tv Hearing on the Voting Rights Act CSPAN August 17, 2021 10:39am-1:34pm EDT
very worried that i was having a heart attack. i have never had a heart attack but my father had heart attacks. we have a family history so i was kind of worried -- very worried -- about that. i must have put my hand up to my chest because that photograph of me that was taken shows me lying almost on my back with my hand up to my chest. i do not remember lying on my back, but i remember jason taking my hand and stroking it and comforting me and telling me i would be ok and being a little bit perplexed that he was reassuring me because i did not realize that i was showing how upset i was. >> this week, you also here for massachusetts democrat jim mcgovern. january 6 views from the house, sunday at 10:00 p.m. eastern on c-span, c-span.org or listen on the free c-span radio app app.
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>> lead not allow another anniversary to go by without ensuring the enactment of the legislation that bears his name, the john lewis voting rights act, to see that we have carried forth what what his life's goal was, which was voting. he gave blood. he started the soma and montgomery march. all those killed, wrist lives, others lost their lives.
cheney and good men were killed in philadelphia, mississippi just trying to register people to vote. this problem, which has existed since my childhood, where there were segregated drinking fountains and days to go to the zoo and public events, and let me tell you, the colored sections were not the good seats. they were the worst. vestiges of those days still haunt us. that's why this is such an important bill, because they percolate up so many times in voting. this subcommittee has devoted several time -- all of us in congress must rededicate ourselves to protecting this fundamental right at a time where, we are once again, under severe threat. the record we have built over the course of 13 hearings over the last two years is your.
-- is clear. voting discrimination is a current and worsening problem that congress must address. the tidal wave of voter suppression comes as no surprise. it is a predictable result of the supreme court's 2013 decision known as shelby county versus holder, which gutted the voting rights act's most important enforcement mechanism, section five, preclearance, striking that formula that determines which districts would be subject to preclearance, most in the old south. discrimination led us to civil war, led us to jim crow, and still haunts us. under section five, states with a history of voting discrimination were required to submit any changes of voting
rules prior to them taking effect, giving them probable cause, a prima fascia case. the justice department could show the need to protect citizens. the court held that an order to justify states and equally, those that had been listed in the voting rights act and those that hadn't, congress must create a formula based on current needs. the court invited congress to develop a new coverage formula, which is part of our mission today. in the absence of preclearance, states and localities have been implementing measures to further deny or abridge citizens right to vote based on color, race or minority status. after one of the most free and fair and impartial elections in our country's history, the most looked at and reviewed, just since the 2020 election, several
states have proposed or enacted restrictive voting laws in the name, as they call it, of election protect -- election integrity protection. -- 18 states have enacted 30 laws that restricted the right to vote, including measures that target mail in and absentee voting. let me remind everybody that five states in our country have mail-in voting voter in all their elections, and it started back in oregon over two decades ago. they have targeted mail-in voting and absentee voting,
increasing the risk of faulty voter purchase industry t id were -- purchase and strict id requirements. we will not discuss giving power to state groups to overrule election commissions because that's an overall abridgment of voting rights not necessarily based on race or speech or color. that's simply politics. at a minimum, these measures disproportionately impact language and racial minority citizens in a way that could deny the citizens their right to vote. just last month, the texas legislature passed a new ominous measure that would -- new on nevis measure that would restrict access -- harris county, the home of houston, texas, the state's most populous county and city and one of its
most diverse regions. those laws in harris county were designed to increase voter access. the texas senate passed its version of its bill four days ago. the absence of preclearance, plaintiffs have been forced to rely on section two, which bans rules that result in the abridgment of the right to vote based on color, race or minority status, but in a supreme court decision, they significantly curtailed the ability of plaintiffs to succeed in claims of alleged denial under section two, burning another one of the act's enforcement tolls. the erosion of the voting rights act by the supreme work. -- supreme court. congress must act. -- remains expensive even in the terms of the shelby county
decision. the 14th and 15 amendments to the constitution, the two of the three civil war amendments, give congress explicit legislative power to enforce voting rights and equal protection against race discrimination, so by acting, we are doing with the constitution, in its most farsighted fashion after the civil war said we needed to do to make us a more perfect union. those amendments formed the basis of congress's authority to pass the voting rights act in the first place. when the voting rights act was first challenged, just a year after its enactment, after a year, republicans had a higher percentage of people voting for voting rights than democrats, the supreme court upheld the declarant's division --
upheld the preclearance -- -- response to the courts concerned in shelby county. we are charged to do that. it should include a legislative response and other measures, such as a practice-based coverage formula, reform to the scope of enforcement actions, greater notice and transparency requirements and expanded
authority for preclearance and the use of federal election servers. i think kristin clark -- i thank kristin clark and all of our witnesses on the panel today and await their testimony. ms. clark will be our first panelist. i now recognize the ranking member of the subcommittee, the gentleman from louisiana, my friend mr. johnson of louisiana. >> i think all of us in the judiciary committee and every member of congress must first address the outrageous national security and foreign policy disaster that took lace over the weekend. people look up to another incomprehensible disaster created by the incompetent biden administration. after 20 years, trillions of dollars and thousands of american lives were spent standing up afghanistan's army and government, the country has been ceded back to the taliban
in one week. americans are being killed along with their families. people are hanging on the side to b-52s as they evacuate for fear of their lives under taliban rule. there should be top to bottom accountability at the pentagon and within the administration for this disaster. this stunning failure has been met with silence from president biden, causing a serious question as to his ability to carry out his duties. while he vacations at camp david, america's stature in the world has taken another step backwards. it is shameful and it is dangerous at i hope everyone of us will acknowledge publicly that the american people deserve and demand better. this morning, we engage, even as all that is now going on, our sixth hearing since april pearl let's go through these motions. we will have more discussion on legislative reforms to the vra. at the prior hearings, witnesses
have discussed ad nausea many of the proposed reforms. -- discussed ad nauseam many of the proposed reforms. last hearing, we discussed a provision that would require every political subdivision to preclear practices. we heard of other proposed changes, such as divisions that would create a new legal standard for courts to grant injunctive relief and impose reporting requirements on states and localities. today, our colleagues would like to continue the conversation about how the federal government and partisan bureaucrats in d.c. should exert control over state election laws. congress passed the voting rights act overcome resistance and barriers to minorities for exercising their right to vote guaranteed them by the 15th amendment.
the supreme court held in shelby county fee holder that continuing to make states preclear based on laws made decades ago was a violation of state sovereignty, noting that the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions. we should applaud the court's decision because it acknowledges and recognizes we have come a long, long way from one of the most shameful chapters in this country's history. instead of recognizing the progress this country has made, our democratic colleague seek to propagate legislation that would amount to an unconstitutional federal power grab over local election laws. hr4 would create a new section coverage formula that would allow a court to retain jurisdiction over a state or political subdivision for 10 years if a certain amount of voting rights violations have occurred any time the previous 25 years. under the new coverage formula,
a state or division can rack up violations without discrimination at all. objections by the attorney general will suffice to trigger federal coverage. this new triggering mechanism is troubling consider -- considering the politicization and partisan polarization of the department of justice's civil rights division. whenever our panelist today has said that the department has a history of filing experience complaints -- filing spurious complaints. -- creating meritless litigation to trigger coverage. when one of our prior witnesses noted that it create something akin to the heckler's veto.
it now appears states will not even be able to re-adopt voting procedures in place before the pandemic without input from the justice department. on july 28, the doj issued new guidance regarding state efforts to issue new temporary emergency voting procedures. the biden demonstration's new guidance suggests that states may not return to voting laws and procedures that existed before the pandemic, saying those laws and procedures may not be presumptively lawful. in 2020, state and local governments were tasked with administering elections during a pandemic. it was a once-in-a-lifetime event. many states adopted voting procedures to reduce health risks, despite prominent health officials saying in person voting was safe. with this new guidance, the department takes the position that these temporary emergency measures, some passed without state legislatures approval and blatantly in violation of article two of the constitution
-- this is contrary to congress's intention in passing the legislation and a clear example of the left weaponizing the doj to do its bidding. i implore my colleagues on the others of the isle to remember that it is easier than ever for eligible americans to vote than ever before. today, we will rehash the same territory again. i yield back. >> thank you. i would now like to recognize the chairman of the full committee, the gentleman from new york state, who has a long history of championing voting rights, having chaired the subcommittee before he became the full chairman, mr. nadler of new york city. >> thank you for convening this important hearing at an important moment in the life of our nation, when democracy itself is under greater threat than a decades because of a sustained assault on the right to vote across the country.
the voting rights act of 1965 is rightly regarded by many as among the most sacred texts of our nation's civic religion. it was in many ways among congress's crowning achievements. the act was really the result of the sacrifices made by many americans, including our late beloved colleague john lewis, who shed blood or even died to guarantee all citizens the right to vote. institutions of government, including this one in which we have the honor of serving, are more truly representative of our country because of the vigorous enforcement of the voting rights act. over the course of this year and over the last congress, this subcommittee has held a series of hearings documenting in exhausting detail -- in exhaustive detail the myriad ways the right to vote remains under threat for many americans. we have also examined the consequences of the supreme court's 2013 shelby county versus holder decision as well as last month's decision in
verna fitch versus d&c, both of which dealt serious blows to the enforcement of the vra. i appreciate this opportunity to continue our consideration of how we can restore the vra with full vitality and protect our most precious right. prior to shelby county, the voting rights act had been an unqualified success. it helps produce discriminatory barriers to voting and expanded electoral opportunities to people of color, to federal, state, and local despite the gates of evidence -- decades, the supreme court of shelby county substituted its own judgment for that of congress and the conclusion that a substantial record of continued to screw nation in voting supported the acts reauthorization. this decision effectively gutted at voting rights act, the section 53 clearance division.
it struck down the formula for determining which states and localities should be subject to preclearance. effectively rendering the preclearance provision and operative. there is no longer a basis for subjecting jurisdictions to its requirements. before the voting rights act, states and localities implanted a host of voter suppression laws. securing the knowledge that it could take many years before the justice department could successfully challenge them in court, if at all. as soon as one law was overturned, another was enacted, setting up a discriminatory game of lacrimal. section five broke this jam by requiring -- against racial and ethnic minority voters by summoning it to this is to permit for approval or seeking clearance in court before taking effect. in the axis of preclearance, the game has returned with a vengeance.
