[Senate Hearing 113-842] [From the U.S. Government Publishing Office] S. Hrg. 113-842 THE VOTING RIGHTS AMENDMENT ACT, S. 1945: UPDATING THE VOTING RIGHTS ACT IN RESPONSE TO SHELBY COUNTY V. HOLDER ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED THIRTEENTH CONGRESS SECOND SESSION ---------- JUNE 25, 2014 ---------- Serial No. J-113-67 ---------- Printed for the use of the Committee on the Judiciary [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] S. Hrg. 113-842 THE VOTING RIGHTS AMENDMENT ACT, S. 1945: UPDATING THE VOTING RIGHTS ACT IN RESPONSE TO SHELBY COUNTY V. HOLDER ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED THIRTEENTH CONGRESS SECOND SESSION __________ JUNE 25, 2014 __________ Serial No. J-113-67 __________ Printed for the use of the Committee on the Judiciary [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] U.S. GOVERNMENT PUBLISHING OFFICE 99-960 PDF WASHINGTON : 2017 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Publishing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking CHUCK SCHUMER, New York Member DICK DURBIN, Illinois ORRIN G. HATCH, Utah SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina AL FRANKEN, Minnesota JOHN CORNYN, Texas CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona Kristine Lucius, Chief Counsel and Staff Director Kolan Davis, Republican Chief Counsel and Staff Director C O N T E N T S ---------- JUNE 25, 2014, 10:06 A.M. STATEMENTS OF COMMITTEE MEMBERS Page Feinstein, Hon. Dianne, a U.S. Senator from the State of California, prepared statement........................................... 155 Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1 prepared statement........................................... 152 WITNESSES Witness List..................................................... 43 Carvin, Michael A., Partner, Jones Day, Washington, DC........... 6 prepared statement........................................... 89 Garcia, Hon. Sylvia R., State Senator, Texas State Senate, District 6, Houston, Texas................................................. 5 prepared statement........................................... 44 Ifill, Sherrilyn, President and Director-Counsel, NAACP Legal Defense and Educational Fund, Inc., Washington, DC............. 11 prepared statement........................................... 127 Johnson, Rev. Dr. Francys, State President, Georgia NAACP, Statesboro, Georgia............................................ 8 prepared statement........................................... 105 addendum to prepared statement............................... 114 Thernstrom, Abigail, Ph.D., Adjunct Scholar, American Enterprise Institute, Washington, DC...................................... 10 prepared statement........................................... 120 addendum to prepared statement............................... 125 QUESTIONS Questions submitted to Michael A. Carvin by Senator Grassley..... 158 Questions submitted to Sherrilyn Ifill by Senator Grassley....... 160 Questions submitted to Abigail Thernstrom by Senator Grassley.... 159 ANSWERS Responses of Michael A. Carvin to questions submitted by Senator Grassley....................................................... 161 Responses of Sherrilyn Ifill to questions submitted by Senator Grassley....................................................... 166 Responses of Abigail Thernstrom to questions submitted by Senator Grassley....................................................... 163 MISCELLANEOUS SUBMISSIONS FOR THE RECORD African American Ministers in Action (AAMIA), Reverend Timothy McDonald III, Chairman, Reverend Dr. Robert P. Shine, Vice- Chair, and Minister Leslie Watson Malachi, Director, June 25, 2014, letter................................................... 200 Am Kolel Jewish Renewal Community of Greater Washington et al., June 25, 2014, letter.......................................... 268 Ameinu et al., June 25, 2014, letter............................. 274 American-Arab Anti-Discrimination Committee (ADC), Samer E. Khalaf, Esq., President, June 24, 2014, letter................. 223 American Association of Retired Persons (AARP), Nancy A. LeaMond, Executive Vice President, State and National Group, June 4, 2014, letter................................................... 170 American Bar Association (ABA), James R. Silkenat, President, June 25, 2014, letter.......................................... 204 American Civil Liberties Union (ACLU), Laura W. Murphy, Director, Washington Legislative Office, and Deborah J. Vagins, Senior Legislative Counsel, Washington Legislative Office, statement.. 206 American Constitution Society (ACS), William Yeomans, Nicholas Stephanopoulos, Gabriel J. Chin, Samuel Bagenstos, and Gilda R. Daniels, May 2014, issue brief................................. 350 American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), William Samuel, Director, Government Affairs Department, July 2, 2014, letter....................... 231 American Federation of State, County and Municipal Employees (AFSCME), Charles M. Loveless, Director of Federal Government Affairs, statement............................................. 232 American Federation of Teachers (AFT), Randi Weingarten, President, June 25, 2014, letter............................... 297 Anti-Defamation League (ADL), Deborah M. Lauter, Director, Civil Rights, statement.............................................. 224 B'nai B'rith International, Allan Jacobs, President, and Daniel S. Mariaschin, Executive Vice President, June 24, 2014, letter. 233 Bend the Arc: A Jewish Partnership for Justice, Stosh Cotler, Chief Executive Officer, statement............................. 323 Brennan Center for Justice, ``Shelby County: One Year Later,'' Tomas Lopez, report............................................ 234 Brennan Center for Justice at New York University School of Law, ``The State of Voting in 2014,'' Wendy Weiser and Erik Opsal, executive summary.............................................. 245 Campaign Legal Center, The, J. Gerald Hebert, Executive Director, June 25, 2014, letter.......................................... 252 Common Cause, Miles Rapoport, President, statement............... 263 Communications Workers of America (CWA), Shane Larson, Legislative Director, July 2, 2014, letter..................... 332 Jackson Lee, Hon. Sheila, a Representative in Congress from the State of Texas, statement...................................... 309 Japanese American Citizens League (JACL), Priscilla Ouchida, Executive Director, June 17, 2014, letter...................... 273 Johnson, Jr., Hon. Henry C. ``Hank,'' a Representative in Congress from the State of Georgia, July 17, 2014, letter...... 294 Leadership Conference on Civil and Human Rights, The, Wade Henderson, President and Chief Executive Officer, and Nancy Zirkin, Executive Vice President, June 23, 2014, letter........ 183 Mexican American Legal Defense and Educational Fund (MALDEF), Thomas A. Saenz, President and General Counsel, statement...... 276 National Action Network (NAN), Reverend Al Sharpton, President and Founder, Reverend W. Franklyn Richardson, Chairman of the Board, and Janaye Ingram, Acting National Executive Director, statement...................................................... 326 National Asian Pacific American Bar Association (NAPABA), William J. Simonitsch, President, statement............................ 280 National Association for the Advancement of Colored People (NAACP), Rev. Dr. William J. Barber II, President, North Carolina State Conference of NAACP Branches, statement........................ 172 National Association of Latino Elected and Appointed Officials (NALEO), Arturo Vargas, Executive Director, statement.......... 278 National Bar Association, Patricia Rosier, Esq., President, July 2, 2014, letter................................................ 282 National Congress of American Indians (NCAI), Jacqueline Pata, Executive Director, and Native American Rights Fund (NARF), John Echohawk, Executive Director, June 25, 2014, letter and statement...................................................... 283 National Council of Jewish Women, Cipra Nemeth, Vice President of Legislative and Community Engagement, and Maya Paley, Director of Legislative and Community Engagement, Los Angeles Section, California, statement.......................................... 302 National Council of Jewish Women, Karen Warner, Vice President of Advocacy, Greater Miami Section, Florida, statement............ 303 National Council of Jewish Women, Linda Geller-Schwartz, State Policy Co-Chair, Florida Vice President (Advocacy), Palm Beach Section, statement............................................. 304 National Council of Jewish Women, Arlene Davidson, State Policy Co-Chair, Florida Vice President Public Advocacy, Southeast Atlantic Sections, statement................................... 306 National Council of Jewish Women, Kitty K. Kaplan, Utah State Policy Advocate, statement..................................... 308 National Gay and Lesbian Task Force, Washington, DC, statement... 322 National Hispanic Leadership Agenda (NHLA), Hector E. Sanchez, Chair, and Executive Director, Labor Council for Latin American Advancement, June 24, 2014, letter............................. 199 National Urban League, New York, New York, statement............. 292 People For the American Way, Marge Baker, Executive Vice President for Policy and Program, and Jen Herrick, Senior Policy Analyst, June 25, 2014, letter.......................... 202 Project Vote, Estelle H. Rogers, Esq., Legislative Director, June 24, 2014, letter............................................... 334 Religious Action Center of Reform Judaism, Rabbi David Saperstein, Director and Counsel, June 25, 2014, letter........ 299 Service Employees International Union (SEIU), Mary Kay Henry, International President, June 24, 2014, letter................. 300 Sikh American Legal Defense Education Fund (SALDEF), Jasjit Singh, Executive Director, statement........................... 185 State of Georgia, Hon. Brian P. Kemp, Secretary of State, June 20, 2014, letter to Senator Leahy.............................. 271 State of Georgia, Hon. Brian P. Kemp, Secretary of State, June 20, 2014, letter to Senator Grassley........................... 336 State of Louisiana, Hon. Tom Schedler, Secretary of State, June 23, 2014, letter............................................... 338 United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), International Union, Dennis Williams, President, statement........................................... 325 ADDITIONAL SUBMISSIONS FOR THE RECORD Submissions for the record not printed due to voluminous nature, previously printed by an agency of the Federal Government, or other criteria determined by the Committee, list:.............. 372 Asian Americans Advancing Justice/AAJC, July 1, 2014, letter: http://mobile.advancingjustice-aajc.org/sites/aajc/files/ Advancing%20 Justice- AAJC%20Testimony%20for%206.25.14%20Senate%20Judiciary %20 Hearing%20on%20VRAA.pdf.................................... 372 Lawyers' Committee for Civil Rights Under Law, statement: http://vrafortoday.org/wp-content/uploads/2014/07/Lawyers- Com- mittee-VRAA-Senate-Judiciary-hearing.pdf.............. 372 Leadership Conference on Civil and Human Rights, The, report: http://www.civilrights.org/press/2014/Racial-Discrimination- in-Voting-Whitepaper.pdf................................... 372 Mexican American Legal Defense and Educational Fund (MALDEF), National Association of Latino Elected and Appointed Officials (NALEO), and National Hispanic Leadership Agenda (NHLA), ``Latinos and the VRA: A Modern Fix for Modern-Day Discrimination,'' report: http://www.maldef.org/assets/pdf/VRA_comp.pdf................ 372 THE VOTING RIGHTS AMENDMENT ACT, S. 1945: UPDATING THE VOTING RIGHTS ACT IN RESPONSE TO SHELBY COUNTY V. HOLDER ---------- WEDNESDAY, JUNE 25, 2014, United States Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 10:06 a.m., in Room SD-106, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Durbin, Whitehouse, Klobuchar, Franken, Coons, Blumenthal, Hirono, Grassley, Sessions, Cornyn, Lee, and Cruz. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Good morning, everybody. I appreciate all the people who are here today, Senator Grassley and all the other Senators who are here. It was just a year ago today that five Justices on the Supreme Court disregarded extensive findings of Congress and gutted the Voting Rights Act. I remember the feelings I had when these five people turned back everything that hundreds of Members of Congress of both parties, both bodies, had worked so hard to get through. But I know that during the oral argument, Justice Scalia foreshadowed the majority's view of the law when he asserted that Congress' support of the Voting Rights Act was based on the ``perpetuation of racial entitlement.'' I could not disagree more with Justice Scalia, and I would suggest that he live in the real world and see what is happening in voting rights throughout this country. There is no right more fundamental to our existence as American citizens than the right to vote. Every eligible American is entitled to vote. No voter should have their vote denied, abridged, or infringed. In the Shelby County decision, the Justices made clear that Congress could update the Voting Rights Act based on current conditions. And I do appreciate that because whether we agree or disagree with the Supreme Court decision, I and all the rest of us will follow the Supreme Court decision. So I worked with Congressman Sensenbrenner--one of the most respected Republicans in the House of Representatives--as well as Congressmen Conyers and Lewis--two other very respected Democrats in the House--to forge a bipartisan compromise to update and modernize the law. The bill was introduced 6 months ago on the eve of the weekend celebrating Dr. Martin Luther King's holiday. Now, at the time I was hopeful that Senate Republicans would join me in supporting this important bill, as they had joined in supporting the original Voting Rights Act. But despite repeated efforts, I am troubled to report that, as of this hearing, not a single Senate Republican has agreed to support the effort. But I thank my fellow Senate Democrats on this Committee who have all joined as cosponsors, and I hope that my fellow Republicans, especially those who supported the original Voting Rights Act, would join us. Unfortunately, the House Republican leadership has shown a similar lack of willingness to act on this critical bill. Not only have they refused to vote on or mark up the bill; they refuse even to hold a hearing. This is unfortunate because the Voting Rights Act has never been a partisan issue. I remember standing there with President George W. Bush when he signed it, the last update, and he and I and Republicans and Democrats, all of us say how happy we were that bill had gotten through. From its inception through several reauthorizations, it has always been a bipartisan effort. And it would be a travesty if the Voting Rights Act were to become partisan for the very first time in this Nation's history. The Voting Rights Amendment Act updates and strengthens the foundation of the original law to combat both current and future discrimination. It does so in a way that is based on current conditions. A year after the Shelby County decision, it is clear that voters need more protection from racial discrimination in voting. As we approach the national election, it is not hard to see the attempts to deny and infringe upon the right to vote are only increasing. Just last week, the Brennan Center for Justice released a report called ``The State of Voting in 2014.'' According to this report, since 2010--4 years ago--22 States have passed new voting restrictions that make it more difficult to vote. Of the 11 States with the highest African American turnout in 2008, 7 of those States have new restrictions in place. Of the 12 States with the largest Hispanic growth from 2000 to 2010, 9 of the 12 have passed laws to make it harder to vote. In addition, the Leadership Conference on Civil and Human Rights released a report last week entitled ``The Persistent Challenge of Voting Discrimination,'' which details nearly 150 voting rights violations just since 2000. And each of these cases impact thousands and sometimes tens of thousands of voters. And without objection, we will place these reports in the record. [The reports appear as submissions for the record.] Chairman Leahy. The statistics and evidence in these reports reaffirm Chief Justice Roberts's acknowledgment that ``voting discrimination still exists; no one doubts that.'' That is what the Chief Justice said: ``voting discrimination still exists; no one doubts that.'' Recognizing that, it is time for Congress to act. Next week marks the 50th anniversary of the signing of the Civil Rights Act. Just as Congress came together five decades ago to enact the Civil Rights Act--and I remember that as a young law student at Georgetown--Democrats and Republicans must work together now to renew and to strengthen the Voting Rights Act. So I hope all Republicans and all Democrats will work with us to enact the meaningful protections in the Voting Rights Amendment Act. [The prepared statement of Senator Leahy appears as a submission for the record.] Chairman