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Memphis, Tennessee– Today, House Judiciary Chairman Jerrold Nadler (D-NY) delivered the following statement at a Subcommittee on Constitution, Civil Rights and Civil Liberties field hearing in Memphis, Tennessee on discriminatory barriers to voting:

“I want to begin by thanking the Chairman of the Subcommittee, Mr. Cohen, for welcoming us to Memphis, and for holding this important hearing.  It is fitting that this hearing is being held in a city that been central to the struggle for achieving civil rights for all Americans.  It is also home to the National Civil Rights Museum, which has turned the tragic spot where Dr. Martin Luther King, Jr. was assassinated into a beacon of hope that helps chronicle the advancements this country has made in fulfilling Dr. King’s dream, but also the many challenges that remain. 

“One of the great unmet challenges is the current assault in legislatures and courts across the country on the right to vote. 

“In recent years, we have seen a rise in the enactment of voter suppression tactics, such as burdensome proof of citizenship laws; 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 negative impact on minority voters. 

“In the most recent elections in November 2018, voters across the country experienced various barriers to voting because of state and local laws and circumstances that made it hard or even impossible to vote.  For example, as our witness, Helen Butler, can attest, in Georgia, 53,000 voter registrants—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. 

“The recent rise in voter suppression measures can be directly attributed to the Supreme Court’s disastrous 2013 decision in Shelby County v. Holder, which effectively gutted a critical enforcement provision—known as the “preclearance requirement”— of the Voting Rights Act of 1965, which has been one of the most effective civil rights statutes ever been enacted into law. 

“Section 5 of the Voting Rights Act, or VRA, contains the preclearance requirement, which requires certain jurisdictions with a history of discrimination to submit any proposed changes to their voting laws or practices either to the Department of Justice or to the DC Federal Court for prior approval to ensure that they are not discriminatory. 

“To understand why the preclearance requirement was so central to enforcing the VRA, it is worth remembering why it was enacted in the first place.  Before the VRA, many states and localities passed voter suppression laws, secure in the knowledge that it could take many years before the laws could be successfully challenged in court, if at all.  As soon as one law was overturned, another would be enacted, essentially setting up a discriminatory game of whac-a-mole.  Section 5’s preclearance provision broke this legal logjam and helped to stop this discriminatory practice.  

“Indeed, the success of the VRA, 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 after enactment of the VRA.       

“These successes could not have happened without vigorous enforcement of the VRA, and particularly its preclearance provision.   The Shelby County decision, however, struck down as unconstitutional the VRA’s coverage formula, which determined which jurisdictions would be subject to the preclearance requirement, effectively suspending the operation of the preclearance requirement itself.  And, in its absence, the game of whac-a-mole has returned with a vengeance. 

“Within 24 hours of the Shelby County decision, for example, Texas’s Attorney General and North Carolina’s General Assembly announced that they would reinstitute draconian voter ID laws.  Both states’ laws were later held in federal courts to be intentionally racially discriminatory, but, during the years between their enactment and the court’s final decision, many elections were conducted while the discriminatory laws remained in place.  At least 21 other states have also enacted newly restrictive statewide voter laws since the Shelby County decision. 

“Restoring the vitality of the Voting Rights Act is of critical importance.  In 2006, when I was the Ranking Member of this Subcommittee, we undertook an exhaustive process to build a record that demonstrated unequivocally the need to reauthorize the Voting Rights Act, provisions of which, like the preclearance requirement and the coverage formula that undergirded it, were expiring.  

“At the time, we found that most Southern states were still facilitating  ongoing discrimination.  For instance, these states and their subdivisions engaged in racially selective practices such as relocating polling places for African American voters and, in the case of localities, annexing certain wards simply to satisfy white suburban voters who sought to circumvent the ability of African Americans to run for elective office in their cities. 

“While it is true that those seeking to enforce the VRA can still pursue after-the-fact legal remedies even without preclearance, time and experience have proven that such an approach takes far longer, and is far more expensive, than having an effective preclearance regime.  And once a vote has been denied, it cannot be recast.  The damage to our democracy is permanent. 

“That is why I hope that Members on both sides of the aisle, and in both houses of Congress, will come together and pass legislation to restore the VRA to its full vitality.  Today’s hearing will provide an important opportunity to renew our understanding of the importance of the VRA and its preclearance provision, and to support our efforts to craft a legislative solution. 

“I appreciate the University of Memphis Law School for hosting us today, and I look forward to hearing from our distinguished witnesses.  I yield back the balance of my time.”