within 24 hours official be county decision, both texas attorney general and the northern carolina said they would reinstitute caller id votes. both of these state laws were held in federal courts to be intentionally racially discriminatory. during the years between their enactment in the court's final decision, many elections were conducted while the laws remained in place. since the shelby county decision , since the 2020 election, we have seen a dramatic rise in a dramatic rise in the number of voter suppression measures being proposed or enacted. a necessarily strict voter id laws, significant scale backs to early voting periods, research is on absentee ballots are just a small sample of recent voting changes that have a disproportionate impact on minority voters. according to a july 22, 2021
report, as of july 14, 18 states have enacted 30 laws that restrict the right to vote since the beginning of the year. as of august 9, a nonpartisan organization voting rights is tracking 473 nt voter bills in the states. -- anti-voter bills in the states. one particularly egregious example that stands out is george's sv 202 -- george's -- georgia's sv 202. increased restrictions for early voting and imposes criminal penalties for offering food or water to voters waiting in line to vote. an effort to pass a similar bill is currently underway in texas. while some texas state legislators, their ingenuity and courage have managed temporarily halt the effort, the ultimate
response ability lies with us in congress to fix the voting rights act to ensure that such bills never become law. in the absence of preclearance, victims of voting discrimination have been forced to turn to litigation under section two. this prohibits the voting process or requirement that results in the denial or agreement of the right to vote. the decision has no seriously eroded section two -- now a seriously eroded section to them only can be described as the summation of congress is constitutionally assigned legislative role, the court announced several new guideposts. seemingly from lower courts that are considering evaluating claims under section two's results test. when evaluating these claims under these two factors, lower courts could narrow to challenge discriminatory voting practices.
very practices that congress broadened the scope of section two to confront. a justice probably raise the alarm. she wrote that the voting rights act of 1965 is an extra ordinary law. rarely has a statute required so much sacrifice to ensure passage. never has a statute done more to advance the nation's highest ideals, and few laws are more vital in the current moment. in the last decade, his court has treated no statute worse. i cannot agree more. congress must act where the court has failed voters across the country. to revitalize the act must include a new formula that is broad enough to accurately capture the extent of ongoing voter discrimination and if current need for preclearance while being tailored enough to address the federalism concerns as expressed and shall be county. such legislation must also
explore a broader understanding of section two as applied to vote denial claims and consider other reforms to the act such as expanding judicial authority, balance jurisdiction simply clearance -- and preclearance, and hence the ability to assign federal election observers and facilitate plaintiff's ability to obtain preclearance injunctions. i think the chairman for holding this important hearing -- thank the chairman for holding this important hearing. i look forward to hearing from our witnesses and i yelled back. -- yield back. >> it is my pleasure to recognize a fellow member of the distinguished class of 2006, a ranking member of the full committee. jordan from ohio. >> the united states is the greatest country in history of the world. there is no question that our
nation has done more to advance democracy than any other. we are always striving for a more perfect union. yes, our country has always been perfect, we must acknowledge that we learn from our failures. democrats would have you believe we are facing some sort of crisis that requires rapidly changing how we run the nation's elections. but the facts don't support their arguments, as i hope you will hear today. this is a subcommittee six hearing on a bill that the democrats have yet to range it is in this congress. even though it has not been introduced, the majority leader announced the house may vote on it as early as next week. this is likely the last time the committee will have a chance to talk about the legislation, and we don't know what is actually in the bill. in 19 62 five, congress passed the voting rights act overcome state resistance and barriers that prevented some minorities from voting. as passed by congress, and included extraordinary departure from the principles of federalism to combat the exceptional conditions during a
dark time in our nations history. despite what some democrats say, the united states has come a long way since then. in 2013, the supreme court struck down the vra's coverage formula as it was outdated. the exceptional conditions from 1965 no longer existed to justifies objecting states to preclearance approval from the federal government as the ranking member of the subcommittee said earlier. the court decision and shall be acknowledge the progress the nation has made since the 60's and america is not the same today as it was in the 60's. we should applaud this progress. despite the strides our country has taken, democrats like to claim the supreme court has gutted the vra. they say that is why it is urgent to pass hr four, but the facts do not back that up. what democracy also acknowledges that the court's decision in shelby county did not strike down all of the vra not even close. section two and three c remain effective tools to rule out intentional discrimination where it might exist. hr four is a legislation
designed to radically change how we run elections into politicized enforcement of the voting rights act. there is no need to amend the vra and deny certain provisions that unconstitutionally and unjustifiable encroach on state sovereignty. another brazen attempt to grab power from state control and give it to partisan bureaucrats in washington. it institutes a practice-based preclearance provision. this provision would not just apply to states with histories of illegal discrimination, it would apply to every state and political subdivision in the entire country. in other words, every local county or city would have to get approval from unelected people in the justice department before changing its election process. that is some scary stuff. this provision is also designed to target popular voting integrity measures voter id laws, which polling shows most americans strongly support. americans is her free, fair and
accurate elections. every legal vote should count. -- deserve. to justify the unconstitutional federal overreach, democrats argued that states have enacted allegedly suppressive voting laws. the democrats ignore one glaring fact. it is easier today for eligible americans to vote than ever before in our nations history. it is interesting that democrats always target republican lead states like georgia and texas for literally suppressing the vote when these states actually have more expensive election procedures and democrat run states. -- expansive. georgia has a 17 days for early voting. president biden's home state of delaware only has 10. georgia has no excuse absentee voting. delaware requires an excuse. we don't hear democrats competing -- complaining about delaware. you don't see the biden administration bringing suit against delaware in court. they have unfortunately politicized enforcement of the voting rights act. to see how, look no further than
the guidance issued by attorney general garland last month. in 2020, many states adopted temporary voting procedures to reduce public health risk during a once-in-a-lifetime pandemic. recognizing the temporary nature of these voting procedures, and 2020, the attorney general directed the civil rights division to adopt a pra enforcement policy that would presume it lawful for a state to revert to election laws or procedures. it had before the pandemic. on july 28, attorney general garland issued new guidance. the new guidance said the state election laws and procedures that existed prior to the pandemic may not be presentable he lawful. if the state had a lawful election procedure prior to the pandemic, change into something else and analysis change it back, biden doj said you cannot do that. but this new guidance, the debarment takes the position of
a temporary emergency measures implement a during the pandemic id new baseline from which to judge compliance with the voting rights act contrary to congress's intention in passing the legislation. congo's men johnson and i sent a letter to attorney general garland -- congressman johnson and i sent a letter to attorney general garland. we hope to get a response before the house votes. hr four expansive of the and election administration as general garland's actions have shown, the biting initiation attempt to politicize the voting rights act. we cannot trust them with these new 40's. the backbone of our country is clear. states have the primary authority to administer elections, even federal elections. hr four, along with the biting joa -- doj -- biden doj is an attempt to radicalize elections. it is a power grab, p &. thank you, -- plain and simple.
thank you, i yield back. >> we welcome our witnesses and thank them for participating. i will introduce them in after we introduce them, we went -- will go into their oral testimony. we will have questions and after the conclusion of the second panel, russians of all of the analysts. each of your -- questions of all of the analysts. there is a timer in the zoom review that should be visible on your screen. when you get to four minutes, you need to start to wrap up. when you get the five minutes, he should be finished. before proceeding, i would like to remind all of the witnesses that you have a legal obligation to provide truthful testimony and answers to the subcommittee and that any false to meet you may make may subject you to prosecution under section 1001 of title 18.
the sole witness on our first panel is christian clark. ms. clark is the assistant attorney general for the civil rights division of the united states department of justice. she leaves the permits efforts to enforce a broader array of federal civil rights laws including the rights act of 1965. she's a longtime civil rights lawyer, beginning her career as a trial lawyer in the civil rights division to the department of justice honor program. in 2006, she joined the naacp legal defense and education fund where she helped lead the organization's work and voting rights in election law. in 2015, she was named president and executive director of the esteemed lawyers committee for civil rights under civil law. assistant attorney general clark received her ba from harvard. you are recognized for five minutes. >> chairman, subcommittee
members, i name is kristin clark and i serve as the attorney rights general. i want to thank you for the opportunities testify -- opportunity to testify. the need to revitalize and restore the act. the voting rights act is, as president johnson said, one of the most monumental laws of the entire history of american freedom. it is a lot that has helped to truly transform american democracy. however, the progress we have made is fragile as we watch the current resurgence in attacks on voting rights. we have seen cuts to early voting periods, new and burdensome restrictions to register or vote, racially gerrymandered restricting plans, polling sites eliminated or consolidated in communities of color, eligible voters remove,
group seeking help participate more. i am here today suit -- to sound an alarm. the supreme court decision in shelby county suspended their preclearance process, the justice department's single most powerful and effective tool for protecting the right to vote. the department's ability to protect the right to vote has been eroded as a result area for the justice department, restoration of the voting rights act is a matter of great urgency. before shelby county, the preclearance process enabled the department to swiftly review and block the implementation of discriminatory and unconstitutional voting practices and jurisdictions. while section five was in place, the justice department blocked over 3000 voting changes,
helping to protect the rights of millions of citizens. evidence of discriminatory purpose, intentional discrimination, was found in over 60% of a voting changes blocked by section five. in addition to blocking discrimination, a deterrent of the preclearance requirement is undeniable. the shelby county ruling has given a green light to jurisdictions to adopt voting restrictions. today, these laws can only be challenged through resource intensive case-by-case litigation. the department knows the work that comes with the case-by-case approach by way of cases we have brought recently in states like texas and north carolina. this gives to jurisdictions which the supreme court memorably called the advantage of time and inertia. before shelby county, jurisdictions had to meet their
burden of proof by demonstrating these rules were not adopted with the disc mentor a purpose and would not worsen the position of minority voters. today come disc mentor laws are allowed to take root immediately -- discriminatory. we are on the cusp of another potentially transformational movement were districts are about to commence, virtually every restriction -- jurisdiction that elects its members will be required to redraw district boundaries. new 20's when numbers show the u.s. is becoming an increasingly diverse nation -- 2020 census numbers. there is an increase in the number of people of color. absent congressional action will be the first with protections of the voting rights act.