Leahy. Senator Grassley. OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA Senator Grassley. Thank you, Mr. Chairman. Today our Committee, as you know, considers whether the Voting Rights Act needs to be amended. For almost 50 years, this Act has made effective the commands of the 14th and 15th Amendments to protect the right to vote. Its enactment, as the Chairman just said, and its support has always been bipartisan. Its reauthorization was bipartisan on multiple occasions. The current reauthorization of the law will continue in effect for another 17 years. I am pleased to have played a role several times in reauthorizing the Act. In 1982, I worked extensively with Senators Kennedy and Dole to make sure the law was extended. Last year, as has been stated, the Supreme Court ruled that the formula for preclearance under Section 5 was unconstitutional. It reminds us that, since 1965, circumstances have drastically changed, and, of course, for the better. No one should doubt that voting discrimination is far less widespread than in the 1960s. For that we have much to be grateful, and certainly the Voting Rights Act has contributed to that progress. Now, in that Supreme Court decision, the Shelby case, all it did was strike down a formula almost 50 years old that determined which States and which political subdivisions were required to ask the Justice Department for prior permission to make even the most minor changes in voting procedures. Over the years, Justice has denied a progressively smaller percentage of these requests. The Justice Department since Shelby County has continued to bring voting rights cases under Section 2 and Section 3 of the current law. It has prevailed in a number of those cases. The current Voting Rights Act is strongly enforced and is protecting the rights of all Americans to vote. As the New York Times reported last week, rulings on voter registration laws ``have ensured that challenges will remain a significant part of the voting landscape, perhaps for years.'' The bill before us contains problems that the witnesses will go into shortly. For instance, the bill seems to create only a fig leaf of protection for legitimate voter ID laws, which are supported by 70 percent or more of all Americans in every poll that I have seen. But, arguably, the bill creates a back-door mechanism that will be used to negate legitimate voter ID laws. There is little doubt that this bill goes well beyond addressing Shelby County and beyond the coverage formulas of the Voting Rights Act it is meant to replace. Given that supporters need to show a clear need for this legislation, especially given that the remainder of the Voting Rights Act still exists and is being successfully enforced, at this point, Mr. Chairman, I would like to ask that letters from various Secretaries of State be included in the record. Chairman Leahy. Without objection, they will be included. [The letters appear as submissions for the record.] Senator Grassley. And I would like to take a few moments to say that these letters note that the bill would impose significant and unnecessary costs on States and localities that have taken significant steps to eradicate voter discrimination. And I welcome today's witnesses. Now, two organizations present today--the NAACP and the Inc. Fund, as suggested by its name--are nonprofit corporations. Separate from this bill, the Judiciary Committee is now considering a proposed constitutional amendment that would allow Congress to restrict the political activities of corporations such as Inc. Fund and NAACP. We held a hearing on the amendment earlier this month. I expect the Committee to vote on it soon. An important case in the 1950s brought by the NAACP litigated by the Inc. Fund led the Supreme Court to recognize the First Amendment protection of freedom of association. When the Supreme Court in 1976 ruled that the First Amendment prohibits limits on campaign and independent expenditures, it expressly relied on that NAACP case. The constitutional amendment before the Committee would reverse the 1976 case and allow Congress to infringe on the ability of nonprofit corporations such as the NAACP to amplify the voices of their members in the political process. These two proposals are said to be about giving voters the ability to elect candidates of their choice. But one would censor corporations and the others from presenting differing views to those voters to help them determine what their choice actually is. Both of these reflect degrees of elitism. Proponents of these two measures do not trust voters to sift through the varying opinions and electoral claims giving weight to what makes sense and disregarding what does not. And they do not trust the elected officials the voters chose to make decisions without spending taxpayer money to ask Justice Department bureaucrats in Washington for advance approval. This is the case even when the courts are available to remedy discrimination. Now, I happen to trust voters. I do not trust the Attorney General to properly exercise the expanded powers this bill would give him. This Attorney General has repeatedly enforced the law as he wishes it were written, not as we wrote it. That applies to drugs, immigration, health care, even the Recess Appointments Clause of the Constitution. He has treated the exercise of important congressional oversight powers with disdain. That is why the House is currently in litigation to hold him in contempt. Inevitably, that record of lawlessness will be a factor in consideration of this bill. I am interested in exploring with our panel today how the bill would operate and the status of voting rights in America. Thank you, Mr. Chairman. Chairman Leahy. Well, thank you very much. Our first witness is Senator Sylvia Garcia, who serves in the Texas State Senate, where she represents the 6th District. Is that correct? Ms. Garcia. That is correct, Mr. Chairman. Chairman Leahy. Senator Garcia, please go ahead. STATEMENT OF HON. SYLVIA GARCIA, STATE SENATOR, TEXAS STATE SENATE, DISTRICT 6, HOUSTON, TEXAS Ms. Garcia. Good morning. Thank you for the opportunity to speak today on the critical importance of modernizing Federal voting rights protections. My name is Sylvia Garcia, and I am a State senator in Texas, and also vice chair of our Senate Hispanic Caucus. My district is 70 percent Hispanic and about 12 percent African American. In Texas, Latinos account for 65 percent of statewide population expansion, and minorities overall accounted for 89 percent of Texas growth in the past decade. Texas, and our Nation as a whole, is growing increasingly diverse. Unfortunately, everyone is not embracing this change. As Congress considers legislation that would modernize VRA protections, both Houses must acknowledge and address the fact that discrimination in voting has deep roots and continues today. I will discuss three examples; others can be found in my written testimony. First, in my own district, in Pasadena, the voting-eligible Latino population has dramatically grown in recent years, making up one-third of its potential electorate and just over half of its adult population. Not surprisingly, Latinos have been elected to fill two of the eight single-member seats on its city council. The mayor recognized that Latino candidates of choice were on the cusp of becoming an effective majority of the council, and to dilute Latino political power, he ramrodded a hybrid plan, reducing from eight to six the single-member districts and adding two at-large districts. The proposal had been discussed before, but never implemented. Despite strong opposition from residents in public hearings and a citizens committee, the mayor pursued the change. In debate, he said, and I quote: ``The Justice Department can no longer tell us what to do.'' He also argued, without factual validation, that Latino candidates were not elected to municipal positions because 75 percent of Latinos in Pasadena were ``illegal aliens.'' Given racially polarizing voting in Pasadena, it is unlikely that the Latino community's choice would win a race for an at-large seat. Considering the effect, timing, and racial element of the change, this is a classic case for the need for preclearance. Absent a full functioning VRA, this suspect change will proceed to next year's election. Second, in August 2013, Galveston County seized upon the Shelby County decision to move a controversial change to reduce the number of justices of the peace in constable districts from eight to four. This effectively reduced the districts containing African American and Latino voter majorities. Moreover, no public hearings were held. Residents allege that the county went ahead with the change with full knowledge of discriminatory effects. At the State level, within the hour of the Shelby County decision, our State moved quickly to implement changes which previously were found by a Federal court to be discriminatory. Our Texas Attorney General celebrated by tweeting, ``Texas voter ID laws should go into effect immediately because SCOTUS struck down Section 4 of VRA today.'' Last, following the 2000 census, the Texas Legislature failed to agree on congressional maps and ultimately court- created maps were implemented. In 2004, the legislature enacted mid-decade redistricting plans. In striking down the congressional map, Justice Kennedy observed, ``The State took away the Latinos' opportunity because Latinos were about to exercise it. This bears the mark of intentional discrimination.'' The Court required changes to be made to the State's new maps in order to eliminate the discriminatory impact on Latino voters. The VRA provisions that remain in effect today are simply not enough. Local and State officials continue to adopt laws and impose challenges for minority voters and reduce the value of their votes. Texas continues to outpace every other State in enacting discriminatory policies and must be subject to the strongest protections we can devise. Between 1982 and 2005, Texas earned 107 Section 5 objections, second only to Mississippi. Without a modernized, full functioning VRA, we are left with only protracted and expensive litigation as the only method of attacking against discriminatory voting changes, which is more costly than the preclearance process. I conclude with the words of President Johnson on his 1965 VRA address: ``Our duty must be clear to us. The Constitution says that no person shall be kept from voting because of his race or his color. We have all sworn an oath before God to support and defend that Constitution. We must now act in obedience to that oath.'' Thank you. [The prepared statement of Hon. Sylvia R. Garcia appears as a submission for the record.] Chairman Leahy. Well, thank you very much, Senator Garcia. Our next witness is Michael Carvin, well known to this Committee. He is a partner at Jones Day. STATEMENT OF MICHAEL A. CARVIN, PARTNER, JONES DAY, WASHINGTON, DC Mr. Carvin. Thank you, Mr. Chairman, for the opportunity to comment on proposed legislation to revive Section 5 in the wake of Shelby County. I think the basic problem with any effort to revive Section 5 in 2014 is that there is just no need for it given the fact that Section 2 of the Voting Rights Act is a very effective remedy for any form of unconstitutional discrimination. More specifically, the formula in S. 1945 is not designed to identify those rare jurisdictions where Section 2 would for some reason be inadequate because it is not even attempting to get at people who effectively resist constitutional norms. So I think it exceeds Congress' power to enforce under the 14th and 15th Amendments. To take a step back and put this in perspective, ever since Katzenbach, the Supreme Court and common sense tells you that Section 5 is an extraordinary, unprecedented burden unknown previously to American law. And like all such burdens, particularly on sovereign states, it needs to be justified, particularly since it is selectively imposed on some States and not on others. And the justification needs to be that this extraordinary burden is needed to enforce the 14th and 15th Amendments' prohibition against intentional discrimination. And the old justification, which resonated in the 1960s and 1970s, was that Section 2's case-by-case approach, particularly when Section 2 only prohibited purposeful discrimination, was inadequate to get at the intransigent Southern jurisdictions. So we needed those extraordinary Section 5 burdens. But I do not think that justification holds true anymore in 2014, and I think the important point for this Committee to recognize is that the question is not whether or not voting discrimination continues to exist. It clearly does. The question is whether or not Section 2 is an effective tool to remedy that discrimination or whether it needs to be supplemented with Section 5. If somebody proposed to the Senate tomorrow we want every public employer to preclear with the Justice Department all employment or civil service requirements, you would ask yourself: Why do we need this extraordinary remedy? Isn't Title VII's effects test enough? You would not ask yourself: Does public employment discrimination exist? And that, again, is the question that is confronting this Committee. Now, ever since Section 5 has been challenged, the civil rights groups have reversed their historical view, which was that Section 2 is an extraordinarily effective voting rights remedy that had done much to eliminate at-large election systems and all the other kinds of second-generation voting discrimination in the South and throughout the entire country. But now they have changed their tune and say Section 2 is somehow inadequate. But I would just like to make two basic points on that. One is this Congress, the one that is proposing S. 1945, thinks that Section 2 is a perfectly adequate remedy in the vast majority of the United States. As I understand it, only four States would be covered by this coverage formula, which means that this Congress has made a quite correct determination that in 46 States Section 2 is more than adequate to remedy voting discrimination. So it needs to answer the question: Why are the four selected States so different, so much more intransigently racist than the other 46 that we need this extraordinary Section 5 remedy? The other point I would make is that Section 2 has all of the attributes of every civil rights law we have got in employment, housing, and education; it is no different. So if Section 2 is inadequate to remedy discrimination in voting, that means Title VII, Title VI, and Title VIII are inadequate to remedy discrimination in the areas they cover. In terms of the formula, the key point to understand is it does not look at people who have violated the Constitution. It looks at people who have violated Section 2. Well, I do not think it is logical to say that Section 2 is an inadequate remedy in circumstances where Section 2 lawsuits have already been successful. I do not think it is logical to say that these jurisdictions have engaged in unconstitutional discrimination based on the fact that they have violated the results test under Section 2 or the effects test under Section 5, meaning this formula does not even try and look at jurisdictions that have violated the Constitution. A State and political subdivision could be swept under Section 5 even if it is stipulated that they have never violated the Constitution. I think the judicial preclearance provision is even more unconstitutional because it only requires one violation of any Federal voting rights law. And my final point is Section 5 is not a guarantee against racial discrimination or against racial gerrymanders. Particularly in the arms of this Justice Department, it has become a very powerful vehicle for racial preferences and racial gerrymanders, and been used to even invalidate things that make it more difficult to elect white Democrats, such as in the Texas redistricting case. With that, I thank you. [The prepared statement of Michael A. Carvin appears as a submission for the record.] Chairman Leahy. Thank you very much. Our next witness is Dr. Francys Johnson. He is the State president of the Georgia NAACP. Reverend Johnson, go ahead, please. STATEMENT OF REV. DR. FRANCYS JOHNSON, STATE PRESIDENT, GEORGIA NAACP, STATESBORO, GEORGIA Reverend Johnson. Good morning. My name is Francys Johnson. I am president of the Georgia NAACP. Thank you, Senators Leahy and Grassley and Members of this Committee for holding this hearing and for your efforts to ensure the right to vote, the cornerstone of our democracy, is protected. Fifty-one years ago, another Georgia preacher, much more articulate, came to this United States capital, in the shadow of Lincoln's Memorial, and shared that our Nation's suffering could be redemptive. He said, ``We have come to this Nation's capital to cash a check, a demand for payment on a promissory note that had been signed in the blood and the fortune and sacred honor of our Founding Fathers.'' It promised in principle that all men were created equal, would have an inalienable right to life, liberty, and the pursuit of happiness. Of course, it would take a Civil War and a Reconstruction under extraordinary Federal protection, a civil rights movement, and a Second Reconstruction to certainly make that principle practice. In 1982, when President Ronald Reagan