation designed to 
     counter U.S. v. Reese, directly resulted in heavily-Black 
     Southern states passing new constitutions between 1890 and 
     1910 with the specific, intentional goal of disenfranchising 
     African Americans.
       The second period of expansion again indicates the 
     important role of federal oversight in places where racial/
     ethnic minorities are a significant share of the population. 
     Through Supreme Court rulings outlawing Grandfather Clauses 
     (1915) and the final iteration of the White Primary (1944), 
     heavily-Black

[[Page H4453]]

     and heavily-Latino (in particular, Texas) states of the South 
     were no longer able to de jure prevent African-Americans and 
     Latinos from voting statewide. However, the poll tax and 
     literacy test were still administered in a discriminatory 
     fashion by local officials in heavily-Black and Latino 
     counties, just as resistance to ending the White Primary was 
     strongest in heavily-Black parts of Southern states. Indeed, 
     by the 1950s, Black voter registration rates were relatively 
     high in Northern cities and rapidly increasing Southern 
     counties with smaller Black concentrations. In ending the ban 
     on naturalization for remaining Asian and Latin American 
     origin groups, the 1952 McCarran-Walter Act opened the door 
     to naturalization (and voting rights) for any legal resident 
     of the United States. Thus, by the mid-1950s federal action 
     had eliminated the explicit racially discriminatory barriers 
     to voting outside of heavily-minority counties.
       Stronger federal action was necessary to ensure voting 
     rights in places with a large share of racial/ethnic minority 
     citizens. The Civil Rights Acts of 1957, 1960, and 1964 
     sought to eliminate discriminatory voter registration 
     practices in the South by targeting the methods used by local 
     election officials to curb Black voter registration. Yet 
     resistance continued, culminating in the violent, ``Bloody 
     Sunday'' attacks by local officials in heavily-Black Selma, 
     Alabama. This spurred passage of the Voting Rights Act of 
     1965, mandating two key forms of federal oversight for 
     jurisdictions with a recent history of discriminatory 
     election practices: federal voting registrars and a 
     requirement that election law changes are ``precleared'' by 
     federal officials prior to implementation. While not 
     explicitly defining states and counties subject to federal 
     supervision on the basis of population size, each of the 7 
     states covered in whole or in part by the coverage formula 
     outlined in Section 4 were at least 20% African-American and 
     were the top 7 states in Black population percentage as of 
     the 1970 Census.
       The Voting Rights Act of 1965 was amended and expanded to 
     include American Indian/Alaska Native, Hispanic, and Asian 
     American/Pacific Islander populations through amendments in 
     1970 and 1975. Mirroring the situation for African-Americans 
     in the Deep South, discrimination was most severe in states 
     and localities with relatively large numbers of Latino and 
     Native American voters. For instance, testimony in favor of 
     the 1975 VRA Amendments by Latino witnesses focused on voting 
     rights violations in counties in Texas and California with 
     large shares of Latino citizens. Disenfranchisement of Native 
     American voters appeared in states and counties with tribal 
     lands and reservations concentrating potential Native 
     American voting strength.
     b. Minority Population Size is Associated with Attempts to 
         Restrict Voting Rights
       The history of minority voting rights briefly outlined 
     above indicates a generalizable relationship between minority 
     population size and attempts to restrict voting rights. While 
     at various times limitations on the franchise were quite 
     widespread (and impeded participation for non racial/ethnic 
     minority groups as well), the pockets of most determined 
     efforts to restrict minority voting rights were areas of the 
     country where racial/ethnic groups made up a larger than 
     average share of the population. Attempts to counter 
     continued disenfranchisement through federal intervention 
     thus also focused on these areas, during both the 
     Reconstruction Era and Civil Rights Era. The creation, 
     preservation, and reinstatement of minority voting rights 
     across the United States thus hinges on the actions of the 
     federal government.
       This historical evidence aligns with theoretical 
     expectations about where incentives to disenfranchise should 
     be most acute. In an often-quoted section of the canonical 
     text Southern Politics in State and Nation (1949), political 
     scientist V.O. Key noted that ``in grand outline the politics 
     of the South revolves around the position of the Negro,'' and 
     due to the substantial size of the Black population in the 
     historic ``black belt'' region, ``the whites of the black 
     belt have the most pressing and most intimate concern with 
     the maintenance of the established pattern of racial and 
     economic relations.'' By the 1960s, disenfranchisement came 
     with significant costs to Southern states and counties, 
     including threat of sustained protests and federal action; 
     in theory, this cost should be borne only when white 
     dominance on election day would be threatened with Black 
     enfranchisement. Indeed, empirical evidence indicates that 
     the immediate impact of the Voting Rights Act of 1965 on 
     Black enfranchisement was greatest in the heavily-Black 
     counties of the Deep South, precisely where electoral 
     incentives to disenfranchise were strongest. Thus, while 
     the legacy of slavery and Jim Crow may be associated with 
     efforts to disenfranchise, the key differentiator within 
     the South was minority population size. Where minority 
     groups could influence politics, even if only as 
     significant members of coalitions with White voters, 
     efforts to restrict voting rights followed.
       These incentives remain most powerful in states and 
     counties with significant racial/ethnic minority populations 
     today. Just as in the past, where a racial/ethnic group is a 
     larger share of the population, they will be more likely to 
     have substantial influence on election outcomes. Different 
     from past trends, and speaking to the success of the Voting 
     Rights Act in eliminating the most egregious forms of 
     disenfranchisement, campaigns, candidates, and voters 
     themselves now seek to leverage the power that large and/or 
     growing racial/ethnic minority populations have when given 
     the opportunity to vote. Indeed, voter turnout for racial/
     ethnic minority groups is now significantly higher in states 
     and counties where minority citizens make up a larger than 
     average share of the population. Officeseeking by candidates 
     from minority groups is also far more common in heavily-
     minority states and legislative districts, as are opposing 
     efforts to dilute minority voting strength via manipulation 
     of electoral systems and district boundaries.
       Further discussion of recent trends in potential voting 
     rights violations is provided in Section III of this report, 
     but in short, the relationship between a state or county's 
     minority population size and efforts to disenfranchise 
     minority voters has a solid historical, theoretical, and 
     empirical basis. Thus, there is a clear need for federal 
     oversight to protect minority voting rights in jurisdictions 
     with large shares of minority voters today, and to provide a 
     flexible coverage formula that can account for growing 
     racial/ethnic minority populations in the future. This need 
     is most acute in the protection of Latino and Asian American/
     Pacific Islander voting rights, whose population growth often 
     occurs in areas that did not have a history of repressing 
     African-American voting rights.


       III. DETERMINING AN APPROPRIATE POPULATION-LIMITED TRIGGER

       If a population size-based trigger is to be used to 
     determine which jurisdictions warrant additional scrutiny in 
     the application of certain election practices, what 
     population threshold or thresholds should trigger coverage? 
     Again we must turn to the patterns of past voting rights 
     violations, but be cognizant of the need to ``draft another 
     formula based on current conditions.'' In this section, I 
     demonstrate that the pattern of potential and actual VRA 
     violations from 1982 to the present indicates that a racial/
     ethnic group population size threshold of 20% is justifiable, 
     that such a formula would provide flexibility to address both 
     current and future needs as racial/ethnic group populations 
     change over time, and that specifying two racial/ethnic 
     groups must each meet the threshold appropriately considers 
     where policies could reasonably impede the voting rights of 
     racial/ethnic minority groups.
     a. Tracking Potential Violations of Minority Voting Rights
       To track previous potential violations of minority voting 
     rights, I rely on a database constructed by Dr. J. Morgan 
     Kousser. Dr. Kousser is professor emeritus of history and 
     social science at the California Institute of Technology, and 
     a leading expert on voting rights. Dr. Kousser's research, 
     and specifically a previous version of the database I use, 
     were discussed by Dr. Kousser in testimony to the 
     Subcommittee on the Constitution, Civil Rights and Civil 
     Liberties of the U.S. House Committee on the Judiciary in 
     October 2019. In that testimony, Dr. Kousser remarked that 
     his effort to ``create a database of all voting rights 
     actions under any federal or state statutes or constitutional 
     provisions'' was designed to allow ``evaluations of the 
     adequacy of past and potential coverage schemes if Congress 
     wishes to replace Section 4 of the VRA.'' It is in this 
     capacity that I use his database.
       Dr. Kousser's database has approximately 3,540 legal cases 
     or proceedings related to minority voting rights from 1965 to 
     2018. Of these cases, 2,510 focus on potential violations of 
     Black voting rights, 801 with potential violations of 
     Hispanic/Latino voting rights, 32 with potential violations 
     of Asian American voting rights, and 135 with American Indian 
     or Alaska Native voting rights. Table 1 shows the number of 
     cases by group and by decade from 1965 to 2018, the most 
     recent year with comprehensive data in Dr. Kousser's 
     database. In Table 1 we see that the total number of cases 
     per decade peaked in the 1980s and 1990s. Cases where Black 
     and Native American voters were the primary groups of 
     interest peaked in the 1980s, while cases where Hispanic or 
     Asian American citizens were principal groups peaked in the 
     1990s.
       Table 1 also provides separate statistics for cases 
     involving counties or towns subject to the Voting Rights Act 
     Section 5 preclearance provisions from 1965 to 2013. A 
     similar pattern of cases by decade and by race appears for 
     these jurisdictions in isolation, as prior to the 
     invalidation of Section 5 coverage in Shelby v. Holder the 
     vast majority of cases were in preclearance-covered 
     jurisdictions. Of course, the nature of Section 5 coverage 
     pre-Shelby meant that the strongest predictor of a lawsuit or 
     other action being taken on behalf of minority plaintiffs was 
     whether or not the county was subject to preclearance. 
     However, in every decade after the 1970s at least 100 
     cases were filed outside of Section 5 preclearance 
     jurisdictions.
       In the more detailed analyses below, I focus on the period 
     from 1982 forward, as the 1982 amendments to the Voting 
     Rights Act and Gingles decision clarified the intent of the 
     VRA of 1965 with an eye to policies with discriminatory 
     effect, not just discriminatory intent. The post-1982 period 
     is also when the vast majority of ``successful'' voting 
     rights actions occurred, and the bulk of potential violations 
     of minority voting rights overall, constituting 74% of cases 
     in all jurisdictions and 70% of cases in jurisdictions 
     covered by Section 5 from 1965-2013. Finally,

[[Page H4454]]

     I examine all cases of potential minority voting rights 
     violations, not just cases that resulted in an outcome 
     favorable to minority plaintiffs. Given the different legal 
     standards used to make judgements about vote dilution versus 
     vote denial, Section 5 versus Section 2 claims, and voting 
     rights violations more broadly over time, the more complete 
     picture of where plaintiffs indicated a voting rights 
     violation may have occurred is one appropriate metric for 
     determining where, e.g., U.S Department of Justice resources 
     would need to be deployed.
       Finally, this report focuses on counties and states as 
     units of analysis, as Dr. Kousser's database is organized at 
     the state and county level. American Indian lands are also 
     important political units from the perspective of American 
     Indian voting rights, and a key part of both the Voting 
     Rights Act Section 203 language assistance formula and the 
     proposed coverage formula. However, violations of voting 
     rights occurring in or for those with residence in Indian 
     reservations are generally directed to the state or county 
     whose territory overlaps with those reservations.
     b. Geographic Pattern of Potential Voting Rights Violations
       Compiling Dr. Kousser's data, we see wide dispersion in 
     potential voting rights violations when examining state-level 
     suits and legal actions. Figure 1 shows states with a 
     statewide potential voting rights violation during the period 
     from 1982-2018. Color indicates which racial/ethnic group's 
     voting rights were most clearly impacted in the first alleged 
     statewide violation. Broadly speaking, the distribution of 
     first cases by race/ethnicity often coincides with which 
     groups make up the largest share of the racial/ethnic 
     minority population in each state. In the Deep South, 
     African-American plaintiffs were the first to allege a 
     statewide violation. In most of the Southwest, Latino 
     plaintiffs were first. In Alaska and Arizona, both of which 
     came under Section 5 preclearance as a result of historical 
     discrimination against Alaska Native and American Indian 
     populations, respectively, these groups were first to allege 
     a statewide violation of their voting rights.
       Figure 2 documents which counties that have ever had a 
     violation or potential violation via litigation. Again, this 
     does not include the DOJ's More Information Request process, 
     which may mask additional potential violations that were 
     averted in Section 5 covered counties. As with the statewide 
     map in Figure 1, Figure 2 shows only counties with potential 
     voting rights violations occurring between 1982 and 2018. 
     Shading indicates the first group to bring a suit at the 
     county level, and counties in white did not have a county-
     level suit. Again, we see a pattern broadly consistent with 
     the known distribution of racial/ethnic groups in the United 
     States, though the map makes it more clear that potential 
     voting rights violations are concentrated in the Deep South, 
     heavily-minority urban counties of the North and Midwest, and 
     some heavily--Latino and Native American areas of the 
     Southwest and West.
     c. Data on Racial/Ethnic Group Population Size
       Figures 1 and 2 are suggestive of a pattern of recent 
     potential voting rights violations similar to the historical 
     record I discuss in Section II of this report. To provide 
     more firm evidence on this dimension, I rely on data from the 
     U.S. Census Bureau that is contemporaneous to each potential 
     violation in Dr. Kousser's database. Specifically, I rely on 
     yearly Intercensal estimates of the voting-age population by 
     race/ethnicity from 1982 to the present at both the state and 
     county level. Yearly intercensal estimates for racial groups 
     other than Whites and African-Americans are not available at 
     the county level until 1990. Thus, for years from 1982-1990, 
     I interpolated the 1980 to 1990 state or county-level change 
     in the voting-age population by race and ethnicity, 
     providing trends in the non-Hispanic White, Black, 
     Hispanic, and Asian American/Pacific islander voting-age 
     populations. For years from 2010-2018, I rely on data from 
     the U.S. Census Bureau's Population Estimates Program 
     (PEP), which is broadly similar to the Intercensal 
     estimates.
       As the above indicates, one advantage of a coverage trigger 
     based on racial/ethnic population size is the fact that all 
     data necessary to enact the formula is already collected, 
     compiled, and analyzed by the U.S. Census Bureau. A 
     determinations file, similar to that provided every five 
     years for establishing coverage under the population-based 
     formula for language assistance in Section 203 of the Voting 
     Rights Act, could be constructed by the Census Bureau and 
     provided to the Department of Justice for publication in the 
     Federal Register.
     d. Correlating Potential Violations with Population Size
       A descriptive analysis of the relationship between racial/
     ethnic minority group population share and potential voting 
     rights violations confirms the patterns suggested by Figures 
     1 and 2, and validates the historical and theoretical 
     foundations for a population-limited trigger for coverage as 
     outlined in Section II of this report.
       Dr. Kousser's database indicates that a majority of states 
     have had at least one potential minority voting rights 
     violation since 1982. In the 12 states that have not, no 
     single racial/ethnic group was 10% or more of the state's 
     voting-age population at any point in time between 1982 and 
     2018. However, in every state where a single racial/ethnic 
     group has been at least 10% of the state's voting-age 
     population, at least one suit or action has been brought at 
     the statewide level. On average, the first statewide 
     potential violation in a state occurred when the group in 
     question was 12% of the voting-age population. For states 
     that have never had a statewide violation, the average size 
     of the single largest racial/ethnic minority group is only 
     5.2%.
       A county-level analysis provides additional insights. As 
     with states, counties that have had a violation or potential 
     violation of minority voting rights since 1982 had larger 
     minority populations at the time of their first potential 
     violation, on average. Since 1982, at least 804 counties have 
     had at least one potential violation of minority voting 
     rights occur in their jurisdiction. 61% of counties with 
     violations had their first violations happen when a single 
     racial/ethnic minority group was 20% or more of the 
     jurisdiction voting-age population. Furthermore, only 321 
     counties where a single racial/ethnic minority group makes up 
     more than 20% of the population have not had a voting rights-
     related lawsuit, approximately one-third of the counties with 
     a minority population reaching this threshold.
       Table 2 also indicates that the likelihood of a violation 
     increases sharply as the county population shifts from having 
     a single racial/ethnic group making up less than 10% of the 
     county's voting-age population, to 10-20%, to 20-30%. Beyond 
     the 20-30% category, increases in the percentage of counties 
     with a violation are significantly smaller. Indeed, once a 
     single non-white racial/ethnic group makes up a majority of 
     the county (the final row in Table 2), the likelihood of a 
     voting rights violation decreases relative to jurisdictions 
     where a single racial/ethnic group is nearly a majority of 
     the voting-age population, dropping to roughly the rate we 
     see in the 20-30% category.
       Another way of visualizing this pattern is presented in 
     Figure 3. Figure 3 plots the share of counties with a 
     potential violation as a function of the size of the racial/
     ethnic group at the time the violation occurred (or the size 
     of the largest racial/ethnic group in the county today, if no 
     potential violation occurred between 1982 and 2018). The blue 
     line is the moving average of the share of counties with a 
     potential violation (left side of chart) given the racial/
     ethnic group size specified (bottom of the chart). The red 
     line in the middle of the chart denotes the point where a 
     county has even (50% yes, 50% no) odds of a potential 
     violation.
       Figure 3 again shows a very strong relationship between the 
     size of the racial/ethnic minority population and the 
     likelihood of a potential voting rights violation. We see a 
     roughly linear increase in the likelihood of a violation as 
     the population approaches roughly 20%, with diminishing 
     returns to further increases in single minority group 
     population size before the probability begins to decrease 
     after 50% minority. Furthermore, the point of equal 
     likelihood of having a potential violation versus not occurs 
     when the racial/ethnic group whose rights may have been 
     violated is approximately 20% of the overall voting-age 
     population in the jurisdiction. Beyond 20%, counties have 
     better-than-even chances of having had a potential violation, 
     until roughly 75% when the likelihood of a violation drops 
     below 50-50 once again.
       A similar pattern is present for counties with successful 
     cases, where courts determined (or appeared set to determine 
     according to defendants, as they were settled out of court) 
     that a violation of a group's voting rights had occurred. 
     Figure 4 shows these patterns at the county level. In Figure 
     4, we see almost exactly the same rate of successful cases as 
     a function of minority group population share as we do for 
     the number of cases overall (successful or not). The chance 
     of a successful voting rights case is better than 50-50 when 
     a minority group is about 25% of the voting-age population in 
     a county. Of course, not all voting rights-related actions 
     result in an outcome in favor of plaintiffs. However, Figure 
     4's close match with Figure 3 indicates that the relationship 
     between voting rights suits and minority group size is 
     not attributable to an increased number of unsuccessful 
     cases brought by minority plaintiffs in heavily-minority 
     counties.
     e. Ensuring equal treatment of counties based on probability 
         of a violation
       The analyses above demonstrate that once a racial/ethnic 
     minority group grows large enough to make up 20% of a 
     county's voting-age population, the probability of at least 
     one potential voting rights-related legal action reaches 50%. 
     Given the nature of the election practices that would be 
     subject to preclearance, in that these are commonly used 
     practices that are often tarnished by those seeking to 
     discriminate against minority voters, this threshold may be 
     an appropriate benchmark for determining where additional 
     scrutiny is warranted. However, it is important to consider 
     how various population thresholds balance the need to protect 
     voting rights with the potential to add an additional layer 
     of review of state and county election practices.
       In any process where some jurisdictions are going to be 
     subject to additional scrutiny, while others are subject to 
     conventional review, there will be instances where after the 
     fact we see that the additional scrutiny did not result in 
     finding a violation or the conventional review revealed a 
     violation on its own. Therefore while the goal is

[[Page H4455]]

     to minimize such instances, it is not realistic to eliminate 
     them entirely. With this in mind, Table 3 examines the 
     suitability of various single-group relative population size 
     thresholds in terms of the recent history of potential voting 
     rights violations in counties nationwide. Under the 
     population thresholds listed in the first column of Table 3, 
     a county would gain practice-based preclearance if it had a 
     single non-white racial/ethnic group's population making up 
     the indicated percentage of the voting-age population in the 
     county. The ``False Negative Rate'', also called Type I 
     error, indicates the percent of counties that would not be 
     covered via the indicated population threshold formula, but 
     did have a potential violation. The false negative rates in 
     Table 3 indicate that with all population thresholds higher 
     than 20%, more than half of counties having potential 
     violations would not have triggered practice-based 
     preclearance based on the population at the time of their 
     first potential violation.
       The ``False Positive Rate,'' also called Type II error, 
     indicates the percent of counties that are covered via the 
     listed population threshold-based trigger, but have never had 
     a potential violation in Dr. Kousser's database. While 
     generally lower than the false negative rate, we do see that 
     at both the high end of the potential thresholds and low end 
     of potential thresholds, a larger share of jurisdictions 
     would be subject to preclearance despite never having a 
     voting rights suit filed against the jurisdiction.
       The final column of Table 3, titled ``Overall Error Rate'' 
     aggregates Type I and Type II error and shows the percent of 
     counties nationwide that are either incorrectly excluded (not 
     covered despite having had a violation) or incorrectly 
     included (covered despite never having a violation). While 
     differences between coverage thresholds are relatively small, 
     we do see that the 20% threshold for coverage minimizes the 
     overall number of counties with violations that are missed 
     and covered counties that have not had suits filed against 
     them in the past.
       At the highest racial/ethnic minority population 
     percentages, Figure 3 shows that the rate of potential 
     violations decreases drastically. Table 3 also indicates that 
     the number of false positives begins to increase with 
     thresholds beyond 30%, as in recent decades heavily-minority 
     counties have not had potential voting rights violations 
     despite many of these counties being subject to preclearance 
     under Section 5 of the Voting Rights Act. From a theoretical 
     perspective, this is logical: in such places contemporary 
     methods used to violate minority voting rights are unlikely 
     to change the underlying dynamic of which racial/ethnic group 
     holds power, so attempts to disenfranchise are rare. 
     Therefore, in places where a single minority group is more 
     than 80% of the population, and therefore (numerical) 
     minority racial/ethnic group is less than 20%, 
     disenfranchisement is similarly unlikely. Crafting a two-
     group formula as such also accords with the reality that 15th 
     Amendment protections apply to all Americans, not just 
     members of specific racial/ethnic minority groups.
       Table 4 documents the effect of using a two-group threshold 
     on false negative, false positive, and overall error rates. 
     Error rates are little changed from Table 3, as today, few 
     counties have a single racial/ethnic minority group at or 
     exceeding 80% of the county's population. However, the small 
     number of counties that do have such a high minority 
     population have no recent history of voting rights 
     violations, and with future demographic shifts more counties 
     will likely fall into this category in the future. Requiring 
     that two racial/ethnic groups are at least 20% of the voting-
     age population in a jurisdiction thus both recognizes the 
     ``current conditions'' cited by C.J. Roberts in the Shelby 
     decision, and acknowledges how our country will ``change'' in 
     the future.
       The 20% threshold proposed above also serves to allocate 
     legal resources as efficiently as possible. Due to the nature 
     of the election procedures that would be subject to 
     preclearance, where policies may be facially race-neutral but 
     used to discriminate under certain circumstances, it may be 
     useful to concentrate additional effort on places where 
     discriminatory effect is more likely to occur. Counties 
     unlikely to have a violation may not need extra scrutiny for 
     these commonplace practices. Of course, jurisdictions under 
     the threshold could still be subject to litigation under 
     Section 2 of the Voting Rights Act, as they are today. These 
     jurisdictions may also fall into coverage as their racial/
     ethnic minority population grows.


                             IV. CONCLUSION

       For over 150 years, the federal government has played a key 
     role in preserving the voting rights of racial/ethnic 
     minorities. After the Civil War, the erosion of minority 
     voting rights was most severe in states of the former 
     Confederacy with large African-American populations; the 
     Voting Rights Act of 1965 targeted these states and counties 
     and secured the right to vote for all Americans. In the words 
     of C.J. Roberts, ``there is no denying that, due to the 
     Voting Rights Act, our Nation has made great strides,'' but 
     the changing demographic and political profile of the country 
     persuaded the Court to call for a formula based on ``current 
     conditions'' of racial discrimination in voting that ``no one 
     doubts'' still exist.
       In this report, I provided the rationale for one such 
     formula. Tracking thousands of voting rights-related judicial 
     actions in recent decades, and buttressed by historical, 
     theoretical, and empirical evidence regarding where voting 
     rights violations are likely to occur, I show a strong 
     relationship between the racial/ethnic composition of a state 
     or jurisdiction and the likelihood that the jurisdiction will 
     see a violation of racial/ethnic minority voting rights. 
     Evaluating tradeoffs between various population size-based 
     thresholds, I also demonstrate that one threshold in 
     particular, 20%, ensures fairness in which jurisdictions are 
     subject to the added scrutiny of a tailored preclearance 
     provision.
       The Voting Rights Act of 1965's special provisions were a 
     key tool in the federal government's arsenal to ensure all 
     Americans could participate in the electoral process. A 
     flexible, forward-looking formula will ensure that the Act 
     can continue to secure our rights far into the future. No 
     other action of the current Congress may be more 
     consequential than the reinvigoration of this commitment to 
     the American people.
                                  ____

                                                  August 23, 2021.
     Please Support H.R. 4, John Lewis Voting Rights Advancement 
         Act

       Dear Representative: On behalf of The Leadership Conference 
     on Civil and Human Rights, a coalition of more than 220 
     national organizations committed to promoting and protecting 
     the civil and human rights of all persons in the United 
     States, and the 96 undersigned organizations, we write in 
     strong support of H.R. 4, the John Lewis Voting Rights 
     Advancement Act.
       In 1965, Congress passed the Voting Rights Act to outlaw 
     racial discrimination in voting, and it became our nation's 
     most successful and consequential civil rights law. 
     Previously, many states barred Black voters from 
     participating in the political system through literacy tests, 
     poll taxes, voter intimidation, and violence. By outlawing 
     the tests and devices that prevented people of color from 
     voting, the Voting Rights Act and its prophylactic 
     preclearance formula put teeth into the 15th Amendment's 
     guarantee that no citizen can be denied the right to vote 
     because of the color of their skin.
       Only 15 years ago, Congress reauthorized the Voting Rights 
     Act for the fourth time with sweeping bipartisan support. The 
     House of Representatives reauthorized the legislation by a 
     390-33 vote and the Senate passed it unanimously, 98-0. Given 
     the importance of the Voting Rights Act, Congress undertook 
     that reauthorization with care and deliberation--holding 21 
     hearings, hearing from more than 90 witnesses, and compiling 
     a record of more than 15,000 pages of evidence of continuing 
     racial discrimination in voting.


                        Shelby County v. Holder

       In 2013, the U.S. Supreme Court's ruling in Shelby County 
     v. Holder eviscerated the most powerful provision of the 
     Voting Rights Act: the Section 5 preclearance system. This 
     provision applied to nine states and localities in another 
     six states. These jurisdictions were required to obtain 
     preclearance from the Justice Department or the U.S. District 
     Court for the District of Columbia before implementing any 
     change in a voting practice or procedure.
       Section 5 was immensely successful in blocking proposed 
     voting restrictions in states and localities with histories 
     of racial discrimination. It also ensured that changes to 
     voting rules were public, transparent, and evaluated to 
     protect voters against discrimination based on race and 
     language. But, in Shelby County, Chief Justice John Roberts 
     on behalf of the majority, declared that ``Our country has 
     changed.'' The Court held that the formula identifying 
     jurisdictions subject to preclearance was decades-old and 
     outdated, functionally halting the preclearance requirement. 
     However, the Court invited Congress to assess ``current 
     conditions'' to update the formula for deciding which 
     jurisdictions should be covered by preclearance.
       Despite the best efforts of The Leadership Conference and 
     its many member organizations to protect voting rights and 
     promote civic participation, the impact of eight years of 
     overt and covert anti-voter tactics has had a lasting impact. 
     The Supreme Court's invalidation of the preclearance formula 
     released an immediate and sustained flood of new voting 
     restrictions in formerly covered states. Without the Voting 
     Rights Act's tools to fight the most blatant forms of 
     discrimination, people of color continue to face barriers to 
     exercising their most important civil right, including voter 
     intimidation, felon disenfranchisement laws built on top of a 
     system of mass incarceration, burdensome and costly voter ID 
     requirements, and purges from the voter rolls. States have 
     also cut back early voting opportunities, eliminated same-day 
     voter registration, and shuttered polling places.
       The Leadership Conference commissioned several state 
     reports that were prepared by our partner civil rights 
     organizations and allies to document the breadth and depth of 
     recent voting discrimination in ten states across the 
     country. These reports powerfully demonstrate that Congress 
     has an urgent imperative to restore the Voting Rights Act. 
     Individually and collectively, they reveal that voting 
     discrimination after Shelby County is pervasive, persistent, 
     and adaptive, sometimes taking new forms but no less 
     pernicious. The reports document voter restrictions passed 
     this year and cite the recent history of voting 
     discrimination in these states. This is the ``current 
     discrimination'' on which Congress must update the 
     preclearance formula and make several additional amendments 
     to the Voting Rights Act

[[Page H4456]]

     so voters of color everywhere can fully participate in the 
     political process. All of the state reports have or will be 
     introduced into the congressional record of the August 16, 
     2021, House Judiciary hearing on Oversight of the Voting 
     Rights Act: Potential Legislative Reforms.


               Brnovich v. Democratic National Committee

       Furthermore, just last month, the Supreme Court ruled in 
     Brnovich v. Democratic National Committee that two 
     discriminatory Arizona voting laws did not violate Section 2 
     of the Voting Rights Act. In its opinion in Brnovich, the 
     Court disregards the congressional purpose of Section 2, 
     which is to provide a powerful means to combat race 
     discrimination in voting and representation. The majority 
     departs from decades of precedent enforcing Section 2 
     according to Congress' intent, and it creates new 
     ``guideposts'' that will ineffectively identify and eradicate 
     discriminatory policies and practices. The decision relies on 
     a limited interpretation of the Voting Rights Act that will 
     make it more difficult to challenge discriminatory voting 
     laws. This decision reiterates the need for Congress to pass 
     the John Lewis Voting Rights Advancement Act to restore the 
     legislative purpose of Section 2.


 Evidence of the Need for the John Lewis Voting Rights Advancement Act

       Discriminatory voting practices are not merely the province 
     of those states with a long history of discrimination. 
     Pernicious practices such as voter purging and restrictive 
     identification requirements--which disproportionately affect 
     voters of color--occur in states throughout the nation. As we 
     commemorated the 56th anniversary of the Voting Rights Act 
     earlier this month, it is important to note that between 
     January 1 and July 14, 2021, at least 18 states enacted 30 
     new laws that restrict our freedom to vote, and more than 400 
     bills with restrictive provisions have been introduced in 49 
     states in the 2021 legislative sessions.
       During the 117th Congress, the Senate Committee on the 
     Judiciary, House Committee on the Judiciary, and the 
     Committee on House Administration have held a total of 14 
     hearings and found significant evidence that barriers to 
     voter participation remain for people of color and language-
     minority voters.
       The Senate Committee on the Judiciary has held three 
     hearings on voting rights:
       Restoring the Voting Rights Act after Brnovich and Shelby 
     County (July 14, 2021); Supreme Court Fact-Finding and the 
     Distortion of American Democracy (April 27, 2021); Jim Crow 
     2021: The Latest Assault on the Right to Vote (April 20, 
     2021).
       The House Judiciary Committee, Subcommittee on the 
     Constitution, Civil Rights, and Civil Liberties has held six 
     hearings on voting rights:
       Oversight of the Voting Rights Act: Potential Legislative 
     Reforms (August 16, 2021); The Need to Enhance the Voting 
     Rights Act: Practice-Based Coverage (July 27, 2021); The 
     Implications of Brnovich v. Democratic National Committee and 
     Potential Legislative Responses (July 16, 2021); The Need to 
     Enhance the Voting Rights Act: Preliminary Injunctions, Bail-
     in Coverage, Election Observers, and Notice (June 29, 2021); 
     Oversight of the Voting Rights Act: A Continuing Record of 
     Discrimination (May 27, 2021); Oversight of the Voting Rights 
     Act: The Evolving Landscape of Voting Discrimination (April 
     22, 2021).
       The House Administration's Subcommittee on Elections has 
     held five investigatory hearings with 35 witnesses, collected 
     numerous reports and documents, and released a comprehensive 
     report.
       Voting In America: A National Perspective On The Right To 
     Vote, Methods Of Election, Jurisdictional Boundaries, And 
     Redistricting (June 24, 2021); Voting In America: The 
     Potential For Polling Place Quality And Restrictions On 
     Opportunities To Vote To Interfere With Free And Fair Access 
     To The Ballot (June 11, 2021); Voting In America: The 
     Potential For Voter ID Laws, Proof-Of-Citizenship Laws, And 
     Lack Of Multi-Lingual Support To Interfere With Free And Fair 
     Access To The Ballot (May 24, 2021); Voting In America: The 
     Potential For Voter List Purges To Interfere With Free And 
     Fair Access To The Ballot (May 6, 2021); Voting In America: 
     Ensuring Free And Fair Access To The Ballot (April 1, 2021).


 The John Lewis Voting Rights Advancement Act Restores and Modernizes 
                         the Voting Rights Act

       The Voting Rights Act of 1965 was passed with leadership 
     from both the Republican and Democratic parties, and the 
     reauthorizations of its enforcement provisions were signed 
     into law each time by Republican presidents: President Nixon 
     in 1970, President Ford in 1975, President Reagan in 1982, 
     and President Bush in 2006. For more than half a century, 
     protecting citizens from racial discrimination in voting has 
     been bipartisan work.
       The John Lewis Voting Rights Advancement Act fills a 
     distinct and critical role in protecting the freedom to vote 
     and ensuring elections are safe and accessible. When it comes 
     to our elections, we all want an open and transparent process 
     we can trust, where Americans have equal freedom to vote, 
     whether we live in a small town or big city, or the coasts or 
     the Midwest. Passage of the John Lewis Voting Rights 
     Advancement Act will fulfill part of that promise of a 
     democracy that works for--and includes--us all.
       The John Lewis Voting Rights Advancement Act would restore 
     the VRA in the following ways:
       The Act would update criteria under the ``geographic 
     trigger'' for identifying states and localities required to 
     obtain federal review of voting changes before they are 
     implemented.
       Under the ``practice-based'' trigger, every state and 
     locality nationwide that is sufficiently diverse would be 
     required to obtain federal review before enacting specific 
     types of voting changes that are known to be discriminatory 
     in their use to silence the growing political power of voters 
     of color.
       The Act would require all states and localities to provide 
     public notice to all voters of certain voting changes.
       The Act would address the Brnovich decision by clarifying 
     factors that voters of color can use to prove a vote dilution 
     or vote denial claim under Section 2 of the VRA and restoring 
     voters' full ability to challenge racial discrimination in 
     voting in court.
       The Act would allow the Department of Justice and voters of 
     color to challenge changes in a voting rule that would make 
     voters of color worse off in terms of their voting rights 
     than the status quo.
       The Act would expand authority for courts to ``bail-in'' 
     jurisdictions to the preclearance process and would update 
     the ability of jurisdictions to ``bail-out'' of the 
     preclearance process once they demonstrate a record of not 
     harming voters of color.
       The Act would grant the Department of Justice authority to 
     compel the production of documents relevant to investigations 
     of potential voting rights violations prior to filing an 
     enforcement action.
       The U.S. Attorney General would have authority to request 
     federal observers anywhere there is a serious threat of 
     racial discrimination in voting.
       The Act would provide voters with additional protection by 
     easing the standard for when courts can temporarily block 
     certain types of voting changes while the change is under 
     review in court. This is important because once a voter is 
     discriminated against in an election, it cannot be undone.


