[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
VOTING RIGHTS ACT AFTER THE SUPREME COURT'S DECISION IN SHELBY COUNTY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
AND CIVIL JUSTICE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
JULY 18, 2013
__________
Serial No. 113-35
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on the Constitution and Civil Justice
TRENT FRANKS, Arizona, Chairman
JIM JORDAN, Ohio, Vice-Chairman
STEVE CHABOT, Ohio JERROLD NADLER, New York
J. RANDY FORBES, Virginia JOHN CONYERS, Jr., Michigan
STEVE KING, Iowa ROBERT C. ``BOBBY'' SCOTT,
LOUIE GOHMERT, Texas Virginia
RON DeSANTIS, Florida STEVE COHEN, Tennessee
JASON T. SMITH, Missouri TED DEUTCH, Florida
Paul B. Taylor, Chief Counsel
David Lachmann, Minority Staff Director
C O N T E N T S
----------
JULY 18, 2013
Page
OPENING STATEMENTS
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution and Civil Justice................................. 2
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 5
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 6
WITNESSES
J. Christian Adams, Attorney Election Law Center, PLLC
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Robert A. Kengle, Co-Director, Voting Rights Project, Lawyers'
Committee for Civil Rights Under Law
Oral Testimony................................................. 26
Prepared Statement............................................. 28
Hans A. von Spakovsky, Senior Legal Fellow, The Heritage
Foundation
Oral Testimony................................................. 41
Prepared Statement............................................. 43
Spencer Overton, Professor of Law, The George Washington
University Law School
Oral Testimony................................................. 52
Prepared Statement............................................. 54
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on the Constitution and Civil
Justice
Prepared Statement of the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Ranking Member, Subcommittee on the Constitution and Civil
Justice.................................................... 73
Prepared Statement of the NAACP Legal Defense and Educational
Fund, Inc.................................................. 75
Prepared Statement of the National Urban League.............. 84
Joint Prepared Statement of Asian Americans Advancing Justice
and Asian American Legal Defense and Education Fund........ 87
Letter from the Anti-Defamation League (ADL)................. 96
Prepared Statement of the American Civil Liberties Union
(ACLU)..................................................... 99
Prepared Statement of Gary R. Redding, Legal Fellow, on
behalf of the Rural Coalition.............................. 108
VOTING RIGHTS ACT AFTER THE SUPREME COURT'S DECISION IN SHELBY COUNTY
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THURSDAY, JULY 18, 2013
House of Representatives
Subcommittee on the Constitution
and Civil Justice
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 11:06 a.m., in
room 2141, Rayburn Office Building, the Honorable Trent Franks,
(Chairman of the Subcommittee) presiding.
Present: Representatives Franks, Goodlatte, Sensenbrenner,
Chabot, King, Smith of Missouri, Conyers, Nadler, Scott, Watt,
Jackson Lee, and Deutch.
Also Present: Representative Lewis.
Staff present: (Majority) Paul Taylor, Majority Counsel;
Tricia White, Clerk; (Minority) David Lachmann, Subcommittee
Staff Director; and Veronica Eligan, Professional Staff Member.
Mr. Franks. The Subcommittee on the Constitution and Civil
Justice will come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time.
I will now recognize myself for 5 minutes for an opening
statement.
In Shelby County v. Holder, the Supreme Court this term
held that Section 4 of the Voting Rights Act, which sets out
the formula that was used to determine which state and local
governments must comply with the Voting Rights Act's
preclearance requirements, is unconstitutional and can no
longer be used. Those preclearance requirements made certain
jurisdictions subject to special procedures when they changed
their voting laws, such that they had to have their laws
approved by the U.S. Attorney General or a three-judge panel of
the U. S. District Court for the District of Columbia before
those laws could go into effect.
Section 4 set forth a formula for determining if a
jurisdiction was covered by the preclearance requirements. That
formula, based on data from 1965, applied the preclearance
requirements to those states or political subdivisions that had
maintained a test or device as a prerequisite to voting as of
November 1st, 1964, and had less than 50 percent voter
registration or turnout in the 1964 presidential election.
In 1970, Congress reauthorized the Act for another 5 years
and extended the coverage formula in Section 4 to jurisdictions
that had a voting test and less than 50 percent voter
registration or turnout as of 1968. In 1975, Congress
reauthorized the Act for seven more years and extended its
coverage to jurisdictions that had a voting test and less than
50 percent voter registration or turnout as of 1972. In 1982,
Congress reauthorized the Act for 25 years, but did not alter
its coverage formula. In 2006, Congress again reauthorized the
Voting Rights Act for 25 years, again without changing its
coverage formula.
The Supreme Court majority in Shelby County wrote that,
``the Framers of the Constitution intended the States to keep
for themselves, as provided in the 10th Amendment, the power to
regulate elections,'' and that states have ``broad powers to
determine the conditions under which the right of suffrage may
be exercised.'' It held that the Voting Rights Act departed
from these basic principles by suspending, once again, ``all
changes to state election law, however innocuous, until they
had been precleared by Federal authorities in Washington,
D.C.''
As the Court stated, ``In 1966, we found these departures
from the basic features of our system of government justified.
At the time, the coverage formula, the means of linking the
exercise of the unprecedented authority with the problem that
warranted it, made sense. Nearly 50 years later, things have
changed dramatically.'' The Court noted that in the covered
jurisdictions, ``voter turnout and registration rates now
approach parity. Blatantly discriminatory evasions of Federal
decrees are rare, and minority candidates hold office at
unprecedented levels. The tests and devices that blocked access
to the ballot have been forbidden nationwide for over 40
years.''
While the Court recognized that the 15th Amendment commands
that the right to vote shall not be denied or abridged on
account of race, and it gives Congress the power to enforce
that command, it held that, ``The amendment is not designed to
punish for the past. Its purpose is to ensure a better
future.''
To serve that purpose, Congress, if it is to divide the
states, must identify those jurisdictions to be singled out on
a basis that makes sense in light of current conditions.
Finally, the Court made it clear that its decision ``in no
way'' affects the permanent nationwide ban on racial
discrimination in voting found in Section 2 of the Voting
Rights Act, nor did its decision affect Section 3 of the Voting
Rights Act, which allows courts on a case-by-case basis to put
states and political subdivisions under preclearance
requirements based on current violations that
unconstitutionally limit voting rights.
And with that, I am going to yield to the Ranking Member
for his opening statement. Thank you.
Mr. Nadler. Thank you, Mr. Chairman.
Today we review the impact of the Supreme Court's decision
in Shelby County v. Holder. As the Ranking Member of this
Subcommittee when we reauthorized the Voting Rights Act in
2006, I had the privilege of working on a bipartisan and
bicameral basis with the then-chairman of the full Committee,
Mr. Sensenbrenner, the then-chairman of the Subcommittee, Mr.
Chabot, our Ranking Member, Mr. Conyers, and the gentleman from
North Carolina, Mr. Watt, in guiding the reauthorization
through the Congress.
We spent months reviewing the evidence, gaining a firm
grasp of the current state of voting rights and the impediments
to the exercise of the franchise as it exists in the present
day. We were persuaded, as were an overwhelming majority of the
Members of this House and every single Member of the Senate who
voted, that the remedies contained in the special provisions
were still necessary and were well suited to the challenge of
voting rights.
We did consider revising the formula challenged in Shelby
County but determined that the existing formula still served as
a useful and effective method of applying Section 5 where
needed. That determination was not based solely on the
questions focused on by the Court and identified by Congress in
1965 but by the full weight of the evidence we found in 2006.
The Court, arrogating to itself the quintessentially
congressional power to decide what facts are relevant and what
constitutes an appropriate remedy, struck down the formula in
Section 4, eviscerating and rendering a nearly dead letter the
preclearance provisions of Section 5.
Congress long ago made the correct determination that
requiring voters to go to court after they had already been
disenfranchised rendered voting rights unenforceable and
encouraged local political leaders to rig the system to their
advantage. To be clear, the Voting Rights Act is not solely
about racial animus. It is about political power. It is not a
matter of determining whether one part of the country is ``more
racist'' than another but only whether certain jurisdictions
engage in conduct requiring special scrutiny to protect the
right to vote.
Excluding minorities from effective participation in our
democracy renders them something less than full citizens. Here,
Justice Scalia was dead wrong. The right to vote in a free and
fair election is not a racial entitlement but rather the
birthright of every American regardless of race.
As a far more forward-looking and intelligent Supreme Court
said in Reynolds v. Sims in 1964, ``Undoubtedly, the right of
suffrage is a fundamental matter in a free and democratic
society. Especially since 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 Voting Rights Act has stood for a half-century as a
testament to our commitment that everyone must have an equal
share in the governance of our Nation if our democracy is to
have any claim to legitimacy. While it is true that we have
made substantial progress in our Nation since 1965, much of it
attributable to Section 5 of the Voting Rights Act and our
other civil rights laws, it is also true that we are not yet
free of efforts to manipulate the system in ways that
disempower minority groups.
As we stated in the Committee's report to accompany the
2006 reauthorization issued by this Committee, ``Despite the
substantial progress that has been made, the evidence before
the Committee resembles the evidence before Congress in 1965,
and the evidence that was present again in 1970, 1975, 1982 and
1992. In 2006, the Committee finds abundant evidentiary support
for reauthorization of the Voting Rights Act's temporary
provisions.''
We reviewed the extent to which the kinds of first-
generation devices have been addressed and found that Section 5
had improved voter participation in covered jurisdictions, just
as the Court's majority later noted. We also observed that,
``Sections 5 and 8 have been vital prophylactic tools
protecting minority voters from devices and schemes that
continue to be employed by covered states and jurisdictions.''
We went on to note, ``The Committee received testimony
revealing that more Section 5 objections were lodged between
1982 and 2004 than were interposed between 1965 and 1982, that
such objections did not encompass minor inadvertent changes.
The changes sought by covered jurisdictions were calculated
decisions to keep minority voters from fully participating in
the political process. This increased activity shows that
attempts to discriminate persist and evolve such that Section 5
is still needed to protect minority voters in the future.''