signed the reauthorization of the Voting Rights Act, he said, ``actions speak louder than words. The Voting Rights Act proves our unbending commitment to voting rights.'' President Reagan also said that ``the right to vote is the crown jewel of American liberties, and we will not see its luster diminished.'' While I am here on behalf of the NAACP, I am also here on behalf of my three sons--Thurgood, Langston, and Frederick Douglas--to ensure that their right to vote is protected regardless of their gender, the language they speak, or the color of their skin. The history of voting rights in Georgia can best be characterized as promises made, promises broken, promises remade, promises broken, promises made, and now promises only partially realized. I have come to this August Committee with a view from rural communities like Sylvania, Statesboro, and Sylvester and cities like Augusta, Albany, and Atlanta. And it is clear to me I am the great beneficiary of the progress that we have made, the great strides we have made as a country. But there is still much to be done. In my written testimony, I have described a history of voting discrimination in Georgia and the positive impact the Voting Rights Act of 1965 has had. I have outlined promises made and promises broken. For the sake of time, I will not go into that here. I would rather refer you to my written submissions. We all know 1 year ago today the United States issued the decision in Shelby v. Holder. In Georgia, the Shelby decision makes it much more harder for the NAACP to prevent eligible voters from being disenfranchised. And it makes it very difficult to win our battles against discrimination. Prior to the Shelby decision, Section 5 prevented blatant discriminatory attempts to alter time, place, and manner of elections. One example would be that of the Board of Registrars in rural Randolph County, Georgia, which tried to reassign an Education Chair's who happened to be African American from his voter registration district which was 70 percent African American to a voting district that was 70 percent white. In a unanimous vote, the all-white members of that Board of Registrars voted for that district change. They voted to run that African American out of office, and there are literally hundreds of examples just like this. Post-Shelby, in Athens, Georgia, home to the University of Georgia, the city considered eliminating half of its polling places, replacing them with only two early voting centers, both of which have been located in police stations. Let this Committee know that the police in Georgia for many, many Georgians, even of my generation, do not represent an effort to protect and serve. They represent an effort to intimidate. The argument was that it would save money. Another money-saving proposal we saw was to shorten early voting days from 21 to 6 days. The argument was that we would save $3,400 on average per city. Given the fact we spent $45,000 a week keeping soldiers abroad to fight for democracy, I think $3,400 is a small investment to pay. African Americans are 26 times more likely to vote in early voting, and I think those who proposed that bill knew it. The Supreme Court gutted the preclearance formula. It did so in areas that have a history of racial discrimination, and it gave them the freedom to go back to disenfranchising voters. Senator Leahy, race still matters in America, and it certainly matters in Georgia. And to that point, Chief Justice Roberts and other witnesses will concede ``voting discrimination continues to exist; no one doubts that.'' As a Nation, we have been here before. Our Nation is replete with a track record on race that is two steps forward and one step back. Today we are here to test the metes and bounds of our Nation's commitment to expand the ``we'' in ``we the people.'' Thus, I respectfully urge and request that you do all you can to strengthen and modernize the 1965 Voting Rights Act. We need a robust VRA to tackle head on the numerous attempts silence us in a democratic system. It requires all voices to participate in the search for the common good. America must keep her promises regarding the right to vote. It is the cornerstone of our democracy. We should be reminded that the world is watching, and I welcome your questions. [The prepared statement of Rev. Dr. Francys Johnson appears as a submission for the record.] Chairman Leahy. Thank you very much, Dr. Johnson. And our next witness is Dr. Abigail Thernstrom. She is an adjunct scholar at the American Enterprise Institute. Please go ahead. STATEMENT OF ABIGAIL THERNSTROM, PH.D., ADJUNCT SCHOLAR, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, DC Ms. Thernstrom. Thank you. Thank you, Mr. Chairman and Members of the Committee, for the opportunity to testify today. The decision in Shelby County was absolutely right, in my view; The Act had become a period piece. Moreover, the statute today needs no updating. Its permanent provisions provide ample protection against electoral discrimination. I develop these points at length in my written testimony, and Mike Carvin has already made this point powerfully. But given my very limited time, I decided to concentrate on one point that I suspect other critics of the bill will not make. My focus is on the section that discusses ``persistent, extremely low minority turnout'' as an element in the new formula for Section 4 establishing Section 5 coverage. It is hard to believe that anyone familiar with basic demography ever reviewed this section. It assumes simplistically that if minority participation is low, it must be the fault of the local jurisdiction, its political process must be discriminatory. This simplistic assumption flies in the face of an abundance of social science knowledge about voting behavior. For instance, racial and ethnic groups differ in their average age. Older people are far more likely to vote than young ones. Since the Hispanic population today tends to be disproportionately young, the group will have lower turnout rates than non-Hispanics. The bill assumes the lower turnout rates are evidence of public officials doing something to suppress the minority vote. The point, frankly, is absurd. We see these same disparities when we control for education. The highly educated vote more, and both blacks and Latinos have less schooling on the average than non-Hispanic whites. Two other closely related drivers of voting behavior are family income and homeownership. Residential turnover is also pertinent. Newcomers to a community are much less likely to turn out at the polls than long-settled residents. In sum, forces far beyond the control of any local jurisdiction result in glaring disparities in rates of electoral participation. The framers of the bill's entire low minority turnout section seem to have been oblivious to what every social scientist knows. The amended statute would extend Federal control over a great many jurisdictions that have made every possible effort to provide equal opportunity to elect candidates of their choice to all of the citizens. This section in the proposed legislation also casually disregards the problem of how the evidence about turnout at the local level is to be gathered. The bill blithely states that ``in each odd-numbered calendar year'' the Attorney General will provide the required ``figures . . . using scientifically accepted statistical methodologies.'' But the only official figures on current turnout rates are those derived from the American Community Survey, and those rates are available only for whole States. We have no information about group differences in voter turnout in the vast majority of local jurisdictions. For the Nation's smaller political subdivisions, accurate numbers would require a complete and very expensive canvass of the population. There are no ``scientifically accepted statistical methodologies'' to obviate the need for such a canvass. Now, all jurisdictions could be required to include a question about race and ethnicity as part of the voter registration process. Voter lists would then be color-coded, just as they were in the days of Jim Crow. But that would provide no information about eligible voters who did not register. It is stunning that the drafters of this bill had little interest in the abundant literature on demography and voter turnout and gave little thought to the problem of assembling the data that would be demanded by the amended statute. A final note. Placing each registrant in a racial box will be offensive to many who consider election day to be a civic ritual celebrating the fact that we are one people. If it is so vital to have information color-coded, why don't we go all the way and list the race of each candidate on the ballot, which would make the gathering of information pertinent to much voting rights litigation easier. Thank you very much. [The prepared statement of Abigail Thernstrom appears as a submission for the record.] Chairman Leahy. Thank you very much. And our next witness is Sherrilyn Ifill. She is the president and director-counsel of the NAACP Legal Defense and Educational Fund. Welcome, and please give us your testimony. STATEMENT OF SHERRILYN IFILL, PRESIDENT AND DIRECTOR-COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., WASHINGTON, DC Ms. Ifill. Thank you, Chairman Leahy and Members of the Committee. Thank you for the opportunity to testify today and for holding this important hearing. You are being asked by some, including two of today's witnesses, to turn a blind eye to the urgent need to amend the Voting Rights Act. Professor Thernstrom contends that voting discrimination is a thing of the past. Mr. Carvin concedes that racial discrimination in voting has not ended, but says that other provisions of the Act are sufficient. So the questions you face are: Do we need an amendment to the Act? And if so, what should it contain? Mr. Johnson and Senator Garcia have already responded to the first question, and my written testimony outlines scores of discriminatory voting changes, both immediately before and after the Shelby decision. I would note that because we no longer have the notice provisions of Section 5, the post-Shelby changes that we identify are only those we have been able to learn about. You likely have not heard about many of these developments. Certainly you have heard about redistricting, about voter ID, about efforts to restrict early voting at the statewide level. But political power, authority over the lives of minority voters and communities all over this country, is exercised most powerfully at the local level, at the town council, the school board, the county commission, the water district. And this is where the greatest mischief has occurred and where preclearance makes all the difference. You have heard about Galveston County where the seats held by African Americans and Latinos for justice of the peace and constable districts were eliminated. You have heard about polling place closures in the city of Athens, Georgia. You may not have heard about the fact that in Morgan County, Georgia, a third of the polling places were closed, or that Baker County considered closing four of its five polling places, requiring voters to travel up to 25 miles to vote. The Jacksonville, Florida, Board of Elections closed and relocated a polling place that served large numbers of African Americans. In fact, in 2012, more than 90 percent of those who voted early at that precinct were African American, and the new polling place is not accessible by public transportation. These are just a few examples from a long list of discriminatory voting changes demonstrating the urgent need to close the hole in the safety net caused by the Shelby decision. Now to turn to what we need. It is worth remind us that the Voting Rights Act emanates from the authority given solely to this Congress by the Framers of the 14th and 15th Amendments to protect against discrimination in voting. As Congress recognized when it first enacted and on four occasions reauthorized the Act, neither Section 2 nor Section 3 are sufficient to fulfill that obligation. First, voters need notice. This allows voters to learn in a timely fashion about electoral changes that may be discriminatory. Section 4 of this proposed bill provides notice, transparency, and information for all voters. Second, voters need a way to stop discrimination before it happens. Litigation after a polling place has been eliminated and scores of voters are left without a place to vote can only ever partially remedy the harm. You can put a worker back in a job. You can put a tenant back in an apartment. But you cannot place a candidate into office even after voter discrimination has been proven. Section 3 and Section 6 address this reality. And litigation is costly to both the parties and the courts. In fact, this Congress made the judgment in the Voting Rights Act to protect minority voting in a way that does not always require litigation, just as Congress did in passing other civil rights laws such as Title VII and the Fair Housing Act. Third, the burden of proving that a proposed voting change does not discriminate should be returned to jurisdictions rather than placed on the voter. Preclearance does that. The current provisions of Sections 2 and 3 do not. We take no pleasure in what has unfolded since the Shelby County decision. The Legal Defense Fund, like many others, is prepared to fight on behalf of voters facing these challenges. But even we cannot keep up with the pace of voting changes taking place. This means that voters are left on their own to protect their most sacred right as citizens. More importantly, we reject the notion that the right to vote should be premised on a voter's ability to find a lawyer and file a lawsuit. This is America, and we can and must do better. Our clients, the plaintiffs in the Shelby County, Alabama case, are here in this room today precisely because of their strong and unwavering belief in the democratic principles of this country. This bill is a measured effort to address voting discrimination based on current data and reflects current needs as the Court in Shelby advised. And I urge this Committee and Congress to promptly pass this voting rights amendment. Thank you. [The prepared statement of Sherrilyn Ifill appears as a submission for the record.] Chairman Leahy. Well, thank you very much. I find this testimony interesting, especially coming from a State that works very hard at making early voting available, making voting accessible and easy for everybody in all sections of our State. The idea of closing voting booths and moving them 25 miles is something that I just--well, we would not understand it in our State. Perhaps it is understandable in others. Reverend Johnson, in Shelby County, the Supreme Court elevated the novel concept of equal sovereignty of the States over the rights of American to vote free from racial discrimination. Do you believe that that principle of equal sovereignty trumps the principle that every American is entitled to exercise their right to vote free from racial discrimination? Reverend Johnson. I believe that the right to vote in this country is the cornerstone of our democracy. It is the well from which we search for the common good, that we sort in the public marketplace for that which we want for our communities. And I believe that we have litigated this through war and through Reconstruction and through a civil rights movement, and we are engaged in rethinking about this now. And there is serious, compelling interest for continued Federal protection through the Voting Rights Act and through the extraordinary remedies it provides as well as the prophylactic measures that prevent discriminatory impacts from taking place in the first place. Chairman Leahy. How do you respond to those who say it is unfair to the State of Georgia for its voting changes to be subject to greater Federal scrutiny? Reverend Johnson. Well, I respond like this: Between 2000 and 2013, there were 148 Section 5 objections, violations that were recorded not just in Georgia and Texas but in 29 States. But Georgia and Texas lead the pack with the worst record. I want to be clear that this is a problem not with just racism and sexism and xenophobism and all the other ``isms.'' They are constructed legally. They are socially maintained. There are economic benefits, and it is politically expedient. But this is not a Southern problem. This is not a Southern problem. Now, Vermont and Iowa certainly did not have any violations during that period. But this is a problem of power. Racism is not about hate. That is a byproduct of it. Racism is about power, who gets what, when, where and how. And in many of these places, like Randolph County, Georgia, Section 2 would have been ineffective. We would have never known about that change. It was in a closed-door meeting, and it was a unanimous vote of that Board of Elections, and Section 2 would have done nothing about that at all. Chairman Leahy. Let me go to Senator Garcia for a moment. In LULAC v. Perry, Justice Kennedy described the Texas Legislature's treatment of Latino voters in the post-2000 census redistricting by observing, and I am quoting Justice Kennedy now: ``The State took away the Latinos' electoral opportunity because Latinos were about to exercise it. This bears the mark of intentional discrimination that could