                               Conclusion

       When President Lyndon Johnson signed the Voting Rights Act 
     of 1965, he declared the law a triumph and said, ``Today we 
     strike away the last major shackle of . . .  fierce and 
     ancient bonds.'' But 56 years later, the shackles of white 
     supremacy still restrict the full exercise of our rights and 
     freedom to vote.
       For democracy to work for all of us, it must include us 
     all. When certain communities cannot access the ballot and 
     when they are not represented in the ranks of power, our 
     democracy is in peril. The coordinated, anti-democratic 
     campaign to restrict the vote targets the heart of the 
     nation's promise: that every voice and every eligible vote 
     count. Congress must meet the urgency of this moment and pass 
     the John Lewis Voting Rights Advancement Act. This bill will 
     restore the essential provision of the Voting Rights Act that 
     blocks discriminatory voting practices before they go into 
     effect, putting a transparent process in place for protecting 
     the right to vote. It will also restore other provisions to 
     help bring down the barriers erected to silence Black, Brown, 
     Native, young, and new Americans and ensure everyone has a 
     voice in the decisions impacting our lives.
       On March 7, 1965, just a few months before President 
     Johnson would sign the Voting Rights Act into law, then 25-
     year-old John Lewis led more than 600 people across the 
     Edmund Pettus Bridge to demand equal voting rights. State 
     troopers unleashed brutal violence against the marchers. 
     Lewis himself was beaten and bloodied. But he never gave up 
     the fight. For decades, the congressman implored his 
     colleagues in Congress to realize the promise of equal 
     opportunity for all in our democratic process. Before his 
     death, he wrote: ``Time is of the essence to preserve the 
     integrity and promises of our democracy.'' Members of this 
     body must now heed his call with all the force they can 
     muster and support the John Lewis Voting Rights Advancement 
     Act.
           Sincerely,
       The Leadership Conference on Civil and Human Rights, A. 
     Philip Randolph Institute, ADL (Anti-Defamation League) 
     Advancement Project, National Office, African American 
     Ministers In Action, Alliance for Youth Action, American 
     Association of University Women (AAUW), American Civil 
     Liberties Union, American Federation of State, County and 
     Municipal Employees, American Federation of Teachers, 
     American Humanist Association, American-Arab Anti-
     Discrimination Committee (ADC), Americans for Democratic 
     Action (ADA), Arab American Institute (AAI), Asian Americans 
     Advancing Justice--AAJC, Association of University Centers on 
     Disabilities (AUCD), Bend the Arc: Jewish Action, Blue Wave 
     Postcard Movement, Brennan Center for Justice, Center for 
     Living & Working, Inc.
       Center for the Study of Hate & Extremism--California State 
     University, San Bernardino, CIAC, Citizens for Responsibility 
     and Ethics in Washington (CREW), Clean Elections Texas, 
     Colorado Latino Leadership Advocacy and Research 
     Organization, Common Cause, Communications Workers of America 
     (CWA), Community Catalyst, Declaration for American 
     Democracy, Defending Rights & Dissent, Delta Sigma Theta 
     Sorority, Inc., DemCast USA, Democracy 21, Demos, Empowering 
     Pacific Islander Communities (EPIC), End Citizens United/Let 
     America Vote Action Fund, Equal Citizens, Evangelical 
     Lutheran Church in America, Fair Fight Action, FairVote, 
     Feminist

[[Page H4457]]

     Majority, Fix Democracy First, Florida Rising, Franciscan 
     Action Network, Freedom From Religion Foundation.
       Government Accountability Project, Human Rights Campaign, 
     Impact Fund, Indivisible, Japanese American Citizens League, 
     Jewish Council for Public Affairs, Justice in Aging, Labor 
     Council for Latin American Advancement, Lambda Legal, 
     LatinoJustice PRLDEF, Leadership Conference of Women 
     Religious, League of Conservation Voters, League of Women 
     Voters of the United States, Louisiana Advocates for 
     Immigrants in Detention, Matthew Shepard Foundation, Mi 
     Familia Vota, Mid-Ohio Valley Climate Action, Movement 
     Advancement Project, National Action Network, National 
     Association of Human Rights Workers, National Black Justice 
     Coalition, National Council of Churches of Christ in the USA.
       National Council of Jewish Women, National Council of 
     Jewish Women, Pennsylvania National Council on Independent 
     Living, National Urban League, National Wildlife Federation, 
     Native American Rights Fund, NETWORK Lobby for Catholic 
     Social Justice, New Era Colorado, North Carolina Asian 
     Americans Together, OCA-Asian Pacific American Advocates, 
     OCA-Asian Pacific Islander American Advocates Utah, OCA 
     Greater Chicago, OCA-Asian Pacific American Advocates Greater 
     Cleveland Chapter, OCA-Great Phoenix Chapter, OCA-Greater 
     Houston, Our Vote Texas, People For the American Way, 
     People's Parity Project, Planned Parenthood Action Fund, 
     Public Citizen, Sierra Club, St. Louis Chapter of JACL, The 
     Andrew Goodman Foundation, The National Vote, The New 
     Pennsylvania Project, The Workers Circle, Union for Reform 
     Judaism, Union of Concerned Scientists, Urban League of Union 
     County, Inc., Voices For Progress.
                                  ____


                   Statement of Administration Policy


   H.R. 4--John R. Lewis Voting Rights Advancement Act of 2021--Rep. 
                    Sewell, D-AL, and 218 cosponsors

       The Administration strongly supports House passage of H.R. 
     4, the John R. Lewis Voting Rights Advancement Act of 2021 
     (VRAA).
       The right to vote freely, the right to vote fairly, the 
     right to have your vote counted is fundamental. In the last 
     election, all told, more than 150 million Americans of every 
     age, of every race, of every background exercised their right 
     to vote.
       This historic level of participation in the face of a once-
     in-a-century pandemic should have been celebrated by 
     everyone. Instead, some have sought to delegitimize the 
     election and make it harder to vote, in many cases by 
     targeting the methods of voting that made it possible for 
     many voters to participate. These efforts violate the most 
     basic ideals of America.
       Yet another massive wave of discriminatory action may be 
     imminent as we enter a new legislative redistricting cycle. 
     Unfortunately, incumbents too often cling to power by drawing 
     district lines to favor their own prospects at the expense of 
     minority communities, choosing their voters instead of the 
     other way around.
       While anti-voter action undermines democracy for all 
     Americans, we know that communities of color often suffer the 
     worst effects of these measures--and all too often, that is 
     not by accident.
       The sacred right to vote is under attack across the 
     country.
       The VRAA will strengthen vital legal protections to ensure 
     that all Americans have a fair opportunity to participate in 
     our democracy. Among other things, it would create a new 
     framework for allowing DOJ to review voting changes in 
     jurisdictions with a history of discrimination to ensure that 
     they do not discriminate based on race. It would also clarify 
     the scope of legal tools designed to challenge discriminatory 
     voting laws in court, ensuring that the Voting Rights Act 
     offers protection against modern forms of voter suppression.
       In an essay published shortly after he died, Congressman 
     John Lewis wrote, ``Democracy is not a state. It is an 
     act[.]'' This bill not only bears his name, it heeds his 
     call. The Administration looks forward to working with 
     Congress as the VRAA proceeds through the legislative process 
     to ensure that the bill achieves lasting reform consistent 
     with Congress' broad constitutional authority to protect 
     voting rights and to strengthen our democracy.
                                  ____


          [From the Brennan Center for Justice, Aug. 20, 2021]

                       Voter Suppression in 2020

                          (By William Wilder)


                            I. Introduction

       In key respects, the 2020 elections demonstrated the 
     strength and resilience of America's electoral system. Voter 
     turnout smashed records in almost every state, and despite 
     unprecedented challenges from the pandemic, we did not suffer 
     an election administration catastrophe. Opponents of voting 
     rights suggest that these successes mean that voting barriers 
     are no longer a significant concern and that our country has 
     moved past the era of voter suppression. However, a closer 
     look into turnout numbers reveals persistent and troubling 
     racial disparities that are due in part to racial 
     discrimination in the voting process. And in the 2020 
     election cycle, voter suppression was alive and well.
       Overall, 70.9 percent of eligible white voters cast ballots 
     in the 2020 elections, compared with only 58.4 percent of 
     non-white voters. Despite significant gains in overall voter 
     participation, the turnout gap between white and non-white 
     voters has gone virtually unchanged since 2014 and has in 
     fact grown since its modern-era lows in 2008 and 2012, 
     according to a recent Brennan Center analysis.
       During the same period, racially discriminatory voter 
     suppression entered a new age. After the 2010 elections, for 
     the first time since the peak of the Jim Crow era, states 
     across the country began to enact laws making it more 
     difficult to vote. This wave of voter suppression was 
     intertwined with race and the nation's changing racial 
     demographics and was, at least in part, a backlash against 
     rising turnout among communities of color contributing to the 
     election of the nation's first Black president. Efforts to 
     suppress the votes of communities of color accelerated in 
     2013, when the Supreme Court gutted a key part of the Voting 
     Rights Act in Shelby County v. Holder. In the eight years 
     since, and especially in 2020, these trends continued.
       Racial discrimination in voting takes many forms, ranging 
     from blatant and open attempts to restrict access to voting 
     among communities of color to more subtle policies that place 
     heavier burdens on certain communities. In 2020, voters of 
     color faced the full spectrum of racial voter suppression. 
     This report provides an overview of the various forms of 
     racially discriminatory voter suppression that took place in 
     the 2020 elections and their aftermath.
       The purpose of this report is to catalog instances of 
     discriminatory voting changes and practices occurring in and 
     since 2020 and provide context for the broader political 
     movement behind many of these changes. In terms of voter 
     suppression, 2020 was a banner year, and not just because of 
     the volume of racially discriminatory changes and incidents. 
     Increasingly, the public officials and political operatives 
     behind these voting changes are acknowledging that the intent 
     of their new laws and policies is to exclude certain people 
     from the electorate and bring about particular outcomes.
       For example, as Arizona legislators were debating new 
     restrictive voting bills, State Rep. John Kavanagh stated 
     that Arizona Republicans ``don't mind putting security 
     measures in that won't let everybody vote'' and that he was 
     more concerned with the ``quality of votes'' than with 
     overall voter turnout. When defending two of Arizona's 
     restrictive voting laws before the Supreme Court in March 
     2021, the attorney for the Republican National Committee 
     admitted that the party's interest in the laws was to avoid 
     being at ``a competitive disadvantage relative to 
     Democrats.'' And when discussing proposals to expand access 
     to mail voting, President Trump stated that an expansion of 
     early and mail voting would lead to ``levels of voting that 
     if you agreed to it, you'd never have a Republican elected in 
     this country again.''
       These statements do not represent judicial findings of 
     intentional discrimination. But when viewed alongside the 
     long list of instances of discrimination and racial 
     disparities in the 2020 election cycle, these statements 
     offer a window into discriminatory intent playing out in real 
     time. This public rhetoric provides important context for 
     understanding the full spectrum of discriminatory effects 
     discussed in this report.
       Examples of discriminatory voting practices--including new 
     restrictive legislation, discriminatory voter roll purges, 
     long lines and closed polling places, voter intimidation and 
     misinformation, and efforts to overthrow elections through 
     litigation or by invalidating ballots cast by mail--must all 
     be viewed in the context of these obvious statements of 
     intent. All of these instances are evidence of the same 
     underlying problem: the persistence and evolution of 
     unconstitutional racial discrimination in our election 
     system.
                                  ____


          [From the Brennan Center for Justice, July 29, 2021]

                        Representation for Some


 The Discriminatory Nature of Limiting Representation to Adult Citizens

 (By Yurij Rudensky, Ethan Herenstein, Peter Miller, Gabriella Limon, 
                             and Annie Lo)


                              Introduction

       Every 10 years, political districts at all levels of 
     government are redrawn to make sure they are equal in 
     population as required by the U.S. Constitution. Currently 
     every state apportions representatives and draws 
     congressional and state legislative districts on the basis of 
     a state's total population. That is, when districts are 
     drawn, all people living in the state, including children and 
     noncitizens, are counted for the purposes of representation.
       However, some Republican political operatives and elected 
     officials aim to unsettle this long-standing practice by 
     excluding children and noncitizens from the population 
     figures used to draw state legislative districts. Rather than 
     count everyone, states would draw districts based only on the 
     adult citizen population. This approach is rooted in an 
     explicitly discriminatory plan to disadvantage growing Latino 
     (and, to a lesser extent, Asian American and Black) 
     communities. It would enable states to pack children and 
     noncitizens, who are disproportionately Latino, Asian 
     American, and Black,

[[Page H4458]]

     into sprawling, supersized legislative districts. Residents 
     of these districts would receive less representation than 
     they do under the total population approach that states 
     currently use, and this could have tremendous consequences 
     for the funding of crucial public goods--including schools 
     and transportation--that are used by everyone in a community 
     regardless of age or citizenship status.
       Making such a break with current practice and precedent 
     would be of dubious legality and would leave states 
     vulnerable to a host of legal challenges. It also would have 
     major practical implications for redistricting. This study 
     looks at what such a change would mean for representation and 
     the allocation of political power in the United States by 
     focusing on its impact three demographically distinct states: 
     Texas, Georgia, and Missouri.
       Our findings include the following:
       Citizen children, not noncitizens, would account for the 
     overwhelming majority of those excluded in adult citizen-
     based districts. Citizen children make up more than 70 
     percent of those who would be excluded in Texas, 80 percent 
     in Georgia, and 90 percent in Missouri.
       Large portions of the population in all three states would 
     no longer be counted in adult citizen-based districts. Nearly 
     36 percent of the total population in Texas, 30 percent in 
     Georgia, and 25 percent in Missouri would be excluded from 
     the apportionment of legislative seats.
       Communities of color would be disproportionately impacted. 
     Latino and Asian American communities in particular would 
     suffer substantially greater exclusion than their white 
     counterparts. While only about 20 percent of the white 
     population across the three states would be left uncounted, 
     nearly 30 percent of the Black population and more than 50 
     percent of the Latino and Asian American populations would be 
     excluded from legislative districts. The situation in Georgia 
     would be particularly stark, with nearly 70 percent of Latino 
     residents, most of whom are children, excluded.
       Diverse metropolitan areas that support majority-minority 
     districts would cede representation to whiter, more rural 
     regions. The Houston, Dallas, and Rio Grande Valley regions 
     of Texas would see sharp reductions in representation. In 
     Georgia, the apportionment shift would hit metro Atlanta. And 
     in Missouri, the representational losses would flow from 
     areas around Kansas City and St. Louis. In all three states, 
     many of the current districts that provide Latino and Black 
     communities an opportunity to secure representatives of their 
     choice would no longer be viable or would need to be 
     significantly reconfigured.
       Many of the areas that would be most impacted by an 
     apportionment shift face deep inequities and new challenges, 
     underscoring their urgent need for full representation. In 
     Missouri, losses in representation would be borne primarily 
     by Black neighborhoods in Kansas City and St. Louis that were 
     formally segregated during the Jim Crow era and that continue 
     to suffer from disinvestment. In Texas, under-populated 
     districts, which would need to expand to bring in additional 
     adult citizens, include much of historically Black Houston as 
     well as overwhelmingly Latino areas, including colonias near 
     the U.S.-Mexico border that increasingly face infrastructural 
     and climate-related environmental dangers. In Georgia, 
     representational losses would be concentrated in the rapidly 
     diversifying suburbs of Atlanta, where communities of color 
     are taking on historically white political establishments to 
     address urgent political needs around education and policing.
                                  ____


          [From the Brennan Center for Justice, Aug. 20, 2021]

  Racial Turnout Gap Grew in Jurisdictions Previously Covered by the 
                           Voting Rights Act

           (By Kevin Morris, Peter Miller, and Coryn Grange)

       In 2013, when Chief Justice John Roberts delivered the 
     Supreme Court's majority opinion in Shelby County v. Holder, 
     he argued that the Voting Rights Act of 1965's preclearance 
     requirement under Section 5 was no longer needed because 
     ``African-American voter turnout has come to exceed white 
     voter turnout in five of the six States [Alabama, Georgia, 
     Louisiana, Mississippi, and South Carolina] originally 
     covered by Sec. 5 with a gap in the sixth State of less than 
     one half of one percent [Virginia].'' Although this was true 
     in 2012--and only 2012--the white-Black turnout gap in these 
     states reopened in subsequent years, and by 2020, white 
     turnout exceeded Black turnout in five of the six states.


             Replicating the Shelby County opinion methods

       Using the same source of census data that was used in the 
     Shelby County opinion, we show that the racial turnout gap 
     has increased in most jurisdictions that were previously 
     covered by preclearance. Racial turnout rates are calculated 
     by dividing the number of ballots cast by the estimated 
     citizen population above the age of 18. This analysis was 
     compiled from the past 24 years of general-election voter 
     data from eight states. The states used are based on the 
     eight states the Voting Rights Advancement Act (VRAA), as 
     introduced in 2019, will likely cover, according to recent 
     congressional testimony by George Washington University law 
     professor Peyton McCrary. Those states are Alabama, Florida, 
     Georgia, Louisiana, Mississippi, North Carolina, South 
     Carolina, and Texas--all of which were covered in whole or in 
     part by the preclearance provisions of the Voting Rights Act 
     before Shelby County.
       Broad conclusions made about the turnout of eligible Latino 
     and Asian voters in states where they are underrepresented 
     can be imprecise due to the small sample size provided by 
     census data. We controlled for this deficiency in data by 
     only analyzing states' Latino and Asian American turnout for 
     years that had at least 30 Latino and Asian American eligible 
     voters accounted for. Overall, we found that the larger the 
     Latino and Asian American population of states, the closer 
     the size the white-nonwhite turnout gap mirrored the results 
     of the Brennan Center's examination of the same gap at a 
     nationwide level, due to the greater representation of these 
     undercounted groups. When this wasn't the case, the white-
     nonwhite gap more closely mirrored the white-Black gap.
       We also believe the white-nonwhite gap may be 
     underestimated, as the census data we use for analysis fails 
     to provide information on Native American voter turnout, a 
     group that is significantly impacted by discriminatory voting 
     laws. However, we do know from the National Congress of 
     American Indians that registered voters in this group have a 
     lower turnout rate than other racial groups, which provides 
     the basis for our assumption.


Racial turnout gaps in jurisdictions to be covered by the Voting Rights 
                            Advancement Act

       While in 2012, just before the Shelby County decision, the 
     white-Black turnout gap was shrinking in the states we 
     analyzed, and in many instances even briefly closed, this 
     trend has reversed in the years since. In 2012, seven out of 
     the eight states had Black voter turnout higher than that of 
     white voters. In 2020, the reverse is true--in only one of 
     the eight states was Black turnout higher than white turnout.
       In a few states, this reversal is especially alarming. 
     Louisiana, South Carolina, and Texas had higher turnout gaps 
     in 2020 than at any point in the past 24 years. South 
     Carolina's white-Black turnout gap widened the most, 
     expanding by a staggering 20.9 percentage points within the 
     eight years since Shelby County. While Black turnout exceeded 
     white turnout in 2012, white turnout was more than 15 
     percentage points higher than Black turnout in 2020.
       A similar trend can be seen in the gap between white voters 
     and all nonwhite voters. The total white-nonwhite turnout gap 
     has grown since 2012 in all of the eight states likely to be 
     covered under the VRAA. There is sufficient data to conclude 
     that the gap has increased for Blacks, Hispanics, and Asians 
     in Florida, Georgia, North Carolina, South Carolina, and 
     Texas. In Alabama, Louisiana, and Mississippi, the sample 
     sizes in the available 2020 census data are too small for 
     Hispanic and Asian voters to make much of a difference in an 
     overall white-nonwhite turnout gap estimation that is 
     distinct from the white-Black turnout gap in those states. 
     Notably, North Carolina went from having a larger share of 
     nonwhite voters represented in 2012 with a white-nonwhite gap 
     of -9.3 percentage points to having a gap of 5.4 percentage 
     points, a jump of 14.7 percentage points, far greater than 
     the national average of 4.6 percentage points.
       Overall, we see that the growth in the racial turnout gaps 
     between 2012 and 2020 were even starker in the states likely 
     to be subject to preclearance under the VRAA than those seen 
     nationwide. Seven out of the eight states had white-nonwhite 
     turnout gaps that grew more than the national rate of 4.6 
     percentage points between 2012 and 2020. And in four out of 
     the eight states to be subject to preclearance under the 
     VRAA, the white-Black turnout gap grew more than the national 
     rate of 10.3 percentage points from 2012 to 2020.
       Expanding the analysis to other nonwhite groups also 
     reveals that, even in 2012, progress on closing racial 
     turnout gaps was not as significant as the Shelby County 
     decision suggested. The Court only examined the white-Black 
     turnout gap, which did temporarily close in many states in 
     2012, likely due to Barack Obama being on the ballot and 
     Black voter turnout subsequently surging. But with the 
     exception of Latino voter turnout briefly surpassing white 
     turnout in Florida in 2012 and Louisiana in 2012 and 2016, 
     Latino voter turnout has lagged behind white voter turnout 
     for the last 24 years in every state where those rates are 
     measurable.


                       Shelby County's aftermath

       In 2013, the Supreme Court suggested that the closing of 
     the racial turnout gap supported the conclusion that the need 
     for preclearance was over. As this analysis shows, in the 
     years following the Shelby County decision, these racial 
     turnout gaps widened once again. The reopening of the racial 
     turnout gap likely has many causes, and it is possible that 
     the ending of the preclearance condition has played a role. 
     What is clear, however, is that the trends identified by the 
     Supreme Court have reversed themselves with alarming speed.
                                  ____


          [From the Brennan Center for Justice, Aug. 6, 2021]

          Large Racial Turnout Gap Persisted in 2020 Election

                   (By Kevin Morris and Coryn Grange)

       In the 2020 election, voter turnout surged as more 
     Americans cast ballots than in any

[[Page H4459]]

     presidential election in a century, despite a global 
     pandemic. This was true for the entire electorate as well as 
     for each racial group--more Black Americans voted in 2020 
     than any presidential election since 2012, and Latino 
     Americans and Asian Americans also surpassed their previous 
     turnout records. (Unfortunately, we don't have comparable 
     figures for Native Americans.)
       These successes have been and should be celebrated. 
     However, they must not be mistaken for signs that racial 
     discrimination in voting is no longer an enormous problem, 
     one that continues to advantage white voters to a degree that 
     must be remedied.
       The 2020 election must also be remembered for another 
     turnout statistic: 70.9 percent of white voters cast ballots 
     while only 58.4 percent of nonwhite voters did. As the graph 
     below shows, 62.6 percent of Black American voters, 53.7 
     percent of Latino American voters, and 59.7 percent of Asian 
     American voters cast ballots in 2020.
       There is ample evidence that the sorts of barriers being 
     introduced this year disproportionately reduce turnout for 
     voters of color. The gaps between white and nonwhite voters 
     are bound to get worse. That's why it's necessary to reverse 
     these new voting restrictions.


                Narrowing the gap, but only temporarily

       The difference between white and nonwhite voter turnout has 
     remained relatively unchanged over the last six presidential 
     elections, with a few notable fluctuations. In 2008 and 2012, 
     Barack Obama was on the ballot, and turnout among Black 
     voters in those elections was higher than at any point since 
     1996. And in 2012, the gap between white and nonwhite voter 
     turnout narrowed to 8 percentage points, the lowest since 
     1996.
       The graph below shows that after reaching that record low 
     in 2012, the turnout gap expanded once again between white 
     voters and nonwhite voters, reaching 12.6 percentage points 
     in the 2016 presidential election and 12.5 in 2020.
       The graph also shows a decrease in nonwhite voter turnout 
     between the 2008 and 2012 elections. After the record turnout 
     in 2008, many state legislatures reacted by quickly passing a 
     spate of new restrictive voting laws that made it 
     disproportionately difficult for voters of color to cast 
     ballots.
       In 2013, the Supreme Court used the narrowing of the 
     turnout gap between white and Black voters in 2008 and 2012, 
     as seen in the following graph, to justify gutting key 
     protections against racial discrimination in the Voting 
     Rights Act of 1965. That ruling in Shelby County v. Holder 
     made it easier for states to enact restrictive policies.


       The gaps between white voters and individual racial groups

       2021 looks like 2009 in that high nonwhite voter turnout in 
     the presidential election has been followed by restrictive 
     voting laws, but there's a crucial difference. As the graph 
     above indicates, the racial turnout gap narrowed between 2004 
     and 2008, but not between 2016 and 2020. The 2021 backlash is 
     coming at a point when the disparities in turnout between 
     racial groups are significantly larger than they were in 2008 
     and 2012.
       While the gap between nonwhite voters and white voters has 
     stayed about the same in the 2016 and 2020 elections, the 
     gaps between white voters and voters of specific racial 
     groups have varied. As the graph below demonstrates, the 
     white-Asian gap narrowed significantly, from 16.3 percentage 
     points in 2016 to 11.3 points last year, even as the white-
     Black turnout gap widened relative to 2016, going from 5.9 
     percentage points to 8.3 points. This is not to say that the 
     white-Asian gap closed. As the graph makes clear, the white-
     Asian gap had previously been very large, and although the 
     white-Asian turnout gap reached its lowest level in at least 
     two decades in 2020, white voter turnout was still more than 
     10 percentage points higher than that of Asian Americans.
       This narrowing of the white-Asian gap was offset by an 
     increase in the white-Black turnout gap from 2016 to 2020. As 
     the graph shows, the white-Black gap has consistently grown 
     since 2012. In 2020, it reached the highest point in a 
     presidential election since at least 1996.
       The white-Latino turnout gap has previously been very 
     large, and the same was true in 2020. At 17.2 percentage 
     points, the 2020 white-Latino turnout gap was larger than the 
     gaps between white voters and other racial groups, and it 
     remained virtually unchanged from 2016.
       As noted earlier, the Census Bureau data we draw on for 
     this analysis fails to give us insight into the relative 
     turnout of another group regularly impacted by discriminatory 
     voting laws: Native Americans. However, we do know from the 
     National Congress of American Indians that registered voters 
     in this group have a lower turnout rate than other racial 
     groups and face unique difficulties accessing the ballot box 
     along with the ones faced by other nonwhite Americans.


                       2008 backlash versus today

       Like the backlash after high turnout in 2008, we are now 
     experiencing another wave of restrictive voting laws, along 
     with Brnovich v. Democratic National Committee, another 
     Supreme Court ruling that weakens the Voting Rights Act and 
     will make challenging racially discriminatory voting laws 
     even harder. This backlash, however, does not come on the 
     heels of the narrowest racial turnout gap in a generation. 
     This time, it follows a racial turnout gap that remained 
     steady and even grew for Black Americans.
       Across the United States, political organizers successfully 
     mobilized communities of color in 2020. But the record-
     breaking overall turnout was not enough to close the racial 
     turnout gap. And in the aftermath of the Supreme Court's 
     Brnovich decision in, the Voting Rights Act's protections for 
     racial minorities are weaker than ever. It is imperative to 
     stop the new restrictive voting laws and provide tools to 
     fight race discrimination in voting.
                                  ____


 [From the Committee on House Administration, Chairperson Zoe Lofgren 
   (D-Calif.), Subcommittee on Elections, 117th Congress, July, 2021]

   Report on Voting in America: Ensuring Free and Fair Access to the 
                                 Ballot

             (Prepared by Chair G. K. Butterfield, D-N.C.)

                            Acknowledgements

       The Subcommittee on Elections and the Committee on House 
     Administration would like to thank the witnesses who appeared 
     before the Subcommittee and provided their expertise and 
     testimony, without which this report would not be possible.
       The Subcommittee would like to thank: Debo P. Adegbile, 
     WilmerHale, LLP; Dr. Lonna Rae Atkeson, University of New 
     Mexico; Dr. Matt Barreto, UCLA Latino Policy & Politics 
     Initiative; Matthew L. Campbell, Native American Rights 
     Fund--NARF; Gilda R. Daniels, Advancement Project; Sonja 
     Diaz, UCLA Latino Policy & Politics Initiative; Patty 
     Ferguson-Bohnee, Sandra Day O'Connor College of Law; Wade 
     Henderson, The Leadership Conference on Civil and Human 
     Rights; Dr. Michael C. Herron, Dartmouth College; Hon. Eric 
     H. Holder, Jr., Former Attorney General of the United States 
     & National Democratic Redistricting Committee; Marcia 
     Johnson-Blanco, Lawyers' Committee for Civil Rights Under 
     Law; Hon. Joshua L. Kaul, Wisconsin Attorney General; Dr. 
     Nazita Lajevardi, Michigan State University; Sophia Lin 
     Lakin, American Civil Liberties Union--ACLU; Danielle Lang, 
     Campaign Legal Center; Isabel Longoria, Elections 
     Administrator, Harris County, Texas; Mimi M.D. Marziani, 
     Texas Civil Rights Project; Jesselyn McCurdy, The Leadership 
     Conference on Civil and Human Rights; Dr. Marc Meredith, 
     University of Pennsylvania; Terry Ao Minnis, Asian Americans 
     Advancing Justice--AAJC; Kevin Morris, Brennan Center for 
     Justice; Janai S. Nelson, NAACP Legal Defense and Educational 
     Fund, Inc.--LDF; Dr. Stephen Pettigrew, University of 
     Pennsylvania; Allison J. Riggs, Southern Coalition for Social 
     Justice; Kira Romero-Craft, Latino Justice PRLDEF; Thomas A. 
     Saenz, Mexican American Legal Defense and Educational Fund--
     MALDEF; Andrea Senteno, Mexican American Legal Defense and 
     Educational Fund--MALDEF; Jerry Vattamala, Asian American 
     Legal Defense and Education Fund--AALDEF; and Michael 
     Waldman, Brennan Center for Justice.
       The Subcommittee extends further thanks to the numerous 
     civil rights organizations, democracy and voting advocates 
     and organizations, and researchers whose work and reports 
     contributed to the body of work on access to the ballot; the 
     witnesses who testified before the Committee on House 
     Administration and who testified on behalf of the Committee's 
     Minority during the Subcommittee's hearings: and to each 
     witness who appeared before the Subcommittee in the 116th 
     Congress and whose testimony contributed to the writing of 
     this report.
       Finally, the Subcommittee extends its deep thanks to Elvis 
     A. Norquay, a member of the Turtle Mountain Band of Chippewa 
     Indians, a veteran of this country, and a voter, whose 
     testimony before the Subcommittee in February 2020 on being 
     denied the ability to vote serves as a powerful reminder that 
     no person should be disenfranchised in America. Mr. Norquay 
     is no longer with us, but may his memory continue to be a 
     blessing and an inspiration.

                           Executive Summary

       Since our founding, Americans have not enjoyed equal access 
     to the ballot. Indeed, only a small fraction of the 
     population cast ballots in the election elevating George 
     Washington as our first president. Throughout our history, 
     the country has made strides forward, but that progress was 
     neither linear nor uncontested, and access to the ballot 
     remains unequal. Following nearly 100 years of suppression 
     and discrimination in the post-Civil War United States, and a 
     decades-long fight for equality and access to the vote, on 
     August 6, 1965, President Lyndon B. Johnson signed the Voting 
     Rights Act of 1965 into law. The purpose of the Voting Rights 
     Act was to, ``banish the blight of racial discrimination in 
     voting.'' And for nearly 50 years it served this purpose.
       However, in 2013, the Supreme Court undercut a key 
     provision of the Voting Rights Act in Shelby County v. 
     Holder. In finding the Section 4(b) coverage formula 
     unconstitutional, the Section 5 preclearance provisions were 
     rendered essentially inoperable. States that were once 
     covered by the Voting Rights Act (``VRA''), and therefore 
     required to preclear their voting changes with the U.S. 
     Department of Justice to ensure they did not have a 
     discriminatory impact on minority voters, were now free to 
     enact changes without oversight, and with only the threat of 
     reactive litigation under Section 2 of the Voting Rights Act 
     or the Constitution standing in their way. Since the Court's 
     decision in Shelby, states across the country have enacted 
     new, suppressive voting and

[[Page H4460]]

     election administration laws that disproportionately and 
     discriminatorily impact minority voters.
       On July 1, 2021, the Supreme Court undermined the Voting 
     Rights Act yet again in Brnovich v. DNC. Writing for the 
     majority, Justice Samuel Alito weakened the protections 
     Congress explicitly wrote into the statute in 1982 and 
     reauthorized in 2006, and instead set forth a new set of 
     guideposts that will arguably make it harder to combat 
     discriminatory restrictions on voting. In her dissent, 
     Justice Elena Kagan wrote, ``the majority writes its own set 
     of rules, limiting Section 2 from multiple directions. 
     Wherever it can, the majority gives a cramped reading to 
     broad language.''
       Time and again, in courtrooms across the country, it has 
     been proven that racially polarized voting has existed at the 
     ballot box since 1870, when the Fifteenth Amendment was 
     ratified, and it persists today. Millions of Black, Latino, 
     Asian American, Native American, and other minority voters 
     have again become the targets of voter suppression.


    COMMITTEE ON HOUSE ADMINISTRATION AND SUBCOMMITTEE ON ELECTIONS

       The Committee on House Administration was established in 
     1947. Oversight of federal elections became one of the 
     Committee's chief tasks at its inception. After more than 70 
     years, the Committee's principal functions still include 
     oversight of federal elections. Under Rule X of the Rules of 
     the House, the Committee on House Administration has 
     jurisdiction over ``Election of the President, Vice 
     President, Members, Senators, Delegates, or the Resident 
     Commissioner; . . . and federal elections generally.'' Since 
     its creation, the Committee on House Administration has had a 
     hand in shaping legislation that touches on any and all 
     aspects of federal elections.
       In exercising those powers, throughout the 116th and 117th 
     Congresses, the Subcommittee on Elections of the Committee on 
     House Administration has reviewed the state of voting in 
     America, collecting thousands of pages of testimony and 
     evidence--and the conclusion is clear: minority voters in 
     America face ongoing discrimination in voting and barriers to 
     the ballot box.
       In writing for the majority in Shelby County, Chief Justice 
     John Roberts wrote that ``[t]he Fifteenth Amendment is not 
     designed to punish for the past; its purpose is to ensure a 
     better future.'' Moreover, the Chief Justice wrote that 
     Congress must craft a remedy that, ``makes sense in light of 
     current conditions.'' The Subcommittee endeavored to learn 
     and gather the most contemporaneous evidence available and to 
     identify the voting and election administration practices 
     that cause discriminatory harm to voters--that evidence is 
     summarized in the report that follows.
       To collect this evidence, the Subcommittee on Elections 
     held eight hearings and a listening session in the 116th 
     Congress, calling more than 60 witnesses, gathering several 
     thousand pages of written testimony, documents, and 
     transcripts, and hearing hours of oral testimony. To begin 
     the process, the Subcommittee cast a broad reach, examining 
     all manner of voting rights and election administration 
     barriers. That process resulted in a report detailing a wide 
     range of issues in voting and election administration laws 
     implemented by states in the years following the Shelby 
     County decision.
       Building upon the record gathered during the prior Congress 
     and continuing the collection of contemporaneous evidence to 
     establish the state of ``current conditions,'' during the 
     117th Congress the Subcommittee embarked on a series of five 
     investigatory hearings. Under the Chairmanship of Congressman 
     G. K. Butterfield (D-N.C.), the Subcommittee identified those 
     voting and election administration practices that the 
     Subcommittee observed previously, including those which 
     exhibited the most significant evidence of discriminatory 
     impact, and investigated further. In doing so, the 
     Subcommittee determined that a number of specific practices 
     warranted a more in-depth examination, specifically: (1) 
     voter list maintenance and discriminatory voter purges; (2) 
     voter identification (``voter ID'') and documentary proof of 
     citizenship requirements; (3) lack of access to multi-lingual 
     voting materials and language assistance; (4) polling place 
     closures, consolidations, reductions, and long wait times; 
     (5) restrictions on additional opportunities to vote; and (6) 
     changes to methods of election, jurisdictional boundaries, 
     and redistricting.
       The Subcommittee heard hours of testimony from more than 35 
     witnesses and collected numerous reports and documents. The 
     testimony and data show definitively that the voting and 
     election administration practices examined can and do have a 
     discriminatory impact on minority voters and can impede 
     access to the vote.
       Key findings of the Subcommittee include:
       (1) Purging voters from voter rolls can disproportionately 
     flag for removal, mark as inactive, or ultimately remove 
     otherwise eligible minority voters from the rolls. Although 
     voter list maintenance, when conducted correctly, is 
     appropriate and necessary, misconceived, overzealous list 
     maintenance efforts have erroneously sought to remove 
     hundreds of thousands of properly registered voters and, in 
     doing so, disproportionately burden minority voters. In the 
     years following the Shelby decision, millions of voters have 
     been removed from the voting rolls--and states once subject 
     to the Voting Rights Act saw purges at a 40 percent higher 
     rate than the rest of the country. As Sophia Lin Lakin of the 
     ACLU testified before the Subcommittee:
       ``Some of these troubling purge practices are based on 
     unreliable data and/or procedures or dubious proxies that 
     disproportionately sweep in, and ultimately disenfranchise, 
     voters of color. Oftentimes, such purges have occurred too 
     close to an election to permit corrective action, with voters 
     arriving at the polls only to discover they have been removed 
     from the rolls and unable to cast a ballot that will count.''
       For example, mailers initiating a Wisconsin voter purge 
     effort were disproportionately sent to counties with 
     disproportionately large Black and Latino populations--over 
     one-third of mailers were sent to areas that are home to the 
     largest Black voting populations, while the Black voting 
     population comprises only 5.7 percent of the total 
     electorate. Additionally, Dr. Marc Meredith of the University 
     of Pennsylvania testified that research, ``demonstrates that 
     minority registrants are more likely than White registrants 
     to be incorrectly identified as no longer eligible to vote at 
     their address of registration.''
       (2) Voter identification and documentary proof-of-
     citizenship requirements disproportionately burden minority 
     voters. Discriminatory strict voter ID laws were some of the 
     first voting laws implemented in the wake of Shelby County--
     in 2013, at least six states implemented or began to enforce 
     strict voter ID laws, some of which had been previously 
     blocked by the Department of Justice under Section 5 of the 
     Voting Rights Act. Studies have consistently demonstrated 
     that minority voters are disproportionately likely to lack 
     the forms of ID required by voter ID laws and are 
     disproportionately burdened by the time and expense of 
     acquiring the underlying documents and IDs. The consequence 
     is a negative impact on turnout amongst minority voters. A 
     recent study found that Latinos, for example, are 10 percent 
     less likely to turnout in general elections in states with 
     strict ID laws than in states without such laws. Even when 
     states offer ``free'' IDs, the actual cost of obtaining a 
     qualifying photo ID ranged from $75 to $368 due to indirect 
     costs associated with travel time, waiting time, and 
     obtaining necessary supporting documentation. The documents 
     required to establish proof-of-citizenship are also 
     particularly expensive to obtain for naturalized and 
     derivative citizens, sometimes costing in excess of $1,000.
       The burden of these requirements disproportionately fall on 
     Black, Latino, Asian American, and Native American voters, 
     and newly naturalized citizens. Recent studies have 
     demonstrated that Black and Latino voters are less likely to 
     have access to birth certificates and passports--documents 
     often required to establish proof of citizenship--than White 
     voters. For example, Asian Americans will face greater 
     barriers to registration than White voters under proof-of-
     citizenship laws. As Terry Ao Minnis, Senior Director of 
     Census and Voting Programs for Asian Americans Advancing 
     Justice, testified, ``76.7 [percent] of Asian American adults 
     are foreign-born and 39.5 [percent] of Asian American adults 
     have naturalized nationwide, compared to 4.6 [percent] of 
     White adults who are foreign-born and 3.8 [percent] who have 
     naturalized.'' Numerous studies also have demonstrated that 
     strict voter ID laws disproportionately decrease registration 
     and turnout of minority voters relative to White voters. Dr. 
     Nazita Lajevardi of the University of Michigan testified 
     that, ``strict voter identification laws are racially 
     discriminatory and have real consequences for impacting the 
     racial makeup of the voting population.''
       (3) Access to multi-lingual voting materials and assistance 
     is critical to ensuring equal access to the ballot--failure 
     to do so can negatively impact millions of potential voters, 
     a disproportionate number of whom are minority voters. The 
     demographics of America are shifting, with millions of new 
     Latino and Asian American voters, for example, joining the 
     rolls every election. The number of eligible Asian Americans 
     grew by almost 150 percent from almost 5 million in 2000 to 
     over 11.5 million in 2020--this compared to a growth rate of 
     24 percent for the total population over the same period. 
     Furthermore, American Community Survey (ACS) data estimate 
     show that Latinos accounted for just over half the nation's 
     population growth between 2010 and 2019, and ACS data 
     estimate shows that Latinos made up over 44 percent of the 
     entire nation's growth in citizen, voting-age population, 
     between 2009 and 2019.
       According to 2017 data, more than 85 percent of the voters 
     who likely require language assistance in voting were voters 
     of color. As of 2019, approximately 4.82 percent of the 
     citizen voting-age population needs to cast a ballot in a 
     language other than English. For example, over a quarter of 
     all single-race American Indian and Alaska Natives speak a 
     language other than English at home, almost three out of 
     every four Asian Americans speak a language other than 
     English at home, and almost one in three Asian Americans has 
     limited English proficiency. When limited-English proficient 
     (LEP) voters are provided with voting materials in their 
     native language the likelihood they will participate in the 
     political process increases. Dr. Matt Barreto of the UCLA 
     Latino Policy and Politics Initiative testified that studies 
     have found, ``between a 7 and 11 point increase in voter 
     turnout given

[[Page H4461]]

     access to Spanish materials.'' Conversely, failure to provide 
     the proper non-English voting materials has, ``a tremendously 
     negative impact on those communities' ability to understand 
     and participate in our elections.''
       (4) Polling place closures, consolidations, reductions, and 
     long wait times at the polls all disproportionately burden 
     minority voters and can be implemented in a discriminatory 
     manner. Issues related to polling place locations, quality, 
     accessibility, and the ensuing long wait times to vote are 
     pervasive. Over the past decade, it has been well documented 
     that racial minorities wait longer to vote on election day 
     than White voters. Additionally, disparities in polling place 
     accessibility and wait times are compounded by the disparate 
     impact of other discriminatory practices such as voter ID 
     laws, voter purges, and cuts to alternative opportunities to 
     vote. A lack of available polling place locations 
     necessitates traveling long distances to vote, which also 
     disproportionately burdens minority voters, in particular 
     Native American voters. A 2019 report by The Leadership 
     Education Fund found that between 2012 and 2018 a total of 
     1,688 polling places had been closed in the previously 
     covered jurisdictions examined, almost double the rate 
     identified in 2016. Polling place closures and long wait 
     times have been shown to reduce the likelihood a voter will 
     vote in a subsequent election, decreasing turnout. Minority 
     voters not only wait longer on average, but they are also 
     more likely to experience wait times exceeding 60 minutes, a 
     wait time largely recognized as unacceptable. Dr. Stephen 
     Pettigrew of the University of Pennsylvania testified that, 
     ``[a] voter's race is one of the strongest predictors of how 
     long they wait in line to vote: non-white voters are three 
     times more likely than White voters to wait longer than 30 
     minutes and six times as likely to wait more than 60 
     minutes.'' Additionally, long lines negatively impact voters' 
     confidence in the electoral system. Dr. Pettigrew testified 
     that, ``[v]oters who wait in a long line are less likely to 
     believe that their vote choices would be kept a secret, and 
     less likely to be confident that their vote was counted 
     correctly'' and that, ``[b]ecause voters' experiences at the 
     polling place have downstream consequences on their future 
     turnout behavior and their confidence in the electoral 
     system, policies that widen the wait time gap between White 
     and non-white voters have the potential to put a thumb on the 
     electoral scale by reshaping the electorate.''
       (5) Restricting access to opportunities to vote outside of 
     traditional Election Day voting has a disproportionate and 
     disenfranchising impact on minority voters. Early voting, and 
     especially weekend early voting, is a critical tool to 
     ensuring access to the ballot and reducing wait times at the 
     polls. Specifically, Dr. Michael Herron of Dartmouth 
     College testified that, ``changes to early voting hours 
     that reduce pre-Election Day, Sunday voting opportunities 
     should be expected to disproportionately affect Black 
     voters'' and that, if a state were to eliminate Sunday 
     early voting, ``the cost of voting for Black voters would 
     disproportionately increase compared to White voters given 
     the relatively heavy use of Sunday early voting by Black 
     voters.'' However, permitting early voting opportunities 
     without providing meaningful access to them amounts to 
     essentially no access. In discussing access for Native 
     American voters, Professor Patty Ferguson-Bohnee, Director 
     of the Indian Legal Clinic at the Sandra Day O'Connor 
     College of Law testified that, ``[e]arly voting 
     opportunities located hours away effectively amount to no 
     access to in-person early voting in light of the practical 
     effects of requiring voters to travel such distances.'' 
     Opportunities to vote such as in-person early voting, 
     mail-in voting, curbside and drive-thru voting, or the 
     ability to return a voted mail-in ballot at a drop box 
     have all been used with increasing frequency by minority 
     voters, making them a target for suppressive cutbacks and 
     restrictions by state legislatures that will 
     disproportionately burden those same minority voters.
       (6) Changes to methods of election, jurisdictional 
     boundaries, and redistricting impact whether voters can elect 
     candidates that reflect their voices and communities. 
     Discriminatory redistricting, vote dilution, changing of 
     jurisdictional boundaries, and changes to methods of election 
     have all been utilized throughout American elections--from 
     local school board contests to Congressional races--to dilute 
     growing voting power in minority communities. The country is 
     entering the first redistricting cycle without the 
     protections of the Voting Rights Act in more than a half 
     century. According to a 2018 U.S. Commission on Civil Rights 
     report on minority voting rights access, ``overall data show 
     that there have been over 3,000 changes submitted due to 
     redistricting in every 10-year cycle since the 1965 VRA was 
     enacted.'' Without VRA protections, it can take years of 
     expensive, time consuming litigation to rectify these 
     discriminatory practices, all while elections are conducted 
     under district maps and voting structures that are later 
     found to be unlawful. Evidence and testimony presented to the 
     Subcommittee clearly illustrated that these practices are 
     enacted with discriminatory effect and intent.
       Each of the chapters that follows details the evidence 
     gathered by the Subcommittee on each of these practices--
     clearly demonstrating the findings of the Subcommittee that 
     each warrants a heightened level of scrutiny and attention 
     from Congress to ensure every American has equal, equitable 
     access to the ballot.
       The increase in voter turnout in both the 2018 and 2020 
     elections has not been met with celebration in statehouses 
     across the country but has instead been met with backlash and 
     false claims of fraud--claims that are being used to justify 
     voter suppression and the passage of laws that will 
     disenfranchise minority voters. Investigations have 
     repeatedly found no evidence of widespread fraud in American 
     elections. Fraud in American elections is vanishingly rare. A 
     person is more likely to be struck by lightning than to 
     commit voter-impersonation fraud. Other analyses found just 
     31 credible instances of impersonation fraud from 2000 to 
     2014, out of more than one billion ballots cast.
       In 2021, our democracy is under attack. According to the 
     Brennan Center for Justice, as of July 14, 2021, lawmakers 
     had introduced more than 400 bills in 49 states to restrict 
     the vote--at least four times the number of restrictive bills 
     introduced just two years prior. To date, at least 18 states 
     have enacted new laws containing provisions that restrict 
     access to voting.
       June 2021 marked the eighth anniversary of the Shelby 
     County decision. That decision unleashed a torrent of voter 
     suppression bills, many in previously covered jurisdictions, 
     which continues today. Congress has the power--a power the 
     U.S. Supreme Court has called ``paramount'' for 142 years--
     and duty to act. As detailed in this report, there is much 
     work to be done.