So the voluminous evidence we compiled showed clearly that
the need in the covered jurisdictions remained. We also showed
at that time that the rate of Section 2 reversals of voting
rights changes in covered jurisdictions was more than twice the
rate in non-covered districts across the country. So the
voluminous evidence that we compiled showed clearly that the
need in the covered jurisdictions remained and that the special
provisions were necessary and effective in protecting voting
rights in those jurisdictions.
Rather than proving that the formula in Section 4(b) was
obsolete, the statistics cited by the Court demonstrated the
continuing need and effectiveness of Section 5. That brings us
to today's hearing. I strongly believe that the facts we found
in 2006 made a compelling case for retaining Section 5 and
applying it to covered jurisdictions, which include, I might
add, my own district in New York City.
What we need to do as a first order of business before we
start to look at what we might do to address the Court's
decision is to determine the impact of that decision. Just as
we moved with great care and deliberation in 2006 in a
bipartisan manner, I would urge Members not to put the cart
before the horse by trying to examine specific cases and
possible remedies until we have a better understanding of where
we are right now.
I know that not every Member of this Committee supported
the reauthorization of the Voting Rights Act, but I hope that
we can nonetheless work cooperatively in the same bipartisan
spirit that guided our 2006 deliberations to address the
Court's decision.
I hope the witnesses can address some of the following
questions. What remains of the Voting Rights Act? What is the
status of voting changes precleared or denied preclearance
since 2006? Are any jurisdictions still covered by Section 5?
If so, based on what? What tools does the Justice Department
still have to fight voter disenfranchisement?
There are obviously applications of the Voting Rights Act
upon which Members of this Committee strongly disagree. I would
hope that rather than allowing ourselves to get bogged down
with the most controversial cases of the day, we take a step
back, look at Section 5 and at what the Court did. Ultimately,
as our experience since 1965 has clearly shown, the specifics
change over time, but the need for preclearance has remained
constant. The value of Section 5 has been its ability to
respond in real time to constantly changing efforts to
disenfranchise voters. I hope we can keep our focus where it
belongs and lead to some progress.
Thank you, Mr. Chairman.
Mr. Franks. And I thank the gentleman.
And I would now yield to the Chairman of the full
Committee, Mr. Goodlatte from Virginia.
Mr. Goodlatte. Thank you, Mr. Chairman. I appreciate your
holding this hearing.
Last month, the Supreme Court struck down one part of the
Voting Rights Act, namely Section 4, which automatically placed
certain states and political subdivisions under the Act's
Section 5 ``preclearance'' requirements. Those preclearance
requirements prevented voting procedures in covered states from
going into effect until the new procedures had been subjected
to review and approval either after an administrative review by
the Department of Justice or after a lawsuit before the Federal
district dourt for the District of Columbia.
When the Voting Rights Act was first enacted, the
jurisdictions automatically subject to these special
``preclearance'' requirements were identified in Section 4 of
the Act by a formula setting out certain criteria for coverage.
The first element in the formula was that a state or political
subdivision of the state would be covered if it maintained on
November 1, 1964, ``a test or device'' restricting the
opportunity to register and vote. The second element of the
formula provided that a state or political subdivision would
also be covered if the Director of the Census determined that
less than 50 percent of persons of voting age were registered
to vote on November 1, 1964, or that less than 50 percent of
persons of voting age voted in the presidential election of
November 1964.
In Shelby County, the Supreme Court struck down this method
by which jurisdictions were automatically deemed covered by the
preclearance provisions, finding that the original coverage
formula was, and I quote, ``based on decades-old data and
eradicated practices . . . In 1965, the states could be divided
into two groups: those with a recent history of voting tests
and low voter turnout and registration, and those without those
characteristics. Congress based its coverage formula on that
distinction. Today, the Nation is no longer divided along those
lines, Yet the Voting Rights Act continued to treat it as if it
were.'' The Court further criticized Section 4's formula as
relying on ``decades-old data relevant to decades-old problems
rather than current data reflecting current needs.''
Now it is important to note that under the Supreme Court's
decision in Shelby County, other very important provisions of
the Voting Rights Act remain in place, including Sections 2 and
3.
Section 2 applies nationwide and prohibits voting practices
or procedures that discriminate on the basis of race, color, or
the ability to speak English. Section 2 is enforced through
Federal lawsuits just like other Federal civil rights laws, and
the United States and civil rights organizations have brought
many cases to enforce the guarantees of Section 2 in court, and
they may do so in the future.
Section 3 of the Voting Rights Act also remains in place.
Section 3 authorizes Federal courts to impose preclearance
requirements on states and political subdivisions that have
enacted intentionally discriminatory voting procedures in
violation of the 14th and 15th Amendments. If a state or
political subdivision is found by the Federal court to have
discriminated in voting, then the court has discretion to
retain supervisory jurisdiction and impose preclearance
requirements on the state or political subdivision until a
future date at the court's discretion. This means that such
state or political subdivision would have to submit all future
voting rule changes for approval to either the court itself or
the Department of Justice before such rule changes could go
into effect. Again, Section 3's procedures remain available
today to those challenging voting rules as discriminatory.
I think it is absolutely critical that we make sure that
the rights of those to register and vote in the United States,
regardless of race or gender or national origin or other
protected areas, be preserved, and that we encourage all
Americans to register and vote, and that we protect those
rights.
I look forward to hearing from all of our witnesses today,
to hearing their assessment of the ramifications of the Court's
decision.
Mr. Franks. And I thank the gentleman.
And I would now yield to the Ranking Member of the
Committee, Mr. Conyers from Michigan.
Mr. Conyers. Thank you, Chairman Franks.
What a day. I just left a Nelson Mandela celebration of his
life and legacy. He is 95 years old today, and here we are at
this very critical juncture in terms of Shelby County.
Now, the Voting Rights Act is the crown jewel of our
Nation's civil rights laws. Claiming seniority but not age, I
was a newly elected Member of Congress in 1965 and was
privileged to vote in favor of that act when it passed this
Committee in the House. Many Members hold the Act in an almost
sacred place, like our colleague John Lewis, who shed his blood
and nearly his life in support of its passage.
Without question, the Act has been an unqualified success,
helping rid our Nation of legal barriers to voting
discrimination, paving the way for the election of the first
African-American in our history to the White House.
But these successes do not mean that the work of the Voting
Rights Act is complete. And for that reason, my colleague, Jim
Sensenbrenner, and I compiled a voluminous record in support of
reauthorization of the Act in the year 2006. This record in
many respects greatly exceeded previous reauthorization
efforts. Most importantly, we carefully followed the parameters
set out in the City of Boerne v. Flores in updating the Act so
that it would pass legal scrutiny and protect voters from well-
documented continuing discrimination.
In response to legal challenges to the Act following 2006,
we asserted congressional authority to enact voting rights
legislation under the 13th, 14th, and 15th Amendments of the
Constitution in two separate amicus briefs. We were confident
that the United States Supreme Court, following precedents set
in South Carolina v. Katzenbach and the City of Rome v. United
States, would uphold the constitutionality of the Act. This
explains why I and many of my colleagues, most legal
commentators were deeply disappointed by the Court's 5-4
decision in Shelby County v. Holder, which invalidated the
coverage formula or trigger in Section 4(b) of the Act as being
outdated.
As a result of Shelby, Section 5 of the Act, which requires
preclearance for jurisdictions covered by Section 4(b), is
effectively suspended. Section 5 is the Act's key provision
requiring covered jurisdictions to obtain advance approval from
the Department of Justice or a three-judge panel before they
can implement voting changes. The suspension of Section 5
immediately enables jurisdictions with a clear and recent
history of discrimination to dilute the impact of minority
voting through redistricting and to implement procedures that
could create barriers to the ballot box.
In addition, the suspension of Section 5 preclearance
deprives the Justice Department of a critical tool that has
been used to protect the voting rights of minority citizens in
jurisdictions with a history of discrimination.
Although the Supreme Court has invited Congress to pass an
updated coverage formula, the opinion left unresolved several
important questions. The most immediate of these issues
pertains to the current state of existing voting rights
enforcement law during the interim between this ruling and the
enactment of any new coverage formula.
Fortunately, today's hearing provides an important
opportunity for us to address this issue and others presented
by Shelby. I want to thank again Committee Chairman Goodlatte
and Subcommittee Chairman Franks for promptly scheduling this
hearing. We must use this opportunity to promptly craft a
legislative solution that enables the Justice Department to
effectively enforce the rights of minority voters in covered
jurisdictions within the contours of the Constitution.
I know every Member of this Committee to be fair
individuals of good faith, and I pledge to work with every one
of you to respond to the Supreme Court's decision on a
bipartisan basis. It is therefore my hope that immediately
after this hearing and over the recess we can begin the process
of informal discussions with each other in order to protect our
citizens' voting rights to the fullest extent possible
consistent with our Constitution.
I hold up a record entitled ``Department of Justice
Objections under Section 5.'' Between the years 2000 and 2012,
there are scores of voting changes that were objected to or
withdrawn. It is important to our discussion today as we
discuss how Congress will continue to address states and
political subdivisions that may still be engaged in voting
discrimination.
I thank the Chairman.
Mr. Franks. And I thank the gentleman.
And without objection, other Members' opening statements
will be made part of the record.
I just want to thank everyone for their presence here
today, and I will now introduce our witnesses.
Our first witness is J. Christian Adams, counsel to the
Election Law Center. Mr. Adams previously served in the Civil
Rights Division of the Department of Justice as a career
attorney in the voting section.
Our second witness is Robert Kengle, the Acting Co-Director
of the Voting Rights Project of the Lawyers' Committee for
Civil Rights Under Law. Mr. Kengle previously served for over
20 years in the Department of Justice voting section.
Our third witness today is Hans von Spakovsky, Senior Legal
Fellow at the Heritage Foundation. Mr. von Spakovsky previously
served in the Justice Department as counsel to the Assistant
Attorney General for Civil Rights, where he worked on enforcing
the Voting Rights Act.