without preclearance, there's just department will not have access to fax -- fac andt information for jurisdictions wheres there is reason for concern even of this kind of information is necessary to determine where voting rights are being restricted in to help inform how the department directs its limited resources. in 1965, congress enacted and in 1975, 1982 and 2006 we authorized a statute that provided the strong medicine it needed to remedy voting discrimination. our constitution's commitment to ensuring that no citizen's right to vote would be infringed on account of race or color. congress has brought enforcement powers and must act now to restore the voting rights act to prevent us from backsliding into a nation where millions of citizens, particularly citizens of color, find it difficult to
register, pass their ballot and elect candidates of choice. we look forward to working with this congress to revive this civil rights law. the justice department stands ready to support congress in protecting the voting rights of all eligible americans. thank you. >> thank you, we appreciate it. we will now start questioning and i will begin as his custom. i recognize myself for five minutes. his clark, why is a section five three clearance so crucial to combating discriminatory voting practices into do you see a connection between the supreme court's decision in shelby county and the sustained attack on voting rights we have seen since that decision over the past eight years? >> thank you chairman. section five of the voting rights act is truly the heart of the act. this is a bedrock provision that provided a unique tool to deal
with the problem of voting discrimination. in the course of our section five preclearance process at the justice department, we were able to block over 3000 discriminatory voting changes that would have otherwise taken root. this remedy is without parallel. section two of the voting rights act is no substitute. we have lost something. since the courts ruling in 2013, we have states move swiftly to reinstitute disc mentoring changes. we sought on the day the court issued a ruling in texas when it moved forward with the discriminatory voter id law that had been previously blocked by section five. we sought and north carolina -- saw it in and north carolina
which turned the clock back in multiple respects. it was being carried out with almost surgical precision. we have lost something and this matter before congress is an urgent one. we need the preclearance process back in full force and effect. without it, the justice department has lost its most important tool for safeguarding voting rights in our country. >> thank you. section five stands out, i would rate it on a scale of one to 10 of importance, it is a nine. section two may be a two. but section two was also damaged in the ruling that denied litigation alleging vote denial claims and remains to be seen how that will affect section two in general.
the consensus for many of our pride witnesses we have had in prior hearings is that it will make it more difficult to bring such claims. do you agree with this assessment that section two has been damaged? >> thank you. the justice department is continuing to look closely at the ruling. we observed the last time that congress amended section two was in 1982. it may be helpful for congress to use this moment to clarify the factors that litigants should use to establish a section two, the factors the court should rely upon. section two remains a very important tool that applies nationwide for confronting voter discrimination. we want congress to think about ways in which to clarify how section two should be applied by courts and litigants. >> the guidepost renounced by
the court had no textual basis and were contrary to the amendments to section two, which congress passed to ensure the active limited to screen a tory voting practices in all forms. what approach would you suggest congress could take to clarify the scope of section two now the decision has been issued? >> the justice department recognizes that is one congress makes. we urge congress to look closely at the ruling and burn of etch -- at the ruling and factors that may run contrary to the factors that congress intended courts to consider when evaluating section two claims. we have decades of case law interpreting section two, so this may be one moment where
congress seizes the moment to make clear those factors that it wants courts to look at and to clarify any conclusion -- confusion or gray area that may result from the ruling. >> some have said it is a federal takeover of state authority to regulate elections. alabama used to say it could count the number of beans in a jar or you had to repeat shakespeare or something like that before you could get a right to vote. would that beat challenging election laws or that have been preserving voting rights? >> the latter. i would say from the justice department's long experience implement in section five, the department has always worked cooperatively with jurisdictions. it reviewed changes swiftly. at the most, it took 60 days to review and come up with a
determination. there have been states that play their view that participating in the section five clearance process was one they were able to carry out with ease. we don't deem this a federal takeover. deem this the way of complementing congress is judgment that we need the voting rights act for discrimination and unconstitutional practice that may otherwise infect the electoral process in our country. >> my time is over, i yield to the ranking member from louisiana. [no audio] >> on july 28, did you help draft the july 28 guidance? >> yes.
i participated along with other colleagues inside the department. >> since the department no longer presumes that the state election administration procedures that were in place before the pandemic are lawful, will the doj review has states adopted this temporary emergency election procedures during covid-19 and whether the manner in which those procedures were adopted was lawful? >> thank you. the attorney general has made clear protecting and safeguarding the right to vote is an important priority for the department. right now, we are looking across the country it states that are making changes to their voting practices and rules. the language simply states that if a state or jurisdiction decides to revert back to an old practice, they will want to look at that with fresh eyes and
understand what motivated the decision to revert back to a prior rule. was the decision infected with discriminatory purpose or intended to make it harder for particular groups to vote? there is no presumption of validity when jurisdictions decide to turn it back. >> it seems like a terribly subjective determination on the doj's part at a time when everything is hyper politicized and opens a pandora's box for a lot of problems. let's talk about objectively. in article two section one clause two of the constitution it says clearly state legislatures are entrusted with the integrity of our unique election system and they are giving the exclusive authority to direct the manner of appointing presidential electors for the electoral college. as the supreme court affirmed, that power is placed absolutely and wholly with the legislatures and can never be taken away nor advocated. every state legislature in accordance with that has
long-established chilled rules and procedures to determine electors. in the months preceding the 2020 presidential election, those rules and procedures were changed in some states not by legislatures but a variety of other officials. governors, secretaries of state, etc. does the department plan to review that since it is a clear violation of the plain language of article two? >> we are committed to ensuring every eligible american has voice in our democracy and is able to access the ballot box. the elections clause of the constitution also gives congress the power to impact in short acts to federal elections. that elections clause power along with the enforcement powers that this body has by way of the 14th and 15th amendment truly give the subcommittee and members of the house the power to act now to ensure no
official, no jurisdiction undertakes action that could make it harder for people to vote, especially historically marginalized people. >> let me interrupt you. i understand we are talking about going forward, reviewing what happens now. i am talking about what happened last year. his adia date -- is the doj interested in that, the fact is a blatant violation of the constitution are you going to go into look at what you choose to look at? it is a serious question. >> we conduct very localized examinations of the voting rules in many states across the country. there is no presumption of validity, we are going to conduct an intense appraisal of the facts of the ground to understand the particular law or change violates federal laws that the justice department has jurisdiction to enforce. >> real quick, the data from recent elections into the g -- doj enforcement activity suggest
there is no need to amend. are you aware the census bureau data concludes african-americans in georgia register to vote and vote in elections at a higher rate than african-americans and democrat-controlled states of illinois, new york and california? >> i think those registration rates are an important data point for the subcommittee to study. it is also important to look at conditions on the ground. that is what the justice urged congress to do. we look at current conditions, we see there are in many places voters of color, black voters, latinos and others who were subjected to long lines. voters who have difficulty accessing polling sites because polling sites are being shut down in their particular communities. looking comprehensively at the facts i think is what can help congress undertake what the court asks and that is truly
looking at current conditions. >> i'm out of time, let's note that arizona has a higher voter turnout for minority groups in california. i yield back. >> i now recognize the chairman for five minutes. >> thank you. the supreme court struck down section four b of the voting rights act and shelby county, and invited congress to rewrite a new point coverage formula. what constitutional guidance should congress draw from the shall be county decision as it considers how to devise a geographic-based coverage formula to meet current needs? >> i think the work this body has been doing since 2019, the various hearings that have been held in congress, the field hearings, this hearing today are all rising to the task the court has asked congress to undertake. really studying carefully and
thoroughly, comprehensively current conditions across the country. it is our view that the justice department that careful analysis will yield the picture about where product -- problems are started and greatest in the country. about the policies and prayers -- barriers and restrictions that jurisdictions are resorting to to make it harder for voters of color to vote. this work that is underway is incredibly important and doing what justice roberts asked congress to do. >> section two litigation -- is a two litigation and adequate substitution for section five? >> absently not. these cases are time intensive, resource intense. -- absolutely not. in north carolina, the state
spent over $10.5 million defending its discriminatory voting law that came under challenge. the state of texas went over $3.5 million. section two is no substitute for the important, swift, preemptive review that was provided by way of the section five preclearance process. >> we've heard testimony from witnesses that overlooked consequence of the shall be county decision is that it has impaired the doj's ability to appoint federal observers that they've come to real and federal monitors who do not have the same authority to require local officials to grant access to elections process. do you agree with this assessment? why or why not? >> we do. the federal observer program has been a critical tool in how we carry out our work of ensuring
that voters get to the ballot. federal observers were deployed by the office of personnel management. they were independent, fair, neutral, eyes on the ground in places where there may have been reports that voter intimidation or other election day efforts to make it harder for people to access the ballot box. part of what we hope will come from this process is restoration of the department's ability to deploy federal observers to communities where they may be needed. >> one last question. does the supreme court shall be county decision tell us anything about what kind of evidence the court will accept the demonstrates current needs if it reviews a new coverage formula? >> again, i think was started in 2019 and continues today shows that congress is leaving no stone unturned.
an understanding what the problems are. in understanding what the current, present-day conditions are. as this work continues in the effort moves to the senate, it will be playing to the courts that congress answered the call of ensuring that any shelby remedy is a remedy that his response to current conditions in the country. >> lastly, what geographic coverage formula would you recommend and why would it be constitutional? >> the justice department's view is that this is ultimately a call for congress to make. the justice department is proud to aid congress'understanding of current conditions. the geographic coverage provisions that has been
discussed -- there has been a practice-based preclearance proposal that aims to look at particular kinds of voting restrictions and rules that tend to be resorted to, basically making it harder for voters of color to access the ballot box. whatever congress ultimately decides, we know -- it must be a record that is justified. it must be a remedy that is justified by the record you are developing. we are here to help congress understand what that looks like. >> my times expired, i yield back. >> i recognize the gentleman from ohio with a nice orange tie. >> thank you. let me get this straight, i want to go to where the ranking member was. it states attempt to revert to the election law prior to covid,
you are going to come after them, but you are not going to look at the actual changes they made to the election law, changes i think were done in a constitutional fashion. you are not looking at that issue. >> thank you. you're not coming after any jurisdiction. -- we are not coming after any jurisdiction. we are looking closely to see why lawmakers are instituting new changes to the rules. if, for example, we learn that estate was motivated by a desire to make it harder for native american voters to access the ballot, motivated by a desire to make it harder for black voters to access early voting, motivated by desire to make it harder for latino voters to access vote by mail, those are the important facts that rise to the level of potential violation of section two of the voting rights act or another federal voting rights act. >> when you give the example.