 Chapter One--Introduction and the History of Discrimination in Voting


           AMERICA'S LONG HISTORY OF DISCRIMINATING IN VOTING

       Since the Founding, Americans have not enjoyed equal access 
     to the ballot. At her opening, the Declaration of 
     Independence said ``all men are created equal''--yet enslaved 
     persons, indentured servants, Native Americans, and women 
     were all denied the right to vote.
       The Thirteenth, Fourteenth, Fifteenth, Nineteenth, Twenty-
     third, Twenty-fourth, and Twenty-sixth Amendments all 
     expanded access to the franchise not previously experienced 
     by millions of Americans despite the promise of equality. 
     This expansion did not come without bitter divides and 
     opposition. The Thirteenth, Fourteenth, and Fifteenth 
     Amendments--known collectively as the Reconstruction 
     Amendments--expanded access to the ballot for millions of 
     Black Americans in the post-Civil War era, and gave Congress 
     the power to enforce the rights granted in these Amendments 
     through appropriate legislation.
       Yet, while the immediate post-Civil War era brought about 
     greater political representation for Black Americans, 
     following the electoral crisis of 1876, former Confederates 
     and their sympathizers seized control of southern state 
     governments by brutally suppressing Black voters and 
     eliminating the power of the Reconstruction Republican Party. 
     By the 1890s, suppression tactics led to most African 
     Americans having either been barred from or abandoned 
     electoral politics as violence and economic reprisals became 
     a constant threat to political participation and segregation 
     was legalized. Southern legislators passed laws such as poll 
     taxes, grandfather clauses, literacy tests, and felon 
     disenfranchisement, with the explicit intent of removing 
     Black voters from the rolls.
       Indeed, the same barriers existed for Native Americans. In 
     1884, the Supreme Court held in Elk v. Wilkins that the 
     Fourteenth Amendment did not provide citizenship to Native 
     Americans. Not until passage of the Indian Citizenship Act in 
     1924 did most Native Americans gain full citizenship and 
     voting rights without undermining or negating their right to 
     remain a member of their tribe. Despite passage of the Act 
     and subsequent passage of the Nationality Act of 1940, many 
     states continued to deny Native Americans equal access to the 
     ballot, claiming they were ineligible to vote because they 
     were not residents of that state. Not until 1957 and 1958 did 
     Utah and North Dakota, respectively, become the last states 
     to afford on-reservation Native Americans the right to vote.
       The Nineteenth Amendment granted women the right to vote 
     when it was ratified in 1920. The Twenty-third Amendment 
     allowed residents of the District of Columbia to vote for 
     President and Vice President (1961). The Twenty-fourth 
     Amendment outlawed poll taxes or any other tax to vote 
     (1964), and the Twenty-sixth Amendment lowered the voting age 
     to 18 and banned the denial or abridgement of the vote based 
     on age (1971).
       The U.S. government also systematically denied citizenship 
     and voting rights to Asian Americans. Not until the repeal of 
     the Chinese Exclusion Act in 1943 and the passage of the 
     McCarran-Walter Act in 1952 were all Asian Americans granted 
     the right to become citizens and therefore eligible to vote.


                     A CONSTITUTIONAL RIGHT TO VOTE

       To this day, scholars argue that the Constitution does not 
     guarantee the right to vote as a positive right--that the 
     amendments do not provide an affirmative grant but disallow 
     the government from restricting the franchise based on 
     protected criteria--race, sex, paying a poll tax, and age. 
     However, while the text of the Constitution does not 
     explicitly provide for and protect the vote as a fundamental 
     right, the Supreme Court has long recognized that voting is a 
     fundamental right.
       Voting and equal, equitable access to the ballot are 
     cornerstones of creating a true democracy. Justice Hugo 
     Black, in Wesberry v. Sanders, stated that:
       ``No right is more precious in a free country than that of 
     having a voice in the election of those who make the laws 
     under which, as good citizens, we must live. Other rights, 
     even the most basic, are illusory if the right to vote is 
     undermined.''

[[Page H4462]]

       Professor Guy-Uriel Charles of Duke Law School noted in his 
     testimony before the Committee that, ``since at least 1886, 
     in Yick Wo v. Hopkins, the Supreme Court has recognized that 
     voting is a fundamental right of citizens and that its 
     availability is critical to sustaining representative 
     government.'' In 1964, Chief Justice Earl Warren wrote, 
     ``[t]he right to vote freely for the candidate of one's 
     choice is of the essence of a democratic society, and any 
     restrictions on that right strike at the heart of the 
     representative government.'' More recently, Chief Justice 
     John Roberts noted, ``[t]here is no right more basic in our 
     democracy than the right to participate in electing our 
     political leaders.''


     THE VOTING RIGHTS ACT, PRECEDENT, AND SHELBY COUNTY V. HOLDER

       Despite the protections from racial discrimination in 
     voting afforded in theory under the Reconstruction 
     Amendments, for nearly 100 years after their passage, Black 
     Americans were ``systematically disenfranchised by poll 
     taxes, literacy tests, property requirements, threats, and 
     lynching.'' To address the systemic discrimination and 
     barriers in voting, on August 6, 1965, President Lyndon B. 
     Johnson signed the Voting Rights Act of 1965 into law.
       One of the pillars of the Civil Rights laws of the 1960s, 
     the Voting Rights Act of 1965 (``VRA'') was enacted to 
     address election laws and practices that discriminated on the 
     basis of race and ethnicity. In the decades following its 
     enactment, the VRA went a long way to addressing the 
     widespread racial discrimination in voting. The VRA was 
     designed to fight, ``an insidious and pervasive evil which 
     had been perpetuated in certain parts of our country through 
     unremitting and ingenious defiance of the Constitution.'' 
     Prior to the passage of the VRA, when the U.S. Department of 
     Justice obtained favorable decisions striking down 
     suppressive, discriminatory voting practices, states would 
     merely enact new schemes to restrict access to the ballot for 
     Black voters.
       The VRA placed a nationwide prohibition on states, or 
     political subdivisions, from implementing voting 
     qualifications or prerequisites, standards, practices, or 
     procedures to, ``deny or abridge the right of any citizen to 
     vote on the basis of race or color.'' Originally set to 
     expire five years after enactment, the VRA was subsequently 
     amended and extended by Congress on a bipartisan basis 
     several times. Congress continued to support the underlying 
     policy of the Voting Rights Act while voting to amend, 
     expand, and extend the law five times: in 1970, 1975, 1982, 
     1992, and 2006.
       Each time, the law was reauthorized with overwhelming, 
     bipartisan support. Moreover, all of the multiple 
     reauthorizations were signed into law by Republican 
     Presidents. The 2006 reauthorization, the Fannie Lou Hamer, 
     Rosa Parks, and Coretta Scott King Voting Rights Act 
     Reauthorization and Amendments Act of 2006 passed the House 
     of Representatives overwhelmingly following introduction by 
     Representative James Sensenbrenner, Jr. (R-Wisc.), passed the 
     Senate unanimously, and was signed into law by President 
     George W. Bush.
       Since the VRA's initial passage, and through the subsequent 
     amendments and reauthorizations, the Supreme Court repeatedly 
     affirmed Congress's authority to enact statutes that prohibit 
     states and localities from imposing voting laws that 
     intentionally discriminate on the basis of race or ethnicity. 
     In South Carolina v. Katzenbach, the Court held that the 
     Voting Rights Act was, ``a valid means for carrying out the 
     commands of the Fifteenth Amendment.'' The Court would later 
     uphold the Voting Rights Act again in cases such as City of 
     Rome v. United States (1980) and Lopez v. Monterey County 
     (1999). Furthermore, the Court has long upheld Congress's 
     broad authority under the Constitution to pass laws and 
     regulations governing federal elections.
       The Supreme Court has long affirmed the breadth of 
     Congress's power to enact laws regulating elections. As 
     Professor Guy-Uriel Charles noted in his testimony before the 
     Committee, as early as 1880, the Supreme Court noted in Ex 
     parte Siebold that Congress's Elections Clause power to 
     regulate Congressional elections, ``may be exercised as and 
     when Congress sees fit to exercise it,'' and, ``necessarily 
     supersedes,'' conflicting state regulations. Professor 
     Charles further testified that, ``[t]hus, although the 
     Supreme Court has at times interpreted federalism as a 
     constraint on Congressional power derived from the Fourteenth 
     and Fifteenth Amendments, Congress' power to regulate federal 
     elections is uniquely unencumbered by federalism 
     constraints.''
       Professor Franita Tolson of the University of Southern 
     California Gould School of Law testified before the Committee 
     that, despite the view by some that exercises of federal 
     authority under the Elections Clause as a somewhat unwelcome 
     intrusion on the states' authority to legislate with respect 
     to federal elections, ``Congress can disregard state 
     sovereignty in enacting and enforcing legislation passed 
     pursuant to the Elections Clause.'' Additionally, Professor 
     Daniel P. Tokaji of the University of Wisconsin Law School 
     testified that the Court's, ``most recent--and arguably most 
     important--explications,'' of Congress's power came in 
     Arizona v. ITCA, in which the Court noted that, ``the usual 
     presumption against federal pre-emption of state law does not 
     apply to legislation enacted under the Elections Clause . . . 
     While states historically enjoyed broad police powers over 
     other matters, their regulation of congressional elections 
     has always been subject to congressional revision or 
     reversal.''
       The Supreme Court has also long held that Congress's power 
     to enforce the Fourteenth and Fifteenth Amendments extends 
     beyond intentional discrimination. In City of Rome v. United 
     States, the Court considered a municipality's challenge to 
     the constitutionality of Section 5 of the VRA, to the extent 
     that it authorized invalidation of a state or local election 
     law based solely on evidence that the law had a 
     discriminatory effect. The Court rejected the municipality's 
     constitutional challenge, holding that Congress's power to 
     enforce the Reconstruction Amendments extended beyond 
     prohibiting intentionally discriminatory voting laws. The 
     Court reasoned that Congress's authority to enforce the 
     Reconstruction Amendments is coextensive with its authority 
     under the Necessary and Proper Clause, which empowers 
     Congress to enact any law that is, ``appropriate,'' ``adapted 
     to carry out the objects,'' of the Fourteenth or Fifteenth 
     Amendment, and not prohibited by another provision in the 
     Constitution.
       Applying that test, City of Rome made clear that, ``under 
     the Fifteenth Amendment, Congress may prohibit voting 
     practices that have only a discriminatory effect.'' In 
     particular, ``under Sec.  2 of the Fifteenth Amendment 
     Congress may prohibit practices that in and of themselves do 
     not violate Sec.  1 of the Amendment [in that they are 
     intentionally discriminatory], so long as the prohibitions 
     attacking racial discrimination are `appropriate,' as that 
     term is defined in McCulloch v. Maryland and Ex parte 
     Virginia.''
       Despite decades of precedent that uphold Congressional 
     power and the VRA, in 2013, the Supreme Court struck down 
     portions of the 2006 VRA reauthorization in Shelby County v. 
     Holder (``Shelby County'' or ``Shelby''), leaving American 
     voters vulnerable to tactics of suppression and 
     discrimination. In its ruling, the Court struck down Section 
     4(b) as outdated and not ``grounded in current conditions.'' 
     The Supreme Court ruled that Section 4(b)'s coverage formula 
     violated implicit equal sovereignty principles in the 
     Constitution because it treated states differently--requiring 
     certain states and localities, but not others, to obtain 
     preclearance--but relied on sometimes decades old data to 
     justify that differential treatment.
       The Court found the data upon which Congress relied in 
     reauthorizing the VRA--evidence dating to the 1960s and 1970s 
     of differential registration rates between White and Black 
     voters and the use of literacy tests to depress minority 
     voting, for example--to be insufficient to meet that 
     standard, particularly in light of documented improvements in 
     minority voter registration rates and turnout. By 
     invalidating the coverage formula, Shelby County essentially 
     rendered Section 5 inoperable, allowing previously covered 
     states and localities to make changes to their voting laws 
     without seeking preclearance from the Department of Justice.
       At the same time the Court upended the VRA, Chief Justice 
     Roberts conceded that discrimination in voting still exists, 
     writing, ``[a]t the same time, voting discrimination still 
     exists; no one doubts that.'' Despite this, Chief Justice 
     Roberts' majority opinion declared that the data before the 
     Court undergirding the reauthorization of the VRA was 
     outdated:
       ``The question is whether the Act's extraordinary measures, 
     including its disparate treatment of the States, continue to 
     satisfy constitutional requirements. As we put it a short 
     time ago, ``the Act imposes current burdens and must be 
     justified by current needs.''
       The Chief Justice did, however, expressly suggest that 
     Congress may remedy this and restore the effect of the 
     preclearance regime by updating the coverage formula, 
     providing a roadmap for Congressional action:
       ``Striking down an Act of Congress `is the gravest and most 
     delicate duty that this Court is called on to perform.' 
     Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., 
     concurring). We do not do so lightly. That is why, in 2009, 
     we took care to avoid ruling on the constitutionality of the 
     Voting Rights Act when asked to do so, and instead resolved 
     the case then before us on statutory grounds. But in issuing 
     that decision, we expressed our broader concerns about the 
     constitutionality of the Act. Congress could have updated the 
     coverage formula at that time, but did not do so. Its failure 
     to act leaves us today with no choice but to declare 
     Sec. 4(b) unconstitutional. The formula in that section can 
     no longer be used as a basis for subjecting jurisdictions to 
     preclearance.''
       ``Our decision in no way affects the permanent, nationwide 
     ban on racial discrimination in voting found in Sec. 2. We 
     issue no holding on Sec. 5 itself, only on the coverage 
     formula. Congress may draft another formula based on current 
     conditions. Such a formula is an initial prerequisite to a 
     determination that exceptional conditions still exist 
     justifying such an `extraordinary departure from the 
     traditional course of relations between the States and the 
     Federal Government.' Presley, 502 U.S., at 500-501. Our 
     country has changed, and while any racial discrimination in 
     voting is too much, Congress must ensure that the legislation 
     it passes to remedy that problem speaks to current 
     conditions.''
       Without the full protections of the VRA, states are free to 
     implement discriminatory

[[Page H4463]]

     voting laws without preemptive Justice Department oversight. 
     While Section 2 of the VRA remains an avenue for combatting 
     discriminatory voting laws in the courts, Section 2 lawsuits 
     are reactive, filed only after laws have been enacted, often 
     take years and extensive resources to litigate, and all while 
     elections may be conducted under restrictions later found to 
     be unlawful. Prior to the Supreme Court's decision in Shelby 
     County, nine states were covered by statewide preclearance 
     requirements under the VRA's coverage formula in Section 4(b) 
     and the preclearance regime of Section 5. Preclearance 
     required the states and localities captured under the 
     coverage formula to seek and receive administrative approval 
     from the U.S. Department of Justice (``DOJ'' or ``Justice 
     Department'') or judicial review by the U.S. District Court 
     for the District of Columbia prior to making changes to their 
     voting laws. At the time Shelby County was decided, Alabama, 
     Alaska, Arizona, Georgia, Louisiana, Mississippi, South 
     Carolina, Texas, and Virginia were the states covered as a 
     whole. Additionally, counties in California, Florida, New 
     York, North Carolina, South Dakota, and townships in 
     Michigan, were previously covered under Section 5 though each 
     state itself was not covered as a whole. Throughout the 
     history of the VRA, counties have also ``bailed out'' of 
     coverage--meaning they were once subject to the preclearance 
     regime of Section 5, but successfully obtained a declaratory 
     judgment under Section 4 and thus were no longer subject to 
     preclearance.
       Hours after Shelby County was decided, states moved to 
     enact restrictive voting laws. Texas revived a previously 
     blocked voter ID law. Within days, Alabama announced it would 
     move to enforce a photo ID law it had previously refused to 
     submit to the DOJ for preclearance. Within months, New York 
     broke from past practices and declined to hold special 
     elections to fill 12 legislative vacancies, denying 
     representation to 800,000 voters of color.
       Less than two months after the Supreme Court struck down 
     the preclearance provisions, North Carolina state legislators 
     wasted no time passing an omnibus ``monster law.'' State 
     Senator Tom Apodaca (then-Chairman of the North Carolina 
     Senate Rules Committee) said the State did not want the 
     ``legal headaches'' of having to go through preclearance if 
     it was not necessary to determine which portions of the 
     proposal would be subject to federal scrutiny, ``so, now we 
     can go with the full bill,'' he added. He predicted at the 
     time that an omnibus voting bill would surface in the Senate 
     the next week that could go beyond voter ID to include issues 
     such as reducing early voting, eliminating Sunday voting, and 
     barring same-day voter registration.
       This pattern continued, and in 2016, 14 states had enacted 
     new voting restrictions for the first time in a presidential 
     election, including previously covered states such as 
     Alabama, Arizona, Mississippi, South Carolina, Texas, and 
     Virginia. In 2017, two additional states, Arkansas and North 
     Dakota, enacted voter ID laws. In 2018, Arkansas, Indiana, 
     Montana, New Hampshire, North Carolina, and Wisconsin enacted 
     new restrictions on voting, ranging from restrictions on who 
     can collect absentee ballots, to cuts to early voting, 
     restrictions on college students, and enshrining voter ID 
     requirements in a state constitution. In 2019, Arizona, 
     Florida, Indiana, Tennessee, and Texas enacted new 
     restrictions. As of the end of 2019, the Brennan Center for 
     Justice (``Brennan Center'') reported that, since 2010, 25 
     states had enacted new voting restrictions, including strict 
     photo ID requirements, early voting cutbacks, and 
     registration restrictions. A new wave of voter suppression 
     bills has emerged in the wake of the 2020 general election, 
     with restrictive voting bills being signed into law in at 
     least 18 states at the time of this writing.
       Despite the Court's decision, several key provisions of the 
     VRA remain in place. For example, the language access 
     requirements contained in Sections 4(e), 4(f)(4), 203, and 
     208 remain intact. Section 2 is also a key enforcement 
     mechanism for the DOJ and outside litigators to protect 
     voting rights nationwide. Section 2 of the VRA applies a 
     nationwide prohibition against the denial or abridgment of 
     the right to vote on the basis of race or color and was later 
     amended to include language minorities.
       Since the Shelby County decision invalidated the coverage 
     formula for preclearance, voting rights groups, litigators, 
     and the Department of Justice are left to file lawsuits 
     arguing that voting changes would discriminatorily reduce 
     minority citizens' ability to cast a ballot or elect 
     candidates of their choice--a remedy that is in many ways 
     inadequate to fully protect the right to vote. Voters and 
     advocates are forced to reactively fight to protect the right 
     to vote, rather than states and localities having to prove 
     prior to implementation that their laws will not discriminate 
     against protected classes of voters.
       On July 1, 2021, the Supreme Court held in Brnovich v. DNC 
     that Arizona's laws restricting third-party ballot return and 
     out-of-precinct voting were lawful and did not violate 
     Section 2's ban on discriminatory effect in voting, nor were 
     they enacted with discriminatory purpose. In doing so, 
     Justice Samuel Alito, writing for the majority, articulated 
     an entirely new standard for reviewing Section 2 vote denial 
     claims, weakening one of the last pillars of the VRA and 
     fail-safes against discriminatory voting laws. Justice Alito 
     held that, ``the mere fact that there is some disparity in 
     impact,'' is now no longer dispositive, but rather, ``the 
     size of the disparity matters.'' Further, Justice Alito 
     provided that, ``courts must consider the opportunities 
     provided by a State's entire system of voting when assessing 
     the burden imposed by a challenged provision''--rather than 
     evaluating the provision on its individual merits. Finally, 
     Justice Alito went a step further, stating that, ``prevention 
     of fraud'' is a ``strong and entirely legitimate state 
     interest,'' even if there is no evidence of fraud having ever 
     occurred, and that rules that are supported by strong state 
     interests are, ``less likely to violate'' Section 2.
       In writing for the dissent in Brnovich, Justice Elena Kagan 
     admonished the majority for weakening a seminal statute and 
     creating its own standard and set of guideposts where one did 
     not exist in the statute. Justice Kagan stated:
       ``Today, the Court undermines Section 2 and the right it 
     provides. The majority fears that the statute Congress wrote 
     is too ``radical''--that it will invalidate too many state 
     voting laws. So the majority writes its own set of rules, 
     limiting Section 2 from multiple directions. Wherever it can, 
     the majority gives a cramped reading to broad language. And 
     then it uses that reading to uphold two election laws from 
     Arizona that discriminate against minority voters . . . What 
     is tragic here is that the Court has (yet again) rewritten--
     in order to weaken--a statute that stands as a monument to 
     America's greatness, and protects against its basest 
     impulses.''
       Justice Kagan argued that the majority had strayed far from 
     the text of Section 2 in its ruling, its analysis permitting, 
     ``exactly the kind of vote suppression that Section 2, by its 
     terms, rules out of bounds.''


 THE SUBCOMMITTEE ON ELECTIONS INVESTIGATION OF CURRENT DISCRIMINATION 
                               IN VOTING

       In exercising Congress's authority and jurisdiction over 
     federal elections, the Committee on House Administration 
     (``Committee'') has broad jurisdiction under Rule X of the 
     Rules of the House to oversee the administration of federal 
     elections. In exercising that jurisdiction, Speaker of the 
     House Nancy Pelosi (D-Calif.) and Committee Chair Zoe Lofgren 
     (D-Calif.) reconstituted the Committee on House 
     Administration's Subcommittee on Elections (``Subcommittee'') 
     at the outset of the 116th Congress.
       Subsequently, spanning the leadership of then-Subcommittee 
     Chair Marcia L. Fudge (D-Ohio) and current Chair G. K. 
     Butterfield (D-N.C.), the Subcommittee embarked during the 
     116th and 117th Congresses to hold more than a dozen hearings 
     to collect the contemporaneous evidence and data called for 
     by Chief Justice Roberts and the Court's majority in Shelby.
       In building upon investigatory hearings conducted in the 
     116th Congress, in the 117th Congress the Subcommittee 
     identified the practices with what appeared to be the most 
     abundant evidence of discriminatory impact on minority voters 
     and endeavored to examine those practices in greater detail.
       Across the Subcommittee's five hearings, the Subcommittee 
     received testimony from more than 35 witnesses, gathering and 
     examining evidence of ongoing discrimination in the election 
     practices of: (1) voter list maintenance and voter purges; 
     (2) voter identification and documentary proof-of-citizenship 
     laws; (3) lack of access to multi-lingual voting materials 
     and assistance; (4) polling place closures, consolidations, 
     relocations, and long wait times; (5) restrictions on 
     opportunities to vote; and (6) changes to method of 
     elections, jurisdictional boundaries, and redistricting. 
     Furthermore, the Subcommittee examined the state of voting 
     rights enforcement and protection in the post-Shelby County 
     era.
       The practices examined are perennial barriers faced by 
     voters. According to testimony from Marcia Johnson-Blanco of 
     the Lawyers' Committee for Civil Rights Under Law 
     (``Lawyers'' Committee''), during the 2020 General Election 
     cycle, the top issues raised through the organization's 
     nationwide, non-partisan voter protection program included, 
     ``questions and concerns about mail-in and absentee ballots, 
     as well as voter ID and registration . . . Election Day also 
     brought calls of polling place accessibility issues, and 
     concerning calls complaining of voter intimidation and 
     electioneering.'' The Subcommittee's lengthy proceedings and 
     examination revealed that each of the practices identified 
     impose significant, discriminatory burdens on minority 
     voters.
       The evidence before the Subcommittee includes locality-and 
     state-specific, as well as nationwide, studies demonstrating 
     that the election practices examined impose a variety of 
     discriminatory burdens, ranging from disproportionately 
     decreased registration and turnout among minority voters, 
     disproportionately high costs to register and cast a ballot, 
     disproportionately increased risk that a ballot will be 
     thrown out, and a disproportionate dilution of voting power. 
     The record also includes extensive testimony from litigators 
     and voting rights practitioners who confront these 
     discriminatory voting laws and practices on a regular and 
     increasingly frequent basis in courtrooms, governmental 
     proceedings, and on voting days.
       As Debo Adegbile, Partner at Wilmer Hale, LLC and Member of 
     the U.S. Commission on Civil Rights, noted in his testimony 
     before

[[Page H4464]]

     the Subcommittee, the expansion of the franchise has 
     routinely been met with resistance:
       ``We currently stand at an inflection point, but it is not 
     unprecedented. The Fifteenth Amendment's expansion of the 
     right to vote was met with the creation of poll taxes and 
     literacy tests. The rise of minority voting power after the 
     Voting Rights Act was met with the expansion of at-large 
     elections. The National Voter Registration Act (i.e., the 
     Motor Voter Law) and the narrow margin of the 2000 
     presidential election were answered by a wave of spurious 
     voter ID laws. Now, record voter turnout, despite a pandemic, 
     is almost predictably sparking renewed efforts to make it 
     even harder to vote.''
       While states have been enacting discriminatory, restrictive 
     voting laws in the years since Shelby County, that effort has 
     significantly increased in response to the largest voter 
     turnout in 120 years experienced in the 2020 General 
     Election.
       According to the Brennan Center, as of July 14, 2021, 
     lawmakers had introduced more than 400 bills in 49 states to 
     restrict the vote. This is at least four times the number of 
     restrictive bills introduced just two years prior, with at 
     least 18 states having enacted new laws containing provisions 
     that restrict access to voting. A Brennan Center report from 
     May 2021 states that, ``[t]he United States is on track to 
     far exceed its most recent period of significant voter 
     suppression--2011. By October of that year, 19 restrictive 
     laws were enacted in 14 states. This year, the country has 
     already reached that level, and it's only May.''
       Michael Waldman, President of the Brennan Center for 
     Justice, noted in his testimony before the Subcommittee that 
     these bills were introduced with the intention of rolling 
     back voting rights, observing that, ``[c]rucially, these are 
     not backbenchers tossing a bill in the hopper in the hope of 
     getting a good day on Twitter.'' Indeed, as of June 21, 2021, 
     17 states have enacted 28 new laws that restrict access to 
     the vote. Moreover, Mr. Waldman testified that ``[a]s in 
     previous eras, these laws and proposals purport to be 
     racially neutral,'' yet, ``[i]n fact, often they precisely 
     target voters of color.''
       Congress has a long history of exercising its legislative 
     authority and constitutional powers to legislate to protect 
     access to the franchise. In the eight years since Shelby 
     County was decided, Congress has failed to act on what has 
     historically been a bipartisan endeavor--ensuring every 
     American has an equal and equitable opportunity to cast a 
     ballot and participate in democracy. As Justice Kagan notes 
     in her dissent in Brnovich, ``[i]ndeed, the problem of voting 
     discrimination has become worse since that time--in part 
     because of what this Court did in Shelby County. Weaken the 
     Voting Rights Act, and predictable consequences follow: yet a 
     further generation of voter suppression laws.''
       This report and the record compiled by the Subcommittee 
     illustrate the urgent need for action.

      Chapter Two--Discriminatory Practices in Voting: An Overview


                                OVERVIEW

       Since the Supreme Court decided Shelby County v. Holder in 
     2013, states across the country have enacted voting laws and 
     election administration policies that restrict access to the 
     ballot in a discriminatory and suppressive manner, one that 
     disproportionately impacts minority voters.
       Over the last two Congresses, the Subcommittee on Elections 
     of the Committee on House Administration undertook an 
     extensive fact-finding series of hearings to study and 
     understand the extent to which all voters across the United 
     States have access to, or face barriers to, the ability to 
     cast their ballot freely and fairly. Tellingly, with respect 
     to the voting and election administration practices examined 
     by the Subcommittee, the variety of sources examined, and 
     testimony gathered all point to the same conclusion--the 
     record demonstrates that the election administration laws and 
     practices at issue disproportionately burden minority voters, 
     denying many the free and equal access to the vote guaranteed 
     by Federal law and the Constitution.
       During the 116th Congress, the Subcommittee cast a wide 
     evidentiary net, examining all manner of election 
     administration and voting laws to identify which, if any, 
     practices discriminate against minority voters. In doing so, 
     the Subcommittee held eight hearings and a listening session, 
     called more than 60 witnesses, gathered several thousand 
     pages of testimony, documents, and transcripts, and received 
     hours of oral testimony. Throughout those hearings, the 
     Subcommittee found extensive evidence of numerous practices 
     that do, or have the potential to, discriminate and suppress 
     access to the ballot, culminating in a report released in 
     November 2019 entitled Voting Rights and Election 
     Administration in the United States of America.
       The barriers to voting faced by millions of Americans did 
     not subside in the 2020 election-- in many instances they 
     were, in fact, exacerbated. During the first six months of 
     the 117th Congress, building upon the record built in the 
     116th Congress, the Subcommittee on Elections, under the 
     leadership of Chairman G. K. Butterfield (D-N.C.) identified 
     a key subset of issues explored in the prior Congress that 
     exhibited the most substantial evidence of disproportionate 
     and discriminatory impact on voters, particularly minority 
     voters, for further, in-depth examination.
       Over the course of five hearings, the Subcommittee 
     conducted a substantive examination of the issues of: (1) 
     discriminatory voter list maintenance practices and voter 
     purges; (2) the discriminatory impact of voter ID and 
     documentary proof-of-citizenship requirements; (3) the 
     ongoing lack of access to multi-lingual voting materials and 
     assistance; (4) the disparate impact of polling place 
     closures, consolidations, relocations, and wait times at the 
     polls; (5) restrictions on additional opportunities to vote; 
     and (6) changes to methods of election, jurisdictional 
     boundaries, and redistricting. In concluding the evidence 
     gathering process, the Subcommittee examined the national 
     landscape of voting rights in America in the eight years 
     since the Supreme Court struck down one of the key pillars of 
     the VRA.
       Importantly, the evidence detailed in this report is 
     ``current,'' as called for by Chief Justice Roberts and the 
     Court's majority in Shelby. This report examines a 
     substantial body of evidence, the vast majority of which 
     derives from elections and legislative sessions conducted in 
     the last 10 years, with much of the evidence relating to 
     elections occurring within the years post-Shelby County.
       Over the course of testimony received from more than 35 
     witnesses and numerous hours of hearings, not only did the 
     Subcommittee find substantial evidence that the election 
     administration and voting practices examined throughout the 
     hearings and in this report have a discriminatory effect on 
     minority voters, but Members also found substantial evidence 
     that there is a significant risk these discriminatory effects 
     are the product of a discriminatory purpose. The extensive 
     evidence recounted throughout this report, that the burdens 
     of the election administration laws and practices, ``bears 
     more heavily on one race than another,'' is illustrative of 
     the laws' and practices' discriminatory purpose. 
     Additionally, as is noted in the discussion of some voting 
     laws and practices later in this report, courts have looked 
     at whether voting is ``racially polarized,'' which provides a 
     controlling party disfavored by minority voters with, ``an 
     incentive for intentional discrimination in the regulation of 
     elections'' in determining when a practice is discriminatory 
     and have found some of the practice examined by to 
     Subcommittee to fit this set of circumstances.
       However, consistent with the Court's admonition that 
     Congressional factfinders must consider a variety of facts 
     and circumstances in determining whether a law had its 
     genesis in its discriminatory purpose, the Subcommittee 
     looked beyond evidence of solely discriminatory effect in 
     finding that there is a high risk these laws and practices 
     are attributable to a discriminatory purpose. The background 
     and context of many of the laws were suggestive of a 
     discriminatory purpose. Many were enacted in the immediate or 
     near aftermath of the Shelby County decision on party-line 
     votes in previously covered jurisdictions with a well-
     documented history of racially polarized voting--others had 
     already been rejected by the Department of Justice under the 
     Section 5 preclearance regime.
       Further, public officials and election administrators made 
     troubling statements regarding some of the laws and practices 
     at issue that bear the hallmarks of discriminatory purpose. 
     The Subcommittee also found evidence that some states and 
     localities knew the laws would have discriminatory effects, 
     but enacted them nevertheless, without including safeguards 
     to protect the interests and rights of minority voters, as is 
     illustrated in some of the examples discussed throughout this 
     report. Additionally, states and localities provided 
     unsupported or pretextual race-neutral justifications for 
     many of the laws and practices. Several of the laws and 
     practices were enacted just as minority groups 
     disproportionately burdened by the voting laws or practices 
     were gaining political influence.
       The Subcommittee is not alone in finding that there is a 
     significant risk that the laws and practices discussed in 
     this report pose a high risk of being enacted for a 
     discriminatory purpose. Based on some of the evidence 
     described above and throughout this report, courts have found 
     several of these laws were enacted with discriminatory intent 
     or otherwise violated Federal law or the Constitution.
       Section 2 of the Voting Rights Act has proved a powerful, 
     but inadequate tool for protecting the right to vote and 
     access to the ballot in the post-Shelby era. Section 2 
     authorizes private actors and the Department of Justice to 
     challenge discriminatory voting practices in the federal 
     courts. As Janai Nelson, Associate Director-Counsel of the 
     NAACP Legal Defense and Educational Fund, Inc. (``NAACP Legal 
     Defense Fund'' or ``LDF'') stated in testimony before the 
     Subcommittee:
       ``Section 2 applies nationwide and places the burden on 
     voters harmed by voting discrimination to bring litigation to 
     challenge a law that has discriminatory results and/or 
     discriminatory purpose. Section 2's `permanent, nationwide 
     ban' on racially discriminatory dilution or denial of the 
     right to vote is now the principal tool under the VRA to 
     block and remedy these new discriminatory measures.''
       Ms. Nelson testified that, ``there have been at least nine 
     federal court decisions finding that states or localities 
     enacted racially discriminatory voting laws or practices 
     intentionally, for the purpose of discriminating

[[Page H4465]]

     against Black voters, Latino voters, or other voters of 
     color.'' Ms. Nelson testified further that, ``litigation is 
     slow and costly--and court victories may come only after a 
     voting law or practice has been in place for several election 
     cycles.'' The parties engaged in litigation often spend 
     millions of dollars litigating these cases, they take up 
     significant judicial resources, and the average length of 
     Section 2 cases is two to five years.
       While court cases are ongoing, numerous elections for the 
     Presidency, Congress, state, and local government seats may 
     have come and gone. Thomas Saenz, President and General 
     Counsel of the Mexican American Legal Defense and Educational 
     Fund (``MALDEF'') stated in his testimony that, ``[t]here is 
     simply no way that non-profit voting rights litigators, even 
     supplemented by the work of a reinvigorated Department of 
     Justice Civil Rights Division, could possibly prevent the 
     implementation of all of the undue ballot-access restrictions 
     and redistricting violations that are likely to arise in the 
     next two years.''
       The evidence is clear: lawsuits filed under Section 2 and 
     other provisions of law and the Constitution cannot and do 
     not substitute for proactive protections of voting rights and 
     cannot serve as the sole vanguard against discriminatory 
     voting and election administration practices. Additionally, 
     the Supreme Court's recent decision in Brnovich v. DNC likely 
     makes it harder for voting rights litigators and the 
     Department of Justice to protect the right to vote through 
     Section 2 litigation.
       The November 2020 general election saw record-setting voter 
     turnout, with over 158 million ballots cast and the highest 
     turnout as a percent of the voting eligible population in 120 
     years. While some may cite recent voter registration and 
     voter turnout numbers as alleged examples and evidence that 
     the effects of Shelby have been minimal, those numbers alone 
     do not tell the whole story. For example, Dr. Matt Barreto of 
     the UCLA Latino Policy and Politics Initiative stated in 
     testimony before the Subcommittee that, ``[s]ingular focus on 
     turnout without centralizing the real impact of such burdens 
     on access to the franchise is one-dimensional, operating 
     within the subtext of racial power to reproduce the 
     inequalities that demand the attention of political 
     scientists in the first place.'' As the evidence before the 
     Subcommittee clearly demonstrates, record turnout, and voter 
     turnout generally, does not discredit or discount the 
     existence of barriers to accessing the franchise.
       Additionally, state legislatures across the country have 
     responded to the increase in voter participation not with 
     more or sustained access to the ballot, but with false claims 
     of fraud, election irregularities, and perpetuation of the 
     ``Big Lie'' that the 2020 election was somehow rigged and 
     stolen. The ongoing epidemic of misinformation and 
     disinformation in our elections does not only polarize the 
     electorate and fuel attempts to legislate voter suppression, 
     but it also targets and suppresses minority votes. As Spencer 
     Overton, President of the Joint Center for Political and 
     Economic Studies testified before the Subcommittee in 2020, 
     the disinformation targeted at Black voters, for example, on 
     social media platforms in the 2016 election cycle continued 
     in the 2020 cycle. Mr. Overton testified that both foreign 
     and domestic actors, ``used online disinformation to target 
     and suppress Black votes.'' Additionally, a report from NPR 
     in the final days of the 2020 election found that Black and 
     Latino voters were flooded with disinformation in the final 
     days of the 2020 election with an unmistakable intent to 
     depress turnout among minority voters.
       The spread of mis- and disinformation only continued with 
     false claims of unlawful ballots being cast and widespread 
     fraud--much of which was alleged to be in areas where large 
     numbers of ballots were cast by minority voters. These claims 
     have all been repeatedly disproven, yet states are using them 
     as false pretenses to push forward an onslaught of new voting 
     laws designed to make it harder for voters to participate in 
     future elections, laws that will disproportionately and 
     discriminatorily impact the ability of minority voters to 
     cast a ballot.
       As Wade Henderson, Interim President and CEO of the 
     Leadership Conference on Civil and Human Rights (``The 
     Leadership Conference'') testified:
       ``The assault on our freedom to vote has only grown more 
     dire. After historic turnout, politicians peddled lies, tried 
     to discount the votes of communities of color, and attempted 
     to override the will of the people. . . . Now they have 
     doubled down on attempts to reshape the electorate for their 
     own gain. . . . These restrictions disproportionately burden 
     voters of color. They resemble the very strategies that led 
     Congress to adopt the Voting Rights Act in the first place.''
       The evidence before the Subcommittee is conclusive--the 
     practices discussed below, and the manner in which they are 
     implemented, are wielded with both discriminatory intent and 
     effect, unlawfully erecting barriers to the ballot for 
     minority voters across the country. The voting discrimination 
     acknowledged by Chief Justice Roberts in Shelby does still 
     exist. It is the conclusion of the Subcommittee's hearings 
     and this report that these practices warrant stricter 
     protections to ensure every voter has unfettered access to 
     the ballot promised to them under the Constitution and 
     Federal law.