Our final witness today is Professor Spencer Overton of the
George Washington University Law School. Mr. Overton has also
served as the Principal Deputy Assistant Attorney General at
the Department of Justice in the Office of Legal Policy.
We are very grateful for all of you being with us today.
Now, each of the witnesses' written statements will be
entered into the record in its entirety, and I would ask that
each witness summarize his or her testimony in 5 minutes or
less. And to help you stay within that time, there is a timing
light in front of you. The light switch will turn from green to
yellow, indicating that you have 1 minute to conclude your
testimony. When the light turns red, it indicates that the
witness' 5 minutes have expired.
Before I recognize the witnesses, it is the tradition of
the Subcommittee that they be sworn, so if you would please
stand to be sworn.
[Witnesses sworn.]
Mr. Franks. Let the record reflect that the witnesses
answered in the affirmative.
I now recognize our first witness, Mr. Adams, and if you
will please turn your microphone on before speaking, sir.
TESTIMONY OF J. CHRISTIAN ADAMS,
ATTORNEY ELECTION LAW CENTER, PLLC
Mr. Adams. Thank you, Mr. Chairman, Ranking Member Nadler.
Thank you for the opportunity to testify in this important
matter.
Separating fact from fiction about the Supreme Court's
recent decision in Shelby County is essential to chart future
effective and constitutionally permissible civil rights
enforcement.
Reports of the demise of the Voting Rights Act have been
greatly exaggerated. What remains of the Voting Rights Act?
Everything else. It is simply hype to suggest that the Supreme
Court's decision in Shelby has left voters in America
unprotected. Deliberately stoking fears, deliberately targeting
certain racial groups for disinformation, deliberately ignoring
the multiple protections which remain in the Voting Rights Act
does a disservice to the Nation and to civil rights.
In Shelby County, the Supreme Court found that in 2013
these half-century-old triggers had become obsolete.
Mississippi was captured, but so was New Hampshire. Arkansas,
the epicenter of school desegregation in 1957, was not covered,
but Michigan was. Some counties in North Carolina were covered,
but neighboring counties weren't. Virginia, a state which
elected a Black governor and twice voted for President Obama,
was captured by Section 4.
When the coverage formula was written in 1965, My Fair Lady
had just won the Oscar for Best Picture, My Girl by the
Temptations topped the charts, and Bonanza was the most watched
show on television.
Our Constitution vests states with the power to run their
own elections. This diffusion of power is designed to protect
individual liberty. Yet in 1966, the Court properly justified
Section 5's intrusion into state sovereignty because some
states had engaged in ``widespread and persistent
discrimination,'' which the Court characterized as an
``insidious and pervasive evil.'' This language demonstrates
the heavy empirical burdens necessary to justify Federal
intrusion into state sovereignty.
Does ``widespread and persistent discrimination'' manifest
as an ``insidious and pervasive evil'' in 2013? Obviously the
Supreme Court thinks no, at least as it pertains to the
triggers of the invalidated Section 4.
In Shelby, the Supreme Court also rejected the concept of
so-called second-generation structural racism to justify
continued Federal oversight in 15 states. According to the
Supreme Court, genuine, direct, and immediate racial
discrimination alone justifies Federal intrusion into state
sovereignty, not vague and attenuated so-called second-
generational structural discrimination.
The Court made it clear that only certain current
conditions could justify a Section 5 coverage formula. Among
the touchstones listed in Shelby are: blatantly discriminatory
evasion of Federal decrees; lack of minority office holding;
tests and devices; voting discrimination on a pervasive scale;
flagrant voting discrimination; rampant voting discrimination.
Federal intrusion into powers reserved by the Constitution to
the states must relate to these empirical circumstances.
The Court in Shelby also concluded that Congress weakened
the constitutionality of the Voting Rights Act in 2006 when it
altered the Section 5 standards. Beginning in 2006, submitting
jurisdictions were forced to prove a negative, thus increasing
the constitutional injury to states.
A 2009 objection in Kinston, North Carolina, demonstrates
this abusive and legally indefensible position that will be
adopted by the Justice Department in that file. Kinston, a
majority Black jurisdiction, in a referendum, decided to dump
partisan elections and move to non-partisan elections. The DOJ,
exploiting the 2006 reauthorization burden shift, objected to
the change. The objection was explicitly based on the
indefensible and immoral position that Black voters would not
know for whom to vote if the word ``Democrat'' was not next to
a candidate's name.
But the Voting Rights Act remains alive and well. Section 2
is the nationwide prohibition on racial discrimination, and it
remains in full force and effect. Unfortunately, the Justice
Department has failed to bring a single Section 2 case in over
4 years. They have left it to private plaintiffs to sue, such
as they did in Fayette County, Georgia.
Section 3 of the Voting Rights Act also remains the law.
This is the opt-in provision where oversight under Section 5
can still follow. After Shelby, Section 203 and Section 4(e) of
the Voting Rights Act are still in full force and effect to
protect minority language voters.
And finally, Section 11 of the Voting Rights Act, really,
in my view, the heart of the Voting Rights Act, remains in full
force, protecting against voter intimidation, threats or
coercion.
Thank you very much for the opportunity to testify.
[The prepared statement of Mr. Adams follows:]
__________
Mr. Franks. And I thank the witness.
And I will now recognize our second witness, Mr. Kengle.
And, sir, if you will please turn on your microphone before
speaking. Mr. Kengle.
TESTIMONY OF ROBERT A. KENGLE, CO-DIRECTOR, VOTING RIGHTS
PROJECT, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Mr. Kengle. Good morning, Chairman Franks, Ranking Member
Nadler, Members of the Subcommittee. My name is Bob Kengle. I
am co-director of the Voting Rights Project at the Lawyers'
Committee for Civil Rights Under Law in Washington, D.C. The
Lawyers' Committee was formed in 1963 at the request of
President John F. Kennedy to bring together the members of the
private bar to combat racial discrimination. We are celebrating
our 50th anniversary. The job is not yet complete.
I thank you for the opportunity to testify this morning on
behalf of the Lawyers' Committee concerning the Supreme Court's
decision in the Shelby County v. Holder case and its
implications.
I had the honor of serving over 20 years in the voting
section at the Department of Justice, where I litigated
numerous cases under Section 2 and Section 5 of the Voting
Rights Act. I also supervised a number of Section 5 submissions
and Section 5 objection analyses. I have been a member of the
Voting Rights Project at the Lawyers' Committee since 2007, and
I have continued to work on a broad range of voting rights
matters, including the Shelby County case.
In Shelby County v. Holder, the Supreme Court held that the
coverage formula contained in Section 4(b) of the Voting Rights
Act is unconstitutional for purposes of determining the
jurisdictions to which the preclearance requirements of Section
5 would apply. As a result, preclearance review under Section 5
is now in suspended animation.
My written testimony today stresses that stopping racially
discriminatory voting changes before they are put into effect
is what made Section 5 so unique and so successful. Voting is
the fundamental preservative right in our country. It endangers
all other rights when voting is denied or abridged on account
of race.
The existing Federal voting rights laws all have their
strong points, but only one screens out discriminatory voting
changes before they take hold, Section 5--and Section 5 has
been paralyzed by the Shelby County decision.
Under Section 2 of the Voting Rights Act, preliminary
injunctions are extremely rare, even in the most meritorious
cases. Section 2 is a vital and powerful tool. It is
constitutional. But as it stands today, Section 2 is not an
adequate substitute for Section 5.
Section 3(c) of the Voting Rights Act, which provides a
form of preclearance by court order, is an after-the-fact
remedy because it requires a Federal court to first find
serious constitutional violations before it can order any type
of preclearance.
Let me stress, racial voting discrimination needs to be
stopped before it takes hold. It would be a political and moral
abdication to say that we need not be concerned if
discriminatory voting practices can be used for years while
lawsuits to stop them wind their way through the courts. But as
the law stands now, that is what you should expect to occur as
a result of the Shelby County decision.
As you consider today's testimony, I want to stress four
important points about the Shelby decision. First, the Supreme
Court did not find Section 5 unconstitutional. The case was a
direct attack on the constitutionality of Section 5; the Court
did not find it unconstitutional.
Second, the Supreme Court did not hold that racial
discrimination no longer exists. In fact, the Court's opinion
said voting discrimination still exists; no one doubts that. I
agree with that part of the decision.
Third, the Supreme Court did not undermine the
retrogression principle, which serves as the Section 5 effect
standard. The retrogression standard was the product of the
Supreme Court's decision in 1976 in the Beer case, and the
Supreme Court repeatedly has upheld it in other cases.
Fourth, the Supreme Court did not restrict classes of
evidence upon which Congress can rely to target remedial
measures. Congress can look at all probative evidence of
discrimination.
As I discussed in detail in my testimony, the suspension of
Section 5 leaves a critical gap in the Federal protections for
the right to vote. The Shelby County decision completely upends
the traditional process, the traditional standard for dealing
with discriminatory voting changes. Now, it falls to the
Justice Department and private groups to identify
discriminatory changes between the time they are adopted and
implemented, gather enough evidence to state a claim, carry the
burden of proof, and persuade a court to issue a preliminary
injunction. If any of those steps fail, then the discriminatory
change can go into effect unstopped.
Despite the best efforts, I think that is what is going to
happen. In some cases, we can expect that to occur.
Congress does not intrude on states' rights when it
enforces the 15th Amendment by appropriate legislation. States
have no reserved right to use racially discriminatory voting
laws.
I once again respectfully thank the Chair, the Ranking
Member, and the Members of the Subcommittee for the opportunity
to testify today. I look forward to answering your questions.
[The prepared statement of Mr. Kengle follows:]
__________
Mr. Franks. Thank you, Mr. Kengle.
I would now recognize Mr. von Spakovsky for 5 minutes.