prior to the 2020 election, pennsylvania election law said that the election ends at 8:00 on tuesday. that is with the legislature passed, that is what was signed by the governor, that was the election law. democrats in pennsylvania went to the partisan supreme court, state supreme court ensued in the state supreme court in the states "set election law does not end at 8:00 tuesday, even though that is what the law said . the election -- now it goes until 5:00 friday. a total end run around the legislature which is mr. johnson out, we know the time and place of election lies determined by state legislatures. are you going to look at that fact? was that done in a constitutional manner? are you going to look at that, for example? >> i am not familiar with the situation in pennsylvania. but we are looking across the country to understand why are lawmakers changing the rules and
-- it is not partisan, but to make sure that those changes are not -- >> will you look at changes made to election law prior to the 2020 election? will you look at that or are you only looking at states who were going to revert back to where they were prior to the 2020 election? >> we are looking across the country at existing laws, at new laws, at laws that have been put on the books recently that are now being taken away. the sole goal is to ensure that all eligible americans have access to the ballot and that they have access, it is free from discrimination -- >> everyone at this hearing shares that goal. but we also have -- we are also concerned about making sure election law is done in a constitutionally proper manner, proper fashion. it sure looks to me like in pennsylvania as the example, it
wasn't. when the state legislature passes and election law that says the election ends at 8:00 tuesday, but then the state supreme court says forget what they said, we are extending it three days, that never went through legislature. they extended the election three days. the same thing happened with mail-in ballots. election on pennsylvania says they're supposed to be signature verification for every ballot. for the secretary of state, not going to the legislature, said we are not going to have signature verification for the mail-in ballots in pennsylvania. all of those 42 point some million ballots never had signature verification. are you going to look at that and say is not consistent with the constitution? >> i want to assure you that some of these voting changes you may be referencing may not trigger a violation of a federal voting rights laws. the justice department does not undertake its work in a partisan manner. our sole focus is ensuring
lawmakers are not acting with discriminatory motive or acting in a way that will have a discriminatory effect of protected minority groups. that's it. >> thank you, i yield back. >> i would like to ask for unanimous consent to submit into the record but a council of economic advisers entitled the importance of protecting voting rights for voter turnout and economics well-being. with that objection? thank you. i would also like to enter into the record the 20 21 report of the house administration committee -- subcommittee elections and voting in america ensuring free and fair access to the ballot. so done. i now recognize the next speaker for five minutes.
you are muted. or you are mute. >> thank you very much. i appreciate your calling this hearing. i want to ask you about the potential enhancement of mail and jurisdiction. in light of the department's prior experience administering the preclearance for jame, what is your opinion -- regime, what is your opinion on amending section three c to permit courts to bail in jurisdictions for violations for the voting rights act in addition to cases where there have been violations of the 14th and 15th amendments? >> thank you for that question. the bail in and bail out provisions of the voting rights act are important features of the statute. they allow away for jurisdictions that may have recent histories of voting discover nation to be brought into the preclearance process.
likewise, bail out for jurisdictions that have greenville help from 10 years to be exempt from the clearance process -- that have clean records for 10 years to be exempt from the clearance process. i think the bail in and bailout features make it clear that congress designed a very carefully tailored statute. it allows for expansion, restriction based on the record of those jurisdictions. i encourage congress to look at those provisions and see if there are ways for jurisdictions to bail out or, alternatively, easier to bring jurisdictions in , particularly those that engage in prison stay discrimination when it comes to voting rights. >> i've heard now from several of my colleagues on the others of the aisle about the claim
that the state of pennsylvania somehow violated the u.s. constitution indy 2020 election in other states had done that before. minor standing was that 62 different federal and state courts rejected categorically this claim that there was some violation of article two of the constitution taking place. as i understand, they are basically saying would you look at some of these voting rights act claims for example, the extension of hours violated the voting rights act? are there any ways he would not look at that to determine whether there was intent or effect on the voting rights act? >> thank you. again, protecting the right to vote is an important priority for the justice department. it is something attorney general garland has made clear repeatedly. as we look at the picture across the country, our review is a narrow one. it is focused solely on understanding whether jurisdictions are changing the
rules, adopting new restrictions and ways that protected minority groups who deserve the right to be able to access the ballot free from discrimination. this is not a partisan exercise. it is a very limited review. limited jurisdictional role that the justice department has. >> no court have ever found that there was either constitutional or statutory problem with the kinds of changes they are talking about from the 2020 election, much less a violation of the voting rights acts. it is interesting they began by proclaiming federalism, but they are attacking voting practices, and particular states as in pennsylvania. i want to thank you for your service and thank you for very carefully threading the needle to help us come up with a statute that will stand the test of time and vindicate our overwhelming -- to make sure
everyone gets the right to vote. i yield back. >> our next questioner is out of california. as seen on? -- is he not on? is mr. roy available? mr. owens? miss ross of north carolina, you are recognized. technical difficulties. >> we've got it, sorry. i was being very good about mute. but thank you for having this hearing and thank you for your testimony. it is important for our deliberations as we bring the next voting rights act forward. the rising voter suppression laws across the country have revealed critical gaps in the
voting rights act. and its ability to protect the right to vote and to allow affected authorities to obtain timely relief under the claims they pursue. we have certainly seen this in my home state of north carolina. i want to bring up the thornburg versus jingles case which did come from north carolina where the super court outlined a nonexhaustive list of factors that a court should consider and vote delusion, section two cases. in any legislative response to the decision, do you think it is important for congress to explicitly clarify that section two b continues to apply to vote dilution claims and that courts must apply the jingles decision to those claims and if so, please tell me why. >> thank you for that question.
the justice department thinks it would be valuable for congress to look carefully at the ruling and the factors set forth in the opinion to see whether there is a divergence between the factors that this body had intended courts and litigants to consider in section two cases. clarity i think it can be very helpful for the justice department and for other litigants that pursue section two cases going forward. with that said, the ruling leaves section two intact and remains an important tool we are using to safeguard voting rights across the country. >> thank you very much for that answer. we've heard testimony this congress that the lower courts overreliance on the so-called purcell principal has made it inordinately difficult for section two plaintiff's to
obtain equitable relief in cases involving latebreaking changes to voting procedures. should congress consider amending the bra -- vra to address purcell, and if so, how? >> again, congress bears broad enforcement powers under section two of the 15th amendment. section five the 14th amendment. the elections clause which gives congress the power to speak to the time, place and manner by which voters can access the ballot in federal elections. all three of these provisions truly give congress the power to provide clarity about how it intends section two to be used. manta to your question is yes, this is an area we would encourage congress to look at and explore further. >> as a follow-up, do you think
it is particularly important for us to look at this principle in light of the upcoming redistricting we will be doing based on the census results? >> yes. the supreme court has urged congress to look at current conditions. we know over the course of the past decade, over the course of the past few decades that redistricting is a moment where we see discrimination rear its ugly head. we've seen racially gerrymandered plans, we've seen efforts to pack minority voters into districts in ways that harm their ability to access the ballot. we've seen fracking of minority voters across districts. there is a track record here, i think the upcoming redistricting cycle underscores the urgency of
congress resolving this issue now. of speaking to the shelby court ruling now and ensuring we have the full protections of the act back in place before the upcoming redistricting cycle gets fully underway. >> i yield back. >> i recognize the gentleman from georgia. the man that rings exactly next to me but just a little behind me in seniority. mr. hank johnson. >> thank you mr. chairman. during previous hearings on the vra this congress, we have heard testimony documenting the fact that section two litigation is a lengthy process, often taking two to five years to completion. for the time a section two plaintiff has enforceable judgment and of the challenged
voting practices blocked or rescinded, multiple election cycles for federal, state and local office will have occurred. the result is that untold numbers of minority voters could be disenfranchised while multiple elections are held under laws that are later found to be discriminatory. the courts cannot strike down the results of an election later found to have been conducted in violation of the voting rights act. would you agree that successful section two litigation over the course of multiple election cycles without a final disposition results in great harm to individual constitutional rights and to the public interest, and if you believe that to be the case, should congress consider amending the standard for obtaining preliminary injunction relief so as to ensure that grave harm -- that that grave
harm is prevented, and if so, what changes would you recommend? >> thank you congressman. as i noted earlier, section two indeed is no substitute for the important protections that have been provided by section five. in south carolina, the supreme court talked about shifting the advantage of time and inertia away from jurisdictions and we need congress to ask now. -- act now. as you have observed, the cost and burdens tied to section two really make it difficult for section two to serve as a substitute for section five. section five has been a checkpoint on democracy. you raise the question of whether we should think about amending the per limiter injection standard for section
two. but the justice department would urge congress to really keep section five under its microscope and to keep the shelby county ruling front and center as it looks at how we can replace section five or put back in a remedy that restores some of the important, printed protections that have been provided by section five. >> currently, the voting rights act only permits the attorney general to institute an action for preventative relief, including injunctive relief, for a limited set of violations or potential violations. does this hinder the department's ability to protect minority voters in -- before a discrete trade practice goes into effect? if so, how should congress consider expanding the scope of
section two in order to provide the department with the necessary tools it needs to prevent indiscriminate toy practice before it disenfranchises voters question mark -- discriminatory practice for disenfranchises voters? >> if i understood your question correctly, you are talking about some of the unique powers that the justice department holds under the voting rights act and whether that disadvantages others. >> my question is, with the limited relief, including injunctive relief that the attorney general has two preventive voting rights violations under section two from being ongoing, do you believe that congress should
consider expanding the scope of section two to provide the department of justice with the tools necessary to prevent that discriminatory practice or does practices from occurring while elections are being held? >> thank you, congressman. we want the opportunity to look at that question carefully. it is my understanding that the constitutionality of section two is not in question. this is a nationwide provision that, in its current form and shape, has served as one important tool for safeguarding voting rights. the burn of its ruling i think raises the question about whether congress will clarify factors that courts are supposed to consider. but section five i think is the
true focus of the work that is underway. that is the area the department has been focused on. we look forward to supporting this congress and undertaking work to figure out a way to replace and restore the important protections that have been provided to the unique section five preclearance process. >> thank you. i yield back. >> thank you, mr. johnson. miss garcia from the great state of texas, the county of harris. >> thank you for bringing us together for this very, very important hearing. i wish it was a lucky seven, we could still have one more before we markup the spell. thank you assistant attorney general, first i want to congratulate you on your historic nomination and position
as the head of the civil rights division. it makes me proud to know that you are the first woman, particular the first woman of color. it is great to have you with us today. thank you for all the work you done in the past in this area. it is time to show the american people why it is so essential to pass both hr one, the people act and the john lewis voting rights investment act. especially during this critical moment where republican led state legislatures, including my very own state of texas, sadly enough, we have launched to restrict voting rights around the country. that is why i am proud of joined many of my colleagues in sending a letter that was led by members of my class and particularly for presented of escobar who sits on the -- representative escobar who sits and the sherry committee urging the need to
immediately pass -- judiciary committee urging the need to immediately pass. we need to address the threats these efforts present to our democracy. we must act to protect the vote, we must act to expand the vote. we must act to make sure our children have the benefit of the right to vote. with that in mind, i want to ask you. a question particularly to the recent numbers that were released just last week. we shown that the first time since 1790, the white population has decreased and the largest and steadiest gains were among the latino population. our nation is moving closer and closer to becoming a true multiracial 6i-80 -- society without a clear racial majority. do you think this is the kind of condition -- the kind of reflection of changing
demographics in our states that require us to act swiftly on the voting rights act? >> >> thank you for that question, congresswoman paying it the justice department has seen the demographic change can prompt changes. one example out of kill michael, mississippi -- out of mississippi. the data showed the number of black voters in a particular community had grown substantially. there were a number of black voters on the council. the town voted to cancel the election, once it happened. that decision was a change that impacted voting.
they reviewed that decision to cancel the election and decided to block the change because it was very clear that it was motivated by discriminatory intent. they alighted a majority of blacks to the council. it is an example of the powerful way in which this operates. it operates in communities large and small. they may not be on the radar. communities that might not be responding to demographic change that we see continuing with the results of the recent census data. this underscores the urgency and the urgent need for congress to act now as jurisdictions gear up for redistricting.
no doubt this new round of census data may prompt the discriminatory changes that we have seen in the past. >> he said that section five was the heart of the voting rights act. it is urgent and we must act. we must act to ensure that voting rights are protected around the country. lex absolutely. it is an important priority for the justice department and we look forward to working with you until the very end, to help understand what the current conditions are and to fashion a remedy for the problems that we are up against today. >> annual back.