  Chapter Three--Voter List Maintenance Practices and the Purging of 
                            Eligible Voters


                               BACKGROUND

       Voter purging is often performed under the guise of routine 
     voter list maintenance. Some argue that opponents of voter 
     purges are preventing state and local election officials from 
     preforming necessary, mandated list maintenance. Proponents 
     of voter purging often raise the specter of deceased persons 
     or voters who have moved remaining on the rolls, of 
     ``bloated'' voter rolls, or insidious claims of non-citizens 
     being on the rolls, leading to voter fraud. However, there is 
     no credible evidence of widespread voter fraud in American 
     elections. For example, a comprehensive analysis published by 
     the Washington Post found only 31 credible instances of voter 
     fraud between 2000 and 2014--out of one billion ballots cast.
       List maintenance is the law of the land and the process by 
     which state and local governments remove ineligible voters 
     from their voting rolls. The National Voter Registration Act 
     (``NVRA''), or ``motor voter'' law, is the principal federal 
     statute governing state maintenance of voter registration 
     rolls. The NVRA was signed into law on May 20, 1993, by 
     President Bill Clinton, following decades of efforts to 
     establish a national voter registration system to address low 
     voter turnout and increase voter registration opportunities 
     that began soon after passage of the VRA in 1965. Enacted 
     pursuant to Congress's authority under the Elections Clause, 
     the NVRA governs voter registration procedures for federal 
     elections. Nevertheless, nearly all states use the NVRA-
     prescribed process for maintaining their voter rolls for both 
     state and federal elections.
       In addition to establishing voter registration procedures, 
     the NVRA provides that ``each State shall . . . conduct a 
     general program that makes a reasonable effort to remove the 
     names of ineligible voters from the official lists of 
     eligible voters by reason of--(A) the death of the 
     registrant; or (B) a change in the residence of the 
     registrant. . . .'' The NVRA provides that any, ``program or 
     activity to protect the integrity of the electoral process by 
     ensuring the maintenance of an accurate and current voter 
     roll for elections for Federal office'' must meet two 
     requirements. First, the program or activity must be, 
     ``uniform, nondiscriminatory, and in compliance with the 
     Voting Rights Act of 1965.'' Second, the program or activity 
     must ``not result in the removal of any person from the 
     official list of voters registered to vote in an election for 
     Federal office by reason of the person's failure to vote,'' 
     unless certain conditions are satisfied.
       The NVRA describes one form of ``voter removal program[ ]'' 
     that states may use to remove voters (referred to in the 
     statute as ``registrants'') who have moved to an address 
     outside of a jurisdiction. In particular, states can use, 
     ``change-of-address information supplied by the Postal 
     Service . . . to identify registrants whose addresses might 
     have changed.'' A state may not remove a registrant from its 
     voter rolls on grounds that the registrant has changed 
     residence unless the registrant does one of two things: (1) 
     confirms in writing that the registrant has changed residence 
     to a place outside the jurisdiction or (2) it ``appears'' 
     from information provided by the Postal Service that the 
     registrant has moved to a different address in a different 
     jurisdiction and a ``notice'' procedure is used to 
     ``confirm'' that the registrant has, in fact, changed address 
     to a new jurisdiction. Under the notice procedure, a state 
     must send a postage pre-paid and pre-addressed return card 
     notifying the registrant of certain rights and obligations, 
     and allowing a registrant to provide the state with the 
     registrant's current address. If a registrant fails to 
     respond to the notice, the state may, but is not required to, 
     remove the registrant only if the registrant fails to vote in 
     two federal elections after the date of the notice.
       A second federal law governing state voter registration 
     lists--the Help America Vote Act of 2002 (``HAVA''), passed 
     in the wake of the 2000 Presidential election--mandates the 
     creation of statewide voter registration databases for all 
     elections to federal office that include the ``name and 
     registration information of every legally registered voter in 
     the State.'' HAVA requires that the database be created and 
     maintained in a ``uniform and nondiscriminatory manner.'' 
     HAVA requires that state or local officials perform ``list 
     maintenance'' on a ``regular basis'' in accordance with the 
     provisions in the NVRA. For the purposes of identifying 
     felons and deceased individuals subject to removal, HAVA 
     requires that the state coordinate with state agencies 
     maintaining records on felony status and death.
       HAVA further requires that states implement, consistent 
     with NVRA, systems ``of file maintenance that make[] a 
     reasonable effort to remove registrants who are ineligible to 
     vote from the official list of eligible voters,'' under which 
     ``registrants who have not responded to a notice and who have 
     not voted in 2 consecutive general elections for Federal 
     office shall be removed from the official list of eligible 
     voters, except that no registrant may be removed solely by 
     reason of a failure to vote.''
       When done improperly, voter list maintenance and voter 
     purges disenfranchise otherwise eligible voters, use 
     unreliable practices and data that disproportionately sweep 
     in, and ultimately disenfranchise minority voters, often 
     occurring too close to an election

[[Page H4466]]

     for a voter to correct the error if registration deadlines 
     have passed. Practices of voter purging have raised serious 
     concerns in recent years.


   THE DISPROPORTIONATE AND DISCRIMINATORY BURDEN AND IMPACT OF LIST 
                MAINTENANCE PRACTICES ON MINORITY VOTERS

       Evidence received by the Subcommittee demonstrates that 
     misconceived voter list maintenance efforts have erroneously 
     sought to remove hundreds of thousands of properly registered 
     voters and, in doing so, disproportionately burdened minority 
     voters.
       Following the Shelby County decision, several states, 
     including those previously covered by Section 5 preclearance, 
     have removed millions of registered voters from their voter 
     rolls. As Michael Waldman, President of the Brennan Center 
     for Justice, stated in his testimony before the Subcommittee, 
     ``abusive purges can remove duly registered citizens, often 
     without their knowledge.'' Mr. Waldman further testified 
     that, ``purges have surged in states once subject to federal 
     oversight under the VRA . . . states once covered by Section 
     5 saw purges at a 40 percent higher rate than the rest of the 
     country.''
       The Brennan Center reports that more than 17 million voters 
     were removed from the rolls nationwide between 2016 and 2018. 
     In testimony during the 116th Congress, Mr. Waldman noted 
     that the purge rate outpaced growth in voter registration (18 
     percent) or population (6 percent) and that the Brennan 
     Center had calculated that two million fewer voters would 
     have been purged between 2012 and 2016 if jurisdictions 
     previously covered by Section 5 of the Voting Rights Act had 
     purged their voter rolls at the same rate as other non-
     covered jurisdictions. Kevin Morris, Researcher with the 
     Brennan Center, stated in his testimony before the 
     Subcommittee that:
       ``Put differently, this means that the end of the 
     preclearance condition did not result in a one-time `catch-
     up' of voter list maintenance, but rather ushered in a new 
     era in which the voter list maintenance practices of formerly 
     covered jurisdictions were substantially more aggressive than 
     other demographically-similar jurisdictions that were not 
     covered under the VRA. . . . Simply put, Shelby County 
     allowed and effected increased voter purges in counties with 
     demonstrated histories of racially discriminatory voting 
     rules.''
       In several recent cases, states were found to have 
     improperly sought to remove properly registered voters. For 
     example, after the State of Wisconsin identified 341,855 
     registrants as potentially subject to removal on the basis of 
     having moved, thousands of individuals showed up to vote in 
     the following election at their address of registration, 
     indicating that Wisconsin had improperly flagged such 
     registrants as likely movers. Joshua Kaul, Attorney General 
     for the State of Wisconsin testified that, of the voters 
     initially listed on the ``movers report,'' over 6,000 voters 
     responded to the postcards sent out to the potential 
     ``movers'' and therefore kept their registration active, 
     however, many more were erroneously deactivated and left off 
     the poll book even though they had not moved. Attorney 
     General Kaul further testified that, during the 2018 Spring 
     Primary, Wisconsin Elections Commission staff reported that, 
     ``while available data from the DMV implied many had moved, 
     some of the voters, in fact, had not moved,'' and that 
     ``[o]verall, 12,133 [voters] were proactively reactivated by 
     staff or were stopped from being deactivated due to these 
     data discrepancies.'' A study of Wisconsin's process found 
     that at least four percent of the registrants who were 
     identified as potential movers and who did not respond to a 
     subsequent postcard cast a ballot at their address of 
     registration, with minority registrants twice as likely as 
     white registrants to do so.
       The State of Arkansas moved to purge nearly 8,000 voters 
     from the rolls on grounds that they were ineligible to vote 
     due to a felony conviction--in Arkansas, those who have been 
     convicted of a felony lose their right to vote until their 
     sentence is completed or they are pardoned. In actuality, 
     however, the list included a high percentage of voters who 
     were indeed eligible and, in fact, some had never been 
     convicted of a felony or had had their voting rights 
     restored.
       Thomas Saenz of MALDEF noted in his testimony before the 
     Subcommittee that, ``MALDEF and others also had to challenge 
     an attempt to purge thousands of naturalized Texans, who were 
     targeted through Motor Vehicles data that the state knew were 
     outdated and would not reflect recent naturalizations.'' 
     Texas erroneously tried to remove tens of thousands of voters 
     on grounds that they were non-citizens. Evidence subsequently 
     showed that virtually all the registrants targeted by the 
     effort were, in fact, citizens eligible to vote.
       Additionally, an analysis conducted by a non-partisan group 
     found that, of the more than 300,000 registrants Georgia 
     purged in 2019 for having changed residence, 63.3 percent 
     still lived at the residence identified on the voter 
     registration. The analysis found the Georgia erroneously 
     purged nearly 200,000 voters from its rolls.
       In many cases, the percentage of voters from racial or 
     language minority groups subject to removal under these 
     recent, large-scale, and often errant, voter roll purge 
     efforts exceeded such groups' representation in the overall 
     population. For example, in 2012 the State of Florida created 
     a list of 182,000 registrants potentially subject to purge on 
     the grounds that the registrants were non-citizens. The 
     percentage of registrants included in the list that were 
     Hispanic (61 percent) substantially exceeded the percentage 
     of Hispanics in Florida's overall population (16 percent). 
     Litigation in the case of Mi Familia Vota Education Fund v. 
     Detzner showed that this change should have been submitted 
     for preclearance as a statewide change impacting formerly 
     covered counties in Florida under Section 5. NAACP LDF's 
     Democracy Diminished report noted that a 2018 report found 
     that since 2016, Florida has purged more than seven percent 
     of voters.
       Likewise, mailers initiating the Wisconsin voter purge 
     effort were disproportionately sent to counties with 
     disproportionately large Black and Latino populations. 
     According to Demos, while the Black voting population 
     comprises only 5.7 percent of Wisconsin's total electorate, 
     ``the highest concentrations of 2019 ERIC mailers were sent 
     to areas that are home to the largest Black voting population 
     in Wisconsin.'' Demos reported that over one-third of the 
     mailers sent to voters on the 2019 ERIC list went to the two 
     counties where the vast majority of Wisconsin's Black voters 
     reside--Milwaukee and Dane--two counties that are home to 
     three quarters of Wisconsin's Black voters.
       A 2016 analysis of an Ohio removal effort found that the 
     effort disproportionately removed voters in in-town African 
     American neighborhoods relative to predominantly white 
     suburbs--``in predominantly African American neighborhoods 
     around Cincinnati, 10 percent of registered voters had been 
     removed due to inactivity in 2012, compared to just 4 percent 
     in the suburban Indian Hill.'' And a purge of registrants in 
     Brooklyn, New York, removed 14 percent of voters in Hispanic-
     majority districts compared to 9 percent of voters in other 
     districts.
       Several approaches states have taken to culling voter rolls 
     have been shown to disproportionately remove properly 
     registered minority voters. To begin, a number of states, 
     including Florida, Georgia, Iowa, Minnesota, Tennessee, and 
     Texas, have sought to remove registrants on the basis that 
     they were non-citizens, often using state and federal 
     databases that can contain inaccurate information. To 
     identify non-citizen registrants, for example, Florida used 
     its Department of Motor Vehicles (``DMV'') and the federal 
     Systematic Alien Verification for Entitlements (``SAVE'') 
     databases and sought to match citizenship information in 
     those databases with its voting rolls.
       As explained in the Subcommittee's prior report, the SAVE 
     database is used at times to verify immigration status when 
     an individual interacts with a state--however, SAVE does not 
     include a comprehensive and definitive listing of U.S. 
     citizens and states have been cautioned against using it to 
     check eligibility. Drivers' license databases have also 
     proven to be inaccurate for verifying voter registration 
     lists.
       According to the U.S. Commission on Civil Rights' 
     (``USCCR'') 2018 report, the list of 182,000 registrants was 
     created by comparing the voting rolls to drivers' license 
     databases, ``which is an extremely faulty method as drivers' 
     license databases do not reflect citizenship,'' and was then 
     cut back to approximately 2,600. Because, among other 
     reasons, DMV records and SAVE databases are not generally 
     updated to remove subsequently naturalized individuals, 
     Florida's reliance on those databases to identify voters 
     subject to being purged erroneously identified numerous 
     registrants as non-citizens, the vast majority of whom 
     were Latino, Hispanic, or Black. For example, of the 1,572 
     individuals that were notified by Miami-Dade County that 
     they were potentially subject to purge as identified non-
     citizens, 98 percent of the respondents (549 out of 562) 
     provided evidence that they were citizens and eligible to 
     vote.
       Similarly, Texas used DMV records to try to identify non-
     citizens to remove from its voting rolls. Texas officials 
     initially claimed that the DMV matching effort identified 
     95,000 non-citizens as registered to vote (58,000 of whom had 
     voted in the previous election). However, because the DMV 
     data did not account for subsequently naturalized citizens, 
     the effort erroneously flagged thousands of individuals who 
     were lawfully registered to vote. In Harris County, Texas, 
     alone, approximately 60 percent of the voters flagged for 
     removal produced evidence confirming their citizenship and 
     entitlement to vote.
       An audit of a sample of the remaining registrants 
     identified by the DMV database matching effort as ``non-
     citizens'' yielded no non-citizens. Because over 87 percent 
     of Texas' naturalized citizens are Black, Latino, or Asian, 
     these falsely identified non-citizens were overwhelmingly 
     minority voters. Sonja Diaz, Founding Executive Director of 
     the Latino Policy and Politics Initiative at the University 
     of California, Los Angeles (``UCLA LPPI'') notes in her 
     testimony that, ``[t]he disingenuous targeting of naturalized 
     voters was not unique to Texas, but also found in 16 states 
     where inaccurate immigration data identified and purged 
     rightfully registered Latino voters.''
       The NAACP Legal Defense Fund's report Democracy Diminished 
     noted an additional example of attempts to wrongfully or 
     inaccurately purge voters from the voting rolls, such as in 
     Alabama when, in 2012, parties entered into a partial consent 
     agreement to resolve issues under Section 5 of the VRA and 
     blocked the City of Evergreen from continuing to implement an 
     un-precleared discriminatory voter purge based on utility

[[Page H4467]]

     records that omitted eligible voters from a voter 
     registration list, ``including nearly half of the Conecuh 
     County registered voters who reside in districts heavily 
     populated by Black people.''
       Additionally, several states have relied, or tried to rely, 
     on multi-state databases--Interstate Voter Registration 
     Crosscheck (``Crosscheck'') and Electronic Registration 
     Information Center (``ERIC'')--to identify registrants who 
     allegedly moved to a different state, and therefore were 
     allegedly subject to removal.
       Crosscheck, a joint venture of as many as 29 states, was 
     created by former Kansas Secretary of State Kris Kobach to 
     identify voters registered in more than one state. The 
     Crosscheck program sought to do so by comparing voter 
     registration lists from participating states and flagging all 
     records that have the same first and last name, and date of 
     birth.
       Quantitative studies have shown that Crosscheck is an 
     unreliable basis for identifying voters registered in 
     multiple jurisdictions because of the small number of data 
     points it uses to identify ``duplicate'' registrations--many 
     people share the same first and last name and the same 
     birthday. In other words, ``a substantial share of the 
     pairings returned to states by Crosscheck [as duplicate 
     registrations] represented cases in which two different 
     registrants shared the same first name, last name, and date 
     of birth instead of the same person being registered in to 
     vote in two different states.''
       The states which used Crosscheck to identify duplicate 
     registrants should have known this--Crosscheck's, ``user 
     manual specifically states that `a significant number of 
     apparent double votes are false positives and not double 
     votes.' '' The accuracy of Crosscheck was also undermined by 
     its use of unreliable registration dates and other data entry 
     errors. Sophia Lin Lakin, Deputy Director of the Voting 
     Rights Project at the American Civil Liberties Union 
     (``ACLU'') notes in her testimony that:
       ``A study by a team of researchers at Stanford, Harvard, 
     the University of Pennsylvania, and Microsoft found that 
     using Crosscheck to purge the voter rolls in one state, 
     ``could impede approximately 300 legitimate votes for each 
     double vote prevented.'' In other words, the system 
     incorrectly flags people as potential double voters 
     (``matches'') more than 99% of the time because of false 
     positives resulting from poor matching protocols.''
       Crosscheck's high error rate and heavy reliance on first 
     and last names to identify duplicate registrants increases 
     the likelihood that properly registered minority voters are 
     subject to removal proceedings at a higher rate than properly 
     registered white voters. As Ms. Lakin explained to the 
     Subcommittee:
       ``Among some minority populations, first-name naming 
     conventions are more commonly used, and many individuals born 
     around the same historical periods are given the same name. 
     Many often share the same or similar last names. Latinx 
     voters, for example, are more likely than white voters to 
     have one of the most common 100 surnames in the country. 
     Indeed, existing studies show that incorrect matches using 
     such a methodology are disproportionately concentrated among 
     minority voters. Crosscheck flagged one in six Latinx 
     Americans, one in seven Asian Americans, and one in nine 
     African Americans as potential double registrants.''
       Several states have aggressively sought to purge voters 
     using data they knew or should have known would errantly lead 
     to the removal of properly registered voters. For example, an 
     election official in Kansas--the State that created and 
     managed Crosscheck--contemporaneously admitted that most of 
     the ``duplicate'' registrations identified by Crosscheck were 
     not the result of fraud, but instead reflected data entry 
     errors, writing in an email disclosed in litigation that, 
     ``[i]n the majority of cases of apparent double votes, in the 
     end they do not turn out to be real double votes due to poll 
     worker errors, mis-assignment of voter history, voters 
     signing the wrong lines in poll books, etc.''
       Other states participating in Crosscheck were also aware of 
     its high error rate. A 2013 report by the Virginia State 
     Board of Elections, for example, found that, after conducting 
     ``quality control for verifying . . . data matches . . . only 
     57,000 of the 308,579'' registrations identified by 
     Crosscheck as ``duplicates'' in fact warranted initiation of 
     cancellation efforts, meaning that Virginia independently 
     determined that Crosscheck's error rate likely exceeded 75 
     percent.
       Likewise, Indiana twice used database records to purge 
     ``duplicate'' registrants from its voting rolls, and in doing 
     so failed to comply with the NVRA. Indiana's first voter 
     purge effort used data from Crosscheck--which, as explained 
     above, is known to include numerous errors and 
     disproportionately identify minority voters as having moved--
     to purge voters without providing affected registrants notice 
     of the removal efforts. Empirical evidence presented to the 
     district court revealed that ``Indiana's use of Crosscheck 
     data likely triggered list- maintenance against thousands of 
     eligible registrants who continued to reside at their address 
     of registration, but who had the misfortune of sharing the 
     same first name, last name, and date of birth of a registrant 
     in another Crosscheck member state.''
       The U.S. Court of Appeals for the Seventh Circuit held that 
     Indiana's voter purge program violated the NVRA by removing 
     voters who were suspected of changing residence without 
     adhering to the NVRA's notice requirements. Notwithstanding 
     that its previous purge effort had been found to be unlawful, 
     Indiana embarked on a second voter purge effort using a 
     proprietary database that a federal court found was, 
     ``functionally identical to Crosscheck.'' The district court 
     again concluded that the renewed voter roll purge effort 
     violated the NVRA for the same reason--Indiana was seeking to 
     purge voters using database information without adhering to 
     the NVRA's notice-and-waiting procedure.
       Crosscheck is no longer a widely used system amongst states 
     because of its abuses and inaccuracies. Ms. Lakin testified 
     that the system has been on hold since a 2019 settlement in a 
     case brought by the ACLU of Kansas, ``on behalf of 945 voters 
     whose partial Social Security numbers were exposed by Florida 
     officials through a public records request'' and it has not 
     been used since, ``a Homeland Security audit discovered 
     security vulnerabilities in 2017.'' The failures and abuses 
     of Crosscheck demonstrate how list maintenance processes and 
     databases can be abused and lead to erroneous and 
     disproportionate purging of minority voters from the voting 
     rolls.
       ERIC is another voter list maintenance tool which is used 
     by 30 states and the District of Columbia to maintain their 
     voter rolls. Whereas Crosscheck used just two datapoints to 
     identify ``duplicate'' registrations, ERIC uses more 
     information to identify duplicates, including DMV information 
     and Postal Service change of address data. The 31 
     jurisdictions participating in ERIC have agreed to send 
     postcards to registrants flagged by ERIC as duplicates to 
     confirm their registrations, the first step in removing such 
     registrants from voting rolls.
       Though ERIC is generally viewed as more reliable than 
     Crosscheck, it too has room for improvement and can 
     disproportionately impact minority voters. As first noted 
     above, a 2021 study of Wisconsin registrants flagged by ERIC 
     as potentially subject to removal based on a change of 
     address found that approximately four percent of the voters 
     flagged as having moved subsequently voted at their address 
     of registration, meaning that for every 29 registrations ERIC 
     identified as having moved, at least ``one registrant 
     continued to reside at their address of registration and used 
     that address to cast a ballot'' in the next election.
       Notably, the study found that registrants who were Black 
     and Hispanic were significantly more likely to be falsely 
     identified by ERIC as having moved than White registrants, 
     meaning that, ``the lower bound on the false mover error rate 
     is more than 100% larger for minorities than for whites.'' In 
     other words, the study found that ERIC erroneously identified 
     Black and Hispanic voters as subject to removal at twice the 
     rate at which it erroneously identified White voters as 
     subject to removal. The authors identified minority 
     registrants' disproportionate likelihood of living in a 
     multi-unit or larger household dwellings (and, therefore, 
     a likely relatively more frequent rate of change of 
     residence within a single jurisdiction) as likely causes 
     for their erroneous identification as subject to purge.
       Summarizing the literature on the use of databases to 
     identify duplicate registrants, Dr. Marc Meredith of the 
     University of Pennsylvania--who has published papers 
     analyzing both Crosscheck and ERIC--testified that research 
     ``demonstrates that minority registrants are more likely than 
     White registrants to be incorrectly identified as no longer 
     eligible to vote at their address of registration.'' Given 
     that the majority of states use databases like Crosscheck and 
     ERIC to identify voters for removal, the discriminatory 
     burdens imposed by use of the databases extend throughout 
     much of the United States.
       Ms. Lakin also provided testimony to the Subcommittee on 
     the dangers of ``mass voter challenges.'' According to her 
     testimony, state ``challenger laws''--laws that allow private 
     citizens to challenge the eligibility of prospective voters 
     on or before Election Day--have also been used to remove 
     voters from the rolls en masse. These laws have been used to 
     target voters along race, class, and disability lines. As Ms. 
     Lakin explains, ``[m]ass challenges are tantamount to a 
     systemic purge, but can be exploited to avoid federal rules 
     governing purge programs, such as the prohibition of systemic 
     removals of voter registrations within 90 days of a federal 
     general election'' and can deprive or attempt to deprive 
     thousands of their voting rights.
       Furthermore, a 2020 report published by the Native American 
     Rights Fund (``NARF''), Obstacles at Every Turn: Barriers to 
     Political Participation Faced by Native American Voters, 
     highlighted the impact voter purges have on Native American 
     voters. The NARF report details how the non-traditional 
     addresses many Native voters have, or failure to accept a 
     P.O. Box and an applicant's drawing on the voter registration 
     form, can result in them being purged from the voter rolls. 
     Under the NVRA, election officials cannot deny a voter's 
     registration or purge an existing application because the 
     applicant uses a non-traditional address or must be 
     identified by landmarks or geographic features.
       Additionally, failing to provide language assistance and 
     information about voter purges in the covered Native 
     language, as provided for under Section 203 of the VRA, can 
     negatively impact Native language speaking voters. Wrongful 
     purges can impact

[[Page H4468]]

     Native voters for many subsequent elections. According to 
     NARF's report:
       ``Once purged, many Native voters will not vote again in 
     non-Tribal elections. Effectively, a voter purge can result 
     in permanent disenfranchisement. Far too often, that is 
     precisely what election officials intend to accomplish in 
     Indian Country.''
       The various processes by which voters are removed from the 
     rolls can be and is abused, resulting in numerous cases in 
     which otherwise eligible voters were erroneously removed from 
     the voting rolls. The data gather by the Subcommittee 
     illustrates the disproportionate and discriminatory impact 
     borne by minority voters.
       This record also demonstrates minority voters face a 
     significant risk of being disproportionately burdened through 
     voter roll purges which are attributable to discriminatory 
     intent. The facts and circumstances surrounding several state 
     and local voter list maintenance efforts and voter purges 
     demonstrate that there is a high risk that the demonstrated, 
     disproportionate burdens on minority voters of such efforts 
     are a product of discriminatory intent.
       First, the ``historical background'' of many of these 
     widespread voter purge efforts raises concerns about 
     intentional discrimination. Several analyses have found that 
     jurisdictions previously covered by Section 5 of the VRA--
     states that had a history of engaging in intentional 
     discrimination against minority voters--removed voters from 
     their rolls at a faster rate than jurisdictions that had not 
     been previously covered by Section 5. As noted in the 
     discussion above, the Brennan Center found that jurisdictions 
     previously covered by Section 5 would have removed two 
     million fewer voters during the 2012 to 2016 period had they 
     removed registrants at the same rate as jurisdictions not 
     previously subject to preclearance; they removed voters at a 
     significantly higher rate than previously non-covered 
     jurisdictions.
       Similarly, a 2020 nationwide study by two researchers at 
     Columbia University's Barnard College found post-Shelby 
     County increases in purge rates of between 1.5 and 4.5 points 
     in jurisdictions formerly covered by Section 5 compared to 
     jurisdictions that had never been covered. In several of 
     these previously covered states, the rate at which voters 
     cast provisional ballots increased after the voter purges, 
     suggesting that voters were improperly purged.
       The Subcommittee further found that several state efforts 
     to remove alleged ``non- citizens'' from their voting rolls 
     involved statements made by elected officials revealing of 
     discriminatory intent. When Texas errantly used DMV records 
     to identify ``non-citizen'' registrants, the Attorney General 
     of Texas sent the following tweet:
       ``VOTER FRAUD ALERT: The @Txsecofstate discovered 
     approximately 95,000 individuals identified by DPS as non-
     U.S. citizens have a matching voting registration record in 
     TX, appr 58,000 of whom have voted in TX elections. Any 
     illegal vote deprives Americans of their voice.''
       The Texas Governor then issued a statement supporting 
     ``prosecution where appropriate'' of ``this illegal vote 
     [sic] registration.'' As noted above, these inflammatory 
     allegations proved to be entirely false. Kristen Clarke, 
     then-Executive Director of the Lawyers' Committee, testified 
     before the Subcommittee in 2019 that, ``the list was based on 
     DMV data that the state knew was flawed and would necessarily 
     sweep in thousands of citizens who completed the 
     naturalization process after lawfully applying for a Texas 
     drivers' license.'' Ms. Diaz testified that litigation work 
     ``led Texas officials to admit to knowing the discriminatory 
     impact of their citizenship review on naturalized citizens.'' 
     A federal court described the state officials' communications 
     regarding the non-citizen purge effort as ``threatening'' and 
     ``exemplif[ying] the power of government to strike fear and 
     anxiety and to intimidate the least powerful among us.''
       Florida's misconceived use of the SAVE database to identify 
     ``non-citizen'' registrants involved similarly troubling 
     evidence of discriminatory intent. The U.S. Department of 
     Homeland Security expressly advised Florida officials that 
     the SAVE database was not a reliable tool to verify 
     citizenship. The State was similarly warned in a letter from 
     the Justice Department. Despite these warnings, Florida 
     nevertheless moved forward with its effort to remove alleged 
     non-citizens using SAVE data--an effort that, as explained 
     above, disproportionately targeted minority voters. The State 
     was ultimately ordered to discontinue its purge based on the 
     use of SAVE data following litigation.
       Additionally, many of these voter purges--such as the 
     errant and unlawful purges in Florida, Georgia, and Texas--
     occurred in states that were previously covered jurisdictions 
     under the VRA and had longstanding histories of racially 
     polarized voting, which courts recognize provides Republican-
     controlled state legislatures with an incentive to engage in 
     election administration practices that disproportionately 
     burden minority voters likely to support non-Republican 
     candidates. For example, between 2016 and 2018, Georgia 
     purged more than 10 percent of its voters.
       In the context of mass voter challenges, a 2016 case in 
     North Carolina is illustrative of the way in which voter 
     purges based off challenges can be used to discriminate 
     against and suppress minority voters. As detailed in Ms. 
     Lakin's testimony, in the months and weeks before the 
     November 2016 elections, boards of election in three North 
     Carolina counties canceled thousands of voter registrations, 
     ``based solely on challengers' evidence that mail sent to 
     those addresses had been returned as undeliverable.'' Voters 
     were not provided notice, and in one of the counties, 
     ``voters who were purged were disproportionately African 
     American.''
       In a court hearing on the case, the federal district judge 
     stated that she was ``horrified'' by the ``insane'' process 
     by which voters could be removed from the rolls without their 
     knowledge, and went on to say that the mass challenges at 
     issue, ``sound[ed] like something that was put together in 
     1901.'' As noted previously, the federal court recognized 
     that these challenges are essentially systematic voter purges 
     and thus require the same protections, and ultimately barred 
     the state from removing voters based on these challenges 
     unless the voters is given notice and a waiting period and 
     unless the removals comply with the NVRA's mandate of 90 days 
     before federal elections.
       As also noted above, the voter purge efforts in Florida and 
     Texas were intended to combat registration and voting by non-
     citizens, yet each state's alleged evidence of non-citizen 
     registration and voting proved wholly unsupported when 
     subjected to even minimal scrutiny. The Texas actions, which 
     largely targeted Latino voters, followed an election year 
     wherein Latino voters doubled their turnout.
       Since the 2020 election, several states have enacted new 
     laws, along partisan lines, designed to purge voters more 
     aggressively from their rolls. These new laws are justified 
     by no more than unsupported claims of fraud or irregularities 
     in the 2020 election. Iowa enacted a new ``use-it-or-lose-
     it'' voting list maintenance law requiring that the Iowa 
     Secretary of State move all registrants who did not vote in 
     the most recent general election to ``inactive'' status--the 
     first step toward removing the registrant from the state's 
     rolls. Among those moved to ``inactive'' status were hundreds 
     of 17-year-olds who were eligible to register but not yet 
     eligible to vote in the 2020 general election.
       Arizona and Florida enacted laws making it easier to remove 
     voters from the states' vote-by-mail registration lists. And 
     Georgia's new voting law, which imposes a variety of 
     restrictions on voting, authorizes any individual Georgia 
     citizen to file an unlimited number of challenges to the 
     eligibility of particular voters.


                               CONCLUSION

       The evidence before the Subcommittee leads to a clear 
     conclusion--voter list maintenance and voter purge processes 
     can be, and are, wielded in a discriminatory manner and have 
     a disproportionate impact on minority voters. Additionally, 
     as will be discussed later in this report, erroneously 
     removing voters from the rolls does not affect only the 
     individual voter, but can have rippling consequences at the 
     polling place, increasing wait times that also 
     disproportionately impact minority voters.
       As Ms. Lakin of the ACLU stated in her testimony, ``the 
     integrity of our voter rolls--and thus our democratic process 
     itself--are threatened by overly aggressive practices that 
     wrongfully purge legitimate voters from the rolls--often 
     disproportionately voters of color, voters with disabilities, 
     and other historically disenfranchised voters.'' Also, 
     tellingly, because the claimed justifications for the purge 
     efforts have often been found to be unsupported or 
     pretextual, the evidence illustrates that this 
     disproportionate impact can be the product of discriminatory 
     intent. As such, the methods by which states maintain their 
     voter rolls and remove voters from active voter lists 
     deserves a heightened level of scrutiny and protection for 
     voters.

Chapter Four--Voter Identification and Documentary Proof-of-Citizenship 
                              Requirements


                               BACKGROUND

       A variety of state laws require voters to provide 
     identification or attempt to require documentary proof-of-
     citizenship to vote or register to vote. In recent years, 
     voter identification (``voter ID'') has been pushed forward 
     by many as a simple requirement necessary to combat alleged 
     voter fraud. This, again, is a false narrative.
       As Catherine Lhamon, then-Chair of the U.S. Commission on 
     Civil Rights, testified before the Subcommittee in 2019, 
     ``[N]ot only was there no evidence given to the Commission 
     about widespread voter fraud, the data and the research that 
     is bipartisan reflect that voter fraud is vanishingly rare in 
     this country . . . [A]nd so, it is duplicative and also 
     harmful to initiate strict voter ID, among other kinds of 
     requirements, in the name of combating voter fraud.''
       Michael Waldman of the Brennan Center testified that, 
     ``[v]oter fraud in the United States is vanishingly rare. You 
     are more likely to be struck by lightning than to commit in-
     person voter impersonation, for example.'' Furthermore, AAJC, 
     MALDEF, and NALEO, note in their November 2019 report that, 
     ``[n]o proponent of strict ID requirements has ever produced 
     credible evidence of widespread impersonation fraud in the 
     registration or voting process that identification cards 
     would allegedly prevent.''
       Despite a continuous lack of credible evidence that in-
     person voter fraud--the only form of fraud voter IDs would 
     prevent--exists, these laws and polices continue to be pushed 
     for and implemented across the country. Voter ID and 
     documentary proof-of-citizenship laws can and do 
     disproportionately

[[Page H4469]]

     impact minority voters and create discriminatory barriers to 
     the ballot box.
       Across both this Congress and the last, the Subcommittee 
     heard substantial testimony about the financial burden of 
     voter IDs--effectively creating a new poll tax--and the 
     disproportionate impact this has on minority and low-income 
     voters. Even when states proport to offer ``free'' IDs, they 
     are not free. This was also borne out in the U.S. Commission 
     on Civil Rights' 2018 statutory report, An Assessment of 
     Minority Voting Rights Access in the United States. For 
     instance, the USCCR report observed that ``expenses for 
     documentation (e.g., birth certificate), travel, and wait 
     times are significant--especially for low-income voters (who 
     are often voters of color)--and they typically range anywhere 
     from $75 to $175.'' According to Professor Richard Sobel's 
     report on the high cost of `free' photo voter ID cards:
       ``When legal fees are added to these numbers, the costs 
     range as high as $1,500. Even when adjusted for inflation, 
     these figures represent substantially greater costs than the 
     $1.50 poll tax outlawed by the 24th Amendment in 1964.''
       In evaluating these costs, Professor Sobel's report 
     identified seven types of costs for individual voters in 
     obtaining a ``free'' voter ID: (1) direct costs (out of 
     pocket expenses); (2) time costs for correspondence and 
     waiting to receive documents; (3) postage, delivery, and 
     special handling expenses for documents; (4) travel costs to 
     and from various agencies in order to obtain documents and 
     apply for the ID; (5) travel time costs for making trips to 
     government offices; (6) navigating costs for having to 
     maneuver complex bureaucracies; and (7) waiting time costs at 
     government offices. Professor Sobel notes that there are 
     other possible expenses for some individuals--such as those 
     without driver's licenses and without access to public 
     transportation, and some may have to pay legal fees and court 
     costs to obtain required documents.
       Voter ID laws were some of the first voting laws 
     implemented in previously covered states following the 
     Supreme Court's decision in Shelby. As Mr. Waldman stated in 
     his testimony, ``[i]n 2013, at least six states--Alabama, 
     Mississippi, North Carolina, North Dakota, Virginia, and 
     Texas--implemented or began to enforce strict photo ID laws, 
     most of which had previously been blocked by the Department 
     of Justice due to their discriminatory impact.''
       Hours after Shelby County was decided, Texas revived a 
     previously blocked voter ID law-- one of the strictest in the 
     country at the time. Passed and signed into law in 2011, the 
     law did not go into immediate effect as Texas was subject to 
     preclearance. In 2012, the law was denied preclearance on the 
     grounds that it discriminated against Black and Latino 
     voters. Yet, despite the denial of preclearance because of 
     discriminatory effects, within two hours of the Shelby 
     decision Texas' Attorney General announced the law would 
     immediately go into effect.
       Also, within days of Shelby, Alabama announced it would 
     move to enforce a photo ID law it had previously refused to 
     submit to the Department of Justice for preclearance. In 
     2011, before the Shelby decision, the Alabama state 
     legislature passed House Bill (HB) 19, a law requiring voters 
     to present a form of government-issued photo ID to vote. HB 
     19 also included a provision that would allow a potential 
     voter without the required ID to vote if that person could be 
     ``positively identified'' by two poll workers, a provision 
     Ms. Nelson of the NAACP Legal Defense Fund characterized as 
     one that, ``harkened back to pre-1965 vouch-to-vote 
     systems.'' Despite the bill being passed and sent to the 
     Governor's desk in 2011, it was not implemented until after 
     the Shelby decision was handed down--after the state was no 
     longer required to submit its voting changes to the DOJ for 
     preclearance review under the VRA.
       Less than two months after the Supreme Court struck down 
     the preclearance provisions, North Carolina state legislators 
     wasted no time passing an omnibus ``monster law.'' The bill 
     included voter ID provisions (among others) and would later 
     be struck down as racially discriminatory. Records in the 
     case showed that the data the State Legislature consulted, 
     ``showed that African Americans disproportionately lacked the 
     most common kind of photo ID'' and that after Shelby, ``with 
     race data in hand, the legislature amended the bill to 
     exclude many of the alternative photo IDs used by African 
     Americans. As amended, the bill retained only the kinds of 
     IDs that white North Carolinians were more likely to 
     possess.''
       State laws governing the provision of identification at the 
     time of voting can take several forms. Certain states require 
     that a voter present a photo ID to vote (often referred to as 
     ``strict photo ID laws''). Other states require that a voter 
     present an ID to vote, but do not require that the ID include 
     a photograph (often referred to as ``strict non-photo ID 
     laws''). Others do not require that voters present an ID to 
     vote, but nevertheless permit poll workers to request that 
     voters present either a photo ID (so-called ``Non-Strict 
     Photo ID Laws'') or a non-photo ID (so-called ``Non-Strict ID 
     Laws''). Presently, 35 states have laws that request or 
     require voters show some form of ID at the polls.
       Furthermore, proof-of-citizenship laws require registrants 
     to provide documentary proof that they are United States 
     citizens to register to vote. States that have required 
     documentary proof-of-citizenship as a condition to register 
     to vote have required a variety of forms of 
     citizenship documents such as birth certificates, 
     passports, certificates of naturalization, or driver's 
     licenses that specifically identify the individual as a 
     citizen.
       Because they involve conditions for applying to register to 
     vote, proof-of-citizenship laws implicate the NVRA. The NVRA 
     provides that driver's license applications and renewal 
     applications ``shall serve as an application for voter 
     registration with respect to elections for Federal office.'' 
     Under the NVRA, the federal voter registration form and state 
     voter registration forms included with a driver's license 
     application and renewal form must require that the applicant 
     attest that they are eligible to vote (including on the basis 
     of citizenship).
       States such as Alabama, Arizona, Kansas, and Georgia 
     attempted to enact laws requiring documentary proof of 
     citizenship when registering to vote. Additionally, former 
     Election Assistance Commission (``EAC'') Executive Director 
     Brian Newby attempted to unilaterally allow Alabama, Georgia, 
     and Kansas to require stringent proof-of-citizenship 
     instructions when registering using the federal voter 
     registration form--a move that was blocked by a federal 
     court.
       Evidence presented before the Subcommittee and discussed 
     below shows that voter ID and documentary proof-of-
     citizenship requirements can and do have disproportionate, 
     discriminatory, and suppressive impact on minority voters.