give rise to an equal protection violation.'' Now, is that kind of voting discrimination which the Supreme Court condemned as recently as 2006 still prevalent in your State of Texas? And if so, do we need the Voting Rights Act Amendment to protect against it? Ms. Garcia. Mr. Chairman, as I said in my remarks, I mean, the classic case is the Galveston--I mean the city of Pasadena case. This is a case where the mayor appointed the committee. The committee said no to a charter change. The public hearings said no. But he proceeded, and he proceeded simply because he saw that four of the districts had majority Latino populations. He has seen that two veterans, Latinos, come home and decide that they wanted to fully engage in the political process, run for office, and get elected. This was historic for this city. When he saw the political power was changing, he then wanted to make the change and develop the hybrid system that he ramrodded and changed two districts--two elections by district to two at- large. This is exactly the classic case that Justice Kennedy is talking about. When the official sees that the power is coming, they want to do something to stop it. Chairman Leahy. Thank you. Ms. Garcia. And you cannot stop that later. You need to do it before, so that the harm cannot occur. Chairman Leahy. That was going to be my next question. Thank you. Ms. Ifill, can you tell me whether Section 2 is an adequate remedy for contemporary voting discrimination? Ms. Ifill. Section 2 is one piece of the safety net that was created by the Voting Rights Act. It is not in and of itself sufficient any more than Section 5 alone was sufficient, any more than the ability to appoint election observers is sufficient. All of the pieces work together to provide a safety net. In many ways, the perfect example is the Galveston case that Senator Garcia just talked about. In fact, it was me 20 or so years ago that litigated the Section 2 case that created the district that for the first time allowed African Americans and Latinos to serve as justices of the peace and constables in Galveston County. And as a result of that case, we had people in office for the first time from those communities. But now, since the Shelby case, Galveston County has decided to eliminate those very seats that we litigated and won under Section 2 20 years ago. So this to me is the perfect example of why Section 2 is not sufficient. Chairman Leahy. Thank you. My time has expired. I would yield to Senator Sessions. Senator Sessions. Thank you, Mr. Chairman. This is an important hearing. The right to vote, as you say, Dr. Johnson, is the cornerstone of the Republic. Every citizen is entitled to vote and should be entitled to vote if they meet the basic qualifications of the franchise. I grew up in an area in the State of Alabama where there was systematic discrimination. I remember as a teenager a march occurred in my small town, and the signs were held by young children that said, ``Let our fathers and mothers vote.'' I still remember that very vividly. Richard Valeriani, CBS News, was there. I remember seeing him on that occasion. And it is the kind of thing that we all feel badly about, and that is why the Voting Rights Act was passed. It had universal provisions. It had extraordinary provisions. The extraordinary provision was that there would be a law that required that before any change whatsoever could occur in any voting procedure, it had to be preapproved, precleared by the U.S. Department of Justice. And that was based on the fact of the established proof of the systematic discrimination at that time. It was always perceived to be an extraordinary remedy that would not be continued indefinitely, and the goal and the hope was it would reach a state where that would not continue and that provision would not have to be utilized. I voted for the Voting Rights Act extension 8 years ago in this Congress, but I knew then that Section 5 was problematic, and it was difficult for me to--I wrestled with that because I felt that the South had made extraordinary progress. The Secretary of State in Georgia wrote a letter, just said, ``The Voting Rights Act is still intact, and it is my duty to enforce it. I have full faith that the State of Georgia will continue to abide by it. The proposed legislation ignores the tremendous progress that Georgia and the rest of the Nation has made in the past 50 years and seeks to reinstate an outdated and obsolete formula.'' And this is basically what the Supreme Court held. Now, will there arise disputes that impact in some way the right of an individual, particularly minority individual, to vote? Yes, there will. Some of these are deliberate, and others may be inadvertent. But, regardless, it has that impact. Now, Mr. Carvin, you have studied this. You have heard Senator Garcia explain a case or two. We have heard, I believe, Mr. Johnson talk about a school board situation where a district was altered to eliminate the possibility of an African American being elected. Do we need the extraordinary remedy of Section 5? Or could those circumstances be handled effectively under Section 2 as the normal law of America would intend and has done normally throughout the history of the Republic? Mr. Carvin. Yes, thank you, Senator. I actually think---- Senator Sessions. Is your speakerphone on there? Mr. Carvin. I think the examples that have been offered up actually confirm the effectiveness of Section 2. We were told about a situation in Pasadena involving at-large elections. If anyone remembers the 1982 debates about amending Section 2, the principal purpose was to eliminate these at-large sections throughout the South, and it was incredibly effective in doing so. Section 5, on the other hand, had basically nothing to do with eliminating these at-large systems for two reasons. One is Section 5 only gets at changes. So if you had an at- large system, you were not going to change. You needed something to attack, and that was Section 2, and also a complicated issue involving retrogression. The other example that has been offered up is Galveston, involving justices of the peace, but as Ms. Ifill pointed out, the reason we have a justice of the peace has nothing to do with Section 5. It is her Section 2 lawsuit. And nobody can tell me that a lawsuit that was perfectly viable when it was brought is no longer for some reason viable in 2014. So, yes, that is the basic point. Section 2 works. It addresses all of these problems we have heard about. No one has seen any diminution in minority turnout or participation in the wake of various challenges to Section 5. And the final point I will make, with no insult to your native State, when we were in Shelby County, Alabama was held up as the worst example, and obviously it has a very unfortunate history in terms of race relations, but Alabama would not be covered under the formula proposed by S. 1945. So what they need to explain to the four States that are covered is that they are so materially different from States like Alabama with their unfortunate history that, while Alabama can be trusted to be regulated under Section 2 alone, for some reason these four States cannot be. Chairman Leahy. Thank you---- Senator Sessions. Well, Mr. Chairman, just to say Alabama has more--at least a few years ago, more African American elected officials than any other State in America. And we have made tremendous progress. We will not accept racial discrimination and voting discrimination in our State, and the Federal Government is also there and prepared to step in. Chairman Leahy. You actually have more African American elected officials in your State than we do in the State of Vermont, but there may be different reasons. [Laughter.] Chairman Leahy. We are going to try to stay on--sorry. We are going to try to stay on time, and I am going to yield now to Senator Klobuchar, and she will take the gavel at this point. Senator Klobuchar [presiding]. Thank you very much. Thank you, all of you, for being here for this important decision. I am troubled by the Supreme Court's Shelby County decision. As many of our witnesses testified today, there are, sadly, too many instances where voters face intentional discrimination at the ballot box. Part of this is I come from a State where we pride ourselves in one of the highest voter turnouts in every single election with our same-day registration. We also are very proud of the fact that we have some of the biggest refugee populations for Somali and Hmong immigrants who have come to our State and have been able to get involved in the political process very easily and are now serving in the city councils and at the State legislature. So I have seen how this can work, and I have seen what happens when people are encouraged to vote and how this is good for a political system. My questions, of course, are focused on how we can get the data that we need to update this law, and I think one of the most important reasons that we need to update the Voting Rights Act for the 21st century is that Section 2 truly cannot do all of the work. You can still try to prove voting discrimination in court, but that often happens, as has been pointed out, after the fact. After an election is already over, that does not do any good for the people who have already been unfairly denied the right to vote. Ms. Ifill, I guess I would start with you. Why do you think it is important that we update our standards for preclearance of changes that impact voting rights? And what are the benefits of updating both Section 3 and Section 4? Ms. Ifill. Well, the Supreme Court in the Shelby case made very clear that it expected this Congress to rely on current data and to respond to current needs. And what this bill does is precisely that. In fact, I would take issue with the contention that there are certain States that are covered or not covered. This bill is not a geographic bill. It does not cover any one State. It sets out a provision that says that in a 15-year period a State or a jurisdiction will be covered if they have a certain number of violations. Senator Klobuchar. Right. And it is five, right? Ms. Ifill. Five in a State and---- Senator Klobuchar. And I think for anyone watching this at home on C-SPAN, it is an opportunity to explain this. It does not---- Ms. Ifill. Yes, so it is five violations over a 15-year period for a State. Senator Klobuchar. And for a city? Ms. Ifill. And for a local jurisdiction, three violations. And so essentially it is a rolling formula which continues over time and continues to update itself. So a jurisdiction is not covered unless, in fact, they have those violations over the prior 15-year period. And what that means is that it is not geographically set in stone. A jurisdiction is only covered if they have violated the Voting Rights Act, violated the Constitution in some way. And so this updated formula actually is nationwide. It is not targeted at the South or at any particular jurisdiction. But, of course, we cannot wipe clean the reality of what a jurisdiction has done over the past 15 years. And so there may be States that fall into the formula as currently stated, but that is different than saying that the bill is targeted at particular States or jurisdictions. Senator Klobuchar. All right. Ms. Ifill. Now, Section 2 is insufficient simply because Section 2, as you said, requires you to litigate over the course of years, the election goes forward. That is very different from a formula that before the discrimination happens, stops the discrimination from happening, requires that close look, and requires preclearance from the Federal authority. Senator Klobuchar. Exactly. And why don't we talk maybe with you, Ms. Garcia. Thank you for being here. I am really concerned that a number of States have moved to restrict access to voting since the Shelby case. In some of the cases like in Texas and Florida, officials have tried to move forward with changes that courts actually previously found to be discriminatory. It seems to me that trying to enact changes that courts have found to be discriminatory clearly goes against the spirit of our democracy. We should be protecting people's rights and making it easier to vote. Why do you think these changes have been put in place in Texas? Ms. Garcia. Well, I think that the Attorney General acted very quickly, as I said in my opening remarks. I think, quite frankly, it is--you know, congratulations. I mean, you may be number one in voter participation, but Texas, regrettably, is 42nd in voter registration and 51st in voter turnout. So I would submit that part of the problem is because of some of the barriers and some of the impediments that we do have. And I think that is why we need this modernization of the Voting Rights Act to make sure that we can truly address today's challenges. Senator Klobuchar. All right. And why are people doing this? Do you think they just think it is to their election advantage if they do not let everyone vote? I am trying to understand it. Ms. Garcia. Well, I think, you know, the examples that I have given, it is really just a shifting of the demographics, a shifting of the power, and it goes back to what one of the other witnesses said. It is really about power. And when you have a mayor that can see that two Latinos have been elected and maybe the next time it will be four and there will be a majority, then they want to make the change. So I think it is about the balance of power, and it is about not embracing the demographic changes, not only in the State of Texas, but in the country as a whole. Senator Klobuchar. Thank you very much. I believe Senator Grassley is going next. Senator Grassley. Thank you, Senator Klobuchar. I am going to ask my first question of Mr. Carvin. We have heard testimony that ``Section 2 litigation occurs only after the fact when the beneficiaries of an illegal voting scheme have been elected with the advantages of incumbency.'' We have also heard that Section 5 preclearance is more efficient and less burdensome than Section 2 litigation and that Section 2 does not capture discrimination that is not identified and blocked by Section 5. So to you, are these statements accurate? Mr. Carvin. No, Senator, they are not at all. The notion that Section 2 cannot deal with problems prior to an election is just a complete myth. The NAACP and a number of groups have been involved in multiple litigation where you have tried to either stop a redistricting plan or a voting change prior to the election. I think Texas, Senator Garcia's native State, might be the best example. There, the Section 2 court actually entered a remedy and resolved the redistricting issue 8 months before the Section 5 court in D.C. even got around to it. So that is just one example of where Section 5 is actually lagging well behind Section 2. But, no, you do exactly the same thing under Section 2 that you do under Section 5. You say, ``Will moving the polling place make it more difficult to be accessed by minority voters? Will the redistricting plan dilute minority votes?'' It is all based on prospective statistical projections, and no one can produce examples of where courts have just sat around and said, ``Okay, let us let two or three elections go before we act on this.'' There is not a redistricting dispute in this country that was not resolved, if timely brought, prior to the upcoming elections. Senator Grassley. Another question for you. It has been reported that the bill would not affect State requirements that voters produce voter ID in order to vote. Is this a correct reading of the bill? Mr. Carvin. Oh, no. That is entirely incorrect. I mean, obviously one of the principal motivations for bringing people back underneath the Section 5 regime is to have the Justice Department, as we have heard today, preclear these things. Attorney General Holder has made it clear that he equates voter ID requirements with discriminatory poll taxes, and the Justice Department has taken the firm position that any kind of ballot integrity effort along those lines is somehow violative of the law. So, no, bringing people back into the Section 5 regime will make voter ID very much on the table, and the Justice Department will vigorously oppose it. Also, of course, Section 2 will be available to the Justice Department and private litigants who are currently litigating voter ID cases throughout the country from North Carolina to Washington. And Section 5 is particularly difficult for submitting jurisdictions just because of the time that is involved. They either have to go to the Attorney General, who is unalterably opposed to voter ID, or they have to go to court. I believe the State of South Carolina spent $3 million to have their voter ID law blessed by the three-judge court in D.C. So whichever way you look at it, there will be severe burdens on any State that thinks that voter ID is an important effort to ensure ballot integrity and exclude unqualified voters. Senator Grassley. Dr. Thernstrom, I would like to ask you about The Washington Post recently editorializing that political polarization and partisan conflict is now so deep that radical changes to redistricting might need to be considered. One of their suggested changes is a return to at- large or multi-member congressional districts, but they noted that the Voting Rights Act presents an obstacle to that plan. Do you