>> thank you. now we go to another outstanding member from houston, texas. >> mr. chairman, i am honored. i wish we were in the other body. let me welcome the assistant attorney general and thank her for her leadership and expertise. the nuisances that will not have the protection of the voting rights act -- people making this a race question. i believe this is more crucial than ever before. opponents making the question about race -- it is not about
race. it is about voting rights. it is not about lack people only . it is about voting rights. my dear colleague has made this a race question and i rebuke that. 1965, 1975, 19 82, 1982 again of the record that shows that every vote for the authorization voting act was bipartisan, and huge numbers. republicans and democrats and other diverse persons in the u.s. congress. >> in the spirit, it will be with that objection, done. >> i wish to put it to the record.
my great colleagues divide -- fighting against suppression. we are 49th. it is evidenced by research. i will give you two questions. having delegated us, using local observers, would you indicate how important that question -- how it impairs you and whether it is correct? number two, under the benefits case, tragically undermined, we seem to have the ability to put
in a bifurcated test, one that way deal with assessing redistricting. when you answer how important that perspective would be? my last point would be that the importance of perspective -- prospective hearings be put into the record, as we move forward. thank you. thank you so very much. >> the program has been an important tool to ensure that all eligible voters, especially voters of color -- the justice department has routinely received reports about voter
intimidation efforts or other tactics aimed at making it harder to vote. the deployment of observers by personnel management allowed the department to put independent eyes and use on the ground in those communities. people who can document and tabulate what was happening. their presence helps to neutralize situations that may have unfolded. we are hopeful that it will help restore the ability of here j going forward. with respect to section two, as congress well knows, it has brought it under reconstruction, but there are also broad powers by way of the elections clause that gives this body the ability
to ensure access and federal elections to institute legislation concerning the time, place and manner by which we can access federal elections. we urge congress to use its broad enforcement powers. and field hearings are another way to complement the work that you are doing right now. bringing members together to debate what is the appropriate remedy, but particularly, given the pandemic, getting on the ground and giving voters the opportunity to present to you the story of what they are seeing and what they are seeing when it comes to discrimination.
>> thank you. >> miss garcia, did you have your hand raised for some reason? >> yes. the letter i referenced that was signed by leadership. >> without objection, it will be done. >> mr. chairman, we cannot hear you. >> that was good. even the prize. it was a test. general clark, thank you for your service to our nation and your testimony today, which was very helpful as the compose a record.
with that, you are dismissed. we appreciate your work. we will go on to the second panel. >> thank you for the opportunity to testify today. >> now we are at the time for our second panel. we will give them a few seconds to come up on this virtual panel. i think that we are altogether. our first witness is mr. henderson. he is an institution, like you are looking for the three wise men and he is one of them. having previously led the organization for more than 20 years. more than 200 civil and human rights organizations.
a graduate of howard university, little earlier then vice president kamala harris was a graduate. mr. henderson, you are recognized for five-minute. you have to unmute. mr. henderson, you have to unmute. nod, if you can hear me. you can hear me. you have to unmute yourself. >> sorry, mr. chairman. >> it has happened to me as well. >> thank you, mr. chairman and good morning.
thank you for the opportunity to testify today. we deeply appreciate you helping us with our voting system and the urgency in fulfilling. we have taken seriously our authority and obligation after the devastating decision unleashed a torrent of voting discrimination that continues to this day. today i welcome critical evidence. the formula for informing preclearance was decades old and outdated. congress could update such a formula.
through several state reports admission and prepared by our partners and allies, we are introducing conditions. we offer reports documenting recent voting discrimination and plan to introduce additional reports. they powerfully demonstrate that they have an urgent imperative to restore the voting rights act. it is pervasive, persistent and adaptive. we include the voter restrictions past this year after the historic voter turnout , but also include other recent history of the states. this is the current discrimination on which congress must update the preclearance formula and make several
additional amendments to the voting rights act so that voters of color everywhere can fully participate in the political process. in north carolina, before the ink was dry, lawmakers introduced a monster anti-voter bill that was struck down for targeting african-americans "with almost surgical precision" . texas began enforcing its own photo id law, previously blocked by the justice department. they found it to be motivated by an unconstitutional discriminatory purpose. lawmakers adapted a strict photo id law, but in the amended to address the discriminatory -- discriminatory impact. leading a court to say that one cannot doubt the vital function
that section by -- section five displayed. in alabama, lawmakers packed black voters into majority black districts, diluting their vote. they remanded the case on evidence that mace motivated the drawing of particular lines. for alaska, we submit a well-developed record of discrimination against the state's indigenous people, which include denying that the 15th amendment protections -- providing less information to native voters because they are native and failing to offer language assistance, despite court orders requiring it. in louisiana, the justice department challenged the at-large method of electing aldermen in the city of west monroe.
black residents comprise nearly 30% of the voting age population , but no black candidate has ever been elected. in mississippi, where the first lawsuit was filed, they found that calhoun county's redistricting plan diluted minority voting strength, in violation of the voting rights act. months ago in virginia, a federal judge -- recognizing that it's discriminatory effect reflect the broader culture of racial discrimination in the city and the state that continues to impact voters of color today. just this year, florida placed restrictions on the ability of organizations to assist with voter registration. a bedrock activity for many whose mission is to enhance
participation among voters of color. last but not least, in georgia, a federal court found that the reversion was a severe infringement of lack voters right and in the wake of the historic 2020 election, which produced the first black u.s. senator, the legislation passed even more restrictions listing eight different lawsuits. earlier this month, we celebrated following the pronouncement in shelby county. our country has not changed. discrimination today continues to constitute a stain on our democracy. we employ congress to swiftly pass this act.
the future of our democracy hangs in the balance. thank you. >> thank you, mr. henderson. we had a brief technical problem, but we are back. you may be needed again. our next witness is mr. mccrary. serving as historian in the department of justice. he received a phd from princeton and has an undergraduate. you have recognized for five minutes. >> thank you for inviting me to test way -- testify before you today. i still at george washington
community law school. my testimony today is offered in my personal capacity as a historian. my testimony focuses on empirical evidence, identifying the jurisdictions that would be colored by a new form of preclearance and voting changes, which i understand is being -- by this chamber. they retained me as a consultant . they seek to restore the preclearance divisions of the voting -- voting rights act. it was invalidated by the supreme court.
preclearance refers to the process of federal approval before implementing change, effecting voting. i have identified the jurisdictions that i believe would be subject to preclearance commission version become law. using research methods, i have employed over the last four decades. the conclusions could change if the congress alters the review theory. entire states could be covered, but even to preclearance, it could be covered if the violations in that subdivision fits the criteria set out in the john lewis bill. the entire state would be subject to preclearance, if 15
or more violations occurred within the state during the previous 25 years, or if more violations occurred in the state, one of which committed by the state itself. under the current version, violations include any final judgments of the voting rights violation by the federal courts, by the attorney general and a consent decree or other settlement causing a favorable change for minority voting rights, such as consent decrees protecting majority status -- citizens. i know that changes to the formula could lead to different decree -- different conclusions.
as a university professor, i served as an expert witness in numerous cases in the south. i joined the civil rights division in the department of justice as a analyst. my responsibilities in the civil rights division included the planning, direction, coordination and empirical analysis for voting rights litigation. since retiring from government service, i have served as an expert in several voting rights cases. the record of my scholarly publications over the last 43 years is set forth in the curriculum. my written testimony explains the methodology employed in my investigation. the eight states that are most
likely subject to preclearance of voting changes under the current formula are alabama, florida, georgia, louisiana, mississippi, north carolina, south carolina, and texas. exhibit one of my testimony identifies each of those states. several states could drop out of coverage. those states are alabama, florida, north carolina and south carolina. each is close to the minimum threshold. minor changes could make a difference. shortening the review period could remove some state from coverage. if the review period were shortened to 20 years, only georgia, louisiana, mississippi and texas would likely remain covered.