 THE DISPROPORTIONATE AND DISCRIMINATORY BURDEN AND IMPACT ON MINORITY 
      VOTERS OF VOTER ID AND DOCUMENTARY PROOF-OF-CITIZENSHIP LAWS

     Voter ID Laws
       Scholars and stakeholders have highlighted a number of ways 
     in which voter ID and documentary proof-of-citizenship laws 
     can and do discriminate against minority voters. As Ms. Diaz 
     of the UCLA Latino Policy and Politics Initiative testified:
       ``Racial/ethnic minorities are among those most sensitive 
     to changes in voting. As such, reforms that enact voter 
     identification laws to participate in an election have a 
     disparate impact on minority voters voting. . . . Recent 
     studies show that these effects are even more disastrous for 
     youth of color, who have even less access to valid forms of 
     identification.''
       Additionally, a February 2020 report published by the UCLA 
     School of Law Williams Institute estimates that voters who 
     are transgender, particularly transgender voters of color, 
     may face additional barriers when required to show ID to 
     vote, especially if they have no ID documents that reflect 
     their correct name and/or gender.
       Obtaining the required form of identification or supporting 
     documents is costly, which can disproportionately deter 
     minority voters who are, on average, less wealthy than White 
     voters and who disproportionately lack access to qualifying 
     IDs or documentation. A 2013 study by Harvard Law School's 
     Charles Hamilton Houston Institute for Race & Justice found 
     that, even in states that provide ``free'' ID cards, the 
     actual cost of obtaining a qualifying photo ID ranged from 
     $75 to $368 due to indirect costs associated with travel 
     time, waiting time, and obtaining necessary supporting 
     documentation.
       The documents required to establish proof-of-citizenship 
     are particularly expensive to obtain for naturalized and 
     derivative citizens, sometimes costing in excess of $1,000. 
     Naturalized voters often must bear these costs in states that 
     require voter ID as well because documents necessary to 
     establish citizenship also are often necessary to obtain a 
     qualifying form of identification. For example, Terry Ao 
     Minnis, Senior Director of Census and Voting Programs for 
     Asian Americans Advancing Justice AAJC, testified before the 
     Subcommittee that:
       ``If naturalized and derivative citizens need a replacement 
     certificate of citizenship or naturalization to register to 
     vote, they face a major hurdle: certificates of citizenship 
     presently cost upwards of $1,170 and replacement certificates 
     of naturalization cost upwards of $555. In addition, to 
     obtain a replacement, the average wait is between 8.5 to 11 
     months for the Department of Homeland Security to process and 
     to obtain a certificate of citizenship the average wait is 
     6.5 to 14.5 months.''
       These burdens will disproportionately burden a growing 
     percentage of the U.S. population. Ms. Minnis testified that 
     Census data show that 62.8 percent of eligible Asian 
     American; 31.0 percent of eligible Latino voters; 23.9 
     percent Native Hawaiian and Pacific Islander voters; and 10.3 
     percent of eligible Black voters were naturalized citizens as 
     of 2019, compared to just 3.8 percent of non-Hispanic white 
     voters.
       The substantial cost of obtaining qualifying IDs or 
     supporting documentation is particularly high when, as is the 
     case in certain states, DMVs, or other government offices 
     where a voter can obtain a qualifying ID or other form of 
     documentation, are less accessible for minority voters. Voter 
     ID and proof-of-citizenship laws have become, in effect, 
     modern-day poll taxes for many voters.
       For example, the implementation of Alabama's voter ID law 
     soon after the Shelby decision, ``was accompanied by the 
     closure of nearly half of the state's DMV locations, with 
     most of the closures in disproportionately poor and Black 
     counties.'' The day after the Shelby decision, Alabama 
     announced it would implement its 2011 photo ID law--a law it 
     had delayed implementing for two years--for the 2014 
     election. As a result of the DMV closures, Black voters had

[[Page H4470]]

     to spend more time and money to travel to obtain qualifying 
     IDs. As noted in the Subcommittee's previous report, the U.S. 
     Department of Transportation (``DOT'') launched an 
     investigation into the DMV closures, which eventually 
     resulted in DOT and the State of Alabama entering into a 
     settlement agreement.
       Similarly, DMV offices are not present on reservation 
     lands, meaning that Native American voters often must drive 
     at least an hour to obtain an ID. Indeed, Native American 
     voters in North Dakota had to travel, on average, twice as 
     far as non-Native American voters to visit a driver's license 
     office, with the average Standing Rock Sioux member having to 
     travel over an hour and a half to reach the nearest site to 
     obtain identification. As Matthew Campbell, Staff Attorney 
     with NARF, testified:
       ``Today, many Native American reservations are located in 
     extremely rural areas, distant from the nearest off-
     reservation border town. This was by design--official 
     government policies forcibly removed Native Americans and 
     segregated them onto the most remote and undesirable land. As 
     a result of these policies, travel to county seats for voting 
     services can be an astounding hundreds of miles away. 
     Services such as DMVs and post offices can also require hours 
     of travel.''
       Various studies have also demonstrated a variety of ways in 
     which voter ID laws disproportionately burden minority 
     voters. To begin, studies have consistently demonstrated that 
     minority voters are disproportionately likely to lack forms 
     of identification required by voter ID laws, meaning that 
     minority voters are more likely to have to take the time and 
     bear the costs of obtaining a qualifying ID.
       For example, one analysis found that in four states that 
     had adopted voter ID laws-- Wisconsin, Indiana, Pennsylvania, 
     and Texas--White voters were statistically more likely to 
     possess a valid form of ID than Latino and Black voters. 
     Numerous other state-specific and nationwide studies have 
     reached the same conclusion--minority voters 
     disproportionately lack qualifying IDs.
       A meta-analysis using both state-level and national survey 
     data revealed ``that the magnitude of the negative impact of 
     race on the likelihood of having a valid ID is substantial, 
     outstripping other relevant variables like age, gender, and 
     having been born outside the United States.'' This 
     differential effect persisted even when the authors 
     controlled for other explanatory factors like education 
     level, home ownership, and income.
       The Subcommittee also received evidence and testimony that 
     the discriminatory burdens associated with obtaining voter ID 
     and documentary proof-of-citizenship laws are particularly 
     pronounced for Native American voters. For example, a North 
     Dakota voter ID law required that qualifying IDs include the 
     voter's physical address. However, Native American voters who 
     live on reservations often lack a physical address, instead 
     using a post office box. Mr. Campbell testified that 
     ``obtaining a state issued ID is unreasonably difficult for 
     many Native voters.''
       The cost of obtaining a qualifying ID is also 
     disproportionately burdensome for Native Americans, many of 
     whom live below the poverty line and far from offices where 
     they can obtain a qualifying ID. Mr. Campbell, who himself 
     served as one of the litigators on the North Dakota voter ID 
     case, testified that due to these and other issues, ``voter 
     identification laws can lead to the disenfranchisement of 
     American Indians and Alaska Natives.'' Mr. Campbell further 
     testified that ``[f] or impoverished Native Americans, the 
     cost of identification is often prohibitively expensive. Even 
     nominal fees can present a barrier.'' Likewise, Alysia 
     LaCounte, General Counsel for the Turtle Mountain Band of 
     Chippewa Indians, testified before the Subcommittee during 
     the 116th Congress that the unemployment rate on the Turtle 
     Mountain Reservation hovers near 70 percent: ``[u]nderstand 
     that the fee of $15 is not exorbitantly high, but $15 is milk 
     and bread for a week for a poor family.'' Drivers' licenses 
     are also often not required for everyday life on the 
     reservation.
       Tribal IDs are also not automatically accepted for 
     registration and voting purposes, despite the barriers for 
     tribal members to get a state ID. Often, even when states do 
     accept a tribal ID, the state may require the ID contain 
     certain information to be sufficient that tribal IDs do not 
     contain--updating tribal IDs to contain specialized 
     information or security features can be expensive for 
     impoverished tribes. Additionally, housing insecurity is 
     pervasive among Native communities, as is a lack of regular 
     postal service, leading many Native individuals to use P.O. 
     Boxes instead of a residential address or omit an address 
     altogether. All of these factors lead to voter ID laws having 
     a disproportionate impact on Native American voters.
       The Subcommittee also received substantial testimony in the 
     116th Congress from leaders of the Standing Rock Sioux Tribe, 
     the Turtle Mountain Band of Chippewa Indians, the Spirit Lake 
     Tribe, and the Mandan Hidatsa and Arikara Nation about the 
     significant and disproportionate burden North Dakota's voter 
     ID law had upon their tribal governments and members. Tribal 
     leaders testified as to the substantial resource burden their 
     tribes took on in order to provide their members with new IDs 
     that would qualify for voting under the new law--resources 
     their tribes did not necessarily have. Additional testimony 
     was gathered in the 116th Congress at a field hearing 
     conducted in Phoenix, Arizona, and the February 11, 2020, 
     hearing on Native American voting rights further detailing 
     how voter ID issues disproportionately impact Native voters.
       Other studies have demonstrated that local officials 
     administer voter ID laws in a discriminatory manner. Dr. 
     Lonna Rae Atkeson of the University of New Mexico testified 
     that several studies of poll workers and voters suggest that 
     implementation practices can result in unequal application of 
     voter identification laws. A study of New Mexico's non-strict 
     voter ID law, for example, found that poll officials were 
     more likely to request that Hispanic voters show an ID than 
     non-Hispanic voters. Dr. Atkeson further testified that the 
     effects of voter ID laws may also be to affect voter 
     confidence and satisfaction in the election process, which 
     may have long-term consequences on voter turnout or lead to 
     increases in provisional voting. Additionally, Dr. Atkeson 
     testified that subsequent studies haves sometimes shown 
     various degrees of differences in implementation of voter ID 
     laws between Whites and Hispanics in New Mexico.
       Similar studies in Michigan and Boston reached the same 
     result--poll workers are significantly more likely to request 
     that minority voters present ID than White voters. Relatedly, 
     a separate multi-state study found that (1) state and local 
     election officials were less likely to answer email questions 
     regarding voter ID requirements when the individual posing 
     the question had a Latino last name and that (2) election 
     officials provided less accurate information regarding voter 
     ID requirements to requesters with Latino last names. This 
     research demonstrates that even non-strict voter ID laws 
     impose discriminatory burdens on minority voters.
       Numerous studies also have demonstrated that strict voter 
     ID laws disproportionately decrease registration and turnout 
     of minority voters relative to White voters. One study 
     focusing on Texas' strict voter ID law found that 
     ``registrants voting without ID in 2016 were 14 percentage 
     points less likely to vote in the 2014 election, when a 
     strict ID mandate was in place, and significantly more likely 
     to be Black and Latinx than the population voting with ID in 
     2016.'' Additionally, a 2014 report prepared by the 
     Government Accountability Office found that strict voter ID 
     laws in Kansas and Tennessee reduced turnout by larger 
     amounts among African American registrants than among White, 
     Asian American, and Hispanic registrants.
       Nationwide and multi-state studies conducted by Dr. Nazita 
     Lajevardi of Michigan State University and her colleagues 
     compared political participation of minority voters in states 
     with strict voter ID laws and states without such laws. In 
     one set of studies, Dr. Lajevardi and her colleagues found 
     that strict voter ID laws ``have a differentially negative 
     impact on the turnout of racial and ethnic minorities in 
     primaries and general elections,'' estimating that Latinos, 
     for example, are 10 percent less likely to turnout in general 
     elections in states with strict voter ID laws than in states 
     without such laws.
       Dr. Lajevardi and her colleagues further found that, in 
     primary elections, strict voter ID laws ``depress Latino 
     turnout by 9.3 percentage points, Black turnout by 8.6 
     points, and Asian American turnout by 12.5 points.'' These 
     turnout declines were associated with increases--in many 
     cases several-fold increases--in the gap in participation 
     rates between white and non-white voters. In another study 
     published several years later, Dr. Lajevardi and her co-
     authors found a similar result using a different multi-state 
     dataset and methodology. The study found that ``turnout 
     declined significantly more in racially diverse counties 
     relative to less diverse counties in states that enacted 
     strict identification laws . . . than it did in other 
     states.''
       Summarizing these and other studies analyzing the impact of 
     voter ID laws on the political participation of minority 
     voters, Dr. Lajevardi testified that ``strict voter 
     identification laws are racially discriminatory and have real 
     consequences for impacting the racial makeup of the voting 
     population.'' Dr. Lajevardi also testified that, ``[b]y 
     raising the cost of voting for some individuals more than 
     others, they affect who votes and who does not, and in doing 
     so, they substantially shape whose voices are represented in 
     our democracy.''
       Dr. Matthew Barreto of the UCLA Latino Policy and Politics 
     Initiative agreed:
       ``The best evidence available suggests that voter ID laws 
     have a negative, racially disparate impact on turnout across 
     the states . . . [and] that racial disparities in access to 
     identification appropriate for voting persist even after 
     accounting for important covariates like education and 
     income.''
     Documentary Proof-of-Citizenship Requirements
       While all states require proof of citizenship to register 
     to vote, an attestation of citizenship under penalty of 
     perjury has generally met the requirement. Similar to voter 
     ID laws, documentary proof-of-citizenship requirements have 
     purported to combat non-citizen voting--a claim that is 
     false.
       Documentary proof-of-citizenship laws have also been shown 
     to have similar discriminatory effects on political 
     participation by minority voters as voter ID laws. For 
     example, evidence developed in the course of an investigation 
     by the Kansas State Advisory Committee to the USCCR found 
     that a

[[Page H4471]]

     disproportionate number of Kansas voters who had incomplete 
     voting applications or were placed on the suspense voters 
     list were located in Census tracts with a disproportionately 
     high percentage of Black residents, younger voters, and 
     low-income voters, for whom the high cost of obtaining 
     proof-of-citizenship was disproportionately burdensome. 
     After Arizona's adoption of a documentary proof-of-
     citizenship law, for example, ``the percent share of 
     Latino voter registration in the state fell.''
       Recent studies have demonstrated that African American and 
     Latino voters are less likely to have access to birth 
     certificates and passports--documents often required to 
     establish proof of citizenship--than White voters. And Puerto 
     Rican-born voters face particularly significant difficulty 
     obtaining documents necessary to prove their citizenship as a 
     result of a 2009 change in birth certificate standards that 
     invalidated all birth certificates issued by Puerto Rico 
     prior to 2010--a change that potentially impacts 
     approximately 1.8 million Puerto Rican-born adults now living 
     on the mainland. Since the new standards were adopted, Puerto 
     Rican-born voters who seek to register to vote in a state 
     with a proof-of-citizenship requirement must either have a 
     U.S. passport, or go through additional procedures and pay 
     fees for a new birth certificate after July 2010.
       Kira Romero-Craft, Director, Southeast Region for 
     LatinoJustice PRLDEF, testified that in July 2019, for 
     example, LatinoJustice and the Southern Center for Human 
     Rights filed suit in the U.S. District Court for the Northern 
     District of Georgia on behalf of their client for 
     discrimination based on the Georgia Department of Driver 
     Services' (``DDS'') practice of ``confiscating original 
     identity documents from Puerto Rican-born applicants for 
     Georgia drivers' licenses and denying equal protection of the 
     laws and privileges due to Puerto Rican-born U.S. citizens.'' 
     LatinoJustice's investigations found that the practice of 
     turning away U.S. citizens presenting Puerto Rican identity 
     documents, confiscating Puerto Rico birth certifications and 
     original Social Security cards for ``fraud'' investigations, 
     or denying them the opportunity to exchange their driver 
     licenses for a Georgia license had been going on as far back 
     as the 1990s and undoubtedly harmed U.S. citizens who were 
     otherwise eligible to vote.
       As Ms. Diaz of the UCLA Latino Policy and Politics 
     Initiative testified, proof-of-citizenship laws ``give rise 
     to a presumption that the growing and diverse Latino 
     population is under attack; this was especially true of 
     Arizona, where a proof of citizenship law was overturned by 
     the Ninth Circuit.'' Andrea Senteno, Regional Counsel for 
     MALDEF, testified that there is a growing body of evidence 
     that:
       ``[S]hows that proof of citizenship requirements in fact 
     prevent significant numbers of U.S. citizens from registering 
     to vote, and that ``[s]urveys show that millions of American 
     citizens--between five and seven percent--don't have the most 
     common types of documents used to prove citizenship: a 
     passport or birth certificate.''
       Additionally, Terry Ao Minnis of AAJC testified that 
     documentary proof-of-citizenship, as well as voter ID 
     requirements, disproportionately impact Asian Americans due 
     to high rates of immigration and naturalization in the 
     community. Ms. Minnis testified that Asian Americans will 
     ``face greater barriers to registration than white voters 
     under these laws as 76.6 percent of Asian American adults are 
     foreign-born and 39.5 percent of Asian American adults have 
     naturalized nationwide, compared to 4.6 percent of white 
     adults who are foreign-born and 3.8 percent who have 
     naturalized.''


             ADDITIONAL EVIDENCE OF DISCRIMINATORY PURPOSE

       The Subcommittee was also confronted with evidence that the 
     discriminatory impact of voter ID and documentary proof-of-
     citizenship laws are the product of state legislatures 
     enacting them with a discriminatory purpose. As noted above, 
     following the Supreme Court's decision in Shelby County, 
     several states enacted or implemented particularly strict 
     voter ID laws, several of which were later struck down by 
     courts as intentionally discriminatory, and violative of the 
     Constitution and the Voting Rights Act. These restrictions 
     are examples of discrimination in voting that warrant 
     preemptive federal protections.
       For example, as first discussed above, within days of the 
     Shelby County decision, Texas implemented a photo ID law that 
     had previously been denied preclearance by the Department of 
     Justice. As Janai Nelson of the NAACP Legal Defense Fund 
     testified, the law was widely described as the most 
     restrictive voter ID law in the country as it permitted 
     concealed handgun license owners to vote with that ID--a form 
     disproportionately held by white Texans--but prohibited the 
     use of student IDs, and employee or trial state or federal 
     government-issued IDs in voting.
       The Texas voter ID case took years to make its way through 
     the courts. A federal court found that the voter ID law was 
     unconstitutionally intended to discriminate against minority 
     voters, relying on evidence that the law selectively excluded 
     forms of IDs that were disproportionately likely to be used 
     by minority voters, that the legislature knew the law was 
     likely to disproportionately burden minority voters, and that 
     circumstantial evidence indicated that the legislature's 
     race-neutral justification for the law--preventing voter 
     fraud--was ``pretextual.'' Ms. Nelson testified further that, 
     while LDF was ultimately successful in the Texas voter ID 
     litigation, ``in the years after the trial and while the case 
     made its way twice to the 5th Circuit Court of Appeals and 
     back to the trial court, Texas elected numerous candidates to 
     state and federal office . . .''
       A federal appellate court also struck down North Carolina's 
     voter ID law as intentionally discriminatory, a law which was 
     also was put forth within days of the Shelby County decision. 
     Evidence in the North Carolina voter ID case revealed that 
     legislators tailored the list of acceptable IDs to exclude 
     forms of identification disproportionately relied on by 
     minority voters. To support its finding of discriminatory 
     intent--that the state legislature drafted the law to 
     ``target African Americans with almost surgical precision''--
     the court emphasized that North Carolina had a long history 
     of racially polarized voting, that the law required forms of 
     IDs that African Americans disproportionately lacked, that 
     legislators knew the law would disproportionately burden 
     minority voters but nevertheless enacted it, and that the 
     circumstances surrounding the passage of the law--that the 
     law was amended to become far more strict the day after 
     Shelby County was decided--indicated that the legislature 
     acted with discriminatory intent.
       While the court ultimately struck down the North Carolina 
     law, litigation alone is a costly, time consuming, and 
     insufficient remedy. As Allison Riggs, Co-Executive Director 
     and Chief Counsel for Voting Rights at the Southern Coalition 
     for Social Justice (``SCSJ''), testified:
       ``[I]t took us three years and millions of dollars to 
     finally secure a ruling from the Fourth Circuit Court of 
     Appeals that the law was intentionally racially 
     discriminatory, designed with almost ``surgical precision'' 
     to change election rules in a way that would disadvantage 
     Black voters the most. More than the time and cost, there 
     were elections conducted with the photo ID requirement . . . 
     Thousands of voters, disproportionately Black, were denied 
     the franchise while we litigated that case, and those are 
     real injuries to those voters' fundamental right to vote that 
     can never be made whole.''
       As the Texas and North Carolina cases illustrate, the risk 
     that voter ID and documentary proof-of-citizenship laws can 
     and will be enacted with discriminatory intent is 
     particularly significant because legislatures can tailor the 
     forms of acceptable IDs and documentation to 
     disproportionately burden minority voters.
       For example, Dr. Barreto, who has conducted extensive 
     research into the discriminatory effects of voter ID laws, 
     explained in his testimony that ``[i]n Texas, hunting and gun 
     permits, which Whites are statistically more likely to 
     possess, are legitimate forms of ID but social service cards, 
     more often held by Blacks and Latinos, are not.'' Consistent 
     with that empirical evidence, a Texas legislator testified 
     ``that all of the legislators knew that [the voter ID law], 
     through its intentional choices of which IDs to allow, was 
     going to affect minorities most.''
       Regarding discriminatory intent, Dr. Barreto further 
     explained that research shows that voter ID laws have been 
     adopted by partisan legislatures, often in states with a 
     history of racially polarized voting, to burden voters likely 
     to vote against the party with legislative control. 
     ``Existing research demonstrates that voter ID laws are 
     purposeful tools, designed with the marginalized fringe of 
     the electorate in mind, to shape who votes primarily in favor 
     of state Republican legislatures facing competitive 
     elections,'' Dr. Barreto explained.
       Consistent with Dr. Barreto's summary of the literature, 
     Matthew Campbell testified that North Dakota's Republican 
     legislature--which had previously rejected voter ID laws--
     enacted the state's strict voter ID law after Native American 
     voters were instrumental to the election of a Democratic 
     candidate to the United States Senate.
       Using an atypical procedural process known as a ``hoghouse 
     amendment'' that ``expedited the bill's passage and stifled 
     debate,'' the legislature enacted the law knowing that Native 
     Americans, who often have P.O. Boxes rather than the physical 
     address required by the statute, would have a 
     disproportionately difficult time obtaining a qualifying ID. 
     A federal court subsequently struck down the law on grounds 
     that it imposed an unconstitutional burden on Native American 
     voters, relying on evidence that Native American voters 
     were disproportionately likely to lack a qualifying ID and 
     ruling that North Dakota could not enforce the laws 
     without providing a safety net for voters who ``cannot 
     obtain a qualifying ID with reasonable effort.''
       Despite a lack of fraud and knowledge of the significant 
     impact on Native American voters, North Dakota adopted a 
     strict voter ID law again in 2017. Mr. Campbell testified 
     that, in considering the new voter ID law, ``the legislature 
     failed to study, in any way, the impact the law would have on 
     Native Americans. It did not consult any tribal governments 
     about whether its tribal members were negatively impacted by 
     the bill or whether they supported or opposed the bill.''
       Following enactment, additional litigation ensued, and the 
     parties eventually settled the matter in a way that ensured 
     Native voters would have equal access to the ballot, but not 
     before the District Court found that the new law required 
     voters have one of the same forms of a qualifying ID that, 
     ``was previously found to impose a discriminatory

[[Page H4472]]

     and burdensome impact on Native Americans.''
       Similarly, in finding that the Texas voter ID law was 
     intentionally discriminatory, the court emphasized that the 
     voter ID law was passed ``in the wake of a seismic 
     demographic shift, as minority populations rapidly increased 
     in Texas, such that . . . the party currently in power [wa]s 
     facing a declining voter base and c[ould] gain partisan 
     advantage through a strict voter ID law.''
       The Texas and North Carolina examples illustrate another 
     reason why there is a substantial risk that the 
     discriminatory effects of voter ID and proof-of-citizenship 
     laws are attributable to a discriminatory purpose: States' 
     proffered justification for the laws have been shown to be 
     pretextual or unsupported.
       For instance, in the Texas voter ID case, the court found 
     evidence ``support[ing] a finding that the Legislature's 
     race-neutral reason of ballot integrity offered by the State 
     is pretextual.'' Among other evidence, the record showed that 
     ``the evidence before the Legislature was that in-person 
     voting, the only concern addressed by [the voter ID law], 
     yielded only two convictions for in-person voter 
     impersonation fraud out of 20 million votes cases in the 
     decade leading up to [the law's] passage.''
       A case successfully challenging a Kansas documentary proof-
     of-citizenship statute similarly turned on evidence that the 
     alleged justification for the law--preventing voter fraud--
     lacked meaningful factual support. In finding that the law 
     violated the Equal Protection Clause, the U.S. Court of 
     Appeals for the Tenth Circuit held that law's significant 
     burden on the right to vote (it prevented more than 31,000 
     qualified applicants from obtaining registration) far 
     outweighed the evidence supporting the state's claimed need 
     to prevent voter fraud by non-citizens (the state identified 
     only 30 non-citizens who registered to vote in the 10 years 
     leading up to adoption of the documentary proof-of-
     citizenship law).
       The record in a case successfully challenging an Arizona 
     proof-of-citizenship law similarly included a conspicuous 
     absence of evidence supporting the legislature's claimed 
     purpose of combatting voter fraud by non-citizens. Ms. 
     Senteno of MALDEF testified that, Arizona's Proposition 200 
     was enacted with the purpose of combatting undocumented 
     immigration and the provisions related to proof of 
     citizenship were in part an effort to ``combat voter 
     fraud''--but the State ``failed to identify a single instance 
     in which an undocumented immigrant registered or voted in 
     Arizona.'' Ms. Senteno testified that:
       ``Proof-of-citizenship requirements have yet to prove 
     effective in making our elections more secure or to be more 
     effective than the safeguards against improper registration 
     and voting that already exist. Meanwhile, such requirements 
     have shown to significantly impede the political 
     participation of voters of color.''
       Additionally, since the 2020 election, several states have 
     adopted bills expanding voter ID requirements, appealing to 
     unsupported claims that fraud occurred in the 2020 election 
     as justification. For example, the omnibus Georgia voting 
     bill requires voters requesting an absentee ballot provide an 
     ID. Under previous law, voters only had to sign the 
     application attesting to their eligibility to vote. 
     Similarly, Florida's omnibus voting law added a new 
     requirement that voters provide a form of ID to obtain a 
     mail-in ballot. Arkansas, Montana, and Wyoming also made 
     their voter ID laws more restrictive.


                               CONCLUSION

       The evidence before the Subcommittee is overwhelming--voter 
     ID laws and requirements for documentary proof-of-citizenship 
     can and do have a disproportionate, discriminatory impact on 
     minority voters. The evidence presented shows that minority 
     voters are less likely than White voters to have the required 
     ID and are more likely to lack the documents required to 
     obtain these IDs. Voter ID and documentary proof-of-
     citizenship requirements amount to modern-day poll taxes--as 
     the evidence shows, even when states claim to provide free 
     IDs, the cost to voters is not free.
       The burden of voter ID and proof-of-citizenship laws is 
     borne disproportionately by Black, Latino, Asian American, 
     and Native American voters, and as the evidence shows, states 
     can and have enacted laws governing ID requirements to cast a 
     ballot that not only have a discriminatory impact but do so 
     with discriminatory intent. The discriminatory and 
     suppressive effects of voter ID and proof-of-citizenship 
     requirements warrant a heightened level of scrutiny and 
     protection to ensure every voter has equal and equitable 
     access to their right to vote.

 Chapter Five--Access to Multi-Lingual Voting Materials and Assistance


                               BACKGROUND

       As it was amended over the years, the VRA was expanded to 
     afford additional protections to language minority or 
     limited-English proficiency (``LEP'') voters. The language 
     access provisions were added after Congress recognized that 
     certain minority citizens experienced historical 
     discrimination and disenfranchisement due to limited English 
     proficiency and speaking ability. The 1975 amendments adding 
     Section 203 of the VRA came after ``Congressional findings of 
     discrimination and intimidation of voters with limited-
     English proficiency, which had led to ongoing socioeconomic 
     disparities and low literacy rates.''
       Sections 4(e), 4(f), 203, and 208 are considered the 
     ``language minority provisions'' of the VRA. These sections 
     were not overturned by the Shelby decision, and remain key 
     protections for LEP voters. However, significant gaps in 
     enforcement and implementation remain, and the Court's 
     decision in Shelby and subsequent removal of preclearance 
     hindered a key enforcement and monitoring mechanism, limiting 
     access for millions of LEP voters--a disproportionate number 
     of whom are minority voters.
       Section 4(e) protects U.S. citizens educated ``in American 
     flag schools'' in a language other than English by barring 
     states and local governments from conditioning such citizens' 
     right to vote on their ability to read, write, understand, or 
     interpret English. In practice, this means that every state 
     and local government is required to provide language 
     assistance to such voters and it provides specific 
     protections to citizens educated in Puerto Rico in Spanish.
       These protections extend to all 50 states, whether the 
     voter lives in a jurisdiction covered by the population 
     thresholds of Section 203's coverage formula or not.
       Section 203 of the VRA, originally adopted as part of the 
     second reauthorization in 1975 and later amended and 
     expanded, requires jurisdictions where the number of U.S. 
     citizens of voting age in a single, covered language minority 
     group that is more than 10,000 or exceeds five percent of the 
     jurisdiction's total population, and their illiteracy rate 
     is higher than the national rate, to provide voting 
     materials in the language of the language minority. The 
     definition of permanently prohibited ``test[s] and 
     device[s]'' was expanded to include:
       ``[A]ny practice or requirement by which any State or 
     political subdivision provided any registration or voting 
     notices, forms, instructions, assistance, or other materials 
     or information relating to the electoral process, including 
     ballots, only in the English language, where the Director of 
     the Census determines that more than five per centum of the 
     citizens of voting age residing in such State or political 
     subdivision are members of a single language minority.''
       The 1992 VRA amendments expanded the coverage formula for 
     language access to include not only the previously covered 
     formula of five percent of eligible voters who were LEP 
     voters and members of a language minority group, but also 
     those jurisdictions that did not have the high five percent 
     threshold, but had at least 10,000 LEP citizens who are 
     members of a single language minority group. This expansion 
     meant coverage would also reach Latino and Asian American 
     voters in some large cities. These amendments also expanded 
     the coverage formulas and access for Native Americans living 
     on Indian Reservations to include any Indian reservation 
     where the LEP population exceeded five percent of all 
     reservation residents. Under the VRA 2006 reauthorization, 
     the sunset date for language minority assistance required 
     under Section 203 was extended to August 5, 2032.
       Which jurisdictions are covered under Section 203 is 
     determined by the Census Bureau based on the formula set out 
     in the VRA--the language minority groups covered are those 
     that speak Asian, American Indian, Alaska Native, and Spanish 
     languages. The most recent determinations for Section 203 
     coverage were made on December 5, 2016. In the 2016 
     evaluation, the Census Bureau found that 263 jurisdictions 
     met the threshold for coverage.
       Between 2011 and 2016, 15 additional counties were added to 
     the list of localities required to provide language 
     assistance materials as well as four new states. Political 
     subdivisions within Alaska, Arizona, California, Colorado, 
     Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, 
     Kansas, Maryland, Massachusetts, Michigan, Mississippi, 
     Nebraska, Nevada, New Jersey, New Mexico, New York, Oklahoma, 
     Pennsylvania, Rhode Island, Texas, Utah, Virginia, 
     Washington, and Wisconsin currently fall under Section 203 
     coverage and are required to provide bilingual voting 
     materials. California, Florida, and Texas currently fall 
     under statewide coverage for Spanish language materials.
       Added in the 1982 VRA reauthorization, Section 208 requires 
     that voters who require assistance to vote be provided the 
     assistance of their choice. Voters have the right to 
     assistance by a person of their choosing--other than their 
     employer, an agent of their employer, or an officer or agent 
     of the voter's union--whether they need assistance because of 
     blindness, disability, or inability to read or write. 
     According to the USCCR's 2018 Minority Voting Rights Access 
     Report, Section 208 litigation by the Justice Department 
     typically relates to the failure to provide language 
     assistance or a failure to allow a disabled person to choose 
     their assistance.
       Prior to the Shelby County decision, covered jurisdictions 
     were required to obtain preclearance of any changes in laws 
     related to the provision of language access under Sections 
     4(f)(4) and Section 5. Following the Shelby decision, the 
     Justice Department stated that it believed it could no longer 
     require preclearance of changes in access to language 
     materials and support in the previously covered 
     jurisdictions.
       When properly implemented, the language access provisions 
     increase engagement in the democratic process and access to 
     the ballot for millions of LEP voters. For example, John 
     Yang, President and Executive Director of AAJC, testified 
     before the Subcommittee in 2019 that ``Section 203 has been

[[Page H4473]]

     one of the most critical provisions in ensuring Asian 
     Americans are able to cast their ballot.'' Jerry Vattamala, 
     Director of the Democracy Program at the Asian American Legal 
     Defense and Education Fund (``AALDEF'') testified that:
       ``Section 203 has proven to be a clear and effective 
     measure to ensure access to LEP voters through language 
     assistance. . . . However, the Supreme Court's Shelby County 
     decision dismantling the coverage formula has left a large 
     gap in protections for Asian American voters that requires 
     Congressional action and renewed DOJ enforcement of remaining 
     VRA provisions.''
       Failure to provide multi-lingual voting materials or 
     assistance can negatively impact millions of potential 
     voters. According to the 2018 Census data, more than 37 
     million American adults speak a language other than English 
     and more than 11.4 million of them are not yet fully fluent 
     in English. The 2015-2019 American Community Survey (ACS) 5-
     year Narrative Profile from the Census Bureau found that, 
     among people at least five years old living in the U.S. from 
     2015-2019, 21.6 percent spoke a language other than English 
     at home. Additionally, navigating the electoral process is 
     complex and can be overwhelming. Some LEP voters will have 
     immigrated from a country with a vastly different electoral 
     and voting process.
       Evidence collected by the Subcommittee during the 116th and 
     117th Congresses, along with historical data, illustrates a 
     long history of jurisdictions' failure to comply with the 
     language access provisions, a failure to provide adequate 
     language assistance and translated materials, and the 
     discriminatory impact this failure has on minority voters' 
     access to the ballot.
       Arturo Vargas, Chief Executive Officer of the National 
     Association of Latino Elected and Appointed Officials 
     Educational Fund (``NALEO'') testified in 2019 that, 
     ``Americans who depend upon language assistance are becoming 
     more diverse and more geographically dispersed, and these 
     factors heighten the importance of effective language 
     assistance.''


