[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]





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                       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

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                       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.


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