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Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening remarks during a markup of H.R. 4, the Voting Rights Advancement Act of 2019:
"H.R. 4, the “Voting Rights Advancement Act of 2019,” is a comprehensive and much-needed proposal to amend the Voting Rights Act of 1965 in various ways to restore that core civil rights statute to its full vitality. The bill is a response to the Supreme Court’s disastrous 2013 decision in Shelby County v. Holder, which effectively gutted the Act’s most important enforcement mechanism—its preclearance requirement contained in Section 5—by striking down the coverage formula that determined which jurisdictions would be subject to preclearance. The Court, mistakenly in my view, considered Section 5 an unjustified intrusion into state sovereignty. The Majority, however, expressly said that Congress could “draft another formula based on current conditions,” and that, among other things, is exactly what H.R. 4 does.
"Specifically, H.R. 4’s coverage formula provides that, looking back 25 years, states in which 15 or more voting rights violations have occurred, or those in which 10 or more violations have occurred if at least one of the violations was committed by the state itself, would be subject to preclearance. Localities that have committed 3 or more violations within that 25 year “lookback” period would also be subject to preclearance.
"H.R. 4 also strengthens other related provisions of the Voting Rights Act. The bill:
- expands the availability of “bail-in” coverage so that a court can impose preclearance on a particular jurisdiction that has violated the Fourteenth or Fifteenth Amendments, the Voting Rights Act, or any other federal anti-voting-discrimination law;
- adds a practice-based preclearance formula that would subject any jurisdiction that engages in certain practices that have historically been used to discriminate against minority voters—like changing methods of election or jurisdictional boundaries, or imposing voter identification requirements—and, in most instances, meets certain demographic thresholds;
- expands the Attorney General’s authority to send federal election observers;
- requires states and localities to provide critical public notice and enhanced transparency of voting changes and practices when they are implemented; and
- amends the Act’s injunctive relief provision to allow private parties to seek such relief and to make it easier for them to obtain preliminary injunctions.
"Through a series of hearings before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, we have established a substantial record documenting an ongoing and disturbing pattern of voting discrimination by jurisdictions around the country since the Shelby County decision. This record justifies the continuing need for preclearance and bolsters Congress’s authority for enacting H.R. 4.
"The record demonstrates that states and localities—and, in particular, those that were formerly subject to the preclearance requirement—have enacted or engaged in various voter suppression tactics, such as imposing burdensome proof of citizenship laws; polling place closures; purges of voter rolls; significant scale-backs to early voting periods; restrictions on absentee ballots; and laws that make it difficult to restore the voting rights of formerly-incarcerated individuals. These kinds of voting restrictions have a disproportionate and negative impact on racial and language minority voters.
"While there are too many egregious examples to recount here, we heard one illustrative example from the testimony of Stacey Abrams, the Founder and CEO of Fair Fight Action and a 2018 Georgia gubernatorial candidate. In the November 2018 election in Georgia, under that state’s “exact match” law, 53,000 registered voters—70 percent of whom were African American—were placed in “pending” status, and at risk of not being counted, by the secretary of state—who was also the Republican nominee for governor that year—because of minor misspellings on their registration forms. A federal court ultimately put a stop to this practice because of the "differential treatment inflicted on a group of individuals who are predominantly minorities," but it acted just 4 days before the election, and only after a prolonged period of confusion. In other words, the damage had already largely been done by the time the court could act.
"As we consider this record and the need for H.R. 4, it is well worth remembering why it was that Congress put a preclearance requirement in the Voting Rights Act in the first place. Before the Act, many states and localities implemented voter suppression measures aimed at African Americans and other people of color, secure in the knowledge that it could take many years before these measures could be successfully challenged in court, if at all.
"As soon as a court, after years of litigation, overturned one law, the offending jurisdiction would enact another one to replace it. This meant that black voters could be shut out of the polling place even if they succeeded in every lawsuit against a discriminatory voting law or practice because a new one would already be in place to keep them from the ballot box.
"In response to this discriminatory game of "whack-a-mole," Congress required certain jurisdictions with a history of racial discrimination in voting to get approval from the Justice Department or a federal court before making any changes to their voting laws or practices. Congress intended this “preclearance” requirement to address what the Supreme Court called an “unremitting and ingenious defiance of the Constitution” by states determined to suppress the vote.
"The success of the Voting Rights Act, with its effective preclearance requirement, was apparent almost immediately after the law went into effect. For instance, registration of African American voters and the number of African Americans holding elected office both rose dramatically throughout the Deep South after the VRA’s enactment.
"Yet decades later, problems remained, as the Constitution Subcommittee—of which I was the Ranking Member at the time—heard from dozens of witnesses and assembled thousands of pages of evidence of ongoing discrimination when it last reauthorized the Act in 2006.
"Notwithstanding this exhaustive record compiled by Congress, the Court in Shelby County essentially decided to substitute its own judgment for that of Congress.
"Not surprisingly, the Shelby County decision unleashed a deluge of voter suppression laws across the nation, including in many states and other jurisdictions that had been subject to preclearance before Shelby County. For instance, within 24 hours, Texas and North Carolina moved to reinstitute draconian voter ID laws. While courts later held both of these laws to be intentionally racially discriminatory, during the years between their enactment and the courts’ final decisions, these states held many elections while the discriminatory laws remained in place.
"Another particularly troubling aspect of the Court’s reasoning in Shelby County was its emphasis on the supposed "equal sovereignty" of the states and on states’ authorities to administer elections—even when they have abused that authority by denying the right to vote.
"The Court’s reasoning barely acknowledged that the Constitutional Amendments enacted after the Civil War, during Reconstruction, were intended fundamentally to re-order Congress’s relationship to the states and to give Congress the power to supersede state sovereignty when needed to enforce the mandates of those Amendments.
"Indeed, the Supreme Court has held that Congress’s authority to enforce the Fifteenth Amendment’s prohibition against racial discrimination by states in voting means that Congress "may use any rational means" to make laws against racial discrimination in voting. Notwithstanding the Shelby County decision, the Court has thus far left this highly deferential rationality test in place.
"In short, Congress has the power—and indeed the obligation—to reverse this tide of voter suppression laws. The Fourteenth and Fifteenth Amendments expressly empower us to enact laws protecting the right to vote and guaranteeing the equal protection of all citizens.
"And although the Supreme Court’s decision in Shelby County did great damage, the Court made clear that it was not striking down preclearance altogether.
"We can no longer afford to wait. The right to vote lies at the very core of our democracy and is foundational to the rule of law. Support for reauthorizing the Voting Rights Act, including its preclearance provision, has historically been bipartisan, and there is no reason why it should not once again enjoy bipartisan support. I urge the Committee to report H.R. 4 favorably to the full House."
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