 THE DISPROPORTIONATE AND DISCRIMINATORY BURDEN AND IMPACT OF LACK OF 
          ACCESS TO MULTI-LINGUAL VOTING MATERIALS AND SUPPORT

       The failure to provide multi-lingual voting materials 
     disproportionately burdens minority voters. Sonja Diaz of 
     UCLA's Latino Policy and Politics Initiative testified that, 
     as of 2019, approximately 4.82 percent of the citizen voting-
     age population needs to cast a ballot in a language other 
     than English. Data trends show that populations such as Asian 
     American and Latino voters will only continue to grow. While 
     the full 2020 Census data has yet to be released, Ms. Minnis 
     testified that, among Asian Americans ``[t]his growth will 
     continue, with Asian American and Pacific Islander (AAPI) 
     voters making up five percent of the national electorate by 
     2025 and 10 percent of the national electorate by 2044.''
       According to 2017 data, more than 85 percent of the voters 
     who likely require language assistance in voting were voters 
     of color. For example, Ms. Diaz stated that an estimated six 
     million eligible Latino voters nationwide are not fully 
     fluent in English and require some form of language 
     assistance in order to vote. Additionally, Juan Cartagena, 
     President and General Counsel of LatinoJustice PRLDEF, 
     testified before the Subcommittee in 2019 that the population 
     on the island of Puerto Rico is roughly 65 percent Spanish-
     language dominant. Furthermore, in Puerto Rico all government 
     proceedings happen in Spanish, making the language access 
     protections afforded Puerto Ricans educated on the island 
     under Section 4(e) critical to their ability to participate 
     fully in elections within the 50 states.
       According to data collected by the Native American Rights 
     Fund, ``[o]ver a quarter of all single-race American Indian 
     and Alaska Natives speak a language other than English at 
     home,'' rendering multi-lingual voting materials particularly 
     important for Native American voters.
       Ms. Minnis of AAJC testified that, because of historical 
     discrimination that denied Asian Americans the rights held by 
     U.S. citizens for most of the country's existence, and 
     because immigration from Asia was not reopened until 1965, 
     today ``almost three out of every four Asian Americans speaks 
     a language other than English at home and almost one in three 
     Asian Americans is limited English proficient (LEP)--that is, 
     has some difficulty with the English language.''
       The provision of language access materials, or lack 
     thereof, extends to all facets of the voting process. Ms. 
     Minnis testified that, even basic information such as 
     election notices and voter registration forms or the 
     information requested on those forms ``is inaccessible to 
     millions of eligible American voters unless they have access 
     to multilingual translators, preventing the eligible voter 
     from even starting the process.'' Ms. Minnis further 
     testified that, even if the voter is able to get past the 
     registration phase, without language assistance they may have 
     issues navigating the voting process, with many voters forced 
     to use election websites that are English-only, or a 
     jurisdiction may attempt to use Google Translate or a 
     similar tool, which may produce incomplete or inaccurate 
     translations, the equivalent of providing no translation 
     at all.
       Matthew Campbell of NARF testified to the disproportionate 
     impact the lack of language access and assistance has on 
     Native voters as well. According to his testimony, ``[t]wo-
     thirds of all speakers of American Indian or Alaska Native 
     languages reside on a reservation or in a Native village, 
     including many who are linguistically isolated, have limited 
     English skills, or a high rate of illiteracy,'' and that a 
     lack of assistance or complete and accurate translations of 
     materials for LEP American Indian and Alaska Native voters 
     ``can be a substantial barrier.'' Thirty-five political 
     subdivisions in nine states are required to provide bilingual 
     written materials and oral language assistance for LEP 
     American Indian and Alaska Native voters under Section 203. 
     Mr. Campbell noted that, jurisdictions have often failed to 
     provide any language assistance at all, forcing Native voters 
     to file costly lawsuits.
       Scholars and stakeholders have demonstrated that providing 
     LEP voters with voting materials in their native language 
     increases the likelihood they will participate in the 
     political process. Studies have shown, for example, that 
     language fluency correlates with political participation, 
     meaning that lowering language barriers should lead to 
     increases in turnout among LEP voters. Summarizing the 
     scholarly literature examining the impact of access to multi-
     lingual voting materials on LEP voters, Dr. Barreto explained 
     that ``[r]esearch in political science has documented with 
     clear evidence that access to Spanish, Asian, and Native/
     indigenous language voting materials increases voter 
     participation rates among impacted minority voters.''
       Scholars and stakeholders have also analyzed the 
     registration and turnout effects associated with living in a 
     jurisdiction that provides language access materials, finding 
     that access to native language voting materials increases 
     political participation. For example, after San Diego County, 
     California, began providing language assistance to Latinos 
     and Filipinos, voter registration among those two groups 
     increased by more than 20 percent. Regarding turnout, one 
     multi-jurisdiction study found that turnout of voters who 
     speak only Spanish increased between seven and 11 percentage 
     points in counties that were required to provide language 
     access support relative to counties with similarly large 
     Latino populations not required to provide bilingual voting 
     support.
       Another multi-state study found that, in the 2012 election, 
     coverage under the VRA's language access provisions was 
     associated with a significant increase in Latino voter 
     registration and a significant increase in Asian American 
     turnout. Earlier studies reached the same conclusion: 
     ``Section 203 language access resulted in higher voting rates 
     for Latinos, Asian Americans and other immigrant 
     communities.'' Surveying several of these studies, Ms. Minnis 
     of AAJC explained that ``[i]f the access to multilingual 
     support helps to eradicate language barriers, the withdrawal 
     or denial of multilingual support exacerbates language 
     barriers, interferes with free and fair access to the ballot 
     through the voting process, and leads to less voters 
     participating in American democracy.''
       Empirical research also found evidence that coverage under 
     the VRA increases minority political participation. One study 
     found that coverage under the Voting Rights Act language 
     access provisions is associated with significantly higher 
     Latino representation on school boards relative to non-
     covered jurisdictions. That empirical finding is consistent 
     with evidence presented to the Subcommittee. For example, 
     Orange County, California, and Harris County, Texas, saw the 
     election of Vietnamese American elected officials after they 
     began providing language assistance to Vietnamese American 
     voters.
       Dr. Barreto testified that, ``similar to voter 
     identification laws, the research has demonstrated an 
     inconsistent application with many covered jurisdictions not 
     aware or not providing the proper non-English voting 
     materials. This has a tremendously negative impact on those 
     communities' ability to understand and participate in our 
     elections.''
       Illustrative of the broad protections courts have read into 
     language protections such as Section 4(e), Kira Romero-Craft, 
     Southeast Region Director for LatinoJustice, testified that 
     courts have declined to read any numerical requirements into 
     Section 4(e)'s plain language and have ordered counties with 
     as few as two dozen Puerto Rican voters to offer some 
     bilingual assistance because, ``it is a `basic truth that 
     even one disenfranchised voter--let alone several thousand--
     is too many.'''
       Limits on language assistance also disproportionately 
     impacts minority voters. Ms. Senteno testified that, for 
     example, MALDEF is involved in a pending case in Arkansas 
     challenging a section of the state's election code that 
     limits the number of voters an individual may assist with 
     casting a ballot to six total, arguably restricting the 
     number of voters who may be able to receive language 
     assistance from the person of their choice.
       The manner in which voting materials and ballots are 
     written can also negatively impact LEP voters. Ms. Minnis 
     testified that, even if an LEP voter is able to obtain a 
     ballot, it is often written in advanced English, which is not 
     accessible for LEP voters. In her testimony, Ms. Minnis notes 
     that an analysis of statewide ballot measures voters voted on 
     in 2018 found that the average grade level was between 19 and 
     20, meaning it would require a graduate-level degree to 
     understand them. The use of complex English on ballots and 
     other voter materials makes it difficult for LEP voters to 
     understand and

[[Page H4474]]

     respond, which can also be compounded by higher levels of 
     illiteracy rates, whether in English or the voter's native 
     language.
       Dr. Barreto testified that, where Section 203 and 208 have 
     been implemented fairly and fully,
       ``[W]e have seen a higher voter participation rate, both 
     first-time voters as well as [] of returning voters, where 
     the most difficult things can be for a voter which has 
     language challenges to navigate the system, and if they don't 
     feel that they can do that, if they don't feel welcome, if 
     the language materials are not available [] they may just 
     leave and not come back. They may feel excluded from the 
     system. Where Section 203 is implemented, there have been 
     very robust increases in Spanish-speaking Latino voter 
     participation.''
       Dr. Barreto noted that, where voters have a negative 
     experience at the polls and are challenged or are not able to 
     navigate the polling place, ``that leads to a rejection and 
     withdrawal.''
       Several legal actions have successfully sought to compel 
     local election officials to provide language access 
     materials, often requiring years of litigation for plaintiffs 
     to obtain relief and involving troubling evidence of 
     discriminatory animus.
       A district court found that Berks County, Pennsylvania, for 
     example, failed to adhere to language access provisions in 
     the VRA by failing to offer Spanish-language materials for 
     voters educated in Puerto Rico and failing to make available 
     bilingual poll workers. The court further found that local 
     election officials engaged in ``hostile and unequal 
     treatment'' of Hispanic and LEP voters, which ``intimidated'' 
     such voters.
       Additionally, Ms. Romero-Craft testified that the State of 
     Florida has been a covered jurisdiction for the Spanish 
     language under Section 203 since 2011 and that there are also 
     13 counties in the state which are subject to minority 
     language requirements for Spanish under the law. Yet, despite 
     the direct protections of the law:
       ``Florida's language minority voters have continued to face 
     discrimination at the polls and frequently do not receive 
     adequate language assistance they critically need to be able 
     to cast a ballot for their preferred candidate of choice or 
     to make informed decisions when deciding how to cast their 
     votes on ballot initiatives.''
       A district court recently entered an order barring dozens 
     of Florida counties from continuing to violate the VRA by 
     failing to provide bilingual voting assistance to voters of 
     Puerto Rican descent. The plaintiffs were repeatedly forced 
     to pursue further relief after a number of election officials 
     refused to comply with the order and make multi-lingual 
     assistance available, asserting, for example, that ``the 
     small number of voters requesting Spanish-language ballots 
     did not justify the cost.'' Florida was previously sued in 
     2000 by the Department of Justice for failure to provide 
     language materials and in 2009 by LatinoJustice for failure 
     to provide assistance to voters from Puerto Rico as required. 
     District Judge Mark Walker noted in his order that, ``[i]t is 
     remarkable that it takes a coalition of voting rights 
     organizations and individuals to sue in federal court to seek 
     minimal compliance with the plain language of a venerable 53-
     year-old law.''
       The Subcommittee also received widespread reports of non-
     compliance with the VRA's language access requirements, in 
     numerous states and localities, and often involving troubling 
     evidence or inference of discriminatory intent. Ms. Romero-
     Craft provided testimony of examples in Florida and Georgia, 
     such as Liberty County, Georgia's failure to provide Spanish-
     language voting materials and services despite citizens of 
     Puerto Rican descent comprising nearly five percent of the 
     county's total population. In testimony provided in the 
     116th Congress, Sean Young of the ACLU of Georgia 
     testified that Hall County, Georgia was required to 
     provide Spanish language materials under Section 4(e), as 
     all counties are, but the board refused. One study found 
     that only 68.5 percent of jurisdictions fully complied 
     with the Voting Rights Act's language access requirements 
     with respect to the provision of Spanish language 
     materials.
       Jerry Vattamala of AALDEF testified to several examples of 
     jurisdictions' failure to provide language access materials 
     to Asian American voters. For example, AALDEF filed a federal 
     complaint on June 3, 2021, against the City of Hamtramck, 
     Michigan, for its failure to comply with the requirements as 
     a covered jurisdiction under Section 203 for Hamtramck to 
     provide translations of all voting information and materials, 
     including election websites, and oral language assistance for 
     Bangladeshi voters in Bengali.
       In another example, Mr. Vattamala highlighted 
     jurisdictions' failure to ensure equal access to interpreters 
     or through hostile treatment or discrimination by poll 
     workers such as AALDEF discovered when monitoring the primary 
     election in Malden, Massachusetts, in March 2020, a 
     jurisdiction covered under Section 203 for Chinese language 
     assistance. Ms. Minnis testified that, during the 2012 
     election, voters reported to the Election Protection 
     Coalition that ``they had been unlawfully prevented from 
     obtaining language assistance at polling places from Suffolk 
     County, New York, to New Orleans, Louisiana, and including an 
     incident ``in Kansas City, Missouri, where a poll worker 
     asked a voter's interpreter to leave the polling place and 
     threatened her with arrest.'' Marcia Johnson-Blanco of the 
     Lawyers' Committee testified that, in the 2020 election, 
     voters reported lack of or insufficient language assistance 
     in Berks and York counties in Pennsylvania. Ms. Johnson-
     Blanco testified that:
       ``The most egregious instance occurred in York County, 
     where election officials rather than provide needed language 
     assistance (1) spoke slowly and used hand gestures and 
     mimicry as a prerequisite to allowing voters to utilize an 
     interpreter, (2) impeded interpreters' conversations with 
     voters by hovering over conversations and interrupting 
     interactions telling voters that they could not use the 
     interpreter and (3) prevented voters from using their 
     assistance of choice with casting their ballot.''
       Repeated failure to provide bilingual voting materials is 
     also, troublingly, particularly common in Native American 
     communities, and has led to litigation. Section 203 covers 
     357,409 American Indians and Alaska Natives who reside in a 
     jurisdiction where assistance must be provided in a covered 
     Native language. However, as Matthew Campbell of NARF 
     testified, jurisdictions have often failed to provide the 
     required translations or have failed to provide any language 
     assistance at all, forcing costly lawsuits. Mr. Campbell 
     testified that this is exactly what happened in Alaska, which 
     led to Toyukak v. Treadwell, ``the first Section 203 case 
     fully tried through a decision in thirty-four years.''
       Even after plaintiffs in Alaska obtained a consent 
     agreement requiring Alaskan officials to provide adequate 
     language assistance to Yu'pik-speaking voters, the attorneys 
     had to repeatedly return to court to provide fulsome relief. 
     Documents produced in litigation showed that Alaskan 
     officials made a ``policy decision'' not to comply with 
     Section 203 in several jurisdictions, consciously choosing 
     not to provide required language assistance. In 2013, a group 
     of tribal councils and Alaska Native voters charged Alaska 
     state officials with continuing violation of the VRA and the 
     Constitution for their refusal to provide information in 
     Yu'pik that was available in English--in its ruling for the 
     plaintiffs, the court confirmed that ``officials'' negligence 
     had produced egregious results--Yu'pik voters were deprived 
     of any and all critical pre-election information.''
       In Toyukak, Alaska election officials denied Native voters 
     language assistance despite a previous court finding in Nick 
     v. Bethel that all voting information provided in English 
     must be provided orally even if written translations are not 
     required. The court held in Toyukak that Section 203 should 
     be interpreted as ``merely changing the means by which voting 
     information and materials is communicated to LEP American 
     Indians and Alaska Natives, and Section 203 does not permit 
     election officials to diminish the content and extent of 
     information that must be provided.'' Mr. Campbell testified 
     that the parties ``worked together to produce a joint 
     stipulation that aimed to remedy Alaska's Section 203 
     violations and included strong relief such as federal 
     observers to document compliance efforts.'' Mr. Campbell 
     testified further that:
       ``Reports filed by federal observers in 2016 suggest that 
     Alaska's efforts fell short of fully remedying the Section 
     203 violations and complying with the Toyukak Order. . . 
     During the 2016 primary, federal observers documented there 
     were no voting materials available in the covered Alaska 
     Native language in six villages, and the ``I voted'' sticker 
     was the only material in a Native language in two other 
     villages. Alaska has made some improvements since Toyukak 
     such as having bilingual poll workers available, but almost 
     forty years of Section 203 violations cannot be remedied 
     overnight and continued investment in language assistance for 
     American Indian and Alaska Natives is crucial to ensuring 
     Native voters have equal access to the election process.''
       Alaska is not the only jurisdiction to have failed to 
     comply with requirements to provide Native voters with 
     language access. As Mr. Campbell's testimony notes, San Juan 
     County, Utah, is a covered county for the Navajo language, 
     but the County has failed voters by refusing to comply with 
     Section 203. Additionally, in 2014 the County removed all 
     language assistance by switching to a vote-by-mail system and 
     providing no translated ballot information to LEP Navajo 
     voters, many of whom received an English ballot they could 
     not read and so they simply did not vote. A settlement 
     reached between the County and litigators restored the closed 
     polling places and mandates the County provide the required 
     language assistance. Failure to provide access to Native 
     language services has also impacted Native American voters in 
     Arizona. Professor Patty Ferguson-Bohnee, Director of the 
     Indian Legal Clinic at the Sandra Day O'Connor College of 
     Law, testified before the Subcommittee in 2019 that in 
     Arizona, in 2016, only one of nine jurisdictions covered 
     under Section 203 for Native languages provided translated 
     voter registration information in the covered language.


                               CONCLUSION

       Congress has, at multiple junctures in history and in 
     legislating, moved to protect the right to vote through 
     increased access to language assistance. Congress recognized 
     that access to multi-lingual voting materials and assistance 
     is critical to ensuring fair and equal access to the ballot. 
     While the language access provisions of the Voting Rights Act 
     remain intact following the Court's decision in Shelby 
     County, the evidence before

[[Page H4475]]

     the Subcommittee in both this Congress and the last is 
     clear--significant gaps remain in adherence to the law and 
     the provision of fair access to multi-lingual voting 
     materials and assistance.
       The failure to provide the required assistance is pervasive 
     and creates significant barriers to accessing the ballot, 
     barriers that fall disproportionately on LEP voters, who are 
     more likely to be minority voters. Additionally, as Jerry 
     Vattamala of AALDEF testified, protecting access to language 
     materials and assistance on a case-by-case basis is 
     unsustainable and insufficient:
       ``Individual affirmative cases require a large amount of 
     human and financial resources which limit the reach and scope 
     of work that organizations like AALDEF can do. For example, 
     in the OCA v. Texas case that AALDEF brought against the 
     state of Texas for violating Section 208 of the Voting Rights 
     Act, it took more than three years to litigate from client 
     intake to final decision, and required hundreds of hours of 
     attorney time.''
       The evidence presented before the Subcommittee demonstrates 
     that ensuring access to multi- lingual materials and 
     assistance warrants increased protections.

 Chapter Six--Polling Place Closures, Consolidations, Relocations, and 
                      Long Wait Times at the Polls


                               BACKGROUND

       Prior to the Supreme Court's decision in Shelby County, 
     states and localities in covered jurisdictions were required 
     to notify voters well in advance of polling location 
     closures, to prove those changes would not have a disparate 
     impact on minority voters, and to provide data to the DOJ 
     about the impact on voters. In the years since Shelby County 
     was decided, states that were previously covered by the VRA 
     have closed hundreds of polling locations.
       Issues related to polling place locations, quality, 
     accessibility, and ensuing long wait times to vote are, 
     unfortunately, well-documented and pervasive. For example, at 
     the Subcommittee's 2019 listening session in Brownsville, 
     Texas, Mimi Marziani, President of the Texas Civil Rights 
     Project (``TCRP'') testified that, ``long lines and late 
     openings are, unfortunately, such a common feature of Texas 
     elections that they are deemed `typical' by election 
     officials.''
       Marcia Johnson-Blanco of the Lawyers' Committee reported in 
     testimony before the Subcommittee that, in Pennsylvania, two 
     of the top three issues reported to Election Protection on 
     Election Day 2020 were long lines, particularly in 
     communities of color, and late polling place openings. Ms. 
     Johnson-Blanco also noted issues of long lines being reported 
     in Georgia, Texas, California, and Wisconsin throughout the 
     2020 primaries and general election.
       Polling location closures and movements can and do 
     disproportionately burden minority voters, whether by intent 
     or effect. Poor polling place locations, lack of 
     availability, and a lack of resources leads to minority 
     voters facing longer lines than White voters at the polls. 
     Polling place closures are harmful to voter turnout, 
     especially the turnout of minority voters--waiting in a long 
     line to vote can make a voter less likely to turn out in 
     future elections. Disparities in Election Day experiences 
     between minority voters and White voters are a persistent 
     problem. Kevin Morris of the Brennan Center noted in 
     testimony before the Subcommittee that ``[o]ver the past 
     decade, scholars have consistently noted that racial 
     minorities wait longer to cast their ballots on election day 
     than White voters.''
       The disparity in polling place accessibility and wait times 
     is then compounded by the disparate impact of other practices 
     discussed in this report such as voter ID accessibility, 
     proper access to multi-lingual materials and assistance, 
     voter purges, and restrictions on alternative opportunities 
     to vote. As Ms. Marziani testified before the Subcommittee 
     this Congress, ``fewer polling places is one driver of long 
     lines, a symptom of polling place inefficiencies that is 
     compounded by other devices that make voting more onerous and 
     time-consuming, such as Texas' strict photo identification 
     law (the same one originally struck down under Section 5).''
       While there may be legitimate reasons for closing, 
     consolidating, or moving polling locations, without the 
     disparate impact data, community consultation, and evaluation 
     to support these changes, there is no preemptive way to 
     ensure these closures do not discriminate against minority 
     voters. Polling place closures, consolidations, relocations, 
     and under-resourcing can and do lead to longer or extreme 
     wait times or can require voters to drive for miles to reach 
     a polling place.
       In Georgia, for example, Gilda Daniels of the Advancement 
     Project testified at the 2019 field hearing that at the 
     Pittman Park voting sites in 2018 they received calls that 
     lines were ``reportedly 300 people deep with a wait time of 
     3.5 hours.'' The 2020 primary election in Georgia saw 
     extremely long wait times yet again--voters waited in hours-
     long lines, some late into the night and the early hours of 
     the next day. Counties are regularly sued to extend the hours 
     of polling locations to ensure all voters can cast a ballot. 
     Voters in Georgia waited in lines so long they brought chairs 
     to wait for the opportunity to cast their ballot. Volunteers 
     provided food and water to people who had to wait in line for 
     hours.
       Polling place locations that necessitate traveling long 
     distances are particularly burdensome, and unfortunately an 
     all-too-common occurrence, for Native American voters. 
     Movement toward mail-in voting, closure of polling locations, 
     lack of polling places located on tribal lands, and moves 
     toward consolidated vote centers can disproportionately 
     impact and possibly disenfranchise Native voters who face 
     barriers such as lack of access to transportation, lack of 
     traditional residential mailing addresses, lack of access to 
     reliable mail service and distance. When fighting to ensure 
     their communities have equal opportunities to vote, many 
     tribal communities are at the mercy or discretion of county 
     officials who choose where to place the polling locations and 
     the level of ballot access.
       Evidence presented before the Subcommittee at hearings 
     spanning this Congress and the last, and discussed below, 
     shows that pervasive polling place location issues, long wait 
     times, and under-resourcing have a disproportionate, 
     discriminatory, and suppressive effect on the ability of 
     minority voters to freely and fairly exercise their right to 
     vote.


 THE DISPROPORTIONATE AND DISCRIMINATORY BURDEN AND IMPACT OF POLLING 
 PLACE CLOSURES, CONSOLIDATIONS, AND RELOCATIONS, WAIT TIMES, AND LACK 
                    OF RESOURCES ON MINORITY VOTERS

     Polling Place Availability and Accessibility
       No matter the reason, polling place closures, 
     consolidations, or relocations, or a lack of adequate 
     resourcing can lead to long lines and extreme wait times or 
     can require voters to drive for miles to reach a polling 
     place. This burden often falls disproportionately on minority 
     voters. Without the disparate impact data and analysis 
     previously required under the Voting Rights Act preclearance 
     process, community consultation, and evaluation to support 
     these changes, there is no longer a preemptive mechanism to 
     ensure these closures do not discriminate against minority 
     voters.
       As Jesselyn McCurdy, Managing Director of Government 
     Affairs for the Leadership Conference testified, ``[v]oting 
     discrimination and disenfranchisement takes many forms, but 
     one tangible way to quash Americans' voices is to physically 
     remove the very locations where ballots are cast and counted. 
     While they do not garner the attention that voter purges and 
     ID laws do, polling place closures can be just as 
     disenfranchising.''
       One of the starkest examples of this occurred recently 
     during the 2020 primary election, when voters in Milwaukee, 
     Wisconsin, were forced to stand in line for hours at one of 
     only five polling places open across the city to cast their 
     ballot on Election Day, after failing to receive absentee 
     ballots in the mail and just weeks after officials shut down 
     175 sites. The make-up of Milwaukee is disproportionately 
     Black--Madison, a much less populous town with a whiter 
     population, boasted 66 polling sites to Milwaukee's 5.
       According to an analysis by Demos and All Voting is Local, 
     Milwaukee is home to 60.32 percent of Wisconsin's Black 
     voters and 29.69 percent of the state's Hispanic voters. 
     These polling place closures had a measurable 
     disenfranchising effect. A peer-reviewed, journal article by 
     the Brennan Center's Kevin Morris and Peter Miller found that 
     the closures in Milwaukee depressed turnout by more than 8 
     percentage points overall--and by about 10 percentage points 
     among Black voters.
       The disenfranchising effects of polling place closures or 
     movements have been documented by studies as well. Studies 
     have shown that the closure or relocation of a polling 
     location reduces turnout by one to two percentage points, 
     meaning that the closure of relocation of polling locations 
     that disproportionately serve minority voters also serves to 
     disproportionately reduce turnout of minority voters.
       These burdens are attributable to the fact that the 
     closures or relocations force voters to travel farther to 
     vote, which can be particularly burdensome on Latino, Native 
     American, Asian/Pacific Islander, and Black voters who 
     disproportionately lack access to a private vehicle. 
     Distances to polling locations can be particularly burdensome 
     for Native American voters living on rural, tribal lands, 
     with some voters being forced to travel tens of miles to 
     reach their polling location. Accessible polling locations 
     are also necessary for LEP voters to access the franchise, as 
     some voters who need language access materials or assistance 
     may need a physical polling place to best exercise their 
     right to vote.
       The closures of polling locations ticked up dramatically in 
     states previously covered by the VRA following the Supreme 
     Court's decision in Shelby County. Ms. McCurdy testified 
     that, without a fully functioning VRA and consistent 
     oversight by the DOJ in reviewing proposed changes, election 
     officials ``have unfettered discretion to shut them down 
     without providing any valid reason.'' A September 2019 report 
     prepared by The Leadership Conference Education Fund found 
     that states and localities that were previously covered by 
     Section 5 of the VRA closed 1,688 polling places between 2012 
     and 2018, almost double the rate identified in 2016. The 
     Leadership Conference found that, in 2018 alone, there 
     were 1,173 fewer polling places than there were in the 
     previous 2014 midterm election. Another study found that 
     by 2020 approximately 21,000 polling places that served 
     voters on Election Day have been eliminated nationwide.
       Through public records requests and data provided by the 
     Center for Public Integrity,

[[Page H4476]]

     the Campaign Legal Center (``CLC'') has continued to document 
     polling place closures in Louisiana, Mississippi, and 
     Alabama. For example, Danielle Lang, Director of Voting 
     Rights at the Campaign Legal Center testified that:
       ``Since Shelby County, Louisiana has seen a steady decline 
     in polling place access, especially for urban communities. 
     For example, Jefferson Parish, Louisiana's largest parish, 
     has seen an 8.7 percent increase in the number of Black 
     registered voters between 2012 and 2020 but a 15 percent 
     decrease in the number of polling places.''
       CLC also found that counties in Mississippi and Alabama 
     displayed a similar pattern. For example:
       ``Lauderdale County, Mississippi--which is 44 percent 
     Black--closed 20 percent of its polling places between 2012 
     and 2020, even though the county's citizen voting age 
     population increased by 3 percent. And Shelby County, 
     Alabama--namesake of the Supreme Court decision--closed 
     roughly 10 percent of its polling places between 2012 and 
     2020, despite an increase of almost 13 percent in the 
     county's citizen voting age population.''
       Ms. McCurdy, of the Leadership Conference testified before 
     the Subcommittee that ``[p]olling place closures did not seem 
     to vary to meet the different demands of each type of 
     election; indeed, 69 percent of closures (1,173) occurred 
     after the 2014 midterm election in anticipation of the 
     presidential election, which would necessarily bring higher 
     turnout in communities of color.'' One would have reasonably 
     expected the number of available polling places to increase 
     to correspond to the anticipated higher turnout. Ms. McCurdy 
     further testified, however, that ``[t]his appears to be no 
     accident: as pollsters predicted greater turnout for the 2018 
     midterm, counties with a history of discrimination began 
     shutting down access to voting booths at an alarming rate.''
       As noted previously, under Section 5, covered jurisdictions 
     were previously required to demonstrate that closures would 
     not have a discriminatory impact on voters, and to notify 
     voters of the closures when they were permitted to occur. 
     Now, post-Shelby, jurisdictions no longer need to notify 
     voters of the change, nor is the DOJ required to analyze the 
     impact of the proposed changes on minority voters. Ms. 
     McCurdy testified that:
       ``All told, Shelby County paved the way for several 
     previously covered states to each shut down hundreds of 
     polling places: Texas shut down 750; Arizona shut down 320; 
     and Georgia shut down 214. Quieter efforts to reduce the 
     number of polling places without clear notice or 
     justification spread throughout Louisiana (126), Mississippi 
     (96), Alabama (72), North Carolina (29), and Alaska (6).''
       Over both the 116th and 117th Congresses, the Subcommittee 
     heard testimony about how polling place closures can directly 
     target locations predominantly used by minority voters.
       For example, in Irwin County, Georgia, the Board of 
     Elections attempted to close the only polling place in the 
     county's sole Black neighborhood, contrary to non-partisan 
     recommendations, while keeping open a polling place in a 99 
     percent white neighborhood. In 2019, the City Council of 
     Jonesboro, Georgia, voted to move the city's only polling 
     location to its police department without providing the 
     public notice required and without taking into consideration 
     the possible deterrent effect on minority voters. Ms. Romero-
     Craft of Latino Justice testified that Hall County, 
     Georgia's, decision to only reopen half of its early voting 
     sites for the 2020 run-off election caused ``substantial 
     reductions and disproportionately burdened Latino voters.''
       Mimi Marziani of the Texas Civil Rights Project testified 
     that, the best available evidence strongly suggests that many 
     of the polling place closures that have taken place across 
     Texas since Shelby County have disparately and negatively 
     impacted communities of color. Ms. Marziani testified that, 
     ``[i]n short, history and current data confirm that voters of 
     Texas are not evenly affected by the State's detrimental 
     changes to polling place locations, operations and hours. 
     Instead, Black and Latinx Texans will suffer a heavier 
     burden, as they have time and again.'' Texas, a state with a 
     population that is 39 percent Latino, 12 percent African 
     American, and 1.4 percent Asian American, has closed 750 
     polling places since Shelby.
       The Texas example is particularly egregious. Ms. Marziani 
     provided data that hundreds of polling places were closed 
     before the 2016 presidential election, ``significantly more 
     in both raw number and percentage than any other state.'' In 
     Galveston, Texas, 16 percent of its polling locations were 
     closed in 2016, according to a plan that had initially been 
     rejected by the DOJ because it discriminated against Black 
     and Latino voters. Three Texas counties closed between 75 and 
     80 percent of their total polling sites, ranking among the 10 
     counties with the highest percentage of poll closures in the 
     country.
       Texas is not the only example. Ms. McCurdy testified that 
     Arizona, a state where 30 percent of the population is 
     Latino, 4 percent is Native American, and 4 percent is 
     African American, has the most widespread reduction (-320) in 
     polling places--``almost every county (13 of 15 counties) 
     closed polling places after Shelby County--some on a 
     staggering scale.'' Ms. McCurdy's testimony noted that these 
     closures occurred despite national news coverage of ``the 
     adverse impact of polling place reductions in Maricopa County 
     in the 2016 presidential preference election, which forced 
     voters to stand in line for five hours to cast a ballot.''
       Georgia--a state that is 31 percent African American, 9 
     percent Latino, and 4 percent Asian American--had 214 fewer 
     polling places for the 2018 election than it did before 
     Shelby. Ms. McCurdy stated that Georgia counties have closed 
     higher percentages of voting locations than any other state 
     the Leadership Conference reviewed for their Democracy 
     Diverted report.
       Gilda Daniels, the Director of Litigation at the 
     Advancement Project, testified that her organization had 
     collected data that, since 2012, Ohio had closed more than 
     300 polling locations across the state, a disproportionate 
     number in urban areas. Furthermore, Ms. Daniels testimony 
     notes that, between 2016 and 2018, Cuyahoga County (Ohio's 
     second largest county) eliminated 41 polling locations and 
     nearly 16 percent of all precincts changed location, harming 
     a majority of Black communities.
       While some states are closing polling locations in the 
     shift to the vote center model, the lack of preclearance 
     requirements means these shifts are happening without the 
     requisite analysis to ensure they do not discriminate against 
     minority voters. Additionally, the shift to a vote center 
     model does not necessarily explain all polling place 
     closures.
       For example, in Texas, Somervell, Loving, Stonewall, and 
     Fisher counties all closed between 60 and 80 percent of their 
     polling places without converting to a vote center model. 
     According to Ms. Marziani's testimony, each of these counties 
     has a large Latinx population. Following the November 2018 
     General Election, TCRP conducted a comprehensive review of 
     county compliance with provisions of the state Election Code 
     and the Voting Rights Act--they found that many counties, 
     regardless of size or polling place model, were out of 
     compliance with elections laws. Texas was unlawfully short as 
     many as 270 polling places in a total of 33 counties that 
     contained four million registered voters collectively in 
     2018.
       Additionally, Kevin Morris of the Brennan Center, testified 
     that although more than half of all states have statutes 
     detailing minimum standards for the number of polling places, 
     many states simply do not comply with their own laws. Mr. 
     Morris stated that, for example, his team uncovered evidence 
     that ``more than 40 percent of precincts in Illinois had more 
     registered voters assigned to than allowed under state law, 
     as did nearly a quarter of precincts in Michigan.''
       Standards for polling place locations can also be crafted 
     in a way that is discriminatory toward minority voters. For 
     example, Ms. Marziani testified that an earlier version 
     Texas' State Bill (SB) 7, which moved through the State House 
     but has not been signed into law, included a provision that 
     would have created a formula to distribute polling places 
     that would pull polling places away from communities of 
     color. Ms. Marziani testified that the Texas Tribune 
     found that, of the 13 State House districts in Harris 
     County that would lose polling sites under this formula, 
     all but one has a majority non-white voting-age 
     population.
       At the time of this report, the Texas state legislature has 
     returned for a special session, during which the Republican-
     led legislature is attempting to once again take up 
     restrictive voting legislation. The bills moving through the 
     State House and Senate contain numerous provisions that 
     restrict access to the ballot and voting opportunities, 
     including, for example, putting limitations on polling places 
     so as to ban drive-thru voting options. Texas Democrats have 
     departed the state to deny a quorum at the legislature in 
     order to block the voting restrictions bill.
       For Native American voters, the location of polling places, 
     consolidations, and the distance to polling locations is a 
     significant issue. In their 2020 Report, NARF wrote that 
     ``Native voters generally must travel greater distances to 
     get to their polling places than non-Native voters living in 
     the same counties.'' NARF goes on to report that often, 
     polling places are located in non-Native county seats or non-
     Native communities, and in many cases the more populous 
     Native communities are denied in-person voting on tribal 
     lands, requiring them to travel off the reservation to vote.
       According to testimony from Professor Ferguson-Bohnee, 
     Director of the Indian Legal Clinic at the Sandra Day 
     O'Connor College of Law, in a 2018 survey conducted by the 
     Native American Voting Rights Coalition found 10 percent of 
     respondents in New Mexico, 15 percent in Arizona, 27 percent 
     in Nevada, and 29 percent in South Dakota identified distance 
     from polling locations as one of the many problems associated 
     with in-person voting. When polling locations or voting 
     opportunities are located hours away it effectively amounts 
     to no access for Native American voters. Professor Ferguson-
     Bohnee notes that the federal district court in Nevada 
     acknowledged this reality when it found that a polling 
     location 16 miles away from the Pyramid Lake Paiute 
     Reservation constituted an undue burden on voters.
       Nevada is not the only state where Native American voters 
     face a disproportionate burden when it comes to polling place 
     access--in 2016, Native American voters in Nevada and Utah 
     had to travel over 100 miles to their nearest polling 
     locations. In Mohave County, Arizona, most residents in the 
     County lived near one of the 3 locations established for in-
     person early voting, however, for the Kaibab-Paiute Tribe the 
     closest of the three locations was 285 miles away and 
     required on-reservation voters to travel for over 5 hours if 
     they wanted to vote early in person.

[[Page H4477]]

       In October 2020, NARF and the ACLU of Montana filed suit 
     against Pondera County election officials on behalf of 
     Blackfeet Nation for failing to provide a satellite voting 
     location on the reservation, depriving Tribal members of the 
     same access to voting as White voters. According to the ACLU 
     of Montana, the County offered in person voting between 60 to 
     80 miles away for Blackfeet Nation residents in the county 
     seat--the suit resulted in a settlement agreement three days 
     after filing in which Pondera County agreed to establish a 
     satellite election office in Heart Butte.
       At the Subcommittee's 2019 hearing in the Dakotas, Roger 
     White Owl, Chief Executive Officer of the Mandan Hidatsa and 
     Arikara Nation, testified that MHA Nation does not have 
     enough polling places, ``[w]ith only a couple of polling 
     places, many Tribal members had to drive 80 to 100 miles 
     round trip to cast their vote. This is unacceptable.''
     Long Wait Times and Inadequate Resourcing at the Polls
       When minority voters do cast their ballot at a polling 
     place, they are also more likely to face longer lines and 
     wait times to do so. Dr. Stephen Pettigrew of the University 
     of Pennsylvania testified before the Subcommittee that:
       ``The most basic impact of waiting in a line is the time 
     burden placed upon the voter--what has been referred to as a 
     `time tax.' Compared to those who live in areas with 
     consistently short lines, voters who live in areas with 
     chronically long lines must sacrifice more of their time to 
     exercise their right to vote. This can be a particular burden 
     for people who have less flexibility in their schedule, 
     whether because they have constraints in their work schedule 
     or because they have childcare or eldercare 
     responsibilities.''
       Furthermore, Kevin Morris of the Brennan Center testified 
     that, ``[o]ver the past decade, scholars have consistently 
     noted that racial minorities wait longer to cast their 
     ballots on election day than White voters.''
       Not only do minority voters face, on average, longer wait 
     times, they also are more likely to experience wait times 
     exceeding 60 minutes, a wait widely recognized as 
     unacceptable, with one analysis finding that a voter living 
     in a non-white neighborhood is more than 6 times more likely 
     to wait 60 minutes or more to vote than a voter living in a 
     predominantly White neighborhood.
       In testimony before the Subcommittee, Dr. Pettigrew stated 
     that, ``[a] voter's race is one of the strongest predictors 
     of how long they wait in line to vote: non-white voters are 
     three times more likely than White voters to wait longer than 
     30 minutes and six times as likely to wait more than 60 
     minutes.'' Dr. Pettigrew's testimony and research also find 
     that line length is a persistent and systemic problem--the 
     same places with long lines in one election are more likely 
     to have long lines in subsequent elections.
       Furthermore, Dr. Pettigrew's research finds that the wait 
     times gap between White and non- White voters bridges the 
     simple explanation of a rural-urban divide, though that 
     divide also exists. Dr. Pettigrew testified that, even within 
     a given urban, suburban, or rural county, lines tend to be 
     longer in neighborhoods and precincts with higher 
     concentrations of non-White voters.
       A report by the Brennan Center shows similar outcomes. Mr. 
     Morris testified that the gaps cannot be explained solely by 
     differences in income, age, or education, and that the gaps 
     are large, stating, ``our report showed that in 2018, Black 
     and Latino voters were more than one- and-a-half times as 
     likely to wait 30 or more minutes as White voters.'' 
     According to the Brennan Center, in the 2018 election, for 
     example, 6.6 percent of Latino voters and 7 percent of Black 
     voters reported waiting 30 or more minutes or longer to vote 
     on Election Day, whereas only 4.1 percent of White voters 
     reported waiting 30 minutes or more.
       Additionally, in a recent report on equity in our 
     democracy, the Brennan Center further reported:
       ``A 2020 analysis by the Brennan Center reported that 
     Latino and Black voters were more likely to find themselves 
     in the longest lines on Election Day than their White 
     counterparts: ``Latino voters waited on average 46 percent 
     longer than White voters, and Black voters waited on average 
     45 percent longer than White voters.'' Stanford University 
     political science professor Jonathan Rodden analyzed data 
     collected by Georgia Public Broadcasting/ProPublica and found 
     that the average wait time after 7:00 p.m. across Georgia was 
     51 minutes in polling places that were 90 percent or more 
     nonwhite, but only six minutes in polling places that were 90 
     percent White.''
       Ms. Marziani further highlighted this in her testimony, 
     stating that, in Texas for example:
       ``Press reports indicated wait times as high as seven 
     hours, `particularly in communities of color and on college 
     campuses.' . . . Nationally, communities of color regularly 
     wait nearly twice as long to vote as White voters, and in 
     Texas, too, long lines disparately impact Black and Latinx 
     Texans.''
       Additionally, Keith Chen of the University of California, 
     Los Angeles, found voters in Black neighborhoods waited 
     longer to cast a ballot than voters in White neighborhoods, 
     and were approximately 74 percent more likely to wait longer 
     than half an hour. Using data from the 2008 and 2012 
     elections, multi-state internet surveys of tens of thousands 
     of voters revealed that both African American and Hispanic 
     voters faced substantially longer wait times at the polls 
     than White voters. Other state-specific studies have shown 
     that minority voters face disproportionately long lines 
     relative to White voters.
       According to a report in the New York Times, this disparity 
     continued in the 2020 election-- ``casting a vote typically 
     took longer in poorer, less white neighborhoods than it did 
     in whiter and more affluent ones.''
       Ms. McCurdy of the Leadership Conference also testified to 
     this point. Ms. McCurdy stated that:
       ``In previously covered jurisdictions, moreover, mass 
     closures similarly resulted in long lines: In 2020, voters 
     stood in line for hours in Phoenix, Arizona, and Atlanta, 
     Georgia; Texas' shuttering of 334 polling places--more than 
     any other state--in majority- Latino neighborhoods forced 
     voters to drive farther than White people from other areas. 
     Indeed, across the country Black and Latino voters 
     consistently reported longer wait-times than White voters.''
       Scholars and stakeholders have demonstrated that the 
     disproportionately long wait times faced by minority voters 
     are often attributable to the differentially lower quality of 
     the polling locations that serve a disproportionately large 
     number of minority voters. For example, Dr. Pettigrew's 
     testimony states that ``one of the reasons why non-White 
     voters wait longer to vote is that fewer resources, such as 
     poll workers and voting machines, are allocated to precincts 
     with more non-white registrants.'' Studies have shown that 
     election officials provide more poll workers and voting 
     machines to disproportionately White precincts, relative 
     to precincts that serve minority voters. A study by the 
     Brennan Center showed that counties that saw a declining 
     population of White voters also saw declines in polling 
     location resources, with counties where the population 
     became whiter having 63 voters per poll worker, whereas 
     counties that were becoming less White had 80 voters per 
     poll worker.
       Equal distribution of resources alone, however, is not 
     enough to address the disparate experience of minority 
     voters. Mr. Morris testified that
       ``Equalizing the distribution of polling place resources, 
     in other words, is insufficient to equalize voters' 
     experience on Election Day. To ensure equitable Election Day 
     experiences and end the excessive lines and wait times faced 
     by minority voters, administrators need to distribute 
     relatively more and higher-quality resources to neighborhoods 
     of color.''
       Mr. Morris further stated that, ``although voters of color 
     already face the longest lines, on average, they make up a 
     growing share of the jurisdictions with the fewest electoral 
     resources'' and that ``resource allocation patterns are on 
     track to exacerbate, not mitigate, the racial wait gap in 
     coming years.
       Additionally, as noted elsewhere in this report, long wait 
     times can be compounded by the disparate impact of the other 
     practices discussed in this report. Mr. Morris testified for 
     example, that the dynamic of inadequate resources ``plays out 
     especially clearly when it comes to language access.'' Mr. 
     Morris testified that research at the Brennan Center 
     ``indicates that counties that have significant and growing 
     populations of voters whose first language is not English, 
     but have not met the threshold to provide language assistance 
     under Section 203 of the VRA, usually provide little-to-no 
     language assistance, leaving some communities under- 
     resourced.'' Voter purges that remove eligible voters from 
     the rolls may cause delays at the polling place as poll 
     workers take time trying to locate the voter's record, and 
     purged voters are often required to cast provisional 
     ballots--Mr. Morris testified that voters who cast a 
     provisional ballot can take twice as long to cast their 
     ballot as a traditional ballot.
       In addition to imposing direct burdens on minority voters, 
     longer wait times also impact the likelihood that a voter 
     will vote in later elections, thereby disproportionately 
     impacting and suppressing participation among minority 
     voters. Voters who face long lines in one election are 
     disproportionately likely not to vote in a subsequent 
     election because of their adverse experience with the voting 
     process. This means that when minority voters face 
     disproportionately long wait times in one election, then 
     these same voters are disproportionately likely not to 
     turnout in subsequent elections.
       Dr. Pettigrew testified that, ``[b]ecause voters' 
     experiences at the polling place have downstream consequences 
     on their future turnout behavior and their confidence in the 
     electoral system, policies that widen the wait time gap 
     between White and non-white voters have the potential to put 
     a thumb on the electoral scale by reshaping the electorate.''
       For example, one study estimated that whereas African 
     American voters comprise 9.7 percent of the electorate, they 
     accounted for 22 percent of the voters who voted in 2012 but 
     did not turnout in the 2014 election because of their adverse 
     experience with long wait times.
       Dr. Pettigrew testified that, ``[v]oters who waited between 
     30 and 45 minutes to vote were 1 percentage point less likely 
     to turn out to vote in the next election, compared to voters 
     who waited less than 15 minutes. When considering voters who 
     waited more

[[Page H4478]]

     than 60 minutes, this impact increases to about 1.6 
     percentage points.'' Dr. Pettigrew notes that, ``[w]hile 
     these percentages may seem small, it is important to remember 
     that in many elections million or tens-of-millions of voters 
     experience long lines, meaning that future decreases in 
     turnout can be in the hundreds-of-thousands.''