think that the Voting Rights Act deepens political polarization through its redistricting requirements? And if so, what should we do about that? Ms. Thernstrom. Thank you, and can I just say before answering your question that Ms. Ifill suggested that I thought all voting discrimination was a thing of the past. I did not say that. I simply said the permanent provisions provide ample protection against electoral discrimination. And that statement acknowledges the fact that there is still electoral discrimination. Now, as to The Washington Post editorial, which I may or may not have read--I am not sure--look--I am sorry. Can you restate the question? Senator Grassley. Yes. Do you think the Voting Rights Act deepens political polarization through its redistricting requirements? And if so, what should we do about that? And they suggested that we ought to--that a possible solution would be multi-member districts. Ms. Thernstrom. Right. You know, once upon a time, in the progressive era in this country, at-large voting and multi- member districts were considered a progressive reform, good government reform. They are legitimate ways of conducting elections. Are they disadvantageous to minority voters who, if they have safe majority minority districts, can be sure of electing the candidate of their choice? Yes. And those districts, those designer districts that reserve legislative seats for minority candidates, yes, they have worked to elect black and Latino candidates. So they worked as designed. And the at-large district candidates do not have a safe constituency, and so, sure, the at-large districts, which have barely survived the enforcement of the Voting Rights Act, are disadvantageous to minority voters if you think that these race-based districts are a good thing simply because they do assure the election of minority candidates. And you ignore the downside of those districts which really make those black candidates--throw them to the sidelines of American politics because they do not have to put together biracial coalitions which would enable them--which would enable minority office holders in those districts to move up the political ladder and run, for instance, statewide. So, you know, this is a complicated issue. That is my bottom line. But I do not happen to like those racially gerrymandered districts in part because I think they do a disservice to black voters and black candidates. And that race- based districting in itself does polarize American politics. Senator Klobuchar. Thank you. Thank you, Senator Grassley. I know you want to respond, Dr. Johnson, and I will ask you in the second round to respond. All right? Reverend Johnson. Sure. Senator Klobuchar. And I wanted to acknowledge two Members of the House that are over here visiting, and we really appreciate their leadership on this issue, Congressman Bobby Scott and Congresswoman Sheila Jackson Lee, and we thank you for being here. Senator Franken. Senator Franken. Thank you, Madam Chair. I believe that the Voting Rights Act is one of the greatest achievements of the civil rights movement. It passed with incredible effort. And we must make sure that we fulfill Congress' longstanding bipartisan commitment to provide equal access to the ballot, and I share Chairman Leahy's conviction that it is time for Congress to act to strengthen and update the original Voting Rights Act. And I am a proud cosponsor of the Voting Rights Amendment Act, and I am optimistic that on this first anniversary of the Shelby County decision that we can come together to ensure that the promise of the 15th Amendment is made real for all Americans. Ms. Ifill, in your testimony you discuss the preclearance framework. In 1965, Congress enacted this requirement because relying on litigation to enforce the right to vote just was not working. Litigation takes a long time, and it often begins only after a discriminatory voting practice has already been initiated. Congress can certainly continue to believe that the preclearance system was important because it reauthorized the Voting Rights Act four times with broad bipartisan support with Section 5. Mr. Carvin states in his testimony, and I am going to quote: ``This is not to say that racial discrimination in voting has ended, any more than it has ceased in employment, higher education, or housing. It is to say that Section 2, particularly given its extremely expansive `results' prohibition, is more than adequate to address any unconstitutional discrimination. Just as Title VII's prohibition against discriminatory `effects' in employment and Title VI's prohibition against higher education discrimination and Title VIII's prohibition against housing discrimination do not need to be supplemented by Section 5 . . .'' It seems to me that, yes, in some cases Section 2 has worked. There is no question about that. But my question, Ms. Ifill, is: Has there not been a redistricting case that was not resolved before the election? And isn't that kind of the point here? Ms. Ifill. Well, Senator Franken, thank you. There have been many. I am not sure where Mr. Carvin has been litigating Section 2 cases, but where I have been litigating Section 2 cases--and these cases take an incredible amount of time and resources to litigate and to put together. And, in fact, very often the litigation takes years--years--to resolve. And without a preliminary injunction, holding the status quo, which very rarely is granted, in fact, elections do go forward during the course of Section 2 litigation. It is interesting because, in fact, even jurisdictions in many ways would rather avoid the cost of litigation than the minimal de minimis course of amount of preclearance--that preclearance requires. This past year, the city of Evergreen in Alabama was required by a Federal district judge to be bailed into preclearance, meaning that for changes related to mayoral and municipal elections, they will have to get approval for those changes as a result of the findings of the district court. And the city of Evergreen actually welcomed that order. They said they welcomed the opportunity to engage in preclearance rather than have the expense of litigation on the back end. And Congress made that decision, just as they have made in Title VII, which also has an administrative regime, just as they have under the Fair Housing Act, which also has an administrative regime, to create an administrative regime under the Voting Rights Act so that all claims do not have to be litigated, all claims do not have to be subjected to the expense and the time and the contentiousness of litigation, and can be resolved through the preclearance process. Senator Franken. Thank you, and that seems to be the point here. And the implication that we have heard is that you do not need Section 5 here, that Section 2 just takes care of this. And that is just not the reality. And there seems to be some acknowledgment that there still is some discrimination left in voting rights, but that it is not as bad as it used to be. But what seems to be the implication is it would be okay if it was a little worse. I think we need Section 5. Thank you, Madam Chair. Senator Klobuchar. Thank you very much, Senator Franken. Senator Cornyn. Senator Cornyn. I would say to my colleague from Minnesota, if he thinks this provision is a good one, it should apply to Minnesota, it should apply to Vermont, it should apply to the entire country, because it only applies to four States under the current formula, and---- Senator Franken. May I ask---- Senator Cornyn. You may not. You may not. Senator Franken. Would you yield for a question? Senator Cornyn. And---- Senator Franken. Okay. Senator Cornyn [continuing]. it imposes a presumption of guilt that is not borne out certainly by the evidence. And I would say that the statement that support for the Voting Rights Act has been bipartisan is absolutely true. It was signed into law by a Texan, Lyndon Johnson, and it has enjoyed bipartisan support through its history. But I would say that bipartisanship or lack of partisanship is at risk in the way that this legislation has been framed. Mr. Carvin, it is still true that an act repugnant to the Constitution is void. The Supreme Court has been pretty clear about that. Mr. Carvin. Yes, that is a truism. Senator Cornyn. And do you believe that this proposal, this bill that we are discussing today is unconstitutional? Mr. Carvin. Yes, I do, for essentially the same reasons that the Court in Shelby County struck down the 2006 effort to expand Section 5. Senator Cornyn. And I believe you said that this legislation is not designed just to overturn legislatively the Shelby County decision; it goes much farther. Could you explain what you mean by that? Mr. Carvin. Yes. Well, there are two key provisions. One is it does not just adjust the coverage formula, as you note. The most, I think, clearly unconstitutional provision is revising the judicial preclearance Section 3(c), and under that provision, if a State or political subdivision has violated any Federal law that has a nondiscrimination component in it--the National Voter Registration Act, for example--even if the violation has absolutely nothing to do with discrimination, a Federal court can keep them in preclearance essentially as long as it wants. So, for example, I was involved in this case in Florida where, amazingly, the Eleventh Circuit found that the NVRA prohibits States from excluding non-citizens from the voting rolls, even though they were using the Department of Homeland Security's data base, even though the accuracy of excluding these people was uncontested. Many of them had admitted that they were non-citizens. They, nonetheless, found that the NVRA prohibited keeping them off the voting rolls even though the NVRA makes it a felony for a non-citizen to register or to vote. So one absurd decision like that involving a statute having nothing to do, really, with racial and ethnic discrimination enables the Court to subject an entire State to preclearance for the foreseeable future. Senator Cornyn. Do you know whether the Department of Justice requires a photo identification before you are admitted into that building? Mr. Carvin. Yes. You cannot get into a court or the Justice Department absent photo ID. Senator Cornyn. And yet this Attorney General and this Justice Department takes the position that even a free identification issued by the State of Texas somehow is discriminatory. Isn't that their position? Mr. Carvin. Yes, and that has been their consistent position. It is their consistent position which they are now seeking to advocate under Section 2. Just contrary to this myth that I think has been bandied about during this hearing, Section 5 courts take evidence, Section 5 courts require witnesses, and it is just as voluminous as Section 2. What you may get is what they had in Texas, for example, where the burdens shift, where everybody sort of threw up their hands and said, ``Well, we do not really know if this affects minorities.'' The State would lose in those circumstances, where they would not lose in Section 2. Senator Cornyn. Well, essentially this bill imposes a presumption of guilt, and the jurisdiction affected would have to come into court and disprove this presumption. But I would just say that in 1964 the voting rate for non-whites in the South was 20 to 35 percentage points lower than it was in the rest of the country, thus the need for the Civil Rights Act of 1964. Yet in 2012, blacks voted at a higher rate in the South than for the rest of the country. Now, in Texas, contrary to what my friend Senator Garcia has suggested, the black voter turnout rate is substantially higher than for people that look like me. Indeed, blacks registered and voted at higher rates than whites in Texas in every Federal election from 1996 to 2004. So, you know, rather than suggesting that the States that have come so far, thankfully, in remedying past discrimination when it comes to voting rights, the suggestion made in this legislation is we need to presume that four States that would be covered by the formula are guilty until they can prove their innocence, in spite of the fact that this law proposed is clearly unconstitutional under the Supreme Court's precedents. So I hope we will stay with our previous commitment to nonpartisanship when it comes to vindicating voting rights, that we will actually take a moment to celebrate the great advances that have been made in this country, not to suggest, as Dr. Johnson said, that discrimination does not still exist. When it does, there are tools available, and we are all committed on a bipartisan basis to use those tools whenever and wherever we can to vindicate the right of each and every American citizen to cast a ballot for their chosen candidate. Senator Klobuchar. Thank you very much, Senator Cornyn. Senator Franken, you wanted half a minute. And then we go to Senator Coons. Senator Franken. Yes, I will make this as short as I can. My good friend Senator Cornyn--and he is a friend--said would I be voting for this if Minnesota were covered by this. Every State is covered by this. In this formula---- Senator Cornyn. Madam Chairman, that is false. Senator Franken [continuing]. It would apply to any State that has had five violations in the last 15 years. If you violate the law--any State--if you violate the law five times, you will be subject under this for preclearance, no matter which State you are. So I am voting for a law that Minnesota would be subject to, that Utah would be subject to, that Illinois, Rhode Island, Delaware, Connecticut, and Hawaii would be subject to. Senator Cornyn. Madam Chairman? Senator Klobuchar. Senator Cornyn. Senator Cornyn. That is demonstrably false. The formula would not apply to any--to 46 States. And so Section 2 is clearly okay for those 46 States, while 4 States are presumed to be guilty and would have to go to court or go before the Attorney General and disprove any intent to discriminate. And so I certainly disagree with my colleague---- Senator Klobuchar. You know what? I think, Senator Cornyn, you two are having a dispute, and I would like to resolve this with our experts, and I think Senator Coons is next, and maybe he can shed some light on this in his questions. Thank you. Senator Coons. Thank you. Thank you very much. Ms. Ifill, I would be grateful if you would help shed some light on this. My view is that as a cosponsor of the Voting Rights Amendment Act, it does have a nationwide impact, and it does take up the challenge of Shelby County in crafting an appropriately modernized formula. Preclearance is still necessary. I think this conclusion is demonstrated by the city of Evergreen, Alabama, which was recently bailed into preclearance under Section 3(c) of the VRA for just the sort of discrimination that the Shelby County majority concluded the Nation is largely free from today, I think incorrectly. Why isn't Section 3(c) bail-in sufficient to identify jurisdictions for which preclearance is appropriate? And what is the scope and reach of the formula proposed in the Voting Rights Amendment Act? Ms. Ifill. Well, let me return again to the nationwide application of this law. This is becoming something of a bait- and-switch. The Supreme Court's decision in the Shelby case was very much focused on the idea that you could not mark certain States based on data that the Court thought was too old, and the Court said that we needed current data based on current needs and invited Congress to draft a new formula. There is now a new formula. That formula requires the focus on current data and current needs by creating a rolling formula that looks at the prior 15 years. It does not look at the prior 15 years for any particular one State or another. It covers from New York to Florida. Every State and every local jurisdiction is covered by the same formula. As I said earlier, we simply cannot wipe out the past. If a State in the past 15 years has violated the law, then those violations count toward that 15-year requirement. And if Texas happens to be one of those States, that is because Texas violated the law, not because the U.S. Congress is targeting Texas. The second thing I would say about preclearance--and you raised the city of Evergreen, which I spoke about I think before you came in--the current bail-in law occurs after litigation, so it is the same issue of having to find the case, find the resources, litigate the case, and then bail-in is a remedy that a court can order. Bail-in is always limited to the particular kind of challenge and the findings that the district court made in that case and limited in time as well. I find it disturbing, and I think that all of us should as Americans, if we are premising the idea that the protection of the right to vote should be based on the ability to find a lawyer and file a lawsuit. This Congress was given the sacred obligation under the 14th and 15th Amendments to the Constitution to protect against voting discrimination. And Congress in the Voting Rights Act has created a network of ways in which that protection can happen. One way is Section 2, which, when it occurs, can be quite effective. But another way is Section 5, which is preclearance, designed to avoid the difficulties of litigation and to get at discrimination before it happens. Senator Coons. Ms. Ifill, if I might on one other point, it has been