TESTIMONY OF HANS A. von SPAKOVSKY,
SENIOR LEGAL FELLOW, THE HERITAGE FOUNDATION
Mr. von Spakovsky. Thank you, Mr. Chairman. After Shelby
County, the Voting Rights Act remains a powerful statute whose
remedies are more than sufficient to stop those rare instances
of voting discrimination when they occur. There is no need for
Congress to take any action.
Section 5 was a temporary, 5-year emergency provision, but
it was renewed four times, including in 2006, for an additional
25 years.
It was an unprecedented, extraordinary intrusion into state
sovereignty since it required covered states to get Federal
approval for voting changes. No other Federal law presumed that
states cannot govern themselves and must have the Federal
Government's consent before they act.
Now, the coverage formula of Section 4 was built on the
disparity between Black and White participation because of the
widespread, official discrimination in 1965 that prevented
Black Americans from voting. That is why it was based on
registration and turnout of less than 50 percent in the 1964
and then 1968 and 1972 elections when it was renewed. But the
coverage formula has never been updated in 40 years to reflect
modern turnout.
Now, there is no question Section 5 was needed in 1965, but
time has not stood still. In fact, the Census reports, the May
2013 report--I have a copy of it right here--on the November
election showed that Blacks voted at a higher rate than Whites
nationally by more than 2 percentage points. This same report
shows that Black voting rates exceeded those of Whites in
Virginia, South Carolina, Georgia, Alabama and Mississippi,
which were covered in whole by Section 5; and in North Carolina
and Florida, portions of which are covered by Section 5.
Louisiana and Texas, which are also covered, showed no
statistical disparity between Black and White turnout.
As Judge Steven Williams of the D.C. Circuit Court of
Appeals pointed out, jurisdictions covered under Section 4 have
higher Black registration and turnout than uncovered
jurisdictions. They have far more Black officeholders as a
proportion of the Black population than do uncovered ones. And
in a study of Section 2 lawsuits, Judge Williams found that the
five worst uncovered jurisdictions have much worse records than
eight of the covered jurisdictions.
With no evidence of widespread voting disparities between
the states, continuing the coverage formula unchanged in 2006
was irrational. It is the same as if, in 1965, Congress had
passed Section 5 and said coverage will be based on the 1928
Hoover or 1932 Roosevelt elections.
Section 5 was also unprecedented in violating fundamental
American principles of due process since it shifted the burden
of proof from the government to the covered jurisdiction. While
such a reversal of basic due process may have been
constitutional given the extraordinary circumstances in 1965,
it cannot be justified today.
Congress also made a fatal mistake when it expanded the
prohibition of Section 5 in 2006. As the Court said, the bar
that covered jurisdictions must clear has been raised even as
the conditions justifying that requirement have dramatically
improved.
Finally, two other serious problems should be noted. The
effects test of Section 5 has led to a virtual apartheid system
of redistricting. Rather than helping eliminate racial
discrimination in voting, Section 5 has provided a legal excuse
for legislators of both parties to manipulate district lines
and isolate voters based on their race.
Second, the Civil Rights Division has abused its power on
Section 5 on numerous occasions. In the Johnson v. Miller case,
a Federal court severely criticized the Division for its
unprofessional behavior and the Division's implicit commands to
the Georgia legislature over how to conduct its redistricting.
That cost taxpayers $600,000 awarded to Georgia.
In the 1990's, a Louisiana Federal district court similarly
criticized the Division, saying it was using its power ``as a
sword to implement forcibly its own redistricting policies.''
That case cost the American public $1.1 million in attorney's
fees awarded.
In 2012, the Division sent a legally preposterous letter to
Florida claiming that the state government was violating
Section 5 because it was not preclearing the removal of non-
citizens who had not registered to vote, despite the fact that
that is a Federal felony.
The heart of the VRA today is Section 2. It applies
nationwide. It won't expire, and it bans racial discrimination
in voting.
Section 3 is also there. It can be used to supervise any
jurisdiction with a pattern of racial discrimination. A court
can appoint Federal examiners and place a jurisdiction in the
equivalent of Section 5 preclearance so that all voting changes
have to be precleared. Why reinstate Section 4 when Section 3
already provides preclearance for those jurisdictions who have
proved to be recalcitrant in this discrimination area?
Section 11 prohibits anyone from intimidating or
threatening or coercing voters. Section 203 and 404 protect
language minority voters. And none of this discussion even
mentions the National Voter Registration Act, the Uniformed and
Overseas Citizens Absentee Voting Act, and the Help America
Vote Act, which also all have protections for voters.
There is no evidence of widespread, systematic
discrimination in the covered states or that they are any
different from other states, and there is no reason for
Congress to take any action. Thanks.
[The prepared statement of Mr. von Spakovsky follows:]
__________
Mr. Franks. Thank you, Mr. von Spakovsky.
Now I would recognize Mr. Overton for 5 minutes.
TESTIMONY OF SPENCER OVERTON, PROFESSOR OF LAW,
THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Overton. Thank you, Chairman Franks, Ranking Member
Nadler, and Members of the Subcommittee. As a native Detroiter
and as a graduate of Hampton University, it is a special
privilege to have an opportunity to testify before Mr. Conyers,
Mr. Scott, and Mr. Goodlatte.
Our country was founded on the principle that we are all
created equal. We have made amazing progress in this country in
the last 50 years. Our progress is one reason that we are
viewed as the world's leading democracy.
Unfortunately, even today, evidence shows that too many
political operatives still maintain power by unfairly
manipulating election rules based on how voters look or speak.
For example, in 2011, in Nueces County, Texas, the rapidly
growing Latino community surpassed 56 percent of the county's
population. And in response, county officials gerrymandered
local election districts to weaken votes by Latinos and make
sure Latino voters would not control a majority of the county
commission seats.
In 2006, in the City of Calera, Alabama, Ernest Montgomery
was the only African American on the 5-member Calera City
Council. City officials redrew district lines to drop Mr.
Montgomery's district from 70 percent African American down to
30 percent African American. And as a result, African American
voters in the district were not able to elect the candidate of
their choice, and the city council lost its sole African
American member.
Unfortunately, without Section 5 to block this type of
racial manipulation, Americans in many areas like Nueces County
won't have the thousands and sometimes millions of dollars
needed to bring a lawsuit to stop these unfair changes.
This local manipulation, local manipulation, is a real
problem. Over 85 percent of the changes rejected as unfair
under preclearance were at the local level. I am talking about
city councils, county commissions, other positions. Many of
these are non-partisan. And note that the discrimination in
many of these cases is not related to turnout or registration
at all. Indeed, high turnout, high registration may prompt, may
trigger the discriminatory acts.
Now, some may say that the solution to this problem is more
lawsuits. I disagree. Lawsuits can cost thousands and sometimes
millions of dollars. Lawsuits require massive discovery and
fishing expeditions through boxes of paperwork, hiring
expensive experts to interpret and piece together data, and
this expense is not just on the victims of discrimination, but
these are expenses borne by the Department of Justice, by the
jurisdictions that implemented the change, and eventually by
all of us through our tax dollars.
Another problem is that lawsuits can take years. Too often,
lawsuits don't stop unfair voting rules before they are used in
elections and harm voters. In contrast, preclearance was
relatively quick, efficient, inexpensive. Preclearance also
generally prevented discriminatory practices before they became
effective.
Perhaps the most important point is that preclearance was
comprehensive. Preclearance deterred jurisdictions from
adopting many unfair election rules because officials knew each
and every decision would be reviewed. With litigation,
political operatives know that many voters won't have the
information or the money to bring a lawsuit.
Political operatives know that it is very likely that this
under-the-radar discrimination will never be challenged.
Fortunately, Congress can solve these problems by updating
the Voting Rights Act. The U.S. Supreme Court's decision
focused on the coverage formula in the 1960's and '70's. The
Court did not find that the preclearance process itself was
unconstitutional. Indeed, it explicitly acknowledged that
Congress has the power under the 15th Amendment to prevent
voting discrimination.
Another important point is that the Voting Rights Act is
not a partisan issue. There have been other times in the past
when we as Americans have seemed divided in our politics. The
1960's were turbulent. But Republicans and Democrats came
together to pass the Voting Rights Act, and every
reauthorization since that time, Republicans and Democrats
worked together, as you know, despite so many politically
divisive issues. In 2006, Congress came together under the
leadership of Mr. Conyers and Mr. Sensenbrenner and renewed the
Voting Rights Act with an overwhelmingly bipartisan commitment.
So we should be proud of our significant progress, but we
still have work to do. We all agree that voting rights
violations are wrong, that discrimination is wrong. We should
all work together to update the Voting Rights Act and to ensure
that voting is free, fair, and accessible for all Americans.
Thank you.
[The prepared statement of Mr. Overton follows:]
__________
Mr. Franks. And I thank the gentleman.
And we will now proceed under the 5-minute rule with
questions, and I will begin by recognizing the Chairman of the
full Committee, Mr. Goodlatte, for 5 minutes.
Mr. Goodlatte. Mr. Chairman, thank you very much.
I want to thank all four of our witnesses. This has been a
very good exposition of the Shelby County case and the current
status of the Voting Rights Act. As I said in my opening
remarks, it is absolutely critical that we protect the rights
of all Americans to be protected in their rights to register
and to vote, and it is important to recognize the many
provisions in the Voting Rights Act that have been upheld,
including the opportunity to have preclearance in circumstances
where a court finds that a jurisdiction has engaged in a
discriminatory action that results in barring people from
having the opportunity to register or to vote, and it is
important that this Committee makes sure that we continue to
protect that right.
I had intended to yield my time to former Chairman
Sensenbrenner, who is not a Member of this Subcommittee but
who, as Chairman of the full Committee, was presiding at the
time the Voting Rights Act was last extended, and I am now
advised that he is not able to return because of a scheduling
conflict.
I am going to have to leave myself, and so I know there are
some other Members of the full Committee who are not Members of
the Subcommittee, including, I believe, Ms. Jackson Lee and Mr.
Watt. I understand Mr. Watt does not desire time. So, Mr.