                               CONCLUSION

       The evidence before the Subcommittee clearly illustrates 
     the disproportionate, discriminatory effect polling place 
     closures, consolidations, and relocations and under 
     resourcing has on access to the ballot for minority voters. 
     The 2013 bipartisan Presidential Commission on Election 
     Administration set out a key recommendation that ``as a 
     general rule, no voter should have to wait more than half an 
     hour in order to have an opportunity to vote''--the evidence 
     presented to the Subcommittee clearly shows that states and 
     localities are falling far short of this, with minority 
     voters disproportionately bearing the burden.
       As Danielle Lang, Director of Voting Rights at the Campaign 
     Legal Center stated, ``[t]he quality of polling places--their 
     number, location, accessibility, and resources--affects voter 
     participation and confidence, thereby affecting the health 
     and representative nature of American democracy.'' The 
     Supreme Court recognized as much, as Ms. Lang testified, 
     confirming that ``the location and accessibility of polling 
     places can have a direct impact on a voter's ability to 
     exercise their fundamental right to vote. Litigation is 
     simply an inadequate remedy to combat the scale of polling 
     place closures and to combat the significant harm borne 
     disproportionately by minority voters. The data shows these 
     issues are pervasive and have a significant suppressive 
     effect on voters, demanding heightened scrutiny and 
     protections to ensure every voter has access to the 
     franchise.

            Chapter Seven--Restricting Opportunities to Vote


                               BACKGROUND

       The 2020 general election was yet another proof point in 
     what we knew to be true about administering elections in 
     America--when voters are given a variety of options for when 
     and how to cast their ballot outside of traditional in-person 
     Election Day voting, they take advantage of those options. 
     These options include casting a ballot by utilizing early in-
     person voting, curbside or drive-thru voting options, mail-in 
     voting, or placing a completed ballot in a drop box. 
     Undeniably, voting in-person on one Tuesday in November is 
     impractical or impossible for millions of Americans.
       Each of these alternative options are also secure. Election 
     administrators across the country proved during the 2020 and 
     prior elections that they can be administered in ways that 
     reinforces the integrity of our elections even when utilized 
     at record levels. Cybersecurity and election security 
     officials, in fact, stated that the 2020 election was ``the 
     most secure in American history.''
       Early voting, and especially weekend early voting, is a 
     critical tool to ensuring access to the ballot and reducing 
     wait times at the polls. Absentee or no-excuse/mail-in voting 
     is also crucial to providing voters with options for casting 
     a ballot. In testimony submitted before the Subcommittee, 
     Gilda Daniels of the Advancement Project stated, ``[i]t has 
     been proved that expanding early voting, vote by mail 
     ballots, and drop box return options decrease the cost of 
     voting'' and making these options widely available can assist 
     with turnout and smooth election administration.
       Studies have shown that restrictions on a variety of 
     alternatives to voting in-person on Election Day have the 
     potential to disproportionately burden minority voters. 
     Moreover, restricting alternative opportunities to vote 
     burdens Latino and Black voters, who disproportionately lack 
     the ability to shift their working hours, and therefore are 
     less able to vote on Election Day. Restricting voting options 
     can also burden Native American voters, who have non-
     traditional mailing addresses, long distances to travel to 
     polling locations, often lack transportation, and can have 
     inconsistent access to mail services. Failure to provide 
     adequate language assistance also impedes the ability of LEP 
     voters to fully understand and take advantage of voting 
     options such as absentee voting or assessing what early 
     voting options are available.
       While a variety of options for casting a ballot outside of 
     the traditional Election Day are being utilized with 
     increasing frequency by all voters, including minority 
     voters, that increased use has also made these opportunities 
     to vote the subject of targeted, suppressive voting laws in 
     the post-Shelby era.
       Michael Waldman of the Brennan Center testified that 
     multiple states have reduced early voting days or sites used 
     disproportionately by minority voters, such as in Ohio and 
     Florida, where legislatures eliminated early voting on the 
     Sundays leading up to Election Day after Black and Latino 
     voters conducted successful ``Souls to the Polls'' turnout 
     drives on those days. Federal courts struck down early voting 
     cutbacks in North Carolina, Florida, and Wisconsin because 
     they were intentionally discriminatory. Similar efforts are 
     underway today, cutting or restricting early voting, mail-in 
     voting, and ballot return methods, which will 
     disproportionately impact and burden minority voters.
       Under the false flag of ``election integrity'' and 
     combating fraud, as of July 14, 2021, more than 400 bills 
     have been introduced by lawmakers in 49 states to curb access 
     to the vote. As of the writing of this report, at least 18 
     states have enacted new laws containing provisions that will 
     restrict access to voting and opportunities to vote.
       The Brennan Center reports that at least 16 mail-in voting 
     restrictions in 12 states will make it more difficult for 
     voters to cast mail ballots that count and at least eight 
     states have enacted 11 laws that make in-person voting more 
     difficult. These laws come on the heels of an election in 
     which reports show that the share of voters casting mail-in 
     ballots far exceeded any other recent national elections, and 
     the share of voters who reported going to a polling place on 
     Election Day dropped to its lowest point in at least 30 
     years. According to a report by the Brennan Center:
       ``Compared to 2016, Latino voters in 2020 quadrupled their 
     participation in early and absentee balloting--a 224 percent 
     increase, compared to a 165 percent increase for early and 
     absentee ballots cast by voters overall. In the 13 most 
     contested battleground states in the 2020 election, Asian 
     American and Pacific Islander voters saw their early and 
     absentee voting rise nearly 300 percent from 2016 levels.''
       Laws enacted in Arkansas, Florida, Georgia, Iowa, and 
     Montana restricting access to the ballot are already being 
     challenged in court.
       Evidence presented before the Subcommittee across numerous 
     hearings clearly illustrates that the cuts made to 
     opportunities to vote have a disproportionate and 
     discriminatory impact on minority voters and, in some cases, 
     are pursued with a provable discriminatory intent.


      CUTBACKS AND RESTRICTIONS ON OPPORTUNITIES TO VOTE AND THE 
   DISCRIMINATORY AND DISPROPORTIONATE BURDEN AND IMPACT ON MINORITY 
                                 VOTERS

       More than three-quarters of states offer some in-person 
     early voting, but the number of days of availability varies 
     across the nation. Despite the widespread, successful, secure 
     use of early in-person voting in states across the country, 
     early voting options have become the target of suppressive 
     restrictions in the post-Shelby era.
       Cutbacks and restrictions on opportunities to vote outside 
     of what is considered traditional Election Day voting places 
     a disproportionate burden on minority voters. Options such as 
     early voting, mail-in voting, curbside voting, and drop boxes 
     for ballot return all increase voter participation and were 
     used at increasing rates by minority voters during the 2020 
     primary and general election.
       Danielle Lang, Director of the Voting Rights Program at the 
     Campaign Legal Center testified that, in 2020, polls showed 
     that Black voters were the most likely to cast an early 
     ballot and in 2016, Latino voters were the most likely to 
     cast an early ballot. Yet, without the requirement of 
     preclearance to study and analyze changes in opportunities to 
     vote for disparate impact, each of these voting options have 
     become the target of suppressive and discriminatory cutbacks 
     by state legislatures across the country.
       Dr. Pettigrew testified before the Subcommittee that the 
     number of options and opportunities voters have to cast their 
     ballots is also a major contributor to the length of lines at 
     the polls, a burden that the previous section of this report 
     clearly demonstrated falls disproportionately upon minority 
     voters. Increasing hours of operation at polling places, 
     increasing the number of days of early voting, and providing 
     broader access to mail-in voting all decrease line length and 
     provide voters with opportunities to participate in democracy 
     that meet them where they are in their daily lives.
     Early In-Person Voting
       Dr. Michael Herron of Dartmouth College testified before 
     the Subcommittee that options such as early in-person voting 
     are a form of ``convenience voting,'' the implementation of 
     which decreases the cost of voting for the voter. Dr. Herron 
     explains that ``cost'' in this sense ``refers not necessarily 
     to a monetary cost of participating in an election that would 
     be borne by an individual but rather to the time, effort, and 
     tasks that a voter must perform in order to vote.'' As he 
     explained further, ``[t]he higher the cost of voting in a 
     state, the lower the turnout tends to be, all things equal.''
       Dr. Herron testified that early voting has expanded across 
     the United States over the past several decades and, in this 
     same time period, has been heavily used by minority voters. 
     Dr. Herron testified that, ``[c]ertain types of voters tend 
     to use different days of early voting,'' and for this reason, 
     ``changes to election administration procedures that affect 
     precisely when early voting is offered--i.e., on weekdays 
     only as opposed to on both weekdays and weekends--will affect 
     different racial groups differently.'' He testified further 
     that, ``changes to early voting hours that reduce pre-
     Election Day, Sunday voting opportunities should be expected 
     to disproportionately affect Black voters'' and that, if a 
     state were to eliminate Sunday early voting, ``the cost of 
     voting for Black voters would disproportionately increase 
     compared to White voters given the relatively heavy use of 
     Sunday early voting by Black voters.''
       One of the most striking examples of how changes and 
     cutbacks to opportunities to

[[Page H4479]]

     vote can be wielded to disenfranchise minority voters comes 
     again from North Carolina's 2013 omnibus voting bill, dubbed 
     the ``monster law.'' A study co-authored by Dr. Herron 
     examining the discriminatory impact of the state's 2013 
     voting law, which, among other restrictions, cut 10 days of 
     early voting, eliminated same-day voter registration, and 
     eliminated out-of-precinct voting and was enacted within days 
     of the Supreme Court's decision in Shelby County, found that 
     in virtually every election between 2009 and 2012, Black 
     voters disproportionately relied on early voting relative to 
     White voters. Accordingly, the law's restrictions on early 
     voting disproportionately burdened Black voters.
       The North Carolina law specifically targeted one of two 
     ``Souls to the Polls'' Sundays, early voting events 
     traditionally held the Sunday before Election Day and heavily 
     utilized by Black faith communities to get voters to the 
     polls. The omnibus law was found by the courts to have 
     targeted African American voters with ``almost surgical 
     precision.'' As Ms. Lang noted in her testimony, the Fourth 
     Circuit Court of Appeals labeled the restriction on Sunday 
     voting ``as close to a smoking gun as we are likely to see in 
     modern times.''
       Allison Riggs of the Southern Coalition for Social Justice 
     testified that North Carolina's attacks on early voting 
     access did not end with the 2013 law. In 2018, North 
     Carolina's legislature enacted a separate law requiring all 
     100 counties within the state to offer uniform voting hours. 
     While sounding innocuous in theory, in practice it:
       ``[H]ad a terrible effect on the ability of voters, 
     particularly those of color, to get to a polling place. After 
     the enactment of the ``uniform hours requirement,'' 43 of 
     North Carolina's 100 counties eliminated at least one early 
     voting site, almost half reduced the number of weekend days 
     when early voting was offered, and about two-thirds reduced 
     the number of weekend hours, compared to 2014.''
       Tomas Lopez of Democracy North Carolina testified before 
     the Subcommittee in 2019 that, ``this has produced several 
     consequences in practice . . . [o]f the eight counties where 
     a majority of voters are Black, four reduced sites, seven 
     reduced weekend days, and all eight reduced the number of 
     weekend hours during early voting. None saw increases in 
     sites or weekend options.''
       Like North Carolina, Florida has engaged in a lengthy 
     effort to restrict voting options predominately used by 
     minority voters. A study co-authored by Dr. Herron, analyzing 
     differential use of early voting in Florida, found that Black 
     voters disproportionately voted early relative to White 
     voters. Ms. Lang testified that, in 2011, Florida's 
     legislature passed a bill eliminating Sunday voting on the 
     Sunday immediately preceding Election Day--the bill coming 
     after data from the 2008 Presidential election showed that:
       ``Across all early voting days, the two days that featured 
     the lowest white participation rates . . . both were Sundays, 
     but on the first Sunday of early voting, the racial and 
     ethnic group with the highest relative participation rate was 
     African-American voters. And on the last Sunday, the group 
     with the highest relative participation rate was Hispanic 
     voters, followed by African-American voters.''
       Because of Black voters' disproportionate reliance on early 
     voting, scholars found that Florida's restriction on access 
     to early voting in 2012 meant that ``racial and ethnic 
     minorities . . . were far disproportionately less likely to 
     vote early in 2012 than in 2008.'' That was particularly true 
     because African American voters were disproportionately 
     likely to vote on the final Sunday before Election Day, which 
     was among the early voting days eliminated by the law, as 
     part of ``Souls to the Polls'' get-out-the-vote efforts.
       Also in Florida, in July 2018, a federal court struck down 
     a state ban on early voting at public colleges. Hannah Fried, 
     National Campaign Director of All Voting is Local, testified 
     before the Subcommittee in October 2019 that a post-election 
     analysis published by the Andrew Goodman Foundation found 
     that ``nearly 60,000 voters cast early in-person ballots at 
     campus sites that advocates, including [All Voting is Local], 
     helped secure'' in the aftermath of the court's decision, 
     however, Florida's only public historically Black university 
     was the only major public campus without an early voting 
     site.
       An examination of on-campus early voting in the 2018 
     election performed by Professor Daniel Smith of the 
     University of Florida found high rates of campus early voting 
     among Hispanic and Black voters. Moreover, Professor Smith 
     found high rates of campus early voting among historically 
     disenfranchised groups, including:
       ``[A]lmost 30 percent of campus early vote ballots were 
     cast by Hispanic voters, compared to just under 13 percent of 
     early ballots cast at non-campus locations, and that more 
     than 22 percent of campus early vote ballots were cast by 
     Black voters, compared to 18 percent of early ballots cast at 
     non-campus locations.''
       Ms. Lang testified that, in 2014, data from Georgia and 
     North Carolina similarly showed that 53 percent of 25,000 
     early votes cast on the second Sunday before Election Day 
     were from Black voters, compared with 27 percent of the votes 
     cast by all early voters in the 2014 midterm elections.
       In Texas, just before the 2018 election, the NAACP Legal 
     Defense Fund filed a motion for a temporary restraining order 
     on behalf of Black students at the historically Black 
     university Prairie View A&M University (``PVAMU'') in Waller 
     County, Texas. In 2018, the students sought to stop cuts to 
     early voting hours, which would have left Prairie View 
     without any early voting opportunities on weekends, evenings, 
     or during the first week of early voting.
       Janai Nelson, Associate Director-Counsel of LDF, testified 
     to the Subcommittee that county officials refused the student 
     requests to provide adequate early voting sites or hours and 
     that County officials have ``long discriminated against Black 
     voters at PVAMU and in the majority--Black City of Prairie 
     View, dating back to at least the early 1970s.'' In response 
     to LDF's ongoing case, however, county officials agreed in 
     2018 to add several hours of early voting in Prairie View. 
     LDF continues to litigate this case under its Section 2, 
     Fourteenth, Fifteenth, and Twenty-sixth Amendment claims on 
     behalf of PVAMU students who were still denied equal and 
     adequate voting opportunities in the election under the 
     modified plan and parties are awaiting the trial court's 
     decision.
       In yet another example, in Dodge City, Kansas, voting was 
     limited in 2018 to one polling location, which was outside of 
     town and inaccessible via public transportation--Dodge City's 
     population is ``60 percent Hispanic, and the voter turnout 
     among Latinx voters is lower than the national average.'' 
     Alejandro Rangel-Lopez, a high school student from Dodge 
     City, testified before the Committee in 2019 that:
       ``Dodge City only had one polling place for nearly 13,000 
     voters and while that's bad enough to make it one of the most 
     burdened polling places in our state, it was at the very 
     least, centrally located, which can't be said about the 
     location chosen for the 2018 midterm election. That new 
     location was south of town, outside the city limits. Worse, 
     the county clerk sent out the wrong location address to new 
     voters. [T]his new site wasn't accessible by public 
     transportation before we raised concerns. We believed these 
     factors would negatively impact minority and low- income 
     voters . . . We rely on our elected officials to make the 
     right choices and for a county clerk, that job was to make 
     voting as easy as possible in the county she represents. 
     Unfortunately, that's not what happened. The clerk spent 
     nearly $100,000 of taxpayer money for legal fees fighting our 
     efforts to make polling places more accessible.''
       In Ohio, in addition to other cuts to voting opportunities, 
     the state allows each county only one early, in-person voting 
     site, regardless of population size--meaning Franklin and 
     Cuyahoga Counties, home to Columbus and Cleveland, with 
     populations of more than 1.2 million people each and 
     significant populations of Black voters, are allotted the 
     same, single early voting site as the smallest counties in 
     the state, some of which are home to less than 15,000 people. 
     Inajo Davis Chappell, a Member of the Cuyahoga County Board 
     of Elections, testified before the Subcommittee in 2019 that, 
     ``[b]ecause of the limit to this one location, voting lines 
     are long, especially during the presidential election cycle. 
     During periods of heavy voting, long lines can be seen 
     wrapped around the building and down the street for several 
     blocks.''
       LDF's report, Democracy Diminished, notes an example of a 
     Georgia state legislator making the intent behind his 
     opposition to certain early voting in minority communities 
     clear--when an early voting site was opening near a popular 
     mall in Dekalb County in 2014, a state senator responded that 
     ``this location is dominated by African American shoppers and 
     it is near several large African American mega churches,'' 
     and that he would ``prefer more educated voters than a 
     greater increase in the number of voters.''
       Cuts to early voting locations and opportunities to vote 
     also negatively impact the ability of Native American voters 
     to access the ballot. In NARF's 2020 report on obstacles 
     faced by Native American voters, they state that early voting 
     can be a positive force for Native voters, if it accounts for 
     the barriers that they face in participating in non-tribal 
     elections--when officials coordinate with tribal governments 
     and schools to provide information about voting locations and 
     schedule, it can improve turnout.
       Professor Ferguson-Bohnee testified that, while some 
     election administrations are willing to work with tribes to 
     increase access, others are not. The Pascua Yaqui Tribe in 
     Arizona, for example, filed a lawsuit to restore the in-
     person early voting location on the reservation--and 
     ``[w]hile Pima County noted that the voting location would 
     have cost $5,000 to operate, and the Secretary of State was 
     willing to cover the cost, the County denied the Tribe an 
     early voting location.'' Professor Ferguson-Bohnee stated 
     that, without the early voting location, ``on-reservation 
     voters who lacked a vehicle were required to take a two-hour 
     roundtrip bus ride to cast an early ballot.''
       In South Dakota, a federal district court found that Pine 
     Ridge Reservation residents ``must travel, on average, twice 
     as far as White residents to take advantage of the voter 
     registration and in-person absentee voting services.'' In 
     another example, NARF reported that, in Oklahoma, there is 
     often only one early voting location per county--in the 
     county seat--which is often not accessible for Native voters 
     living in outlying areas, and ``in the poorest areas of 
     Nevada, where several reservations are located, no

[[Page H4480]]

     early voting or satellite voting locations were 
     established.''
       Furthermore, in the 2016 general election in Arizona, there 
     were a total of 89 early voting locations, only 23 of which 
     were on reservations. While off-reservation locations were 
     open for multiple days, in contrast, early voting locations 
     on the White Mountain Apache and San Carlos Apache 
     reservations had only one day to vote early in-person, and 
     only four hours on that one day.
       Professor Ferguson-Bohnee's testimony stated that, in 
     Mohave County, Arizona, the county established three in-
     person early voting sites, and while most residents of the 
     County lived near one of the locations, for the Kaibab-Paiute 
     Tribe, the closet of the three locations was ``located 285 
     miles away and required on-reservation voters to travel for 
     over five hours if they wanted to vote early in-person.'' In 
     Navajo County, off-reservation voters had access to more than 
     100 hours of in-person early voting--while members of the 
     Hopi Tribe living on-reservation in the County had access to 
     only six hours of in-person early voting. That represents 
     only six percent of the amount of in-person voting 
     opportunities on-reservation voters could access compared 
     with off-reservation voters.
       Increasing the options for how voters can vote early in-
     person can also increase voter participation and 
     participation of minority voters. For example, Isabel 
     Longoria, Elections Administrator for Harris County, Texas--
     home to Houston and the third largest county in the country--
     testified that the historic turnout of 1.68 million voters 
     Harris County experienced in the November 2020 election was 
     driven by innovative voting opportunities such as drive-thru 
     voting (128,000 votes), 24-hour voting (16,000 votes), and a 
     robust mail ballot program (179,000 votes), and that these 
     methods of voting ``helped promote voting in minority 
     communities, which helped create a more accurate 
     representation of communities in the county.''
       Ms. Longoria testified that during the July 2020 and 
     November 2020 elections, Harris County also kept its polls 
     open until 10:00 p.m. on two evenings and open the entire 
     night one evening. Ms. Longoria testified that, of the Harris 
     County voters who used expanded hours, 45 percent came from 
     State House districts that are majority or plurality Black, 
     Hispanic, or mixed-race districts.
       Harris County also opened multiple drive-thru voting sites 
     that provided voting on the same machines and in the same 
     manner as voting at all other in-person locations. Of the 
     voters who used in-person drive-thru voting, 60 percent came 
     from the majority or plurality Black, Hispanic, or mixed-race 
     State House districts. Though only 38 percent of early voters 
     in the 2020 Presidential election were Black, Latino, or 
     Asian, 53 percent of those communities used drive-thru 
     voting. However, instead of promoting and celebrating these 
     opportunities to vote, state legislators in Texas are also 
     pursuing a suppressive voting bill that would undermine many 
     of these alternative methods of voting.
       Gilda Daniels, Director of Litigation at the Advancement 
     Project, testified that voting statistics show that, in the 
     November 2020 general election, Black voters in Georgia also 
     used early voting on weekends at a higher rate than White 
     voters in 43 of 50 of the state's largest counties. That is 
     86 percent of the largest counties. The state also recently 
     passed a restrictive bill that, among numerous troubling 
     provisions, takes aim at access to early voting.
     Mail-in Voting and Ballot Return
       Whether cast via the mail, returned via a ballot drop box, 
     or returned at a polling place, mail-in voting is another 
     opportunity to vote that gives voters control over when and 
     how to cast their ballot that increases access to the 
     franchise. Equitable mail-in voting practices increase voter 
     participation; however, both restrictions on mail-in voting 
     and mail-in voting implementation can be executed in a manner 
     that is discriminatory toward minority voters or 
     disproportionately burdens minority voters. Ms. Lang 
     testified that ``[a]bsentee voting is one of the most 
     accessible, equitable, and secure methods of voting that 
     states can implement.'' However, access to mail-in voting 
     options is highly uneven--from 5 states that conduct vote-by-
     mail elections, to many who offer no-excuse absentee voting, 
     to the 16 states that continue to limit access to mail-in 
     voting options, locking many voters out of this option.
       Use of mail-in voting increased significantly during the 
     November 2020 election-- approximately 43 percent of voters 
     cast mail-in ballots, roughly twice the percentage of voters 
     who cast mail-in ballots in the 2016 general election.
       Dr. Herron testified that this increase was not uniform 
     across racial groups. For example, Dr. Herron noted that the 
     shift in the mail-in voting rate in Florida for Black voters 
     increased from almost 21 percent to around 39 percent, an 89 
     percent increase, while the rate for White voters went from 
     31 percent to 44 percent, a 43 percent increase. Dr. Herron 
     testified that, while it remains to be seen whether mail-in 
     voting usage will return to pre-pandemic levels, ``[c]hanges 
     to [vote-by-mail] voting procedures should not [be] expected 
     to be racially neutral any more than changes to early voting 
     procedures.''
       The inequitable access to mail-in voting options and 
     different eligibility rules were put in stark relief during 
     the 2020 election, a presidential primary and general 
     election conducted during a once-in-a-century pandemic. For 
     example, Ms. Lang testified that Texas's restrictions on 
     eligibility for requesting and casting an absentee ballot 
     ``den[ies] the majority of Texans the ability to vote by 
     mail--particularly Latino and younger voters.'' Ms. Lang 
     testified that ``Latino voters in Texas are significantly 
     younger than the average Texas voting population, which means 
     they are disproportionately unable to avail themselves of the 
     over-65 exception to the absentee eligibility criteria.'' In 
     May 2020, in Texas, CLC moved to intervene on behalf of the 
     League of United Latin American Citizens (LULAC) in a lawsuit 
     filed by the Texas Democratic Party challenging Texas's vote-
     by-mail eligibility restrictions--the case remains pending in 
     federal court.
       Some states have also erected unduly burdensome 
     requirements for casting absentee ballots that make the 
     option illusory for many voters. For example, Alabama 
     requires voters to send an application for an absentee ballot 
     for every election to a special absentee election manager for 
     the county, including a photocopy of their voter ID, and then 
     return the ballot with a notary signature or the signature of 
     two witnesses. In Mississippi, the application to vote by 
     mail-in ballot must be notarized.
       In another example, Ms. Lang testified that ``[f]rom start 
     to finish, Tennessee makes vote by mail unduly difficult and 
     inaccessible.'' CLC has several lawsuits pending in 
     Tennessee, two of them, Ms. Lang notes, particularly relevant 
     to minority voters' opportunities to vote. CLC is challenging 
     Tennessee's strict limitations on who can vote by mail and 
     the state's failure to allow voters to fix issues with their 
     absentee ballots after they are rejected due to a perceived 
     signature mismatch.
       Additionally, Tennessee law does not allow most first-time 
     voters to vote by mail even if they otherwise qualify under 
     the state's strict eligibility criteria. Ms. Lang testified 
     that, ``[t]hus, new voters--who are disproportionately young 
     and of color--are locked out of absentee voting even when 
     they have no way to present themselves to vote in person.'' 
     Allison Riggs of the Southern Coalition for Social Justice 
     testified that ``[t]he five states that did not allow 
     unfettered access to vote-by-mail in 2020--Tennessee, Texas, 
     Mississippi, Indiana, and Louisiana--were in the bottom 10 in 
     turnout countrywide.''
       Additionally, when a voter does vote by mail-in ballot, 
     often there is no guarantee the ballot will be counted, as 
     election officials often have the discretion to reject a 
     ballot if they perceive discrepancies in the voter's 
     signature. Ms. Lang testified that ``signature matching'' has 
     been shown to ``disproportionately discount the ballots of 
     voters with disabilities, older voters, and voters who are 
     non-native English speakers or racial minorities.'' Ms. Diaz 
     of the UCLA Latino Policy and Politics Initiative also 
     testified that, ``signature matching requirements for mail 
     ballots create a potential to disenfranchise Latino voters'' 
     and ``[u]ltimately, mandatory signature matching is likely to 
     have a disproportionate effect on the young, elderly, 
     disabled, racial/ethnic minorities, and limited English 
     proficient voters.''
       If not implemented in conjunction with in-person voting 
     options and in consultation with tribal governments, mail-in 
     voting can replicate many of the same barriers and distance 
     issues faced by Native voters. A lack of traditional 
     addresses, inconsistent access to postal services, and 
     distance all create barriers to fully accessing mail-in 
     voting for many Native American voters.
       The use of drop boxes or allowing a third-party to return a 
     voter's mail-in ballot have also been the target of 
     restrictions in recent years. Ms. Lang testified that last 
     year, approximately 41 percent of voters who voted absentee 
     used ballot drop boxes, just 3 percent less than the 
     percentage of voters who returned their ballot using the 
     Postal Service. Yet, despite widespread, secure usage of drop 
     boxes, states such as Texas moved to restrict the ability of 
     voters to return their ballots via drop box--during the 
     election the Governor of Texas issued an order restricting 
     counties to one drop box per county and forcing counties that 
     had deployed more than one to remove them.
       Ms. Lang testified that ``[t]his eleventh-hour decision to 
     limit access to safe ballot drop-off locations so close to 
     the election sowed mass confusion. Moreover, it 
     disproportionately affected Black and Latino voters living in 
     major metro areas and voters who were entitled to vote by 
     mail because they were older or had disabilities.'' The 
     Governor's order forced highly populous, majority-minority 
     counties like Harris County, which has 4.7 million residents 
     (more than 26 states) to cut their drop off locations from 
     the 12 they had set up over roughly 1,700 square miles to 
     one. These restrictions harmed minority voters in both 
     populous counties and rural counties like majority-minority 
     Brewster County on the Texas-Mexico border.
       A lack of convenient access to drop boxes to return mail-in 
     ballots was a consistent barrier for Native voters, as noted 
     in NARF's 2020 report. All too often, drop boxes are 
     located off tribal lands, in some cases great distances 
     from Native American communities. Bans on ballot 
     returnalso disproportionately harm Native American voters. 
     Many Native Americans rely on P.O. boxes that are often 
     far from their homes. As detailed by NARF, families 
     commonly ``pool'' their mail, meaning ``one person who is

[[Page H4481]]

     going to town would collect it for everyone else to drop 
     off at the post office.''
       Also, some people who cannot afford a P.O. box will have 
     their mail sent to someone else who does have one, meaning if 
     the mail contains an early ballot, depending on the law, that 
     neighbor could be implicated in a banned ballot collection 
     practice. NARF, along with the ACLU and the ACLU of Montana 
     is currently challenging two new Montana laws that hinder 
     Native American participation in voting, including one that 
     attempts to block organized ballot collection on rural 
     reservations. In September 2020, a Montana court permanently 
     struck down a different state law, the so-called Montana 
     Ballot Interference Prevention Act (BIPA), which imposed 
     severe restrictions on ballot collection efforts critical to 
     Native Americans living on rural reservations. In its order, 
     the court held that the costs borne by Native American 
     communities associated with BIPA were ``simply too high and 
     too burdensome to remain the law of the State of Montana.''
     Recent Attacks on Opportunities to Vote
       Despite the record-setting voter turnout experienced in 
     2020 and the secure nature in which the election was 
     conducted, attacks on opportunities to vote are well underway 
     in many states. According to the Brennan Center for Justice, 
     at least 16 mail voting restrictions in 12 states will make 
     it more difficult to cast mail ballots that are counted and 
     at least 8 states have enacted 11 laws that make in-person 
     voting more difficult. According to the Brennan Center's 
     state law roundup:
       ``Three states have limited the availability of polling 
     places: Montana permitted more locations to qualify for 
     reduced polling place hours; Iowa reduced its Election Day 
     hours, shortened the early voting period, and limited 
     election officials' discretion to offer additional early 
     voting locations; and Georgia reduced early voting in many 
     counties by standardizing early voting days and hours.''
       In Florida, Governor Ron DeSantis signed into law a bill 
     that makes it more difficult to vote by mail-in ballot and 
     makes it harder for voters to access secure drop boxes. On 
     May 6, 2021, the NAACP LDF filed a lawsuit on behalf of the 
     Florida State Conference of the NAACP, Disability Rights 
     Florida, and Common Cause, challenging many of the provisions 
     in SB 90 (2021), including new ID requirements for requesting 
     mail-in ballots, new requirements for standing mail-in 
     applications, limitations on the use of drop boxes, and 
     others--this litigation is pending.
       As noted earlier in this section, Republicans in the Texas 
     state legislature are pushing a bill that would put 
     limitations on early voting hours (including Sunday early 
     voting), increase restrictions on vote-by-mail, and curb 
     voting options such as drive-thru voting. This proposed law 
     comes after an election cycle in which, despite the ongoing 
     pandemic, the Governor limited the number of drop-off 
     locations for mail-in ballots to one site per county via 
     proclamation, forcing Harris County, for example, to cut 
     their drop-off locations from 12 to 1, Republicans attempted 
     to preemptively throw out more than 125,000 early voting 
     ballots from drive-thru polling sites in Harris County (the 
     state's most populous county) via court challenge; and 
     refused to expand eligibility for no-excuse absentee voting.
       According to the Texas Tribune, Senate Bill (SB) 7 takes 
     aim at opportunities to vote used by minority voters, 
     ``[p]ortions of the bill were specifically written to target 
     voting initiatives Harris County used in the last election--
     such as a day of 24-hour early voting, drive-thru voting, and 
     an effort to proactively distribute applications to vote by 
     mail--that were heavily used by voters of color. But under SB 
     7, those options will be banned across the state.'' Ms. 
     Longoria testified that SB 7 would have prohibited the 
     Elections Administrator from opening the polls before 6:00 
     a.m. or after 9:00 p.m. on weekdays or Saturday--a 
     prohibition that would ``disproportionately hurt voters of 
     color, particularly those who are Black and Hispanic.''
       Despite failing to pass SB 7 in the regular legislative 
     session, the Texas Legislature began a special session on 
     July 8, 2021, in which both the House and Senate revived 
     separate proposals (Senate Bill 1 and House Bill 3) that 
     would enact restrictions on opportunities to vote such as 
     outlawing the drive-thru voting option utilized by Harris 
     County, regulating early voting hours to preempt expanded 
     early voting opportunities such as 24-hour voting, and 
     prohibiting local election officials from sending unsolicited 
     mail-in ballot applications, among others.
       Ms. Riggs testified that, once again, under the guise of 
     ``election integrity,'' the North Carolina legislature is 
     responding to the 2020 election by introducing bills that 
     would restrict access to voting options. Ms. Riggs testified 
     that one troubling bill moving through the legislature is 
     Senate Bill (SB) 326, which would ``[w]ith no justification'' 
     require voters to submit an absentee ballot request form 
     earlier than was required in 2020, and would require all 
     civilian absentee ballots to be received no later than 5:00 
     p.m. on Election Day to be counted-- currently ballots 
     postmarked by Election Day and received no later than three 
     days after Election Day are counted. In analyzing data from 
     the 2020 election, Ms. Riggs testified that, ``SCSJ internal 
     data show that in the first few days after Election Day in 
     2020, Black voters' ballots represented a significant 
     percentage of those ballots received when compared to White 
     voters' ballots (where race was designated)'' and ``[t]o be 
     clear, all these voters who relied on the United States 
     Postal Service would be disenfranchised under the new law. 
     But the harm to Black voters, whose participation rate has 
     dropped below the rate seen in 2008 and 2012, is very 
     troubling.''
       In March 2021, on the heels of record voter turnout in the 
     November 2020 general election and January 2021 run-off 
     election, the State of Georgia also enacted a suppressive 
     voting law that makes cuts to voting opportunities, which 
     will disproportionately impact minority voters.
       Ms. Nelson of LDF testified that LDF, along with several 
     partners, filed suit in the U.S. District Court for the 
     Northern District of Georgia challenging Georgia's SB 202 for 
     intentional racial discrimination and discriminatory results 
     under Section 2 of the VRA, intentional racial discrimination 
     under the Fourteenth and Fifteenth Amendments, as an 
     unconstitutional burden on the right to vote under the First 
     and Fourteenth Amendments, and as an unconstitutional burden 
     on the right to freedom of speech and expression under the 
     First Amendment.
       The Justice Department has also filed suit against the 
     State of Georgia, the Georgia Secretary of State, and the 
     Georgia State Elections Board over the newly enacted law, 
     challenging provisions of the law under Section 2 of the VRA. 
     The Justice Department's complaint argues that several 
     provisions of SB 202 were ``adopted with the purpose of 
     denying or abridging the right to vote on account of race.'' 
     The suit further alleges that ``the cumulative and 
     discriminatory effect of these laws--particularly on Black 
     voters--was known to lawmakers and that lawmakers adopted the 
     law despite this.''


                               CONCLUSION

       Americans no longer vote solely on a single Tuesday. For 
     millions of Americans, Election Day-only voting is 
     impractical or inaccessible. Increasing access to 
     opportunities to vote benefits all voters and increases 
     participation in our democratic process--but targeted 
     restrictions on these opportunities disproportionately and 
     discriminatorily burden minority voters. As Ms. Lang 
     testified, ``[t]he early in-person voting options are wildly 
     uneven nationwide. While some Americans enjoy a broad range 
     of voting opportunities, others face increasing constraints 
     on their voting options.''
       Cuts to early in-person voting, especially Sunday voting, 
     and a lack of adequate early voting sites serves to 
     disenfranchise minority voters and, in some cases, has been 
     shown to be enacted with discriminatory intent. Additionally, 
     mail-in voting is a safe, secure, and critical option for 
     many voters, but if enacted with unreasonable and 
     discriminatory barriers, can remain out of reach for many 
     minority voters. Finally, attacks on alternative 
     opportunities for returning a ballot have a discriminatory 
     impact of many minority voters.
       The evidence before the Subcommittee is clear--cuts to 
     early voting, limiting the availability of early voting 
     options, undue restrictions on mail-in ballots, and unfounded 
     restrictions on ballot return options erect discriminatory 
     barriers to voting.

