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Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening remarks during a Subcommittee on the Constitution, Civil Rights, and Civil Liberties field hearing on voting rights in Houston, Texas:

“Thank you, Chairman Cohen, for calling this important field hearing. The Voting Rights Act of 1965 is considered by most civil rights advocates the most effective civil rights statute ever enacted by Congress.  In recent years, however, the Supreme Court has gutted one of its central provisions—the preclearance requirement—and other court decisions and enforcement activity have weakened the Act in significant ways.  That makes restoring the vitality of the VRA of critical importance.

“In 2006, when I was Ranking Member of this Subcommittee, we undertook an exhaustive process to build a record demonstrating unequivocally the need to reauthorize the VRA, which was then-expiring.  As we move forward with similar efforts today, the distressing record of enforcement activity in Texas demands that we appear here in Houston to accept expert testimony on the current state of voting rights in America, and particularly, in Texas.

“Although advocates readily refer to the state’s long history of discrimination against Latino and African-American citizens, it is the state’s recent record of voting enforcement—with multiple findings of intentional discrimination at the state level—which demands scrutiny as we build a record supporting VRA reauthorization legislation.

“The Voting Rights Act contains two primary methods of enforcement.  Section 2 enables a government or private party to bring an action in court alleging discriminatory voting practices.  Section 5, known as preclearance, requires certain jurisdictions with a history of discrimination to submit any changes to their voting laws or practices to the Department of Justice for prior approval to ensure that they are not discriminatory.

“Before the Voting Rights Act, 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.  Preclearance is an essential tool in preventing this dangerous practice.

“Preclearance was effectively gutted in 2013, however, when the Supreme Court issued its disastrous decision in Shelby County v. Holder, which struck down the formula for determining which states and localities are subject to the preclearance requirement.  In its absence, the game of whac-a-mole, predictably, has returned.

“Historically, Texas has led the nation in several categories of voting discrimination, including recent Section 5 violations and Section 2 challenges.  Since the 1982 VRA reauthorization, Texas and its political subdivisions have faced over 200 voting rights challenges, and in every decade since 1970, the State of Texas has passed one or more redistricting plans after the decennial census that have been declared either unconstitutional or in violation of the VRA. 

“The subject matter over which the DOJ rejected voting changes submitted under Section 5 offers an overview of the challenges to minority voting rights in Texas.  Discriminatory voting changes that were halted by Section 5 ranged from statewide voting changes, such as racially gerrymandered redistricting, to local changes involving restrictive election rules, relocating polling places to make them less accessible for minority populations, and method of electing officials that disadvantaged minority voters.

“Historically, the Section 5 preclearance process has also had an important deterrent effect against voting discrimination in Texas.  Texas had far more proposed voting changes that were withdrawn following a request by DOJ for additional information than any other jurisdiction during the 1982 to 2006 reporting period.  These withdrawals include at least 54 instances in which the State eliminated discriminatory voting changes after it became evident they would not be precleared by the Department. 

“Following the suspension of Section 5 preclearance, resulting from the Shelby County decision, Texas was one of the first states to exploit the gap in federal voting rights coverage.  At the time, the state was facing a Section 5 enforcement action for its 2011 redistricting plans in the DC District Court and a ruling that its voter identification law—SB 14—violated Section 5. 

“Within mere hours of the Shelby County ruling, then-Texas Attorney General (and now Texas Governor) Greg Abbott announced that the State would immediately move to reinstate the photo identification law.  With the elimination of Section 5 preclearance, both the photo ID and redistricting cases shifted to Section 2 cases and have been the subject of ongoing litigation since that time.

“The recent experience of voting rights litigation in Texas is instructive for the nation and it demonstrates the need for examining the existing structure of the Act.  After even a cursory review of the record, one clear fact emerges: reliance on Section 2 litigation alone fails to adequately protect the interests of minority voters.  After nearly a decade of nonstop litigation over redistricting and voter identification, minority voters in Texas have not yet had their rights fully vindicated.  At least one discriminatory State House district remains un-remedied and the current voter ID statute—in the words of one Fifth Circuit judge—still carries the taint of discrimination. 

“Today’s hearing gives the Subcommittee an important opportunity to hear from witnesses directly involved in major voting litigation during the post-Shelby County Section 5 transition.  This hearing, however, is only the beginning of our inquiry into Texas VRA compliance.

“I am pleased that we have such a distinguished panel of witnesses, whose testimony will assist us greatly in understanding the continuing need for reauthorization of the Voting Rights Act.  The experience here in Texas demonstrates just how deeply the loss of Section 5 preclearance cuts into the federal protection of the right to vote.  That is why I hope that Members on both sides of the aisle, and in both chambers of Congress, will come together and pass legislation to restore the full vitality of the VRA.  

“We must use this opportunity to promptly craft a legislative solution that enables the Justice Department to effectively enforce the rights of minority voters within the contours of the Constitution.  While this is not an easy challenge, given the gravity of the issues involved, and our long history of bipartisan cooperation in this endeavor, it is one that I believe our Committee will—and must—meet with success. I yield back the balance of my time.”

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