Chairman, I will yield the balance of my time to the
gentlewoman from Texas and allow her to ask questions of the
panel.
Again, my apologies to the panel for having to leave, but
also my thanks to each of you. I think this has been a very
good exposition of the status of the law, and at this time I
yield to Ms. Jackson Lee.
Ms. Jackson Lee. Let me thank the Chairman for his
courtesies, and to the Members as well, to their courtesies,
and I want to go right to Mr. Overton because he directly
commented on two points that were raised in the majority
opinion, and that was the extensive registration of African
Americans and the turnout of African Americans.
Let me pose two questions. Turnout is like a roller
coaster. It is up and down, and there may be some thrills. The
registration itself likewise goes in spurts depending really on
the candidate, maybe the issue. Off-year elections may be
lesser than elections that are not.
Is it not the barriers--when you think of the 13th and 14th
Amendment, one giving the vote, one giving citizenship, it was
an unfettered vote, except as guided by what was then the law.
Can you speak to that point? Is it not the discriminatory
barriers that the Court should look at and have chronicled from
2006 on, as opposed to registration and turnout, which is, in
essence, in cycles?
Mr. Overton. Well, thank you very much for your question,
and you are right in terms of the 14th and 15th Amendment are
not focused simply on this just formal right to vote in terms
of the right to cast a ballot, but also to cast a meaningful
ballot.
You will remember that the purpose of Section 5 in terms of
preclearance was to recognize that there may be devices that we
don't understand that will undermine minority voting rights,
and as a result we need a tool that is flexible that can adapt
to new devices that suppress minority votes or dilute minority
voting----
Ms. Jackson Lee. So in essence, if I might, preclearance is
to get rid of the barriers so that your vote can be unfettered
when you go to the polls, as opposed to doing it after the
fact.
Mr. Overton. That is correct, but that would also include,
for example, Nueces County, where you have 56 percent Latino, a
large Latino turnout. So that may be a high registration, high
turnout rate, but one draws districts in a way to ensure that
Latinos will not control three of the five commission seats but
are only confined to two of the commission seats.
Ms. Jackson Lee. That is why the preclearance is vital.
Mr. Overton. Correct.
Ms. Jackson Lee. And the enforcement section or an
enforcement section such as what Section 4(b) was is vital as
well, and a Section 2 claim does not equal the preclearance
authority.
Mr. Overton. That is absolutely right, in large part
because it is just a different administrative tool. You know,
litigation has its place in some situations. But when we talk
about an administrative tool--we have it in many other areas
like antitrust, et cetera, where we have a tool that
efficiently prevents, deters discrimination, and does it in a
way that is not high cost in the way litigation is, is
comprehensive. Section 5 was an important tool.
Ms. Jackson Lee. I thank the Chairman, and the I thank the
Committee for their kindness.
Mr. Conyers. Mr. Chairman?
Mr. Franks. If I could, before we move on here, I just
noticed that Congressman John Lewis was in the room, and I
wanted to recognize and express our honor that you are among us
here today, sir, and we appreciate it. You are an icon in this
movement, and we are very grateful that you have joined us.
Mr. Conyers. All I wanted to do was to add on to your
statement an invitation, if you would permit, for him to sit on
the dais.
Mr. Franks. Absolutely. Yes, sir.
Mr. Conyers. Thank you.
Ms. Jackson Lee. And I yielded back, but I just want to add
my appreciation for the leadership of Mr. John Lewis and the
statement of the Edmund Pettis Bridge, and he lives that
statement every day. I thank him for his courage.
Mr. Franks. And I would now recognize the Ranking Member of
the Committee for 5 minutes for questions.
Mr. Nadler. Thank you, Mr. Chairman.
Let me ask Mr. Kengle. We know that Section 5 was judged
necessary, and Section 4 to determine who is under Section 5,
because without preclearance the Federal Government was always
playing a whack-a-mole game with local jurisdictions. You would
knock down one discriminatory practice, they would come up with
three others. By the time you knocked them down, they came up
with two more, and you never caught up, and people were always
discriminated against.
Given the effective dismemberment of Section 5 by Section 4
being held unconstitutional, two things. Is Section 3 enough to
protect against voting discrimination, as we have witnessed it
post-2006 reauthorization? And why are there such a few number
of cases in which jurisdictions have been bailed into the
preclearance regime under Section 3?
Mr. Kengle. I don't think Section 3 is going to be enough.
One of the points that I noted earlier was that Section 3 is a
two-step process. In other words, a plaintiff, or DOJ for that
matter, cannot just go to a court and say we think that there
is reason to have this jurisdiction subject to the preclearance
process, so please give us an order to that effect.
What has to occur is that the district court has to find
that there have been violations of the racial discrimination
protections of the 14th or 15th Amendment. And so that means
that in practical terms the plaintiff seeking 3(c) coverage has
to prove that there was intentional discrimination within the
jurisdiction.
In my written testimony, I identified some of the burdens
that are associated with proving intentional discrimination.
This was a subject that was extensively debated in 1982 when
Congress amended Section 2 to include what is now known as the
results----
Mr. Nadler. Why didn't we at that time add the results to
Section 3 also?
Mr. Kengle. I'm sorry?
Mr. Nadler. When we added the results or effects test to
Section 2, why didn't we add it to Section 3 at the same time?
Or was that just----
Mr. Kengle. Well, I think that--I don't know the answer to
that. I think that the answer to that is that Section 3 was
seen as an analog to Section 5. Section 5 was not being
amended. At that time it was reauthorized, but it was not
otherwise amended. And so I think that Section 3 was not
changed in that way because it was seen as providing a
judicially-based counterpart to Section 5.
Mr. Nadler. Okay. Now, let me ask you one further question.
Then I have a question for Mr. Overton.
Every time we have felt the need to reauthorize the Voting
Rights Act, we developed and carefully studied a massive record
before we did so. In 2006, we had over 15,000 pages documenting
ongoing and persistent election-related discrimination, and
documenting the utility of preclearance.
Now, given the broad powers conferred upon Congress under
the 15th Amendment, and given the exhaustive record of voting
discrimination compiled by the Congress, can you explain the
problems around the Court's departure from their traditional
deference to Congress as justified in Katzenbach v. South
Carolina and City of Rome v. United States? In other words, how
did they get around their traditional deference to Congress,
our massive documentation of the current need, and still
declare it unconstitutional?
Mr. Kengle. Did you want Mr. Overton to respond first?
Mr. Nadler. Either one of you. Mr. Overton, go ahead.
Mr. Overton. Well, you know, the Court in Shelby County was
focused on this text in terms of these election years of '64,
'68, and '72. I think Congress came at this from the standpoint
of amassing an incredibly significant record, 15,000 pages,
over 90 witnesses, 20 hearings, that was just massive but maybe
not tied to that language in '64, '68, and '72. So I really
read the Court as not even looking at that massive record
because it said, hey, it is not tied to this formal language
that is in the statute of '64, '68, and '72.
Mr. Nadler. So you don't think, then, that it flowed from a
Boerne analysis that we have to have congruent and
proportional----
Mr. Overton. Well, I definitely think Congress was very
aware of the standards and went out of its way to build a very
strong record that would pass muster in terms of a Boerne
analysis or a Katzenbach analysis. But I just think that there
was a bit of a mismatch between Congress and the Court in terms
of Chief Justice Roberts really focused on the text of those 3
years.
Mr. Nadler. Can I just ask Mr. Kengle to comment on the
same, last question?
Mr. Kengle. Yes. I didn't spend a lot of time in my written
testimony going into the details about the Court's opinion in
the case because I wanted to address the practical
significance. But in terms of the Court's application of the
standard, the Boerne doctrine was curiously absent from the
Court's discussion, and it is not clear to me to what extent
the Court would apply some additional type of Boerne gloss to a
future case as opposed to simply following the standard that
the Court set out in North West Austin, which is what it
followed in this case, that current burdens have to be
justified by current needs.
The thing about the Court's textual approach and really
laser-like focus on the text of Section 4(b) is that in other
contexts the Supreme Court has looked at the actual function
and the harmonious operation of the provisions of the statute
and what Congress logically meant to intend when it interpreted
other portions of the Act. I am thinking in particular of the
Sheffield case, and even the North West Austin case, because in
looking at the bailout provision in North West Austin, the
Court did not really take the literal reading of the statute.
It took a result that it felt was necessary.
So in other cases, the Court has departed from the strict
text of the Act. In this case, it chose not to. But my view is
that is water under the bridge and we need to now move on to
address the current evidence and take the appropriate next
steps.
Mr. Nadler. Thank you. My time is expired.
Mr. Franks. I thank the gentleman.
And I will now recognize myself for 5 minutes for
questions. If it is all right, I will start with you, Mr.
Adams. I wondered if you could just generally describe for us
the process by which lawsuits under Section 3 of Voting Rights
Act are filed. And this section, of course, is still intact;
correct?
Mr. Adams. Yes. Section 2--Section 3 coverage, of course,
can be triggered by finding that there is intentional
discrimination under Section 2, and the Supreme Court has laid
out a rather complex but predictable roadmap. Under Section 2,
you have to satisfy something called the Gingles preconditions,
and then you have to go through the Senate factors, of which
there are seven. I should note that that is for a vote dilution
claim, a redistricting claim, if you will. I have brought non-
vote dilution Section 2 cases. I brought two of them, and you
have a slightly different analysis, but it is still applicable.
There has been testimony and commentary that you can't
bring it in a non-vote dilution legislative redistricting
context. That is just not true.
So you have to prove these Gingle preconditions, and then
you have to march through the Senate factors. I want to point
out two of these issues.
One, Gingles 3. Gingles 3 is a causality requirement that
racial polarization is causing minorities to lose elections.
Senate factor 1 is a history of official discrimination. So you
can still have effective enforcement of civil rights if you
simply show there is discrimination and that minorities are
losing elections because of being minorities.
Mr. Franks. Mr. von Spakovsky, would you add anything to
that? On Section 2 and 3.