suggested by some today that this bill does not reflect compromise, that it is frankly a liberal wish list that includes everybody possible remedy that the left might be seeking, and that it is not the result of compromise. I do not see that as accurate, but could you help fill in some of those details? Ms. Ifill. Well, in fact, that is true. There was reference earlier to voter ID laws. This bill, frankly, assiduously walks around voter ID laws. It does not count denials of preclearance of voter ID laws. It does not count findings under Section 2, a Section 2 violation of voter ID laws as a violation that can count toward the five or the three for preclearance. What that means is that only findings that a voter ID law was created with the intention of discriminating against minority voters can count toward a jurisdiction's violation, and I would hope that everyone in this room and in this country would be deeply concerned about a finding by a Federal court that a voter ID law had been created with the intention of discriminating against minority voters. Senator Coons. A last question, if might, to Reverend Dr. Johnson. We are meeting today in a Senate building named for Everett Dirksen, a Senator of Illinois. I think anyone who knows their history knows that he played an absolutely central role in the enactment of the 1964 Civil Rights Act. In fact, I think one of the things of which the Republican Party has long justifiably been proud is the central role that Republican legislators played in the enactment of landmark civil rights legislation in the last century. Yet today we seem to see a partisan divide on this Voting Rights Amendment Act when previous VRAs had been broadly bipartisan in their support. Why do you think that this has become a partisan issue? Reverend Johnson. Very good question, especially considering the fact that every reauthorization of this important Act has been by a Republican President. This should not be a partisan issue, the right to vote, and it is sacred, as Ms. Ifill suggested. It was paid for with the blood, sweat, and tears of so many. But there is a larger historical point that needs to be made. If the Voting Rights Act is not modernized, then you are effectively ending the Second Reconstruction of this United States. And there is a reason in Georgia why we have to put an asterisk beside the names of elected Representatives. We say they are ``since Reconstruction.'' We have been here before. After Reconstruction, across the South over 625 persons were elected to Congress, including Jefferson Long from Macon, who was the first African American to speak in this Congress as a Representative. And so how do you get from 625 after the Civil War during that period of Reconstruction? You get there through Federal protection. When that Federal protection was withdrawn, then those elected Representatives disappeared because of the persistent nature of race as a problem in this country. And so we are seeing extraordinary success under the Voting Rights Act. I am here today to say let us not take away what has worked so well. Let us keep it in place so that we do not repeat the mistakes of history and go down a pathway that I think is quite dangerous. Senator Coons. Well, thank you. The day that we announced the introduction of this bill, I was proud to be joined by Republicans from the House. I continue to hope and pray that we will be joined by Republicans in the Senate in what I think is the result of compromise, responsible and reasonable, but absolutely essential response to this difficult case of the decision in Shelby County. And I think modernizing, strengthening, implementing, and updating the Voting Rights Act is absolutely essential for our Nation. Thank you for your testimony. Thank you, Madam Chair. Senator Klobuchar. Thank you very much, Senator Coons. Senator Lee. Senator Lee. Thank you, Madam Chair. Mr. Carvin, I would like to start with you, if that is okay. In your written testimony, you explained, citing the Supreme Court's opinion in Shelby County, that an updated formula like the one in Senate bill 1945 is only ``an initial prerequisite to a determination that exceptional conditions still exist justifying'' such a formula, an ``extraordinary departure from the traditional course of relations between the States and the Federal Government.'' Can you help us understand, help explain why it is the case that the proposed coverage formula alone is insufficient to determine that exceptional circumstances still exist? Mr. Carvin. The exceptional circumstances, Senator, obviously being the need for Section 5 preclearance on top of Section 2. We have had a lot of debate this morning about whether Section 2 is adequate, but the precise question the Supreme Court was asking was: Well, if Section 2 is adequate in all these other States, why does it somehow become inadequate here? Has Congress identified the kind of intransigent resistance to Section 2 that justifies Section 5 in these jurisdictions? Now, when you look at the coverage formula in S. 1945, it does not even attempt to do that. In other words, it bases its triggering formula on whether or not you have been found guilty of a Section 2 violation. Well, if you have been found guilty of a Section 2 violation five times in 15 years, then it is a little hard to say Section 2 is not working in your State. They also throw in Section 5. Both Section 5 and Section 2 do not relate to constitutional discrimination, which is intentional discrimination. They have a much more demanding standard. You cannot do anything with the statistical discriminatory effect or result. So you are not even looking at places where there has been any constitutional violations. As I said in my testimony, it is quite possible that a State or a political subdivision that has never been found guilty of violating the Constitution would nonetheless be designated as a flagrant constitutional violator, which does not make sense. Moreover, of course, they count the Attorney General objections. Well, the Attorney General, particularly in recent years, has had an unblemished track record of objecting to every change, regardless of whether or not it in any way was seriously discriminatory. I would not view that as a reliable guide to people who are seeking to disenfranchise minority voters. I think that it much more reflects the fact that Section 5 has this demanding effect standard which has been exploited by this Justice Department to eliminate very sensible ballot integrity measures, or at least that is sufficiently debatable that you could not designate somebody who Attorney General Holder disagrees with as somehow a constitutional violator. Senator Lee. So when you use the word ``exploited'' here, I assume you are referring to the fact that the more power we put in the hands of the few, perhaps, of the Attorney General of the United States or a small handful of officials at the U.S. Department of Justice, especially as you are giving them broader standards to apply, there is a greater risk of manipulation, a greater risk that one person might just decide I think this is--I do not like this, I am going to stop this, and that could impermissibly intrude on the State's authority to do something, even when the State is not actually doing something in violation of the Constitution. Mr. Carvin. The proponents here have been arguing that Section 5 is fast, faster than Section 2. Well, it is only fast if the Attorney General decides something without the basic due process safeguards that every State presumably is entitled to, an ability to present some evidence to a neutral magistrate. It is the classic Star Chamber proceeding. So while you do capture efficiency, you also, as you point out, Senator, invest this extraordinary power in a single unelected official to invalidate State laws without any opportunity for judicial review. Senator Lee. By the way, why would it ever be appropriate for Federal officials to suggest to State or local government officials that they could not exclude from the voting rolls those who are not citizens? Mr. Carvin. There is no Federal law that requires that. There was a decision by two judges appointed by President Obama that rewrote the National Voting Registration Act to produce that genuinely absurd result. Senator Lee. Okay. Finally, since you testified earlier-- after you testified earlier as to the adequacy of Section 2 remedies, there are those who have suggested in their testimony and in response to questions by Members of this Committee that those are, in fact, inadequate, that they are not enough. Would you care to respond to that? Mr. Carvin. Yes. I have given the specific examples of why Section 2 is entirely adequate for those, and then I think there are two points that the proponents of this Act need to answer, which is why, if preclearance is required in the four States currently covered, or whatever States subsequently get sucked into it, why aren't they required in the other 46 States? And the next question is: If Section 2 even with this extraordinarily broad results standard is somehow inadequate to protect against voting discrimination, then why isn't every civil rights law passed by this body also inadequate to prevent discrimination in employment and housing and education, which are certainly very important aspects of American life, but we are nonetheless content to have the Title VII's of the world exist without being supplemented with a Section 5-type preclearance standard? Why does it work in all of these other areas and not work in voting? Senator Lee. I see my time has expired. Thank you, Mr. Carvin. Thank you, Madam Chair. Senator Klobuchar. Thank you very much, Senator Lee. Senator Blumenthal. Senator Blumenthal. Thank you, Madam Chairman. Mr. Carvin, I appreciate your very thoughtful testimony here, and we disagree. I happen to support the legislation. But you make the point that if the remedy under Section 2 is inadequate for voting rights, then all of these other remedies in vindicating other rights, whether employment, housing, et cetera, would be inadequate as well. Can't Congress decide that, for whatever reason, if it is a constitutional reason, that voting rights is a right that has to be vindicated more promptly, that the litigation process that might be satisfactory to vindicate those other rights takes more time and expense for voting rights, and decide that Section 5 ought to be adopted for that reason? Mr. Carvin. I am not saying that the Senate or the House could not make distinctions among different kinds of problems and fine tune it. For the reasons I will not repeat, I do not think any such record has been compiled in the voting context. I would also point out that while voting is obviously a very important right that helps all other participation in democracy, I would be loathe if the Congress was to rank order particular areas of American life and say voting is more important, for example, than employment or housing. While at a certain level that is true, I suppose somebody who is unemployed or homeless would not agree that discrimination in housing and employment is less important than discrimination in voting. Senator Blumenthal. And I am not suggesting that the Congress would be ranking in importance those rights, but simply the method to vindicate them might be unsatisfactory for voting rights as compared to those other rights. Mr. Carvin. And, again, Senator, yes, that is the kind of empirically based justification the Senate could come out with. I have not seen in any of the commentary either surround this or the 2006 amendments which suggests that voting discrimination is uniquely difficult to prove. And if you think about it from a commonsense perspective, particularly in private employment, private housing, private education, all of the discriminatory policies and decisions are made in private, confidential sessions. But in voting they are made public. They have to be made public because you need to tell people where to vote and how you will count their vote. So actually it is the most transparent of all of these various areas we have been discussing and, therefore, the easiest to get at. Senator Blumenthal. Well, I think there is some empirical data to contradict that argument. As you probably know, in 2013, the Brennan Center for Justice found that between 1999 and 2005 States initiated 262 potentially discriminatory policy changes that were withdrawn or suspended by altered submissions in response to the Department of Justice's request for more information, the first step in the preclearance procedures. It is hard to believe, hard for me to believe anyway, that if the Department of Justice had to go to court to challenge every one of those 262 policy changes, they would have been successful in preventing--and I stress and underscore the word ``preventing''--discriminatory voting practices as they have been using Section 5 procedures. So I think there is something about those challenges, including the request for information, as an enforcement mechanism that has a very profoundly important effect. Again, comparing rights here, I have no desire or intention to rank one as against the other. But as a matter of resources, in extraordinarily complex and massively challenging, resource- intensive cases as voting rights cases often are, couldn't you see a compelling argument for the preclearance procedure? Mr. Carvin. There is no question if you strip the States of their due process rights and presume them guilty that that empowers the Justice Department to be much more effective and efficient at getting at things that the Justice Department wants to accomplish. But as I indicated to Senator Lee, the question is not what does the Justice Department want to accomplish; it is whether or not these States have engaged in unconstitutional discrimination. Since the Nation's founding, we have presumed the legitimacy of State enactments. We would presume under this legislation the legitimacy of State enactments in 46 States. So the question then becomes: Why is it necessary to presumptively suspend all of these laws in these designated areas and not afford them the traditional justifications that are afforded to all other defendants in civil litigation? Senator Blumenthal. My time has expired, but I thank you for those thoughtful answers. I have no intention or desire to suspend the rights--as sovereigns, the rights of States to contest or in any way protect their rights. And I happen to believe that this law is one of general applicability, just as criminal laws are. And to suggest otherwise is to say that criminal laws do not apply to all Americans simply because all Americans do not break the criminal laws. They apply where the law is broken, and I think they are laws of general applicability. But I very much appreciate your very helpful and forthright responses. Thank you. Mr. Carvin. Thank you. Senator Klobuchar. Thank you, Senator Blumenthal. Senator Hirono. Senator Hirono. Thank you, Madam Chair. All the members of the panel agree that voting discrimination still exists, and we do disagree on how to address the problem. And the Supreme Court invited Congress to address the problem by updating the coverage formula, and the Supreme Court, I note, maintained the principle of preclearance. They did not strike that down. They struck down the coverage formula and invited Congress to change the coverage formula, which is what this bill does. And to say that the formula in this bill is unconstitutional I would say is definitely premature. We do have Members of the House of Representatives who are here, and I note that the companion bill in the House is supported in a bipartisan way, and I am hopeful that as we proceed with this discussion on this bill that we will be able to come up with a compromise, a version or a bill that will do what we need to do to maintain our Voting Rights Act and get bipartisan support in that regard. And I also want to note--and thank you, Ms. Ifill, for being very clear that this bill does not punish States for historic discrimination in any kind of, you know, we are going to designate a particular State for this treatment, because no county or State is singled out. And, in fact, the requirement that is in this bill that requires five violations or three violations of Section 2, that seems to me a pretty high standard before the preclearance requirements kick in. Would you agree with that, Ms. Ifill? Ms. Ifill. Indeed I would. I would think that a jurisdiction that is able to meet that number actually is on the high side in terms of egregious conduct. I think actually this Congress has been quite conservative in trying to create a formula that frankly leaves quite a bit of leeway there for States and for local jurisdictions. In fact, you know, one of those five for a State has to be a statewide violation. So there are lots of ways in which I think the drafters of this bill have tried to be as deferential to Congress as possible, but I would also point out again that, with regard to the sovereignty of the States, it is the Constitution of the United States and the 14th and 15th Amendments that gives this Congress the authority and the obligation to protect against voting discrimination. And those two amendments are specifically targeted at the States. They are telling this Congress what to do to protect