     Chapter Eight--Changes to Methods of Election, Jurisdictional 
                     Boundaries, and Redistricting


                               BACKGROUND

       Discriminatory practices in, and changes to, methods of 
     election, jurisdictional boundaries, and redistricting impact 
     whether voters can elect representatives that reflect their 
     voices and communities. Discriminatory redistricting, vote 
     dilution, annexations, deannexations, drawing of 
     jurisdictional boundaries, and changes to the method of 
     election all affect elections and representation ranging from 
     local-level school boards to state courts and Congressional 
     seats.
       Shelby County v. Holder itself began as a change to 
     jurisdictional boundaries and the method of election for a 
     local city council seat. There, the city attempted to change 
     the district lines for the Calera City Council in Calera, 
     Shelby County, Alabama. In redrawing the district lines, the 
     voting population for Voting District 2 changed dramatically, 
     bringing in hundreds of White voters, cutting the proportion 
     of Black voters from more than two-thirds to one-third.
       At the time, Alabama was subject to statewide preclearance 
     under Section 5 of the VRA and the new district map was 
     subject to review and approval by the Justice Department. The 
     DOJ was not persuaded that the new map would not discriminate 
     against Black voters and voided the new map. The day after 
     the DOJ struck down the map, Calera held a previously 
     scheduled city council election under the now-voided map in 
     which Ernest Montgomery, the District 2 representative and 
     the only African American on the five-member city council, 
     was voted out of office. The DOJ blocked certification of the 
     election results pending a new vote.
       After a year of negotiation, Calera got rid of its district 
     map, moving instead to a six-seat ``at-large'' council and in 
     a new election, Ernest Montgomery won one of the seats. These 
     circumstances served as the predicate for lawyers to bring 
     suit challenging the constitutionality of the coverage 
     formula and preclearance regime of the VRA.
       The Voting Rights Act of 1965 prohibits not only 
     discrimination in the denial of access to the ballot, but 
     also in dilution of voters, such as the way district lines 
     are drawn to dilute the ability of voters of color to elect

[[Page H4482]]

     their preferred candidate. Voting changes that were once 
     covered by Section 5 included, among others:
       ``(d) Any change in the boundaries of voting precincts or 
     in the location of polling places. (e) Any change in the 
     constituency of an official or the boundaries of a voting 
     unit (e.g., through redistricting, annexation, deannexation, 
     incorporation, dissolution, merger, reapportionment, changing 
     to at-large elections from district elections, or changing to 
     district elections from at-large elections). (f) Any change 
     in the method of determining the outcome of an election 
     (e.g., by requiring a majority vote for election or the use 
     of a designated post or place system).''
       Additionally, the redistricting process can and has been 
     used to deny political power and equal representation to 
     minority populations. As discussed below, without proactive 
     protections against discriminatory redistricting, it can take 
     years to litigate a redistricting case. While a case winds 
     its way through the courts, numerous elections can take place 
     under a map that is later found to be discriminatory and 
     invalid.
       States are entering the first federal decennial 
     redistricting cycle without the full protections of the 
     Voting Rights Act since its enactment in 1965. Without 
     proactive protections to ensure district lines are not drawn 
     in a discriminatory manner, voters could be forced to go to 
     the polls under maps that years later, through lengthy and 
     costly litigation, are found to be discriminatory and 
     invalid.
       The evidence presented to the Subcommittee demonstrates 
     conclusively that changes to methods of election, alterations 
     to jurisdictional boundaries, and redistricting can and do 
     disproportionately and discriminatorily impact minority 
     voters and can be, in some cases, wielded with discriminatory 
     intent.


 THE DISPROPORTIONATE AND DISCRIMINATORY BURDEN AND IMPACT ON MINORITY 
 VOTERS OF CHANGES TO METHODS OF ELECTION, JURISDICTIONAL BOUNDARIES, 
                           AND REDISTRICTING

       There is a long, documented history of methods of election, 
     altering jurisdiction boundaries, and redistricting processes 
     being used to discriminate against, dilute the voting power 
     of, and effectively disenfranchise minority voters. Since 
     Reconstruction and the rise of Jim Crow, as Black, Latino, 
     Indigenous, and Asian American communities gained access to 
     the franchise, overcame barriers to voting, and gained 
     political power and voting strength, they have been met with 
     suppressive tactics meant to dilute their votes and ensure 
     voting power for the shrinking majority.
       A November 2019 report on discriminatory voting practices 
     produced by AAJC, MALDEF, and NALEO noted that, for example, 
     since 1957, ``there have been at least 1,753 legal and 
     advocacy actions that successfully overturned a 
     discriminatory change in method of election because of its 
     discriminatory intent or effects.'' The report also cites 
     that at least 219 annexations or deannexations have been 
     challenged and invalidated by a court or the DOJ, or amended 
     or withdrawn. Additionally, according to the report, since 
     1957, 982 redistricting plans were challenged and invalidated 
     by a court or the DOJ or amended or withdrawn because of 
     their discriminatory intent or effects.
       Professor Patty Ferguson-Bohnee testified that, before 
     Shelby County, the Department of Justice issued nine Section 
     5 objections to redistricting plans involving Native voters 
     in Alaska, Arizona, and South Dakota--five of those were in 
     Arizona. Additionally, since 1966, 22 federal cases 
     challenging at-large election systems, redistricting lines, 
     or malapportionment have been filed on behalf of Native 
     voters, including state legislative districts, school boards, 
     counties, sanitation districts, and city councils. Of these 
     22 cases, 6 were brought by the Department of Justice.
       Thomas Saenz of MALDEF testified before the Subcommittee 
     that Latino voters have also seen attempts to limit the 
     growth of their voting power, including ``the perpetuation or 
     re-introduction of at-large voting or the failure to 
     acknowledge and incorporate the growth of the Latino 
     community in the decennial redistricting process.'' Asian 
     Americans have also seen the district drawing process used in 
     attempts to dilute their voting power.
       Black voters have long-experienced attacks on their voting 
     power through vote dilution, annexations, redrawing 
     jurisdictional boundaries, and discriminatory redistricting 
     maps. As Justice Kagan noted in her Brnovich dissent, 
     following the passage of the VRA:
       ``The crudest attempts to block voting access, like 
     literacy tests and poll taxes, disappeared. Legislatures 
     often replaced those vote denial schemes with new measures--
     mostly to do with districting--designed to dilute the impact 
     of minority votes. But the Voting Rights Act, operating for 
     decades at full strength, stopped many of those measures 
     too.''
       In the immediate aftermath of Shelby County, states and 
     localities redistricted, drawing new lines, or changing the 
     method of election from neighborhood seats to at-large 
     districts, in ways ``guaranteed to reduce minority 
     representation.''


      Changes to Method of Election and Jurisdictional Boundaries

       Altering methods of election and jurisdictional boundaries 
     has long been used to discriminate against minority voters 
     and dilute voting power. In definitional terms, ``method of 
     election'' refers to ``the system for electing members of a 
     body and may include features affecting the size and 
     composition of the electorate that votes for a given seat, 
     the timing of election for certain seats, and the number or 
     percentage of votes required to win an election.''
       At-large elections occur when representatives are elected 
     from one large district simultaneously, rather than at the 
     community level through local, single-member districts. Janai 
     Nelson of the NAACP Legal Defense Fund testified that ``[a]t-
     large elections can allow 51 percent of voters to control 100 
     percent of the seats on an elected body, which, in the 
     presence of racially polarized voting and other structures, 
     can dilute a racial minority group's voice in the electoral 
     system.'' Multi-member elections occur when a jurisdiction is 
     divided up into districts and, in each, voters all vote for 
     each of the multiple seats. Shifts to these two methods can 
     be used to dilute the voting power of minority communities 
     and prevent them from electing representatives of their 
     choosing.
       In addition to altering the method of election, tactics 
     such as annexations, deannexations, or shifting 
     jurisdictional boundaries dilute the political power of 
     minority voters by selectively altering the racial and ethnic 
     makeup of the electorate.
       In one of the first lawsuits challenging a change made 
     after the VRA's preclearance protections were undermined in 
     Shelby involved a change to the method of election for the 
     Pasadena, Texas City Council. MALDEF challenged the 
     conversion of the Pasadena, Texas City Council from eight 
     districted seats to six districted seats and two at-large 
     seats. Mr. Saenz of MALDEF testified that this change was 
     ``plainly undertaken to prevent the growing Latino voting 
     population from electing a majority of the city council; 
     participation differentials virtually ensured that the white 
     population would elect its choices for the at-large seats in 
     elections characterized by a racially polarized vote.''
       Following a bench trial, the district court judge held that 
     not only would the change have the effect of unlawfully 
     diluting the Latino vote, but it was made intentionally to do 
     so. Chief Judge Rosenthal of the U.S. District Court for the 
     Southern District of Texas stated, ``[t]he intent was to 
     delay the day when Latinos would make up enough of Pasadena's 
     voters to have an equal opportunity to elect Latino-preferred 
     candidates to a majority of City Council seats.'' Mr. Saenz 
     testified that, following a long and costly trial preparation 
     and trial process, this resulted in the first contested 
     ``bail-in'' order, requiring Pasadena to pre-clear future 
     electoral changes.
       Sonja Diaz of the UCLA Latino Policy and Politics 
     Initiative noted that, in California, because of the 1990 
     federal court decision in Garza v. Los Angeles County Board 
     of Supervisors, Los Angeles County was forced to create the 
     first Latino-majority seat--30 years later, the Board of 
     Supervisors still has only one Latino-majority district, 
     despite the Latino citizen population increasing 77 percent 
     over the last 20 years.
       Mr. Saenz testified that, 10 years ago, MALDEF identified 8 
     counties in California that should have drawn an additional 
     Latino-majority district on their 5-member county board of 
     supervisors but failed to do so. Mr. Saenz testified that, 
     ``[e]ven with unlimited resources, challenging eight 
     jurisdictions through litigation under section 2 of the VRA . 
     . . would be daunting, if not impossible.'' While MALDEF 
     successfully challenged Kern County in ``the first section 2 
     litigation to go to trial in California in well over a 
     decade, seven other counties were able to leave their VRA-
     violative district maps in place throughout the decade.''
       Examples of changes to methods of election, and related 
     tactics can be found around the country. In 2014, a federal 
     court ordered Yakima, Washington, to create new, single-
     member City Council districts to remedy an at-large 
     districting scheme that routinely suffocated the vote of 
     Latino voters. Ms. Diaz testified that, in the first election 
     with the new districts, three Latinas were elected to the 
     City Council, though this was met with forms of retaliation. 
     In response, ``the city clerk, along with some ousted white 
     city council members, resigned an entire month early'' and 
     White council members ``sought to leverage an at-large ballot 
     referendum to reduce the electoral voice of Latinos by 
     creating a strong mayor system.'' Ms. Diaz testified that:
       ``In response, the non-Hispanic white members of the Yakima 
     city council attempted a retaliatory change to the charter as 
     a way to reduce the power of the city council to ensure that 
     Latinos could not have a majority of the representation on 
     the seven person council, in violation of Section 2 of the 
     Voting Rights Act. [Voting Rights Project] successfully 
     intervened on behalf of Latino plaintiffs to stop the 
     proposed districting change to a mayor-council system, which 
     if adopted, would revert the single-district council to an 
     at-large election that dilutes the Latino vote.''
       Ms. Nelson of the NAACP LDF testified that, in 2015, the 
     County Commission in Fayette County, Georgia tried to revert 
     to an at-large voting system in a special election to replace 
     a Black Commissioner who had died unexpectedly. LDF won a 
     Section 2 case that stopped this change and required the 
     election to use single-member districts, which allow Black 
     voters to again elect their preferred candidate.

[[Page H4483]]

       In another example, in 2016, the largely white City of 
     Gardendale, Alabama attempted to secede from the more diverse 
     Jefferson County School Board, a move that would have 
     effectively transferred Black voters in Gardendale from a 
     system in which they had some ability to elect candidates of 
     their choice, to the Gardendale city council's at-large 
     election system in which Black voters have no ability to 
     elect candidates of their choice. Ms. Nelson testified that, 
     in 2018, the Eleventh Circuit Court blocked the secession 
     after LDF successfully proved that Gardendale was motivated 
     by racial discrimination. Since Shelby County, LDF has warned 
     at least four local jurisdictions in Alabama that ``the at-
     large aspects of their electoral systems may violate Section 
     2 of the VRA and potentially also the U.S. Constitution.''
       Ms. Nelson also testified that, in 2017, LDF ``proved that 
     the Louisiana Legislature intentionally maintained at-large 
     elections for the state courts in Terrebonne Parish to 
     prevent the election of a Black judge.'' A Black candidate 
     has never been elected as a judge on the court in a contested 
     election. A three-judge panel of the Fifth Circuit reversed 
     the favorable decision in June 2020, despite the trial 
     court's finding that plaintiffs clearly established vote 
     dilution and denied LDF's petition for rehearing en banc.
       Professor Patty Ferguson-Bohnee testified that at-large 
     districts have also been used to deny Native American voters 
     the opportunity to elect candidates of their choice--states 
     such as Montana, North Dakota, South Dakota, and Wyoming have 
     used this scheme over the last 25 years to deny voting power 
     to Native voters.
       In Utah, for example, the Justice Department sued San Juan 
     County in the 1980s arguing that the at-large system violated 
     Section 2 of the VRA--the resulting consent decree resulted 
     in single-member districts. Despite population changes, the 
     district lines did not change over the next 25 years and, 
     despite changes that were made to the other two districts in 
     2011, the boundaries of the Native American-majority district 
     remained the same. The Navajo Nation challenged the scheme of 
     packing Navajo voters into one, single district out of three. 
     As a result of multi-year litigation, the county's districts 
     were reconfigured, and Native Americans were able to elect 
     two candidates of choice--litigation that took seven years 
     and cost plaintiffs $3.4 million.
       There are additional examples of the Justice Department 
     filing suit under Section 2 challenging methods of election 
     schemes in the years post-Shelby. In 2017, the Justice 
     Department filed a complaint under Section 2 challenging the 
     City of Eastpoint, Michigan's, at-large method of electing 
     the city council as diluting the voting strength of Black 
     citizens; and in June 2019, the court entered the parties' 
     consent decree providing for the city to use ranked choice 
     voting to resolve the claims. On May 27, 2020, the Department 
     filed a complaint challenging the at-large method of election 
     for the school board of the Chamberlain School District under 
     Section 2 of the VRA in South Dakota alleging that the Native 
     American population of the School District is sufficiently 
     large and geographically compact to constitute a majority of 
     the voting-age population and that the at-large method of 
     election the Chamberlain School Board dilutes the voting 
     strength of American Indian citizens.
       As recently as April 14, 2021, the DOJ filed a complaint 
     and proposed consent decree under Section 2 of the VRA, 
     challenging the at-large method of electing the board of 
     alderman of the City of West Monroe, Louisiana's, city 
     council, arguing that the current method of electing the West 
     Monroe Board of Aldermen dilutes the voting strength of Black 
     citizens, who constitute 28.9 percent of the voting-age 
     population of the City of West Monroe, but no Black candidate 
     has ever been elected to the West Monroe Board of Aldermen, 
     and no Black individual has ever been appointed to the Board.
       This is merely a sampling of discriminatory actions 
     executed through changes to methods of election and changes 
     to jurisdictional boundaries. The evidence before the 
     Subcommittee clearly illustrates that these practices are 
     enacted with discriminatory effect and intent, resulting in 
     the dilution of the voting power of minority voters and a 
     severe restriction of their ability to elect candidates of 
     their choosing.
     Redistricting
       Each decade, following the decennial census and 
     distribution of population data, states undertake to redraw 
     or update district lines--this affects districts up and down 
     the ballot and at all levels of government. Discriminatory 
     redistricting practices have been utilized for decades to 
     dilute and suppress the voting power of minority voters and 
     can impact representation at all levels of government. To put 
     a finer point on it--in 1991, since-deceased Republican 
     consultant Thomas Hofeller said, ``I define redistricting as 
     the only legalized form of vote-stealing left in the United 
     States today.''
       In redistricting, officials can also use tactics known as 
     ``cracking'' and ``packing'' to dilute the votes of minority 
     communities. ``Cracking'' occurs when officials divide voters 
     into a number of different districts, such that the minority 
     voters in the districts do not have a majority in any of 
     them--the purpose of which is to maximize the number of 
     wasted votes. ``Packing'' occurs when voters are placed into 
     one or only a few districts, so the remaining districts are 
     easier for non-minority voters to control.
       The country is now about to begin the first redistricting 
     cycle without the full protections of the Voting Rights Act 
     in more than a half century. According to the USCCR's 2018 
     report on minority voting rights access, ``overall data shows 
     that there have been over 3,000 changes submitted due to 
     redistricting in every 10-year cycle since the 1965 VRA was 
     enacted.'' Research performed by AAJC, MALDEF, and NALEO 
     found that, since 1982, ``at least 389 redistricting plans 
     have been challenged by a court of the DOJ, or amended or 
     withdrawn by responsible lawmakers, because of their 
     discriminatory intent or effects.''
       The redistricting process can and has been used to deny 
     political power and equal representation to minority 
     populations. While a district is supposed to follow the ``one 
     person, one vote'' doctrine established by the Supreme Court 
     in the 1960s, the drawing of districts is all too often done 
     behind closed doors, without meaningful public input, and in 
     a manner used to dilute the voices of some voters and, in 
     effect, give disproportionate voting power to others.
       Former Attorney General Eric H. Holder, Jr., Chairman of 
     the National Democratic Redistricting Committee, testified 
     before the Subcommittee that:
       ``In the days since that ruling eight years ago, 
     unnecessary and discriminatory voting restrictions went up 
     across the country . . . And we saw newly emboldened state 
     legislatures draw discriminatory maps that unfairly placed 
     Black people and other people of color, young and poor 
     people, into gerrymandered voting districts where their 
     impact would be diluted and their voice ultimately lost.''
       Jerry Vattamala of AALDEF testified that ``Asian Americans 
     have been historically disenfranchised in the redrawing of 
     district boundaries and in their right to vote.'' Mr. 
     Vattamala further testified that the percentage of Asian 
     American elected officials is not keeping track with the 
     population growth, in many instances because Asian American 
     communities of interest are divided into numerous districts, 
     ``subverting the growth and thwarting the effects of this 
     growth and the numbers, to deny them the ability to elect a 
     candidate of their choice.'' Mr. Vattamala stated further 
     that ``we only see Asian American electoral representation 
     when we have fair redistricting. Only then are they able to 
     elect a candidate of choice and they usually do.''
       Professor Ferguson-Bohnee testified that ``[i]n addition to 
     well-documented access barriers, redistricting has been used 
     as a tool to suppress Native American voting rights and 
     depress Native American political power.'' In Arizona, for 
     example, ``Tribal voters challenged redistricting plans every 
     cycle since the 1960s, except for the last decade following 
     the 2010 Census.'' The last decade was the first time 
     Arizona's maps were precleared on the first attempt--now, the 
     retrogression standard required under Section 5 of the VRA is 
     no longer an option to protect the state's single Native 
     American majority-minority district in the upcoming 
     redistricting cycle.
       Litigation alone can take years to remedy the harm of 
     gerrymandering, meaning voters spend years represented by 
     maps that are later found to have violated their rights. 
     Cases challenging discriminatory maps drawn in the 2010 
     redistricting cycle in North Carolina and Texas, for example, 
     took more than half a decade to litigate, all while voters 
     went to the polls under districting maps later found to be 
     discriminatory and unlawful.
       Allison Riggs of the Southern Coalition for Social Justice 
     testified that, ``[i]n the last decade, the North Carolina 
     legislature's repeated violations of the Fourteenth Amendment 
     in redistricting, local and statewide, should give anyone 
     pause, and are strong evidence of the need for federal 
     protections.''
       Specifically, in North Carolina, the state drew 
     redistricting maps that packed Black voters into as few 
     districts as possible. Plaintiffs filed a lawsuit, and the 
     federal courts found that the challenged districts violated 
     the Equal Protection Clause. However, as Ms. Riggs testified, 
     when the State General Assembly was given the first chance to 
     remedy the districts, the legislature perpetuated the racial 
     packing. In 2016, after the District Court ruled against the 
     state's maps, state legislators drew new maps, this time 
     admitting the purpose of the maps was partisan.
       In 2017, the Supreme Court upheld the lower court's 
     rejection of two North Carolina congressional maps on the 
     grounds that North Carolina's Republican-controlled 
     legislature relied too heavily on race in drawing the maps. 
     The state's maps had been the subject of continuous 
     litigation since the 2011 redistricting--all the while, 
     voters went to the polls to cast ballots under maps that were 
     found, years later, to be unlawfully discriminatory. On 
     October 28, 2019, a North Carolina state court again ruled 
     against the state's congressional district maps, saying the 
     record of partisan intent was so extensive that opponents of 
     the maps were poised to show that the maps were 
     unconstitutionally errymandered to favor Republicans over 
     Democrats and the voters would be irreparably harmed if the 
     2020 elections were held using those maps.
       But the North Carolina legislature is not the only bad 
     actor. In 2019, Sean Young of the ACLU of Georgia testified 
     before the Subcommittee that the ACLU's case in Sumter 
     County, Georgia ``perfectly illustrates

[[Page H4484]]

     the damage that Shelby County has caused.'' In 2011, 67 
     percent of Sumter County's Board of Education was African 
     American (six out of nine)--then the General Assembly 
     proposed a redistricting plan that would reduce the 
     percentage of African Americans on the Board to 28 percent 
     (two of seven) and submitted the plan to the DOJ for 
     preclearance. The DOJ did not preclear the plan, but 
     following the Shelby decision the Board was able to 
     immediately implement its discriminatory plan. Soon 
     thereafter, the ACLU of Georgia brought a lawsuit to overturn 
     a discriminatory gerrymandering plan in Sumter County, 
     Georgia--a federal court eventually ruled that the plan was 
     discriminatory and violated the Voting Rights Act, five years 
     after the plan went into effect and after years of expensive, 
     time consuming litigation. In the intervening five years, 
     School Board elections were held under a plan that was 
     discriminatory and illegal.
       In September 2013, the U.S. Department of Justice filed a 
     complaint against the State of Texas as a plaintiff-
     intervenor in Perez v. Perry (W.D. Tex.), seeking a 
     declaration that Texas' 2011 statewide redistricting plans to 
     the State House of Representatives and the Congressional 
     delegation were adopted ``with the purpose of denying or 
     abridging the right to vote on account of race, color, or 
     membership in a language minority group in violation of 
     Section 2 of the Voting Rights Act'' and contended that the 
     Texas state legislature's plan diluted the voting power of 
     Asian Americans and other people of color.
       Jerry Vattamala, Director of the Democracy Program at 
     AALDEF, testified before the Subcommittee that, at the time 
     of Perez v. Perry, Texas State House District 149 had a 
     combined minority citizen voting-age population of close to 
     62 percent, and since 2004, the Asian American community in 
     the District had voted as a bloc with Hispanic and African 
     American voters to elect Hubert Vo, a Vietnamese American and 
     the first Vietnamese American state representative in Texas 
     history, as their representative.
       In 2011, the state legislature sought to eliminate Vo's 
     seat and redistribute the coalition of minority voters to the 
     surrounding districts. In denying preclearance of the plan in 
     2012, the three-judge panel in Washington, D.C., found that 
     the congressional and state redistricting plan had ``both a 
     retrogressive effect and a racially discriminatory purpose. 
     The decision later had to be vacated and remanded in light of 
     the Supreme Court's decision in Shelby and its implications 
     for Section 5 preclearance claims. That was not the end of 
     litigation over Texas' redistricting plans, however. The 
     legal battle over Texas' 2011 maps would go on for more than 
     three-quarters of the decade and cost millions of dollars. In 
     the intervening years interim maps were put in place. 
     Eventually, in Abbot v. Perez, the Supreme Court would allow 
     all but one of Texas' political districts to remain in place 
     through the end of the decade. The Court upheld the maps 
     despite a district court describing the process used to 
     create them as ``discriminatory at its heart''--while the 
     Court did not specifically find discriminatory purpose in the 
     adoption of the 2013 maps, ``it did not dispute the 
     determination that the 2011 maps were infected with the 
     discriminatory intent to limit the influence of voters of 
     color.''
       The State of Texas has a long history of racial 
     discrimination in redistricting plans. In discussing Texas' 
     long history of discrimination in voting, in Veasy v. 
     Abbott--litigation over Texas' strict voter ID law--a federal 
     court found in 2017 that ``[i]n every redistricting cycle 
     since 1970, Texas has been found to have violated the Voting 
     Rights Act with racially gerrymandered districts.'' Despite 
     being covered by the VRA since 1965, federal judges have 
     ruled at least once every decade since then that Texas 
     violated federal protections for voters in redistricting.
       In testimony before the Subcommittee, Thomas Saenz of 
     MALDEF testified that:
       ``Last decade, the state of Texas gained four congressional 
     seats as a result of its comparatively rapid growth over the 
     course of the aughts. Nearly two-thirds of that Texas 
     population growth came in the Latino community. Still, in 
     adopting a new congressional district map, the Texas 
     legislature drew none of the four new districts within the 
     Latino community, instead engaging in splitting the increased 
     concentrations of Latino population among multiple districts 
     in order to prevent Latino voters from electing candidates of 
     choice. It took nearly a full decade of litigation under 
     the VRA, waged by MALDEF and others, to ensure that an 
     interim map, more respectful of the growing Latino 
     community, would remain in place to protect Latino 
     voters.''
       In testimony submitted to the Subcommittee, Professor 
     Ferguson-Bohnee detailed the long history of minimizing 
     Native American political representation through 
     redistricting in the State of Arizona. The 2010 redistricting 
     cycle was the first time Arizona's maps were precleared on 
     the first submission. Tribes have previously participated in 
     redistricting and defended the single majority-minority 
     Native American legislative district--Arizona, like other 
     states, is no longer subject to Section 5 preclearance for 
     the coming redistricting cycle.
       In North Dakota, tribal leaders raised concerns before the 
     Subcommittee at the 2019 field hearing that, though there is 
     only one at-large Congressional representative, their 
     reservations are divided in a way at state-level 
     redistricting that no Native American can win a seat 
     representing the tribal lands. State Representative Ruth 
     Buffalo testified in 2019 that, while she was the only Native 
     American serving in the State House at the time of the 
     hearing, she represents District 27--Fargo, North Dakota--a 
     district 370 miles from her homelands of the Fort Berthold 
     Reservation, and that the district representing Fort Berthold 
     encompassed a white population that overwhelms the Native 
     American population.
       In another example, Professor Ferguson-Bohnee testified 
     that, in South Dakota, ``discrimination in redistricting led 
     to prolonged litigation followed by consent decrees.'' In 
     2004, in Kirkie v. Buffalo County, Buffalo County 
     gerrymandered its three districts by packing 75 percent of 
     the Indian population into one district. As Professor 
     Ferguson-Bohnee testified:
       ``The county, the ``poorest in the country,'' was comprised 
     of approximately 2,100 people, of which 83 percent were 
     Indian. This redistricting had the purpose of diluting the 
     Indian vote, as whites controlled both of the other two 
     districts and thus County government. The case was settled by 
     a consent decree wherein the county admitted its plan was 
     discriminatory and was forced to redraw the district lines. 
     In addition, the county agreed to subject itself to Section 
     3(c) of the Voting Rights Act, which requires the submission 
     of voting changes for preclearance.''
       Professor Ferguson-Bohnee testified that, in 2005, another 
     South Dakota County was forced to redraw district lines ``for 
     similar malapportionment of Indian voters.'' Professor 
     Ferguson-Bohnee testified that ``[p]reclearance may have 
     prevented this type of de facto discrimination, because the 
     changes would have needed preclearance approval prior to 
     enactment.''
       Dividing tribal communities and ignoring tribal boundaries 
     in the redistricting process also dilutes the Native American 
     vote. Professor Ferguson-Bohnee testified that, while 
     dividing reservation boundaries may be required to meet equal 
     population requirements and to enhance voter effectiveness, 
     there ``are several examples of redistricting schemes that 
     divide tribal communities to reduce voting strength.'' 
     Professor Ferguson-Bohnee notes that, for example, in recent 
     years redistricting bodies have divided tribal communities 
     into multiple districts in Wisconsin, Washington, Montana, 
     and California--in Washington, the maps split three separate 
     reservations.
       Mr. Vattamala testified that, in the past, redistricting 
     plans have also diluted Asian American voting strength by 
     fragmenting communities into multiple districts. Mr. 
     Vattamala highlighted that Section 5 coverage was not only in 
     the South--New York previously had three covered counties as 
     well, which helped protect minority communities. In New York 
     City, for example, Mr. Vattamala testified that congressional 
     district boundaries have divided Asian American communities. 
     In the case Favors v. Cuomo, AALDEF submitted materials 
     superimposing the existing State Assembly and Senate, and 
     Congressional district lines over the Asian American 
     communities of interest, illustrating how divided each of the 
     communities were among multiple districts, essentially 
     denying the community the ability to elect candidates of 
     their choice.
       Mr. Vattamala testified that:
       ``AALDEF was ultimately able to convince the Special Master 
     to draw a fair congressional district in Queens that kept 
     Asian American [Communities of Interest] whole, and together. 
     Several months later that district elected the first Asian 
     American to Congress from New York State, and it was 
     primarily because the community was finally allowed the 
     opportunity to elect a candidate of its choice. This result 
     was likely only possible through federal litigation.''
       Mr. Vattamala testified that the Asian American community, 
     working together with the Black community and the Latino 
     community, formed what they call a unity map that ``protected 
     all the communities of color that were protected under the 
     Voting Rights Act,'' and that it was very powerful to have 
     the knowledge that Section 5 existed, that the map drawers 
     started from a position of ensuring they were complying with 
     Section 5 and ``not retrogressing districts.'' Those 
     protections are no longer in place.
       Partisan gerrymandering is also a form of vote denial and 
     dilution that can disproportionately impact minority voting 
     power when minority voters heavily favor one party over 
     another. In 2019, however, the Supreme Court in Rucho v. 
     Common Cause declined to weigh in on the question of when 
     partisan gerrymandering has crossed constitutional bounds, 
     holding that partisan gerrymandering claims are 
     nonjusticiable, presenting political questions beyond the 
     reach of the federal court. This decision leaves voters 
     vulnerable to 50 different interpretations of what 
     constitutes an impermissible partisan gerrymander in the 
     upcoming redistricting cycle. In their opinion, the Court 
     did, however, leave space for Congress to formulate a test 
     for determining when a map constitutes a partisan 
     gerrymander.


                               CONCLUSION

       The evidence before the Subcommittee is clear, changes to 
     method of election, redrawing jurisdictional boundaries, and 
     the redistricting process have all been used time and again 
     to dilute the voting power of minority voters, denying them 
     the opportunity to elect candidates of their choice and a 
     real voice in democratic governance. Redistricting cases 
     ``typically require massive amounts of attorney time and 
     millions of

[[Page H4485]]

     dollars in expert fees,'' leaving many communities vulnerable 
     to discrimination and suppression when voting rights 
     litigators cannot intervene on their behalf and without the 
     proactive protections of a federal preclearance regime. As 
     former Attorney General Holder testified, ``[w]e need to end 
     gerrymandering, so that all people, including people of 
     color, can be represented by public servants of their choice 
     and be able to hold those representatives politically 
     accountable.''
     Conclusion
       The Voting in America hearings conducted by the 
     Subcommittee show conclusively that discrimination in voting 
     does, in fact, still exist. The evidence gathered by the 
     Subcommittee not only illustrates that discrimination exists, 
     but that is has grown steadily in the wake of the Supreme 
     Court's decision in Shelby County. Furthermore, the evidence 
     demonstrates that the ``extraordinary measures'' once 
     deployed by the Voting Rights Act remain necessary today, and 
     that the removal of those safeguards released a torrent of 
     voter suppression laws the VRA once succeeded in holding 
     back.
       As former Attorney General Eric Holder testified:
       ``Before 2013, Section 5 had helped prevent discriminatory 
     voting laws from taking effect by imposing preclearance 
     protections that required a federal review of changes to 
     voting procedures in covered regions. Basically, areas with a 
     history of discrimination had to get approval from the 
     Department of Justice or from a federal court for significant 
     changes in voting laws or procedures. That section of the 
     Voting Rights Act had helped to stop some of the worst 
     attempts to discriminate against minority voters for decades. 
     But in a five-to-four opinion, the conservative members of 
     the Court wrote that the nation had ``changed dramatically'' 
     since the Voting Rights Act went into effect and that, 
     because of gains made, particularly by Black Americans, these 
     protections were no longer necessary.''
       The evidence demonstrates that the nation has not changed 
     as dramatically as the Court's majority may have thought. In 
     the eight years since Shelby County was decided, states have 
     taken significant steps toward suppressing the vote. Across 
     the country, states have purged millions of voters from the 
     voting rolls; enacted a rash of strict voter ID laws; 
     attempted to implement documentary proof of citizenship laws; 
     failed to provide necessary language access and assistance to 
     limited-English proficiency voters; closed, consolidated, or 
     relocated hundreds if not thousands of polling locations, 
     causing voters to wait in long, burdensome lines to vote; 
     attempted to cut back on opportunities to vote outside of 
     Election Day; and employed changes to methods of elections, 
     jurisdictional boundaries, and redistricting as methods to 
     dilute and disenfranchise minority voters.
       Litigation under Section 2 of the Voting Rights Act and the 
     Constitution has proven to be a powerful but inadequate tool 
     to combat the wave of voter suppression tactics unleashed in 
     the years since Shelby. Janai Nelson, Associate Director-
     Counsel for the NAACP Legal Defense Fund, testified that, in 
     the first five years following Shelby ``an unprecedented 61 
     lawsuits were filed under Section 2 of the Voting Rights 
     Act,'' of which ``[t]wenty-three cases were successful.'' By 
     contrast, ``in the five years before Shelby, only five 
     Section 2 cases were won.'' Litigation alone is not an 
     adequate remedy to protect the right to vote--cases 
     arising under Section 2 of the Voting Rights Act are 
     reactive, costly, and can take years to litigate.
       The 2018 and 2020 elections saw record voter turnout. While 
     this is indeed an outcome to be celebrated, it is not, as 
     some argue, an indication that voter suppression and 
     discrimination no longer exists. The evidence gathered by the 
     Subcommittee demonstrates that voters turned out in record 
     numbers despite suppressive voting laws and a once-in-a-
     century pandemic. And yet, the reaction of Republican-led 
     legislatures around the country to historic voter turnout has 
     been to unleash a new wave of restrictive voting laws in the 
     months following the 2020 election. States with a history of 
     discriminatory voting practices and racially polarized voting 
     continue to enact voting laws without analyzing whether these 
     provisions discriminate against minority voters.
       The false specter of fraud has been cited to support these 
     new restrictive provisions. But, as we have heard time and 
     again, numerous investigations have found no credible 
     evidence of fraud in the 2020 election. Indeed, according to 
     cyber and elections security experts, ``the November 3rd 
     [2020] election was the most secure in American history.'' 
     Unfortunately, fueled by the ``Big Lie'' that the election 
     was stolen, insurrectionists attempted to stop the 
     certification of a lawful, valid, democratic presidential 
     election by storming the Capitol on January 6, 2021. In the 
     six months since the attack, efforts to suppress the vote and 
     subvert democracy have continued, as state legislatures have 
     moved quickly to meet the increase in voter turnout with 
     voter suppression.
       According to the Brennan Center for Justice, as of May 14, 
     2021, more than 389 bills in 48 states have been introduced 
     restricting the vote. As of June 21, 2021, 17 states have 
     enacted 28 new laws that restrict access to the vote, with 
     some state legislatures still in session. At least 16 
     restrictions on mail voting will make it more difficult for 
     voters to cast mail ballots that count in 12 states. At least 
     eight states have enacted 11 laws making in-person voting 
     more difficult. And more bills are still moving through state 
     legislatures.
       These new laws only compound the legal and administrative 
     hurdles enacted in the eight years since Shelby. As former 
     Attorney General Holder testified:
       ``These actions have not made our elections safer or more 
     secure. They have not improved the quality or accessibility 
     of our politics. Instead, they have stripped Americans of 
     fundamental rights and undermined the promise of American 
     democracy. And they have all--every one of them--
     disproportionately impacted people of color.''
       For example, Michael Waldman, President of the Brennan 
     Center for Justice, testified that ``[i]n 2013, at least six 
     states--Alabama, Mississippi, North Carolina, North Dakota, 
     Virginia, and Texas--implemented or began to enforce strict 
     photo ID laws, most of which had previously been blocked by 
     the Department of Justice due to their discriminatory 
     impact.'' Federal courts in at least four states have found 
     strict voter ID laws to be racially discriminatory, including 
     Texas and North Carolina's laws. In previously covered 
     jurisdictions, 1,688 polling places were closed between 2012 
     and 2018, all with none of the disparate impact analysis 
     previously required by preclearance. Restrictions targeting 
     early voting opportunities can and do have a direct impact on 
     minority voters.
       Thomas Saenz, President and General Counsel for MALDEF, 
     testified that, ``[t]here is simply no way that non-profit 
     voting rights litigators, even supplemented by the work of a 
     reinvigorated Department of Justice Civil Rights Division, 
     could possibly prevent the implementation of all of the undue 
     ballot-access restriction and redistricting violations that 
     are likely to arise in the next two years.''
       The evidence compiled by the Subcommittee illustrates that 
     the voting and election administration practices of purging 
     voters from the voting rolls; enacting voter ID and proof of 
     citizenship requirements; failing to provide necessary multi-
     lingual voting materials and assistance; closing, 
     consolidating, or relocating polling places; cutting or 
     restricting access to alternative opportunities to vote; and 
     altering methods of election, jurisdictional boundaries, and 
     redistricting disproportionately impacts Black, Latino, 
     Native American, Asian American, and other minority voters 
     and impedes access to the ballot in a discriminatory manner.
       Congress needs to listen to the American people. The Voting 
     Rights Act was not written in the halls of Congress--it was 
     written between Shelby and Montgomery. It was written by 
     Americans who fought for equal access to what was promised to 
     be a democracy. We are again hearing from the people on the 
     need to protect the right to vote.
       Defending democracy used to be a bipartisan endeavor. Since 
     the Voting Rights Act first passed in 1965, Congress has 
     acted several times, and in a bipartisan manner, to protect 
     access to the vote. The Voting Rights Act was reauthorized 
     five times with bipartisan votes--and signed into law each 
     time by a Republican President. The 2006 VRA reauthorization 
     was introduced by a Republican congressman. Moreover, 
     Congress has passed additional voting bills, including the 
     Uniformed and Overseas Citizen Absentee Voting Act (UOCAVA) 
     in 1986, the National Voter Registration Act (NVRA) in 1993, 
     and the Help America Vote Act (HAVA) in 2002 with bipartisan 
     support. Bipartisan commissions such as the Carter-Baker 
     Commission and the Presidential Commission on Election 
     Administration endeavored to create best practices in 
     elections to improve the voting experience.
       We are now at an inflection point in protecting our 
     democracy. The time has come for Congress to utilize its 
     constitutional authority to protect the fundamental right to 
     vote for all Americans. As Mr. Henderson stated before the 
     Subcommittee, ``[f]or democracy to work for all of us, it 
     must include all of us.'' ``It is unacceptable that in 2021, 
     56 years after the VRA's passage,'' Ms. Nelson stated, that 
     ``the right to vote remains so very under-protected. This 
     model is not sustainable nor is it acceptable.''
       And as Chief Justice Earl Warren wrote in 1964, the year 
     before the passage of the Voting Rights Act, the ``right to 
     vote freely for the candidate of one's choice is of the 
     essence of a democratic society, and any restrictions on that 
     right strike at the heart of the representative government.'' 
     After reviewing thousands of pages of evidence collected 
     during this Congress and listening to the testimony of dozens 
     of experts from across the country, as summarized in this 
     report, the evidence demonstrates one clear command: 
     Congressional action is needed.

                          ____________________