Mr. von Spakovsky. Yes. It is very interesting hearing
people say that we need this administrative process. Like I
said, it violates fundamental due process. The government is
supposed to prove its case, not the other way around. I am sure
it would be very easy if we allowed the government to simply
jail individuals when they were accused of crimes, and then
force them to prove that they were innocent. That is basically
what Section 5 did.
I don't deny that discrimination still occurs, but Section
2 and Section 3 are powerful weapons to do that, and
particularly Section 3. Look, what the Supreme Court said was
you can't put this blanket Section 5 preclearance requirement
on all these states based on 40-year-old data, particularly
given the most recent evidence of how that kind of
discrimination has disappeared. You can't do a blanket
imposition of this.
But Section 3 allows you to put in a preclearance
requirement for specific jurisdictions if the government goes
to court and actually proves they engage in racially
discriminatory behavior and they are going to do it in the
future. That is something you can do. You can win those cases,
and it is not just the government that can bring these. The
ACLU has a huge voting rights project that brings many cases. I
just checked their assets. Their assets as of 2012 were $360
million. They have the ability to bring cases like this if the
Justice Department is not, but the Justice Department in the
past has brought Section 2 cases when it was required.
Mr. Franks. Let me ask a general question to all of you,
and anyone that feels inclined to respond, we can start down
here and just go down the line.
But looking at modern voter registration and voter turnout
rates in the several states, what do you think they tell us
about racial progress in America since 1965? Mr. Adams?
Mr. Adams. Well, as I say in my written testimony, America
bears absolutely no resemblance in 2013 to 1965, and that is
exactly what the Supreme Court recognized when it found these
triggers to be out of date. So we simply don't have the America
where whack-a-mole was necessary because we don't have
jurisdictions throughout the South who are going to play whack-
a-mole anymore like they did in 1964. In some places it is
worse than the South in the North, and that is what was so
upside-down about the triggers, is you saw more voting
discrimination cases in places like Euclid, Ohio and Osceola
County, Florida, which is a non-covered place, and Blaine
County, Montana then you did in the South.
Mr. Franks. Mr. Kengle, do you have any thoughts there?
Mr. Kengle. Yes. What I would want to say about that is
that in the South, looking at the situation today, I think what
you see in the South in the covered states is that Section 5
and Section 2 have wrought an historic transformation in the
political process, that compared to where we were in 1965,
there has been tremendous progress in terms of voter
participation and voter turnout. There is no question about
that. It is one of the great achievements of the Voting Rights
Act. It has taken a lot of work. It didn't happen
automatically. But it has been a great achievement.
But voter registration and voter turnout are not all of the
story. When you look at the story, and I saw this when I worked
in the DOJ because there were a lot of Section 5 submissions
that came in in the 1980's when I began of voting changes that
had been enacted in the 1970's, and what you saw was that as
time went on, the increases in voter registration and turnout
among minority voters had prompted discriminatory changes to
election systems; in other words, adding a majority vote
requirement or going to at-large elections, abandoning single-
member district elections, changes that were diluted in nature.
So Section 2 addressed that problem in 1982. There is an
excellent book called Quiet Revolution in the South that
chronicles how both Section 2 and Section 5 brought about this
change. But the fact that that success has occurred does not
indicate that that success is permanent or that that success
cannot be jeopardized. It can be jeopardized. I am very
concerned that it will be jeopardized if jurisdictions believe
that they have the green light to engage in voting
discrimination and that they can sit back and wait to be sued,
and then just drag the process out through years of litigation
and the courts.
The number of Section 2 cases in which a court has issued a
preliminary injunction is very, very small. I don't have a
whole list. It is a small fraction of all Section 2 cases. It
is not a ready remedy.
Mr. Franks. All right. Thank you, Mr. Kengle.
And with that, my time has expired, and I would now
recognize the distinguished Ranking Member of the full
Committee, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
I wanted to come back to the head of the Lawyers' Committee
for Civil Rights Under Law, which incidentally has done a very
superb job of keeping us on track. I have been to a number of
the sessions. Let me just raise a concern about the structure
of the new enforcement regime that might replace the one
disabled by the Shelby County decision.
What impact does the opinion have on the status of
preclearance matters currently under review or pending prior to
the Court's ruling?
Mr. Kengle. Well, the immediate--we saw one impact right
away, Mr. Conyers. There were two appeals pending in the
Supreme Court from the District Court for the District of
Columbia. One was a case involving--well, both cases involved
the State of Texas. One concerned redistricting and one
concerned voter ID. The Supreme Court vacated the District
Court judgments in both of those cases and remanded the cases
back down, presumably for dismissal. There have been some
motions filed in those cases, so they may not be fully over
yet. But the Court vacating the judgment I think is an
indication that the Court considers the judgments in those
cases that were issued by the D.C. court to now be moot because
they were done pursuant to an unconstitutional targeting
formula.
Because the impact on Section 5 objection letters I think
is going to be the subject of some litigation in the Federal
courts pretty soon, I am a little wary of predicting exactly
what the outcome is going to be, but I think there is going to
be a very vigorous argument that any objection issued from 2006
onward has now been invalidated. There may be some arguments
against that, but I think there is going to be a very strong
push to have all of those found to be invalid, and that would
mean that the jurisdictions would then be free to go about
implementing those objectionable changes unless they have been
repealed or superseded by other legislation.
Mr. Conyers. So we should be worried or hopeful?
Mr. Kengle. I think it is ground for concern. I think that
the Committee and Subcommittee need to look closely at the
record of what has occurred after 2006. That is one of the
things that we had not attempted to do today, is provide a sort
of comprehensive assessment of what has occurred after 2006. I
feel strongly that that should be the subject of future
hearings where it can be concentrated on in detail and that it
can be put in the context of the other recent and current
evidence of voting discrimination.
Mr. Conyers. Professor Spencer Overton, in the 1997 case of
City of Boerne v. Flores, the Supreme Court stated that
Congress must develop a complete record before acting
legislatively, and to tailor its legislative response to that
record to ensure that its legislation was ``congruent and
proportional.''
Now, what kind of problems perhaps has the Court created
for Congress as it chooses to legislate voting rights
enforcement in the future?
Mr. Overton. Thank you, Mr. Conyers. Well, one significant
problem is that there is one less tool in terms of preventing
racial discrimination in voting, and it is a significant issue.
It has certainly been documented. In terms of the Court making
that move, essentially the Court focused on--as opposed to
focusing on Congress' record, it focused on the terms of the
statute and got into this notion of sufficiently related and
current burdens being justified by current needs in terms of
those years '64, '68, and '72.
I do want to just kind of add, Mr. Conyers, when I came
into this building today, I went through a metal detector, and
that wasn't a due process violation. It was not sending me to
jail. There are not metal detectors everywhere. When I go to
McDonald's, there are not metal detectors. It is just where
there might be a problem here. The metal detector is less
expensive than some other security devices. It prevents
problems before they occur, right?
Preclearance is a reasonable device when targeted at
particular areas to deal with problems.
Mr. Conyers. Thank you so much.
My time has expired. I thank the Chair.
Mr. Franks. And I would now recognize the distinguished
gentleman from Iowa, Mr. King, for 5 minutes.
Mr. King. Thank you, Mr. Chairman. I appreciate the hearing
we are holding here today, and I am listening to our witnesses
and thinking back at that reauthorization time of the Voting
Rights Act back in 2006. I would first remark on Mr. Overton's
comment that preclearance is a reasonable device. I would think
also that voter ID would be a reasonable device. And when I
look across the country and try to accumulate problems we might
have with elections, I don't know where to go look, and I
wouldn't deny that it likely exists in places in the country,
and probably in smaller areas, much smaller areas than when
this act was first passed. But I wouldn't know where to go look
to find real voter intimidation and real discrimination. The
first place that comes to mind to me when I utter those words
is Philadelphia.
So I think there is more damage to the integrity of our
election system that comes from lack of voter ID than might
come from voter intimidation. And when I think about the
discussion about bringing up the Voting Rights Act and perhaps
rewriting it, that would mean that the authorization would be
also subject, and I question the wisdom of an authorization
that would last for more than a generation, 25 years. Thomas
Jefferson declared a generation to be 19, in case anybody is
quibbling.
So the 25-year reauthorization in 2006 I thought was
imprudent. It is one of the reasons I voted against it. I think
we need to have a lot more improvement in the integrity of the
individual ballot, and I think we know that, but there is a
political barrier in the way. I think if we bring up the Voting
Rights Act and we have an opportunity then to open it up, I
think multilingual ballots become a question. There is no
logical reason that ballots should be in anything other than in
English. If you take a citizenship test, you have to
demonstrate proficiency in English.
I would turn first to Mr. Adams and ask if the Voting
Rights Act were either allowed to expire or be repealed, is
there a constitutional protection there for the issues that are
covered in the VRA, and how would you expect that might be
worked?
Mr. Adams. Well, obviously somebody can bring a 1983 action
under the 15th Amendment, which guarantees the right to vote
free of racial discrimination. But, of course, Section 2 also
incorporates those concepts.
You mentioned voter intimidation. Just last week, a state
judge in Mississippi determined in a ruling, threw out the
results of an election because of voter intimidation by a
political operative working for somebody named Rodriguez Brown.
This is a proven case of voter intimidation. Will anybody do
anything about it? Will there be a Federal case brought?
Somehow, I suspect not.
Mr. King. Thank you, Mr. Adams.
Also, if I remember Mr. von Spakovsky's statement, to the
extent that African American voter turnout is actually higher
in the non-covered districts than in the covered districts, did
I hear that correctly? Could you elaborate a little bit?
Mr. von Spakovsky. Black turnout is better in covered, what
were covered jurisdictions than non-covered jurisdictions
around the country; in fact, consistently so. Table 5, which is
a map from the Census report in May, is really dramatic. I
mean, it shows Blacks out-voting Whites largely in the covered
states.
Mr. King. Can you explain why that is?
Mr. von Spakovsky. I'm sorry?
Mr. King. Can you explain why that is?