and, frankly, historically, to protect against voting discrimination that happens in the States. Senator Hirono. Well, I note in your testimony, Ms. Ifill, that Section 5 blocked dozens of discriminatory voting changes over the decades that this law has been in place. Can you just describe to us what some of these discriminatory voting changes were that were struck down under Section 5, and whether, in fact, post-Shelby the same kinds of voting changes are being put in place throughout our country in many States? Ms. Ifill. Well, you have heard some of them this morning, Senator. You have heard about polling place changes. You have heard about shifting elections and reducing election--reducing the seats, the districts in particular elections. You have heard about redistricting, of course, taking populations and annexing populations from adjoining jurisdictions to try and create majority white district. Senator Hirono. Are these--excuse me. Are these the same kinds of restrictions that were struck down pre-Shelby? Ms. Ifill. I think that is what we find most disappointing, Senator, that a lot of what we are seeing is precisely the kinds of electoral changes that Section 5 protected against and that the Voting Rights Act was meant to protect against. We are seeing jurisdictions return to the same kinds of tactics that were used in the past to hold on to, as Mr. Johnson says, power, political power. Senator Hirono. Reverend Johnson, we have heard testimony that this current Attorney General is particularly diligent in enforcing the Voting Rights Act. Now, in the decades that this law has been in place, hasn't Section 5 been used by both Democratic and Republican Attorneys General to enforce the Voting Rights Act? Reverend Johnson. Absolutely. In 2006, the Congressional Record overwhelmingly demonstrated the need for continued Federal protections: 750 Section 5 objections by the Justice Department over that time period of this law being in effect; 800 potentially discriminatory voting changes; 105 successful actions to require covered jurisdictions to comply with Section 5; 25 denials of Section 5 preclearance by Federal courts; high degrees of racial polarization in these jurisdictions--all mandated that the Attorney General of whatever party, of whatever President was elected, to enforce this law. Senator Hirono. Thank you. My time is up. Senator Klobuchar. Thank you very much, Senator Hirono. Senator Dick Durbin. Senator Durbin. Thank you very much, Madam Chair. Madam Chair, Mr. Carvin challenged us: ``Why just four States?'' he says. Because in the past 15 years, those four States--Georgia, Texas, Mississippi, and Louisiana--have had five or more violations in the last 15 years. Could it be 14 States within the next 15 years? Possibly. The way this is written is that, as we, I think made adequately clear, I hope adequately clear to most, it could apply to my State, yours, or any other. And that to me is a fair standard. It is not singling out States because of past conduct. It is looking prospectively at preserving the right to vote. Which goes to your second question. If preclearance is such a good idea, why don't you use it in employment discrimination, housing discrimination, education discrimination? That was your question. And the answer is I think one you already know. This is about the right to vote. And the Supreme Court has said and the Chief Justice in the course of his hearing before this Committee said that is the right that is preservative of all rights. It really goes way beyond--way beyond--important rights related to employment, housing, and education. The preclearance has had a profound impact on this country in terms of minority registration, and five different times with overwhelming bipartisan votes, Congress has reauthorized preclearance for voting. We think it is that important. Now we are challenged by the Supreme Court to update it, and I would like to note that I think we need to be vigilant, every generation needs to be vigilant to protect this right to vote. There was a Republican primary yesterday in Mississippi, and the word got out a week or so ago that incumbent Senator Thad Cochran was going to appeal to African American voters who did not historically vote in Republican primary to come vote with him. And his opponent announced he was sending poll watchers into those minority precincts. I think there is a message there, isn't there, that goes beyond voting, that goes beyond I think the obvious? And that is, there are still some questions that need to be asked and raised about whether people are being treated fairly in the polling place. I have a Subcommittee, the Subcommittee on the Constitution, Human Rights, and Civil Rights, and we decided to hold some hearings after a group know as ALEC, the American Legislative--Exchange Council? Whatever. They are a big group, some 300 corporations fund them. And they are writing laws all over America, model laws all over America. And many of their laws are aimed at voter suppression, as I see it, reducing the number of voters. That is their goal. Voter IDs, limiting early voting, they just want fewer people to turn up and vote. So I went to two States where they have been successful. I went to Florida and I went to Ohio, and I brought in voting officials from both parties, Republicans and Democrats. I put them under oath, and I asked them all the same question: What was it that happened in Ohio and Florida that led you to believe that you needed to change the voting laws when it came to voter IDs and such? How many cases of voter fraud were prosecuted in your State? None. Oh, well, then how many instances of voter fraud were there that may not have been prosecuted but reported? Almost none. If that is the case, if these laws are not being written to militate against voter fraud, they are clearly being written for another purpose. They are being written for voter suppression--and, sadly, voter suppression among minority voters in America. That is the reality of the 21st century in America. I wish to God we were beyond the reach of racism, but we still deal with discrimination and racism on a regular basis. Ms. Ifill, I want to get down to one particular point because, as enraged as I am over the ALEC agenda and what it is doing, what you have said clearly is we have to prove intent, not effect. Expound on that for a second and put it in the context of the voter ID laws. Ms. Ifill. Well, in order to for, Senator Durbin, a voter ID violation to count as a violation that would count toward preclearance of either a State or local jurisdiction, that voter ID law must have been proven to be intentionally discriminatory. In other words, it could not have been the subject even of a finding under Section 2 that it violates Section 2. It could not have been the subject of a denial of preclearance by the Attorney General. It is held to the standard of having violated the Constitution based on intent. And it seems to me that is a pretty egregious violation. Senator Durbin. And it is a high standard. Ms. Ifill. A very high standard. Senator Durbin. Beyond effect, we go to actually proof of intent. Ms. Ifill. Yes. Senator Durbin. So this insidious ALEC agenda of voter suppression, which has no basis in fact other than to reduce certain turnouts in certain populations, really may not even qualify under the standard of this law if you cannot prove intent, a very, very difficult standard. Is that correct? Ms. Ifill. Absolutely. As you know, Senator Durbin, to prove intentional discrimination in 2014 is very difficult, not because it does not exist but because one of the successes, frankly, of the civil rights movement is that racism is no longer socially acceptable. People do not say in most instances the things that they said before and know that they should not reveal their discriminatory animus. And so to prove intentional discrimination is incredibly difficult, and we prove it by circumstantial evidence. But it is an incredibly high standard. Senator Durbin. I just want to close with one point. I am in the midst of reading a book entitled, ``An Idea Whose Time Has Come,'' by Todd Purdum. I recommend it. It is the story of the 1964 Civil Rights Act. And if there is one thing, one political fact that needs to be stated on the record over and over again, the critical role played by Republicans in Congress in the passage of the Civil Rights Act and the Voting Rights Act. This was truly a bipartisan effort, and much of the resistance to those laws came from my party, certain Members of my own party. And I want to be very open about that. I want to commend Congressman Sensenbrenner for making this a bipartisan issue with Senator Leahy. I hope it is bipartisan all the way until we enact this new law to deal with the Shelby County decision. Thank you. Ms. Ifill. Thank you. Senator Klobuchar. Thank you very much, Senator Durbin. Senator Whitehouse. Senator Whitehouse. Thank you, Chairman. I just wanted to close this hearing with a point. We are here because of the Shelby County v. Holder decision of the U.S. Supreme Court, which was a 5-4 decision on partisan lines, driven by the Republican judges that, in the view of many, opened the door to voter suppression efforts in States that had a legacy of discriminatory voter suppression efforts. And I think that was a very unfortunate decision, but I have to point out that it stands in the context of an array of similar decisions which have that--a couple of common elements. One is that they are decided 5-4 along partisan lines. The Republican judges do not wait to try to find consensus. They line up the five of them, and they shove what they want through. So Shelby County was one example. Another example was Citizens United, again, 5-4, again, I think an unwise and unfair decision in that case, opening up our elections to unlimited spending on pretty flagrantly factually wrong, so-called findings of fact, which the Supreme Court is not supposed to do anyway, let alone get them so badly wrong. And then there was a few years previously Vieth v. Jubelirer, which was a Supreme Court decision again 5-4--it was a 4-1-5 because it was a concurrence, but it was again driven by the Republican judges, that basically said that partisan gerrymander was okay, that there was nothing the Supreme Court was going to do about it, and they gave license to unlimited partisan gerrymander, believe it or not on the grounds that it was too difficult to come up with a standard for when partisan gerrymanders had gone too far. The result is we have a House of Representatives that is dominated by the Republican Party after an election in which the Democratic Party got 1.4 million congressional votes more than the Republicans. And if you look at individual States, you see that Pennsylvania went for Bob Casey and President Obama in the 2012 elections and sent a 13-5 Republican delegation to Congress. Wisconsin went for President Obama and Senator Baldwin in 2012 and sent a 5-3 Republican delegation to Congress. Ohio went for Obama and Senator Brown, and yet sent a 12-4 delegation to Congress. So what I see is a pattern of 5-4 decisions where the Court intrudes itself into political matters, and in each case, three for three, the practical political effect of what they have done is to advantage the Republican Party. They have advantaged the Republican Party and its use of partisan gerrymander in Vieth v. Jubelirer. They have advantaged the Republican Party by opening up the floodgates to these special interest dollars that have flowed in, and you can measure that in the early years particularly, Republicans outspent Democrats through these super PACs and through dark money by spectacular amounts. And now in Shelby County I think it is hard to deny that the Court's decision has had the practical effect, even if it was not the Court's intent, of advantaging the Republican Party. So I think that the reason that we are here is a signal of a cause for concern at the Court, and it is not something that I am alone in describing. Jeffrey Toobin has described the politicization of the Court. Norm Ornstein has described the politicization of the Court. And just recently, Linda Greenhouse, who has spent a lot of time looking at the Court and who has held back and held back and held back at making the conclusion that they have become politicized, has written recently an article that, more in sorrow than in anger, says that the Court has basically lent itself to the Republican agenda. And I think that is very unfortunate, but I think it would be a shame if we closed this hearing without putting it in that larger context, because we are here because of one of those decisions, which is Shelby County v. Holder. And I see the one elected official on the panel, Senator Garcia, nodding energetically. My time has expired, and I am sorry to spend it all on talking and not on questioning, but I did not want to have that topic be missed when it is the elephant in the room behind what is going on here. Senator Klobuchar. Thank you very much, Senator Whitehouse. Senator Cruz. Senator Cruz. Thank you, Madam Chairman. Thank you to each of the distinguished members of the panel for being here today. I want to start, Dr. Thernstrom, with asking you a question, which is am I correct that the Voting Rights Act and, in particular, Section 2, remains on the books as strong protection against discrimination in voting. Ms. Thernstrom. Of course you are right, absolutely. I mean, the counter-argument is close to incomprehensible to me. Senator Cruz. Well, I want to make sure that everyone observing this hearing understands what the focus is. The focus is one particular portion of the Voting Rights Act, Section 5, which subjected a handful of States to unique scrutiny. I would like to ask, Mr. Carvin, a question of you. Under Section 5, elected state legislatures in the states that were singled out, before they could enact any laws concerning voting, had to receive the prior approval of unelected Federal bureaucrats in Washington. The Supreme Court has called that system extraordinary. But my question is, is there any other area of law where elected officials in states have to come to the Federal Government to ask an unelected bureaucrats their permission before carrying out their duties in the legislature? Mr. Carvin. No, there is not, and the Court in 1965 in Katzenbach and all the other cases has recognized that this is not only a reversal of the traditional Anglo-American jurisprudence presumption of innocence, but you are literally suspending the states' rights to legislate in a particular area. The Federal sovereign is telling them, no, you cannot do it until you come on bended knee and an unelected official says, okay, we will allow you to do it. There has been a lot of conversation today about the bipartisan support and the importance of the Voting Rights Act, and yet the basic premise of Section 5 pre-clearance is that elected representatives are incompetent minors who are literally incapable of arranging electoral systems even though, as you know, the Constitution left the question of voter qualifications and most important aspects of running elections to the states quite consciously. So it is not only unprecedented, it certainly pushes the outermost boundaries of our Federalist system and was only justified in the 1960s as an acknowledged temporary exception to the normal rules because of the extraordinary situation that existed in the Jim Crow south. Senator Cruz. I would note, Mr. Carvin, you and I have a long history together, we practiced law together, and indeed we both were involved in litigating the last prior redistricting case in the State of Texas, where I was representing the State and you were litigating, as well, that went to the Supreme Court and ultimately prevailed in the Supreme Court. I want to understand and I want people here to understand how those unelected bureaucrats in the Department of Justice have used this authority. Is it not the case that the Department of Justice has taken the position that Section 5 and indeed Section 2, as well, protects the ability to elect Democrats? And, indeed, in Texas they took the position that Henry Bonilla, a Hispanic who was elected, was not protected; however, Lloyd Doggett, an Anglo Democrat, was protected, and the difference between the two was that one was a Republican and, therefore, that Hispanic elected official was not in the ambit, but the other, a Democrat, was. Is that correct? Mr. Carvin. Yes. That is exactly what happened in Texas. And I think it is important to focus on the fact that under the new ability to elect standard enacted for the first time in 2006 to overrule Georgia v. Ashcroft, the Justice Department and certain courts have taken the position that any effort to diminish minorities' ability to elect white Democrats is nonetheless violative of Section 5. So you literally have a Federal law that says you cannot hurt the ability to elect white Democrats no matter how compelling the demographic or other justifications are. Senator Cruz. Thank you. Thank you, Mr. Carvin. I would like to ask a final question of Senator Garcia. I find it interesting you and I are both at this hearing. We are both elected officials in the State of Texas. We are both Hispanic. And, indeed, Texas has a record of electing substantially more Hispanics and African-Americans