several states that appear not to be covered could be covered, if certain changes in preclearance were made. those states, i address in exhibit two of my testimony. virginia only has eight violations. changes in the formula could cause virginia -- to be of the eight violations were enacted by the state. new york and california are each between 10 and 15 violations, but none were committed by the state. >> i think my timers says your five minutes is up. if it is not, i'm sorry, but if it is, we need to wrap up. >> the bill you are considering could play a key role, diluting -- based on my years of
experience, i believe strengthening enforcement is a critical need for our democracy. thank you. >> thank you, sir. our next guest focuses on voting my elections, money and politics, and ethics. she received her ba from yale. you are now recognized for five minutes. >> thank you. in shelby county, the supreme court gutted the most powerful and successful division of the voting act because it found that the formula congress used to determine which states should be
covered by preclearance was outdated. at the same time, the court invited congress to craft an updated formula, one mounted in current conditions and needs, targeting where it is pervasive and persistent, to justify preclearance. that is precisely what this congress has done and is now sharpening in the advancement act. i will make three points. first, as many have already noted, our country is emphatically facing extensive and persistent race discrimination in voting. extraordinary conditions make preclearance necessary and constitutionally justified. this committee has already collected evidence on the subject and i add four new publications to the record. one that i would like to highlight turned out among
voters -- it is now substantially lower than that among white voters. it has been for at least 25 years. in the 2020 election, despite record overall turnout, roughly 71% of white voters cast a ballot compared to nonwhite voters. the racial turnout gap is even starker. in virtually every one of those states, the white and black turnout gap has grown substantially. contrary to what the supreme court observed in shelby county, the turnout gap has not -- it was anomalous. for other minorities, and never had. targeted geographic coverage remains inappropriate way to root out discrimination in voting. even though discrimination is widespread, the evidence before
this committee shows that it is much more prevalent and tenacious in some places than others. third, do young graphic formula that congress is contemplating is sensible, fair and constitutional. it has been modernized and designed with precision to respond to concerns is -- in shelby county. the formula relies on the best evidence of discrimination, documented violation of laws prohibiting discrimination. the formula captures only those that meet a high numeric threshold over time. 10 to 15. to ensure that a target -- the
formula is not frozen, but it rather rules forward so that coverage always turns on moderate considerations. it limits to 10 years so that those without recent -- jurisdictions without recent violations can easily bailout before then as well. in short, the formula is effectively designed to identify those places where voting discrimination is recent, widespread and persistent. as a factual matter, the formula succeeds in accomplishing that aim. these are precisely the circumstances, when preclearance is most needed and most justified. in conclusion, as justice kagan
observed, this is a perilous moment for commitment to equal citizenship and an era of voting rights entrenchment. it is about to get much bigger as states and localities begin redistricting. it is a problem that only congress can solve bypassing the advancement act and the further people act. thank you. >> thank you. our next witness is maureen merten. she joined a group in 2021 after serving years in the civil rights department. during the trump administration, she became senior counsel. she received her bs from seton hall. you are recognized. welcome back. >> thank you. good afternoon or morning, mr.
chairman and members of the subcommittee. i am an attorney currently. it is a nonpartisan charity devoted to integrity and preserving the constitutional mandate. as you said, for over 20 years, i served in the division. 18 years as an attorney and senior counsel for civil rights. from 2000 until the supreme court decision, my primary responsibility was to review changes that were submitted for clearance. by june 2021, i shared with you firsthand observation of the unethical conduct that occurred on a daily basis. included instances of twisted wish -- racism, blatant
violations of the hatch act, targeting of african-american to colleagues. disdain for the equal protection of civil rights laws for all americans and the collaboration with many advocacy groups scheduled to testify today. you do not have to take my word for it. ethan read the general's report on this point. the fact is that the voting section sanctions millions of dollars for bad behavior in section five enforcement. when you finish reading the report, you'll rightfully wonder if it is a good idea to give this office a much power over every election. the supreme court mentioned that certain conditions would justify
a formula for section five coverage today. some of the touch tones are blatantly discriminatory. a lack of minority office holding and voting discrimination on a pervasive scale. it must relate to empirical circumstances. the court rejected the notion of section five would be constitutional, into the future, when there is never any evidence of action by a state. as proposed, for violations of the act, section five violation, section two violations and consent decrees. it reaches back years ago, for findings. i would ask all of us to go back
25 years to ask yourselves, do you think that was recent? i do not believe it is. findings that used the disparate impact that the supreme court now says is not justified, it would also trigger preclearance. the use of section five previous objections singles out only those states that previously were subjected to preclearance. those that were never subjected have no section five history. those states would be alabama, florida, georgia, louisiana, mississippi, north and south carolina and texas. this is the targeting of certain states that the court found to be unconstitutional. section two of the voting rights act was intentional in processes that resulted in a discriminatory outcome.
it was mostly confined, but since 2013, the year that the shelby case was decided, plaintiffs began filing denial claims against elector oral procedures. trying to persuade the court to reduce the standard of evidence required for a violation. based upon the misuse of section two, there was a split in certain courts that gave the court an opportunity to annunciate a true constitutional standard to evaluate claims. many of my colleagues may not like the result, but it was the improper use of section two for a replacement for section five, that necessitated the decision. it is almost identical. there are permanent provisions
that provide the tools necessary for the department to root -- quest if you want to close, you have five seconds. >> they target current discrimination and are consistent with allowable federal oversight in shelby. thank you. >> you are welcome. >> our next guest -- a position he has held since 2009. she was also there for 12 years and taught civil rights litigation. he received his ba and his undergraduate degree, both from yale and both with honors. we are honored to have you. you are recognized. >> thank you for having me.
for 53 years, we have worked. i am an essential -- an essential part has been to protect the voting rights of latinos in this country. ample experience in enforcing voting rights. we have done well over 100 case is under the voting rights act. i have to say it has been critically important. our experience tells us that it is imperative to restore the use -- enforcing the voting rights of latinos in this country. there has been incredible growth of the latino community and the latino voting community, where more than half of the total
population emanated from the latino community. you can understand why we anticipate extreme challenges in enforcing voting rights in the years to come. rapid and significant demographic change is ongoing in this country and it means too many jurisdictions will be at a tipping point. they perceive it as a threat to those in power. that necessitates a tool that is effective in prevent -- preventing them from acting by seeking to restrict voting rights of senate minority voting groups, in particular, the latino community. it is essential that we begin to use preclearance to address this challenge. there are some who have a
preference that they should strike down the entire team. they did not do that. they struck down a coverage formula and invited the reintroduction of preclearance with new and invigorated coverage formula. i urge the congressman forward, one includes geographic coverage, including the state itself, of texas, which the latino community has often had to challenge in its attempt to strip the right to vote of latinos and other voters. that geographic coverage ensures that those who have been recalcitrant and crafty, in seeking to prevent minorities from exercising their right to vote -- to determine whether
those new proposals can comply with the voting rights act. i urge congress to include practice-based coverage on which the subcommittee heard a couple weeks ago. this would ensure that new jurisdictions, without having the opportunity to acquire a history -- to adopt practices that show that they have infrequently used in the past, precisely to stem the growth of minority voting power. i have stated previously that it tells us conclusively that section two, while important is not an adequate substitute by itself. it is expensive and time-consuming. they cannot put in place immunity. this despite challenging --
preclearance is critically important as a device of alternative resolution. like all good insurers, we want to make sure our courts are not inundated with too many cases by putting in place an alternative decision-maker in the -- in the process. it is one of the great ironies that they support other circumstances. i embrace and urge congress to recognize how important it is to ensuring the challenges presented and reaction to unprecedented participation in the form of new attempts to suppress the vote can be handled effectively and efficiently. thank you.
>> thank you. our next witness is miss sophie. she is the director of the voting rights project. if my fingers can do me better than this -- assisting the planning strategy of litigation nationwide, including service as the lead counsel, challenging multiple provisions of georgia's new law. she received a ms and behave from stanford. she is a true stanford cardinal. >> members of the subcommittee, thank you for remembering -- for the eight opportunity to testify today.
the dra is one of the most successful pieces of civil rights men -- civil rights legislation in our history. the supreme court gutted the most powerful provision, dissection section five preclearance system. my colleagues have testified powerfully on the importance of restoring the system. the principal needs to be protected, which authorizes challenges that can be brought only after a law has been passed or a policy implemented. section two itself has been under attack for years in at least three ways. the supreme court based its ruling in part on the assumption that plaintiffs would be able to obtain preliminary belief before an election, to guard against elections going forward, under regimes that are later struck down as discriminatory. the theoretical availability has
proven to be inadequate. the current standard for a preliminary injunction is a particularly high by inverting cases, given their complexity. these cases take multiple years to litigate, which means many elections can take place under regimes that are later found to be discriminatory. an irrevocable taint on our democracy that we have seen play out many times. my prior testimony describes plaintiffs that ultimately succeeded, were unable to obtain preliminary belief with numerous elections taking place and voters taking balance, under regimes, courts find discriminatory or are abandoned.
second, this problem has only worsened, due to the miss -- -- metastasis nation -- this is the idea that courts should be cautious, changing election rules. what began as a commonsense warning to consider potential voter confusion and administrative ordinance now operates as almost a per se bar against intervening. they use of black relief has excluded over the years. from six times, to 11, to 58 and 2020. the doctrine is continuing to expand, well beyond the common sense warming -- purcell is invoked today, even when there is no risk of voter confusion, little to no administrative burden or unforeseen emergencies like an unprecedented pandemic. it has taken over the analysis,
even when there has been a strong finding that violates the constitution. worse yet, all too frequently, purcell is wielded inconsistently to undermine efforts that discriminatory practices are blocked. my testimony highlights several examples. purcell threatens to kneecap litigation nationwide. compounding all of these challenges, supreme court's recent decision has furthers underlined section two the decision raises the bar to show an actionable burden and medically lowers the bar for others, allowing -- justifying
discriminatory practices. fortunately for all of these issues, congress has the power to act. congress has the clear authority to set standards for preliminary belief. the clear ability to correct. not only does congress have the power to act, it has the responsibility. racial discrimination and voting continues to threaten the health of our democracy. section two is a necessary tool. thank you. >> our next witness. he is a manager of the election law initiative he previously
worked at the justice department counsel for civil rights, providing help with the voting rights act and the help america vote act, serving on the advisory commission on election integrity. he received his degree from arguably the finest law school in the south. in his undergraduate degree from m.i.t.. you are recognized for five minutes. >> i want to say that i am testifying in a personal capacity, based on my own research. to answer the question of whether there is a need, straightforward, no. the voting rights act and its various provisions, including
maintaining a powerful statute are more than sufficient. the latest guidance from the court in the brunt of its case, the and private parties have the legal means at their disposal to stop those rare instances of voting discrimination when they occur. to claim that there is a lathe of voter suppression going on in the country is simply false. efforts to enhance the integrity election process through voter id requirements and improvement, and the accuracy of voter registration lists protect all voters, no matter what their color or ethnic background. this is evidenced by steady increases in turnout that have implemented special forms and the enforcement record of the justice department, which has seen a steady decrease in the number of course may cases, even
after the shelby county decision. the civil rights division filed only four cases to enforce section two. there was no upsurge in section two cases after the shelby county decision. they filed far fewer section two enforcement cases than the bush administration. it does not support the claim that there are widespread, unlawful actions being taken against minority voters. the 2011 survey clearly demonstrates that there was no wave of voter suppression keeping americans from registering or voting, expanding the power of the justice department. they were just short of the
record turnout of 67.7% in the 1992 elections. the turnout was higher than the turnout when president obama was first elected at 63.6%. the census survey shows there was higher turnout among all races in 2020 when compared to the 2016 election. 59% of asian americans voted in 2020, a 10 percentage white increase. the census bureau reports that voter registration in 2020 reached 72%, higher than the 70% who were registered after eight years of the biden and obama administration. the hispanic share of the vote
was just behind that of black americans, who had 12% of the vote in 2020. the bottom line of the census bureau survey are that americans are easily registering and turning out to vote. in fact, in an election year, in which we are dealing with an unprecedented shutdown of the country, due to a pandemic, we have "the highest voter turnout ". they do not satisfy what the supreme court said is necessary to continue, or expand the preclearance. it could be imposed only if congress could show blatantly just commence or eat of federal
court decrees, lack of minority office holding, testing devices, voting discrimination on a pervasive scare or rampant voting discrimination. none of those conditions are anywhere to be found in 2020. with the availability of section three, which has not been much discussed, if presented with evidence, a judge can put a particular jurisdiction and continue it, as much as necessary. thank you. >> thank you, sir. your timing was better than michael jordan's our next witness is the deputy director for the committee of civil rights, responsible for managing the work for justice.