Mr. von Spakovsky. Well, one of the reasons, I think, is
because of Section 5 and the Voting Rights Act, and because the
kind of systematic discrimination you had in 1965 has virtually
disappeared.
And if I could make a point here, people keep saying, well,
with this gone, these jurisdictions are going to return to
acting that way. Well, that ignores a very important point. In
1965, there were no Black elected officials in the covered
states. That is not true today. In fact, all the statistics and
the court findings show that those covered states have a much
larger number of Black elected officials than other parts of
the country. That is true in states like Georgia and
Mississippi. And the idea that those officials are themselves
going to start to discriminate or put up with that kind of
discrimination, that is just not a reality.
Mr. King. Okay. But what you have said, I think, is that
the Voting Rights Act has worked in these covered districts and
has brought the Black turnout up a little higher than it is in
the non-covered districts. So does that imply that there is
discrimination in the non-covered districts, or how would you
explain the statistical variance?
Mr. von Spakovsky. Well, we know there is discrimination in
uncovered jurisdictions because there are Section 2 lawsuits
that are filed, as Mr. Adams pointed out, in places like
Euclid, Ohio and other areas. Disparity in turnout between
different races isn't always due to discrimination. It is
sometimes just people not being interested in particular
candidates. I think Ms. Lee talked about the cyclical nature of
elections.
But the point is, if Congress is going to have Section 5
coverage based on the Section 4 formula of low turnout, then
there are many other places in the country that have never been
covered under Section 5 that ought to be covered in any new
version of this law.
Mr. King. I thank you.
I would just ask unanimous consent to ask an additional
question, if the Chair would indulge me?
Mr. Franks. Without objection.
Mr. King. Thank you, and I thank the Members of the
Committee for allowing it. I was very interested when I heard
Mr. von Spakovsky say about apartheid redistricting, and I
don't know that that is going to be revisited in this hearing
if I don't bring it up. I come from a state that has anything
but that. We have a statutory directive that, without going
through the definitions in the language, it essentially
prohibits the gerrymandering by race or by party. We end up
with, I think, logical districts that are compact and
contiguous. From that perspective, I see the gerrymandering
that Mr. von Spakovsky has brought up in this hearing, and
myself, I would recommend looking at other states drawing
districts like that without regard to race, ethnicity, the
residency of any incumbency, and logical, compact, contiguous.
So I would ask Hans if he would speak to that and just
elaborate a little bit more for the benefit of the Committee,
please?
Mr. von Spakovsky. Look, I don't think it is a good idea
when you take cities, for example, where the residents, no
matter what the race, have similar interests, similar public
policy problems, and you divide them up into differing
districts just based on race so that particular individuals or
particular races can get elected. I mean, that leads to many
different problems. It does not help integration. It does not
help bring us together, which is what the Voting Rights Act was
intended to do.
But, to be quite frank, politicians like it because it
produces very safe districts for them where they don't get
competition. I don't think that is a good thing. Some of the
witnesses here may agree with me that they don't think that is
a good thing, and that is a direct result of Section 5 and the
way it is administered by the U.S. Justice Department.
Mr. King. Thank you very much. I thank all the witnesses
and yield back the balance of my time, Mr. Chairman.
Mr. Franks. I thank the gentleman.
The gentleman from Virginia, Mr. Scott, is now recognized
for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Overton, I just wanted to comment on that last one. Are
overly safe, over-packed districts oftentimes violations of
Section 5?
Mr. Overton. Often they are not violations of Section 5,
but I think it is important to recognize----
Mr. Scott. An over-packed district where----
Mr. Overton. Well, certainly an over-packed district would
be a problem and would be retrogressive here, right?
Mr. Scott. Thank you.
Mr. Overton. But I just want to also note that in a place
like Nueces County, Section 5 prevented the discrimination that
occurred in Nueces County in terms of the racial districting
that discriminated against Latinos. So, it is important.
Mr. Scott. I just wanted to point out that when you get
these overly safe, over-packed districts, they can violate
Section 5 on their own.
One of the concerns I have is not the statewide problems
but the little problems that can occur in small counties,
school board elections, town councils, when nobody is looking.
And we know that all voting changes are not discriminatory.
They can be unpopular. They can have political effects, but not
discriminatory. You could have one group wanting more taxes,
less growth, more education. There could be a lot of reasons
why a plan may be unpopular, but who would do the initial
threshold analysis to ascertain whether or not it is
discriminatory under Section 5 or if you don't have Section 5,
Mr. Overton?
Mr. Overton. Well, the benefit of Section 5 is that
jurisdictions generally have access to information, and they
provide that basic information to either the Department of
Justice or to a Federal court to obtain preclearance. So we
don't have a situation where voters, who may not have a lot of
resources, have to hire experts and lawyers and go through
discovery and that kind of thing.
Mr. Scott. So the threshold analysis to ascertain whether
or not there is a discriminatory effect is done by the
jurisdiction, and if you do not have Section 5, that burden is
on the potential victims of that discrimination who may not
have the money.
Mr. Overton. That is correct, and that drives up costs not
just to the plaintiff, these victims of discrimination, but it
also drives up costs in terms of expert fees and lawyers' fees
to the jurisdictions, as well as to the Department of Justice.
Mr. Scott. And if the victims do not have the resources to
do the analysis, without Section 5, what happens?
Mr. Overton. Discrimination persists.
Mr. Scott. Now, what happens to the officials who are the
perpetrators of the discrimination?
Mr. Overton. They go unchecked. They win elections. They
are entrenched, and they benefit from racial discrimination.
Mr. Scott. Now, Mr. Kengle, you mentioned the vulnerability
of any preclearance that was denied since 2006 because of the
Shelby case?
Mr. Kengle. There is the potential that that will occur,
yes.
Mr. Scott. Why would you not at least go back to 2009?
Because the Austin utility case had the opportunity to find the
formula unconstitutional and did not.
Mr. Kengle. I'm sorry, I did not----
Mr. Scott. Well, in 2009, you have the Austin utility case
where the formula, Section 5, was reviewed but it was not found
unconstitutional.
Mr. Kengle. The North West Austin case, you mean?
Mr. Scott. Right.
Mr. Kengle. Yes.
Mr. Scott. Why would you go all the way back to 2006 and
not 2009 for that debate?
Mr. Kengle. I suppose there could be an argument that you
would not go back. I think that probably the argument against
upholding those objections would be based on the idea that from
2006 on, the Section 4(b) formula was unconstitutional, and
therefore it couldn't legally be the basis for denying
preclearance. The argument would be that it would be
retroactive.
Mr. Scott. Okay. I have another question I am trying to get
in real quickly to Mr. Adams.
You mentioned the bailout and the bail-in. If the original
formula was constitutional in the late '60's, why have not the
bail-in and bailout provisions kept the list up-to-date and
modern? What needs to be done to the bail-in and bailout
provisions?
Mr. Adams. I am perplexed why nobody used the bail-in
provisions, Justice or private plaintiffs. One of the things
that needs to be fixed in the bail-in provisions is an
inconsistency that exists in the current statute. It says the
Attorney General may seek in a case brought with the Attorney
General involved. But yet, the Attorney General does not have
standing to assert a 15th Amendment claim, an intentional
discrimination claim on behalf of somebody else. They can only
assert a statutory claim.
So Section 3 has an inherent defect in its language now
that ought to be fixed, to either add results or effects tests
or to clarify that the Attorney General can pursue a 15th
Amendment claim.
Mr. Scott. Mr. Chairman, could I ask one additional
question?
Mr. Franks. Without objection.
Mr. Scott. Thank you.
Mr. Overton, a great deal has been talked about
registration and turnout numbers. You alluded to the idea that
perhaps when turnout becomes proportional, you are even more
vulnerable to little schemes and devices. Can you talk about
that?
Mr. Overton. Yes, sir. A point here is that it is not
consistent in terms of turnout levels among covered and
uncovered states. There are many counties where minority
turnout is much lower if you look at the precinct and county
level. And also, if you just look at Latinos and Asian
Americans who are citizens and voting age population, that
trails Whites and African Americans. Obviously, Latinos and
Asian Americans are protected in terms of Section 5.
But your broader point was it is not just turnout. This
notion that once a group can actually challenge the status quo
from a political standpoint, political operatives then have the
incentive to sometimes manipulate rules to maintain power, and
they are not reflecting the will of the people.
So there may be some racially polarized voting, and people
may vote in terms of racial lines. I am not trying to make any
judgment on that. The problem is when politicians, as opposed
to reaching out to those voters and including them and
mobilizing them and trying to win over their vote, win
elections by manipulating rules that dilutes the votes of those
communities or suppresses the votes of those communities.
Mr. Franks. And I thank the gentleman.
And I now recognize Mr. Deutch for 5 minutes.
Mr. Deutch. Thank you, Mr. Chairman.
Mr. Chairman, writing the majority opinion in Shelby
County, Chief Justice Roberts wrote that the Voting Rights Act
employed extraordinary measures to address an extraordinary
problem of pervasive discrimination in suppressing the right to
vote. The Chief Justice pointed out that in 1965, Section 4's
preclearance formula was the kind of strong medicine needed to
address racial discrimination in voting, an insidious and
pervasive evil which had been perpetuated in defiance of the
Constitution.
Today we begin the task of updating the preclearance
formula to reflect today's America, and I thank the Chairman
and Ranking Member for holding this hearing.
In the '60's, we could rely on overtly racist laws to
trigger preclearance in the Voting Rights Act. For example, the
use of literacy tests to establish if ``someone has the moral
character'' worthy of the right to vote. These are the laws
that John Lewis and so many other brave Americans fought to
dismantle, and it is an honor to have you here today, Mr.
Lewis.
And while there may be fewer overtly racist laws on our
books today, when pundits and commentators and TV hosts say
that racism is behind us, we are avoiding an important
discussion that has got to take place, and I, frankly, think
that this is a good place for it to start.