statewide than almost any other state. Yet, what this bill would do--and it is interesting to see a number of Democratic politicians, many from the northeast, suggesting that Texas needs some sort of special scrutiny, although the record in Texas of minorities being elected is better than most other states and, indeed, the turnout numbers in both the African-American community and the Hispanic community is better than many other states. In your experience as an elected official in Texas serving in the legislature, do you believe that elected officials in Texas are somehow substantially more deficient than elected officials in other states across the country? Ms. Garcia. Well, I do not think--we in Texas think that we are the best no matter what it is. Senator Cruz. I agree with you in that regard. Ms. Garcia. Thank you. The Senate Hispanic Caucus has wrestled with some of these issues and I can tell you that for us it is just distressing, and I will repeat the numbers. In 2010, we were 42nd in registration as a state. We were 51st in voter turnout. Those numbers are just not anything to brag about, although we would like to brag about many things. If you look historically at our record, we have had 107 Section 5 violations between 1982 and 2005. Again, that is nothing to brag about. So you look at the immediate history and then if you just-- my written testimony goes through all the history dating back to the 1800s. There has been historic discrimination in the State of Texas. Regrettably, it is still there. Senator Cruz. But, Senator Garcia, if I may briefly, and my time has expired, so if I just may briefly ask one final question. If you look at the data, for example, for the 2012 election, in 2012, African-American voter turnout in Texas was 10 percentage points higher than white turnout in Texas. In fact, if you look at the states in 2012, where turnout was worse, where there was a greater differential, the following states have substantially worse numbers than Texas. Texas has among the best numbers in the country. But you have Washington State, Colorado, Kansas, Arizona, Minnesota, Massachusetts, Delaware, Arkansas, Minnesota, Florida, Kentucky, Connecticut, Virginia, those are all the states where white turnout was higher than African-American turnout. In Washington State, it was 18.5 percent higher. Now, Washington State is not covered. Texas, on the other hand, African-American turnout not only was not lower than white turnout, it was 10 points higher and with that record--and I would note, among Hispanics, the Hispanic record is also markedly better than many other states across the country. What justifies singling out Texas and a couple of other states for some sort of special treatment when the record is markedly better in Texas than in many other states? Ms. Garcia. Again, I think it is because of the history and it is about some of the things that have been going on in our state. I think when you look--I will give you a perfect example. I filed the bill so that when anybody turns in the voter application, if it gets rejected by the voter registrar, that the person be simply told by letter your application was rejected because you forgot to put your date of birth or you forgot to put your full address. That was rejected. So once it is rejected in terms of a bill which we cannot put in place to protect the voter so they will know why they were rejected so they get registered to vote and make sure they gain access to that ballot, that is just not good for us. We need to be doing everything we can to improve access to the ballots and make it convenient and to make it easy so that we can have full participation. If we have increased, that is great, but I know our state is great. We can even do better. Senator Cruz. Thank you very much. Ms. Garcia. Thank you. Senator Klobuchar. Thank you very much, Senator Cruz. Let us start here with you, Ms. Ifill, to get at some of the arguments that Senator Cruz was making. He talked about the fact that certain states in the past have had to come before the Nation, before Federal Government to get signed off on their voting systems. Could you explain why that has happened? What is the constitutional and legal reason that that has happened? Ms. Ifill. Yes, Senator Klobuchar. When I hear this argument, I think that the quarrel is more with the Constitution than with the attorney general. It is the Constitution that gives Congress this authority under the 14th and 15th Amendments to protect against voting discrimination, and Congress then creates a scheme, as it did under the Voting Rights Act and has reauthorized it over four times, to deal with voting discrimination and they have provided various means. One means is Section 2, which allows individuals to litigate. There is the possibility of Federal observers at elections. There is the Section 5 regime. What I have heard today, this discussion about the attorney general and pre-clearance, I have heard it described as a star chamber, this is almost kind of an astonishing description of a process that has been utilized by Republicans and Democrats in the Administration and that is well recognized across party lines as a procedure that is efficient, that is not costly, that provides input, allows for input not only from community groups and voters, but allows input from the jurisdiction. It is an ongoing conversation, not a star chamber, a conversation between the attorney general and between the jurisdiction about the likely effect of a voting change. Senator Klobuchar. Senator Cruz also focused on the fact that this is somehow to protect Democrats. And could you give us a little more sense of that history about how Republican attorney generals have enforced this law, about how traditionally with, of course, even currently with Representative Sensenbrenner, a Republican sponsoring this law in the House, but how in the past this has been a bipartisan effort? Ms. Ifill. Always. The Voting Rights Act from its initial enactment and every reauthorization has been overwhelming bipartisan and signed into law by Republican Presidents. The Voting Rights Act is focused on the protection of minority voters. It is not focused on the protection of one party's voters versus another party's voters. I did want to say something about the turnout issue that Senator Cruz raised. Senator Klobuchar. This is about the Texas numbers. Ms. Ifill. Yes. I want to point out that actually the figures that he cited should inspire this Congress to pass this bill, because what those turnout figures show is the determination of minority voters to come out and participate in the political process despite the obstacles, despite the discriminatory redistricting, despite the polling place changes. We all saw in this country in 2012 minority voters standing on lines in places like Florida for 6 hours to vote. We should credit their determination to participate in the political process, not use the fact that they were so determined and cast their ballots as evidence that this Voting Rights Act is not needed. Senator Klobuchar. Very well said. Thank you. Ms. Garcia, one of our jobs here, Senator Garcia, is to get evidence, because if and when we do pass this bill, I somehow believe it might be challenged as it has in the past and then the Supreme Court is going to look at what the evidence is. You have all submitted thorough testimony on this, but perhaps, Senator Garcia, you could give to me what you think will be shown as some examples of discrimination coming out of the lawsuit in Texas. Ms. Garcia. Well, I think the examples that I have already given with regard to, first, Pasadena, where we see the shifting of the demographics and the growing Latino population. In Galveston it was the minority population. It seems to me that we will just be seeing more and more because the Latino population has grown. I think someone earlier said that it was a young population. Well, it is young, but it is already beginning to be at the age of registering to vote and getting very active. The two council members in Pasadena that got elected are probably all of 30 and 32. They are young veterans. They went to Iraq, they went to Afghanistan, they came home, they believe in what they fought for and they wanted to participate. So I think we are getting a younger population that is voting. We are getting a younger group of leaders in the Latino community. I know in my role as the immediate past president of NALEO, which is the National Association of Latino Elected Officials, it was just really heartwarming to me to travel across the country and just see the new crop of young Latino leaders who are truly committed to public service, committed to making sure that people have the right to vote, and committed to making sure that we can make change in our communities, and, frankly, that is really what it is all about. It is making sure that we protect the right to vote, that we make it as accessible as possible, as easy as possible so that people can be part of the fabric of our country. Senator Klobuchar. Dr. Johnson, I know way early on in this hearing you had wanted to respond to something that Dr. Thernstrom had said. You could do that, if you would like, but also to give me some examples from Georgia of what you have seen. Then, also, Ms. Ifill answered in terms of the constitutional and legal reasons which are key here for why we have the Voting Rights Act, if you could also give us a sense of the moral reasons from your perspective. So three questions really. One, if you want to reply to Dr. Thernstrom; two, the discriminatory examples that you see in Georgia; and then, three, if you want to give us the moral basis for doing this. Reverend Johnson. Professor Thernstrom and I have been engaged in a side discussion. Senator Klobuchar. I have noticed this and I was very interested. I was thinking I would love to hear it. Reverend Johnson. Right. But I think what Senator Cruz spoke to earlier underscores why there is a moral imperative to modernize the Voting Rights Act. His attempt to go to an old southern strategy play of pitting the south versus the north, of pitting blacks against Hispanics, as we have seen in Texas, whites against--this is not about that issue and I think we need to look at higher ground here. The reason why I am asking that Georgia be covered is because after the Federal protections ended after reconstruction before, Georgia quickly disenfranchised its citizens who look like me. They passed laws, like Jim Crow laws, they passed literacy tests, poll taxes, moral character tests, grandfather clauses, all in an attempt to do what they felt they had a right to do as state legislators. The Federal Government said no, that the rights of citizens of these United States shall not be abridged or denied and that is why we have the Voting Rights Act and that is why we continue to need it, because this legislature in Georgia sitting quickly moved to do the same thing, to roll back early voting days from 21 to 6 days, to introduce all kinds of laws to disenfranchise African-Americans, Hispanics, Asians, others, to discourage them, to confuse them. At one point, there were going to be three different standards for voting if you were in a city, town or consolidated government, and that is simply wrong in America. And so I would say this finally. When you look at the issue of race in this country, we are not there yet. It is not lost to me that I am probably the only member of this panel born after the passage of this act. This is a different America, but we are not there yet. My baby boy that I referenced earlier is twice as likely as a white to die during his first year of life, three times as likely as a white baby to be born of a mother who had no prenatal care. His father is still twice as likely to be unemployed. And even with a good education and a good foundation for opportunity this country has provided for me, I can only expect to make 72 percent of what white similarly situated folks in my shoes will make. That is because we are not there yet. In Georgia the median income for a white similarly situated family is $51,000. The median income for a black family is $31,000. That has nothing to do with the pigment of my skin. That has to do with discrimination. It has to do with the fact that it still exists. So the moral imperative is there for my generation and for Langston's generation. If we are going to make this a more perfect Union, keep what is working in place. You referenced, Professor Thernstrom, in conclusion, in your written remarks, that America sort of needed a jumpstart, but no one, after getting a dead battery back to working, allows the jumper cables to be attached. Well, you do not throw them away either. You generally take prophylactic measures to keep your battery in good health and then you put a set of jumper cables in your trunk. And I say let us move America forward. Ms. Thernstrom. The jumpstart, of course, in my written testimony referred to my agreement that these racially driven districts, racially carefully designed districts to be safe for black candidates and Latino candidates were necessary to give a jumpstart to greater black political involvement. So I am distancing myself from conservatives who say that those districts never did any good, in fact, they did nothing but harm. I think they worked as they were intended to in helping elected--in helping to elect the many black Members of Congress. Reverend Johnson. And white Members of Congress, too. John Barrow---- Ms. Thernstrom. And white Members. Senator Klobuchar. I am glad we are seeing the side discussion. Reverend Johnson. Absolutely. We will continue that. Senator Klobuchar. So you guys should have lunch and continue that discussion. Ms. Thernstrom. Well, I had a lot more to say, but that is all right. Senator Klobuchar. I know you did and I think this has been a very good hearing, and, of course, you will have that opportunity with the record and I am sure many of the Senators will have questions for the record. I was thinking of what you said, Dr. Johnson, and it reminded me a little bit of Justice Ginsberg's dissent about when she talked about getting rid of Section 4 of the Voting Rights Act was, quote, ``like throwing away your umbrella in a rain storm because you are not getting wet.'' So I think that is a sentiment of many people up here and I know there are going to be discussions about how to do this the best way. I think the simplistic description, which I really appreciated, that Ms. Ifill gave in terms of this new formula and how it works I think was a good one and I hope everyone thinks about it in terms of what this means going forward and how it would apply to all states. I would just end with this. I had the privilege last year to go to Alabama with Congressman John Lewis, which many people up here have done. He, as you know, is one of the 13 original Freedom Riders and on March 17, he and 600 peaceful marchers were brutally attacked on the Edmund Pettus Bridge in Selma. We got to walk over that bridge again and learn a lot, but it was that weekend 48 years later when the Montgomery police chief, a white police chief, took off his badge and handed it to Congressman Lewis and 48 years later apologized for not protecting them on that bridge. Well, we have our job now and that is to protect the rights of the people who want to go to that voting booth. And I have appreciated the civil nature of this discussion, including of my colleagues. I hope that guides us going forward on this important issue. I want to thank all of you for what you have done and that you have come forward and testified. I think this was a good example of how democracy can work, from my perspective. I now want to get this bill through. Thank you. The hearing will remain open for a week. I have a statement from Senator Feinstein that I am going to include in the record. [The prepared statement of Senator Feinstein appears as a submission for the record.] Senator Klobuchar. Thank you and have a good day. The hearing is adjourned. [Whereupon, at 12:26 p.m., the hearing was concluded.] [Additional material submitted for the record follows.] A P P E N D I X Additional Material Submitted for the Record [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Additional Submissions for the Record A list of material and links can be found below for Submissions for the Record not printed due to voluminous nature, previously printed by an agency of the Federal Government, or other criteria determined by the Committee: Asian Americans Advancing Justice/AAJC, July 1, 2014, letter: http://mobile.advancingjustice-aajc.org/sites/aajc/files/ Advancing%20 Justice- AAJC%20Testimony%20for%206.25.14%20Senate%20 Judiciary%20 Hearing%20on%20VRAA.pdf. Lawyers' Committee for Civil Rights Under Law, statement: http://vrafortoday.org/wp-content/uploads/2014/07/Lawyers- Committee-VRAA- Senate-Judiciary-hearing.pdf. Leadership Conference on Civil and Human Rights, The, report: http://www.civilrights.org/press/2014/Racial-Discrimination-in- Voting-Whitepaper.pdf. Mexican American Legal Defense and Educational Fund (MALDEF), National Association of Latino Elected and Appointed Officials (NALEO), and National Hispanic Leadership Agenda (NHLA), ``Latinos and the VRA: A Modern Fix for Modern-Day Discrimination,'' report: http://www.maldef.org/assets/pdf/VRA_comp.pdf. [all]