he is also the cochair of the voting rights task force and leadership conference. he received his jd. you are recognized for five minutes. >> members of subcommittee, thank you for the opportunity to testify today on ways that congress can ready -- remedy the damage. i will focus on modifications. the house passed it in 2019. the first is to address beyond what is before us. i recommend that the u.s. be granted action anywhere nationally. voting changes that worsen, -- this would be in addition to
preclearance provisions. the cause of action provides a reasonable and necessary weapon in the fight against discriminatory voting practices. it responds to current needs that might be subject to geographic coverage. i recommend extending the requirement to answer political subdivisions. in addition, i would recommend a relatively modest waiting period of 30 days before changes are implemented. the 30 days would run and would allow plenty of relief. i believe that these modifications, individually and collectively -- that it must
outweigh the law of burdens. britt grant -- regarding current needs, we have seen a proliferation of changes that are often difficult and time-consuming. the lawyers committee itself was involved in 50 lawsuit in 2020. the constitutional burden is modest. it is a concept found to be acceptable. for many, it plans to prove a case of discriminatory fact. because the law would be a national application, it would not come into play. my second recommendation is that
they address the decision and restoring vote denial votes claim under section two of the act -- of the act. it was part of a scheme to eradicate discrimination. section two was intended to capture the subtle practices, which may seem part of the rough-and-tumble of everyday politics but are clearly the latest in a direct line of repeated efforts to part -- 1986, the essence of a section two claim interacts with historical conditions to cause an inequality of the voting opportunities. four different reports of cases using the foundation in these matters.
this formulation -- must be a disparate burden on the voting rights of minority voters and two, that burden must be caused by the challenge voting practice because it interacts with the historical conditions of racial discrimination. the supreme court decision provided guidelines for future treatment of those that were not only new but contrary to the decades long standards. it runs contrary to congress's intent. how congress should go about restoring the standard. the eight years since the decision have left voters of color vulnerable. the records since the decision
demonstrate what advocates fear. the decision, creating new hurdles for section two plaintiff's. congress must act. thank you for providing the opportunity to testify today. i look forward to your question. >> thank you. our final witness is samuel. prior to joining the legal defense fund, he practiced over a decade at tb own national firms. numerous cases involving capital punishment and voting rights. he served john paul stevens, one of the great justices in our country. he got both of his degrees from harvard.
he liked harvard and harvard liked him. you are recognized for five minutes. >> think you very much, chairman and good afternoon to members of the committee. thank you for inviting me to testify today. since its founding in 1945 lgf has been -- ldf has been a leader to support voting rights for black people in this country. we are here in no small part because of the two supreme court decisions a number of other witnesses have talked about already which weekend the voting rights act. the voting rights act of 1965 have long been recognized to be the most transformative of the civil rights laws passed in the 1960's. it has been called the crown jewel of the civil rights movement. for over 30 years as you heard assistant general clark say,
that language is from a supreme court opinion. what preclearance did was require jurisdiction with particular history of voting oppression to change their laws to either the department of justice or court of law to make sure those changes did not worsen discrimination. it was so essential because it blocked discrimination before elections could be held under discriminatory laws and prevented the continuing evasion, the continuing circumvention of favorable degrees that blocked certain discrimination but then the jurisdiction would turn around and circumvent that with some new discrimination. if you look at the brief ldf filed in the shelby county case, which we submitted as an exhibit, you will see example
after example we are very recently section 5 prevented jurisdictions from circumventing these successful degrees, showing how essential section 5 remains in modern times. in 2013, a sharply divided supreme court decided the shelby county case which rendered preclearance inoperative. in response to that decision in jurisdiction after jurisdiction formally covered by section 5 there was an unleashing of new kinds of voter suppression laws. if you look in justice kagan's dissent, she says state after state, sometimes within days, sometimes within years after the shelby county decision, which went to a new voter suppression law that many cases had previously stopped. but as devastating as the shelby county decision has been the court made clear that congress
has the authority to create a new preclearance mechanism that is grounded in current conditions. the 14th and 15th amendments assigned to congress, not the supreme court, to determine what measures are necessary to enforce the right to vote free from racial determination. ldf testified on multiple occasions to our experiences monitoring elections and litigating voter suppression measures. while ldf and other organizations have successfully responded to some discriminatory measures with litigation, litigation is not sufficient to address the persistent and adaptive nature of discrimination against black voters. it is therefore essential that congress restore section 5 consistent with the court's guidance. hr-4 would do precisely that.
it's geographic provision identifies those estates and subdivisions with documented, continuing patterns of discrimination against voters of color. thereby making clear preclearance remains needed in those parts of the country. in addition to restoring preclearance, congress must also address the supreme court's recent decision which curtailed the other key provision of the voting rights act, section 2. the decision is divorced from section 2 and flatly inconsistent with congress' broad purpose in amending the law. unless congress responds by restoring the full intent, intended intent of section 2, this will embolden states and localities to impose restrictions for black voters and others of color. just as congress in 1982 overrode the supreme court's interpretation of section 2 in
mobile, today congress must override this decision. in 1965, congress passed the voting rights act in response to the heroism of john lewis, amelia robinson, and so many other activists who risked, and in some cases lost their lives, to secure for every american the right to vote and to make a real the promise of a multiracial democracy that had been denied for a century. their accomplishments were remarkable but today those accomplishments and american democracy are in grave danger. we must honor the legacy of these americans and safeguard democracy by establishing a preclearance framework and restoring section 2's prohibition that abridged or denied the right to vote based
on race or color. i look forward to your questions. chair cohen: thank you, mr. spital. i thank you recognizing the civil rights hero's who did so much to bring about the right to vote. i think viola was to sing from that. she lost her life during the montgomery dr. king march. we are in the time for questions and i will begin by recognizing myself or five minutes. ms. laken, what would you think congress should take to address and protect voters from dissemination? >> thank you for that question. there are a number of things that congress could do. any legislative response should make sure they have room for real cases and it should ensure proximity to -- this could look
like defining a measurable time in which election changes are disfavored for legitimate reasons. this would prevent the window during which it becomes even more unmarred. congress could state the public's interest in making sure there is free and fair access to the ballot and provide guidance as to how that should be weighed against administrative concerns. congress could clarify in deciding whether to stay a court order that the interests of any voters who have relied on that court order are taken into account and protected. chair cohen: let me -- i appreciate your remarks on purcell but i was concerned about brnovich. ms. lakin: they ratcheted up the bar. any response in our view would, add a minimum, due to things.
it should make clear any voting act that interacts with socioeconomic factors that result in discrimination run afoul of section 2 and that certain considerations are irrelevant, like whether the practice was common in 1982. second, it should ensure state defendants supply evidence the restrictive practice actually advances some particular government interest rather than relying on unsubstantiated fears. there are different ways congress can do this. congress could, for example, adopt an approach that codifies relevant and non-relevant factors as general clarke testified about today. it could shift burden modeled on the framework for addressing title 7 or the fair housing act. this could give guidance as to what evidence the state needs and how to weigh that interest against discriminatory result. chair cohen: thank you.
mr. greenbaum, section 2 precludes -- it should congress amend section 2 when considering voting claims? or in lieu of these, what factors should they require to be taken into consideration and why? mr. greenbaum: i do think, chairman cohen, that congress is going to need to step in and amended section 2 to address brnovich. what you have in front of you, just like in 1982, congress had a lot of decisions that it could rely on with respect how to amend section to 2 to provide for claims. the fourth, fifth, sixth circuits have looked at what
factors are relevant. going back to the fact of having this two-part test about there being burden and they have to show that burden is caused by the challenge voting practice and with the way that interacts with social and historical conditions of racial discrimination. in all of these cases the courts, among other things, have looked at the senate factors. chair cohen: thank you mr. greenbaum,. mr. henderson, what is your response to those that would argue the voting rights act preclearance requirement is no longer necessary because voting registration and turnout are higher compared to where was during the jim crow era or in 2016 when they did not realize what president trump might be like? would you agree with the late judge ruth bader ginsburg's
assessment of the court's decision that it was equivalent of throwing your umbrella away in the middle of a rainstorm because you're not getting wet? mr. henderson:, thank you mr. : thank you, mr. chairman. i would agree with ruth bader ginsburg. first let me say as the census bureau pointed out in the 2020 census, our population has grown. it would also suggest we see some growth in voter participation based on an expanded population. that voter participation in and of itself does not suggest however that there are not problems. as the reports submitted by the leadership congress in 10 states with additional states following demonstrated, in each instance there are recent and current instances of voter discrimination that belie the notion that indeed our country
is operating with full equality when it comes to the right to vote. i certainly think the prophylactic role of section 5 of the voting rights act is key to ensuring that everyone in our country, not just racial minorities but others as well, enjoy the right to vote as was intended under the constitution. but this extra additional protection is necessary and has been worn out by what we have seen at the individual state level and that has been documented by our reports. chair cohen: thank you, mr. henderson, for all of your good work and appearing today. we recognize the ranking member, mr. johnson, who is recognized for five minutes. rep. johnson: thank you, mr. chairman. the first question for mr. von spakovsky. thank you for appearing before the committee. isn't it true the doj's delight
28th guidance looking at efforts to remove the temporary emergency voting procedures is now using those same temporary measures as the new baseline from which to judge compliance with the vra? mr. von spakovsky: that does appear to be what the guideline is doing which is not proper interpretation of section 2. you will noticed in a prior testimony it was made very clear, for example, they had no interest in looking at the changes that were made by state government officials violating state laws. that would normally be something the justice department, particularly the voting section, would look at. when a state official that has no authority in the election area changes or does not abide by a law the state legislature passed, i mean, that would be something you should look at to make sure there was no discriminatory reason for doing that. i don't understand that is not
something being examined. rep. johnson: i would venture to guess it looks like selective enforcement, or selective analysis, but we will let the facts speak for themselves. do you think it is credible for anyone to argue that congress intended for the doj to use temporary voting measures adopted during a once-in-a-lifetime pandemic to judge compliance with the vra? mr. von spakovsky: no, i do not think so. in particular because -- look, many changes were made all over the country and done, as you say, because of a once-in-a-lifetime emergency measure. going back to the rules that were in place before that cannot be seen, i don't think, as somehow discriminatory. the laws in place at that time were not being investigated, were not being sued by the justice department. clearly, at the time, they did not think there was a problem with those roles and suddenly
they think there are? that doesn't make sense from a common sense point of view or from a proper interpretation of section 2. rep. johnson: thank you. quickly restating the obvious, does the doj have the constitutional authority to reinterpret the statute? mr. von spakovsky: no, i don't think so. i think they have got to apply supreme court precedent. that was the way it has always been done. you do what the courts tell you, particularly the supreme court, when it comes to how you apply the statute. i have to say very quickly, i think the brnovich decision correctly interpreted the law. the senate factors, which everyone agreed on for years is the proper way to apply it, but in the past because of the jingles decision all of the cases were vote dilution cases.