Racism is still here in this country. It just takes a
different form. Jim Crow, I would suggest, has been replaced
with a far more subversive and far-reaching system of
institutionalized racism. So as this Congress works on a new
preclearance formula, I humbly suggest that we look beyond the
scope of laws passed by states that directly impact minorities
at the polls and begin looking at the racially biased
application of state laws more generally.
For how healthy is the democratic process in any state if
we see institutional racism enshrined in our laws or the
application of those laws that limit minority access to the
polls, as well as their basic equal protection under the law,
laws that too often prevent minority communities from having a
true and full voice in local, state, and Federal elections?
Three examples. There has been much discussion about Stand
Your Ground laws in connection with the recently concluded
Zimmerman trial. There are 23 states with self-defense laws in
which there is no duty for a person to retreat from an
attacker. Nine of these states, including my state of Florida,
permit a person to stand your ground and use lethal force when
being attacked. Unfortunately, studies show that Stand Your
Ground laws mainly protect White people who shoot a Black
person.
How healthy is our democracy when, according to an Urban
Institute analysis of FBI data, White people who kill Black
people in Stand Your Ground states are 354 percent more likely
to be cleared of murder charges? Can anyone argue that Stand
Your Ground laws and the use of such laws reflect modern racial
bias in state laws and should be considered here in this
context as we modernize our preclearance for the Voting Rights
Act?
The second example. We see institutional racism in the
application of our drug laws. Blacks and Whites may use
marijuana at similar rates, but Black Americans are nearly four
times more likely to be arrested than Whites, according to the
ACLU. State and local governments have aggressively enforced
marijuana laws selectively against minority communities,
placing hundreds of thousands of people into the criminal
justice system. Shouldn't we ensure that states who throw young
Black Americans in jail at a disproportionately higher rate
than White Americans for the same offense are also not passing
laws to further disenfranchise minority voters?
And then the third example is this, and it is more
pertinent and specific to this discussion. We see institutional
racism in the flood of new voter ID laws. Studies show that as
many as 11 percent of eligible voters do not have government-
issued photo ID's. Why do many minority voters lack IDs? Often
they don't need them. Minorities are less likely to have a
driver's license because they are more likely to live in urban
areas and often more likely to be poor.
Shouldn't we recognize that voter ID laws seek to
disenfranchise certain eligible voters not blatantly based on
race but based on requirements that have significantly and
intentionally racial ramifications? Isn't that evidence of
institutionalized racism, and shouldn't that merit extra
Federal scrutiny and preclearance in those states that have
passed those laws?
Racism has grown more insidious, more subversive, and more
subtle in the 50 years since the Voting Rights Act, but it has
not gone away. We have too much yet to do. It is no wonder why
African Americans in Florida and across America so often feel
like their voices, if not their lives, are being devalued by
our laws. It may be harder for us to pinpoint racism, but that
does not mean it has been abolished. We in the United States
Congress have a constitutional duty to ensure that we are doing
everything in our power to protect every voter.
So as we go through this process, shouldn't we be brave
enough to acknowledge that if any state law reflects
institutional racism, that preclearance of laws affecting the
right to vote in those states should be required? And shouldn't
the concept of voter suppression be broadened to include the
more subversive, the frankly much more sophisticated ways that
institutionalized racism has reared its head?
These are difficult questions, and we are not going to have
time to discuss them here today, but I hope as we go forward
with this discussion of the Voting Rights Act we are willing to
have the brave conversation that I think will help us immensely
here on this Committee, and ultimately will serve our country
well.
I yield back.
Mr. Franks. And I thank all of the participants----
Ms. Jackson Lee. Mr. Chairman?
Mr. Franks. The gentle lady is recognized.
Ms. Jackson Lee. Out of courtesy, might I just acknowledge
as well Barbara Arnwine, who is in the audience, who is the
President and CEO of the Lawyers' Committee, a decades-long
advocate, Mr. Chairman.
So I thank you very much for allowing me to do so, and I
conclude by wishing for continued hearings of this Committee in
light of what we have heard today, Mr. Chairman.
Thank you. I yield back.
Mr. Franks. I thank the gentle lady.
I want to thank all of those who have attended here today,
and I hope this hearing and others hastens the dream of the
Founding Fathers to recognize that we are all created equal and
that one day that recognition of the human dignity of every
last one of God's children will be recognized equally and
forthrightly.
I do want to note that all Members will have 5 legislative
days with which to submit materials for the hearing record.
I would thank the witnesses and thank the Members in the
audience, and this hearing is adjourned.
[Whereupon, at 12:40 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Jerrold Nadler, a Representative in
Congress from the State of New York, and Ranking Member, Subcommittee
on the Constitution and Civil Justice
Thank you, Mr. Chairman.
Today, we review the impact of the Supreme Court's decision in
Shelby County v. Holder. As the Ranking Member of this Subcommittee
when we reauthorized the Voting Rights Act in 2006, I had the privilege
of working on a bipartisan and bicameral basis with the then-Chairman
of the full Committee, Mr. Sensenbrenner, the then-Chairman of the
Subcommittee, Mr. Chabot, our Ranking Member, Mr. Conyers, and the
Gentleman from North Carolina, Mr. Watt, in guiding the reauthorization
though the Congress.
We spent months reviewing the evidence, gaining a firm grasp of the
current state of voting rights--and impediments to the exercise of the
franchise--as it exists in the present day. We were persuaded, as were
an overwhelming majority of the members of this House, and every single
member of the Senate who cast a vote, that the remedies contained in
the special provisions were still necessary, and were well-suited to
the challenge of voting rights.
We did consider revising the formula challenged in Shelby County,
and determined that the existing formula still served as a useful and
effective method of applying section 5 where needed. That determination
was not based solely on the questions focused on by the Court and
identified by Congress in 1965, but by the full weight of the evidence
we found in 2006.
The Court, arrogating to itself the quintessentially congressional
power to decide what facts are relevant, and what constitutes an
appropriate remedy, struck down the formula in section 4, eviscerating,
and rendering a nearly dead letter, the preclearance provisions of
section 5.
Congress long ago made the correct determination that requiring
voters to go to court after they had already been disenfranchised,
rendered voting rights unenforceable, and encouraged local political
leaders to rig the system to their advantage.
To be clear, the Voting Rights Act is not solely about racial
animus; it is about political power. It is not a matter of determining
whether one part of the country is ``more racist'' than another, but
only whether certain jurisdictions engage in conduct requiring special
scrutiny to protect the right to vote.
Excluding minorities from effective participation in our democracy
renders them something less than full citizens. Here, Justice Scalia
was dead wrong: the right to vote in a free and fair election is not a
``racial entitlement,'' but rather the birthright of every American,
regardless of race.
As a far more forward-looking Supreme Court said in Reynolds v.
Sims in 1964, ``Undoubtedly, the right of suffrage is a fundamental
matter in a free and democratic society. Especially since 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 Voting Rights Act has stood for a half-century as a testament
to our commitment that everyone must have an equal share in the
governance of our nation if our democracy is to have any claim to
legitimacy.
While it is true that we have made substantial progress in our
nation since 1965, much of it attributable to the Voting Rights Act and
our other civil rights laws, it is also true that we are not yet free
of efforts to manipulate the system in ways that disempower minority
groups.
As we stated in the Committee's report to accompany the 2006
reauthorization,
Despite the substantial progress that has been made, the evidence
before the Committee resembles the evidence before Congress in 1965 and
the evidence that was present again in 1970, 1975, 1982, and 1992. In
2006, the Committee finds abundant evidentiary support for
reauthorization of VRA's temporary provisions.
We reviewed the extent to which the kinds of ``first generation''
devices have been addressed, and found that section 5 had improved
voter participation in covered jurisdictions, just as the Court's
majority noted. We also observed that ``Sections 5 and 8 have been
vital prophylactic tools, protecting minority voters from devices and
schemes that continue to be employed by covered States and
jurisdictions''
We went on to note,
The Committee received testimony revealing that more Section 5
objections were lodged between 1982 and 2004 than were interposed
between 1965 and 1982 and that such objections did not encompass minor
inadvertent changes. The changes sought by covered jurisdiction were
calculated decisions to keep minority voters from fully participating
in the political process. This increased activity shows that attempts
to discriminate persist and evolve, such that Section 5 is still needed
to protect minority voters in the future.
So the voluminous evidence that we compiled showed clearly that the
need in the covered jurisdictions remained, and that the special
provisions were necessary and effective to protecting voting rights in
those jurisdictions. Rather than proving that the formula in section
4(b) was obsolete, the statistics cited by the Court demonstrated the
continuing need and effectiveness of Section 5.
That brings us to today's hearing. I strongly believe that the
facts we found in 2006 made a compelling case for retaining Section 5,
and applying it to covered jurisdictions which include--I might add--my
own New York City district.
What we need to do, as a first order of business, before we start
to look at what we might do to address the Court's decision, is to
determine the impact of that decision. Just as we moved with great care
and deliberation in 2006, and in a bipartisan manner, I would urge
members not to put the cart before the horse by trying to examine
specific cases and possible remedies until we have a better
understanding of where we are right now.
I know that not every member of this Committee supported the
reauthorization of the Voting Rights Act, but I hope that we can
nonetheless work cooperatively, in the same bipartisan spirit that
guided our 2006 deliberations, to address the Court's decision.
I hope the witnesses can address some of the following questions:
What remains of the Voting Rights Act?
What is the status of voting changes pre-cleared or
denied preclearance since 2006?
Are any jurisdictions still covered by Section 5? If
so, based on what?
What tools does the Justice Department still have to
fight voter disenfranchisement?
There are obviously applications of the Voting Rights Act on which
members of this Committee strongly disagree. I would hope that, rather
than allowing ourselves to get bogged down with the most controversial
cases of the day, we take a step back, look at Section 5, and at what
the Court did. Ultimately, as our experience since 1965 has clearly
shown, the specifics change over time, but the need for preclearance
has remained constant. The value of Section 5 has been its ability to
respond in real time to efforts to disenfranchise voters. I hope we can
keep our focus where it belongs.
Thank you, Mr. Chairman.
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