what they did in this decision for the first time was say, here's how you take the senate factors and here's how you apply them to a vote denial case. and i don't see anything in the decision that is outside what they have previously done or outside the language of the statute. rep. johnson: thank you so much. apparently we have to reiterate what we have shared before. let me ask you to summarize quickly -- i am running out of time -- but is the vra still working today without sections 4b and 5? you may be muted. check the mute button, sorry. >> sorry about that. i do believe the permanent tools provided already with the permanent provisions of the
voting rights act are more than sufficient to target any type of bad state action or local jurisdiction action. section 2, i hear a lot of complaints. that it is expensive, it takes people a long time to come forward with the case because it is a civil matter. bottom line is many times people have said, oh, you didn't get the preliminary junction ahead of the election. for north carolina for example, when that case was moving forward, those particular laws they were challenging actually went forward and what it showed was the increase in voter participation by nonwhite voters in north carolina increased under the laws they were attacking. so, it may not be perfect in every way but it certainly provides the department, as well as through the 14th and 15th
amendments, to bring these types of actions if they find a state of jurisdiction is intentionally discriminating. rep. johnson: thank you very much. i am out of time. i would just say i do not think there is any perfect legislation. i yield back. chair cohen: thank you, mr. johnson. i believe next will be ms. ro ss of north carolina. rep. ross: thank you, mr. chairman and thank you to the witnesses for testifying. since the passage of the voting rights act in 1965 congress has played a fundamental role. your testimonies highlight critical avenues for legislative reform that would provide proactive protections for vulnerable voting populations. ms. lakin, i will give you the opportunity to talk about purcell. particularly in north carolina where the date for the primary
was moved up and it is much earlier than it was 10 years ago. so purcell will be particularly important for any challenge to redistricting. we have heard your testimony that, in practice, the federal application of purcell contributes to rather than reduces confusion among voters and elected officials. should the proximity of the election be a decisive factor for a court when determining whether to grant equitable relief in section 2, why or why not? ms. lakin: thank you for that question. proximity to the election should not be the decisive factor.
dachshund that rule may -- the fact alone that the election rules happening close to an election should not be sufficient because you should be taking into account the different aspects of equities, including the public interest in expanding access to free and fair elections. rep. ross: thank you very much. and i would now like to yield the balance of my time to the esteem device chair of the committee. .
>> thank you to representative ross for yielding the rest of her time to me. pennsylvania was found to be free and fair by all courts. ms. lakin, i would like to follow up with you. you remember the professor who appeared before the subcommittee at the hearing july 16, 2021 proposed using or importing the disparate impact standard in other areas of civil rights laws for vote denial claims. what are the pros and cons of that approach? ms. lakin: thank you for that question, representative dean. there are some virtues of this kind of burden shifting approach. for example, it provides some guidance to courts on how to weigh the different interests against each other.
the interests plaintiffs have in protecting voting rights in the interest the state has in terms of advancing or protecting elections and so forth. but it also provides the plaintiffs an opportunity to come back and say, no, there is a better way, a less restrictive way in order to protect both interests, voting rights and the state's interests. that is one of the advantages of providing some tools for the courts and a burden shifting framework. but at the same time there is a familiar task the courts have already used under section 2 and protecting voting rights under that framework. codifying factors that are or are not relevant, restoring the two step task also has its advantages as well.
rep. dean: thank you so much. my time is running short. mr. greenbaum, if i could ask you quickly. we know congress must address the brnovich decisions narrowing the section 2 scope. even if we amend it successfully to respond to the decision, with section 2 litigation alone be adequate substitution for section 5. mr. greenbaum: no, it would not be. retrogression is a completely different issue than what section 2 covers. rep. dean: thank you very much. my time has expired. thank you to representative ross. i yield back. chair cohen: thank you. our next question panelist member will be the distinguished hank johnson from georgia. five minutes. rep. johnson: thank you. in shelby county versus holder
congress drafted a rich formula based on quote, "current conditions." do current conditions, specifically the day louche of state laws making it more difficult to vote since the shelby county decision, justify the need for a new coverage formula? mr. henderson: thank you for that question and the answer is yes. i certainly think the court did open the door to invite congress to provide an assessment of current conditions that affect the right to vote. under section 5 of the 14th amendment, congress has the power to respond to issues regarding discrimination in voting. the effort to quantify how these changes in state election laws are impacting the right to vote is certainly within the scope of congress. rep. johnson: thank you. ms. weiser, how does the data
you provide document that racial discrimination in voting remain a widespread problem and how does it demonstrate the current need to protect voting rights? >> thank you for the question. we have actually submitted multiple pieces of evidence in studies that demonstrate ongoing race discrimination in voting from discriminatory voter purges that are concentrated in jurisdictions likely to be covered by the amended voting rights act to discriminatory voting actions around the country in 2020, to the discriminatory impacts of restrictions that are being introduced across the country and passed to date. rep. johnson: thank you. what geographic formula would
you recommend to meet his current need and why would it be constitutional? ms. weiser: thank you for that question. i think the approach that this congress has been taking in the john lewis advancement act is an appropriate one and well tailored to identify those jurisdictions where the problem is most persistent and most widespread and where the remedy is most needed. it looks to jurisdictions that have multiple violations and also has provisions to make sure it covers jurisdictions that are also currently discriminating on the basis of race. rep. johnson: thank you. mr. mccrery, when striking down shelby county. chief justice roberts relied on the proposition that minority voter registration and turnout
has significantly improved in the country. should congress look at other indicators in addition to registration and turnout to measure the pervasiveness or persistence of race discrimination in the voting process? mr. mccrery? while he is frozen let me ask mr. spital, how has the public's ability to monitor voting changes been affected now that covered jurisdictions did not have to notify the attorney general of voting changes, and has the lack of notice impacted the ability of private plaintiffs to block changes through legislation? mr. spital: thank you very much for the question. absolutely, especially at the local level. without section 5 it is very
difficult to be aware of the full range of a changes, discriminatory voting practices that are occurring at the local level which has been an impediment to civil rights organizations ringing litigation to challenge practices. rep. johnson: let me ask you the question i asked mr. mccrery. when striking down the formula of shelby county chief justice roberts relied on the proposition that minority voter registration and turnout has significantly improved in many parts of the country. should congress look at other indicators in addition to registration and turnout to measure the pervasiveness or persistence of race discrimination in the voting process? mr. spital: absolutely yes. i want to note as ms. weiser said, if you look at turnout, the data has been going in the wrong direction since shelby county. it suggests the court was declaring victory too soon in
insurance of improvement. -- in terms of improvement. so many ways in which a voter may cast a ballot that a jurisdiction changes in a way they change the method of election, there are so many ways they can cancel out the impact that voter can have on the process. those are unconstitutional and the types of evidence congress should be considering as well. rep. johnson: thank you. with that -- chair cohen: mr. johnson, professor mccreary, can you hear us? mr. mccrery: yes. chair cohen: mr. johnson, would you like to ask the question? rep. johnson: i will. thank you, mr. chairman. when striking down the coverage formula in the shelby county decision chief justice roberts relied largely on voter registration and turnout has significantly improved in many parts of the country.
should congress look at other indicators in addition to registration and turnout to measure the pervasiveness or persistence of race discrimination in the voting process? mr. mccrery: yes, representative johnson. i agree with what mr. spital just said. i would point to the geographic coverage formula in hr-4 as an improvement over the participation rates as a way of identifying the appropriate jurisdictions to cover under preclearance. thank you. rep. johnson: thank you and i yield back. thank you for the consideration. chair cohen: you are very welcome. miss garcia, you are recognized for five minutes. rep. garcia: thank you and thank you for the selection of such a diverse panel. i would like to start my question with you know there has
been a population growth among latinos different than other groups in the country. in fact, in texas 95% of the population growth that has led to perhaps getting two seats additional to the congressional delegation, 95% people of color. in texas, about half of all the people under 18 are latino. the numbers are changing dramatically more. we have a long history of defending and litigating latino issues in our state. how does historical evidence demonstrate the population among a racial minority or language minority like latinos catalyzes changes of voting practices of a particular jurisdiction to limit the voting strength? >> thank you.
the history is quite clear and i think it was presented two weeks ago about this notion of a tipping point. where you get to a point of growth it is often when those in power seek to deter. as you know the state of texas is one example of that. the very same predominance of minority population growth wielding seats. in response to that the texas legislature drew lines under which none of the neath receipts earned by the state of texas went to minority voters. it took court intervention under section 2 -- there were four additional seats, i misspoke -- under section 2. indeed the court concluded that it was not only -- it was
intentional against black and latino voters in texas. that is an example on a statewide example to catalyze behaviors that violate voting rights. even though they found intentional discrimination and washington concluded the same it still exercised discretion to deny preclearance coverage for the state of texas. it is another indication in my view why we must step in for preclearance. rep. garcia: thank you and mr. chairman, i yield to the former vice chair of the committee representative scanlon. announcer: we are going to leave thut