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116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-317
======================================================================
VOTING RIGHTS ADVANCEMENT ACT OF 2019
_______
November 29, 2019.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 4) to amend the Voting Rights Act of 1965 to revise
the criteria for determining which States and political
subdivisions are subject to section 4 of the Act, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
CONTENTS
Page
Purpose and Summary.............................................. 10
Background and Need for the Legislation.......................... 11
Hearings......................................................... 67
Committee Consideration.......................................... 67
Committee Votes.................................................. 68
Committee Oversight Findings..................................... 72
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 72
Duplication of Federal Programs.................................. 72
Performance Goals and Objectives................................. 72
Advisory on Earmarks............................................. 72
Section-by-Section Analysis...................................... 72
Changes in Existing Law Made by the Bill, as Reported............ 78
Dissenting Views................................................. 99
Appendix......................................................... 108
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Voting Rights Advancement Act of
2019''.
SEC. 2. VIOLATIONS TRIGGERING AUTHORITY OF COURT TO RETAIN
JURISDICTION.
(a) Types of Violations.--Section 3(c) of the Voting Rights Act of
1965 (52 U.S.C. 10302(c)) is amended by striking ``violations of the
fourteenth or fifteenth amendment'' and inserting ``violations of the
14th or 15th Amendment, violations of this Act, or violations of any
Federal law that prohibits discrimination in voting on the basis of
race, color, or membership in a language minority group,''.
(b) Conforming Amendment.--Section 3(a) of such Act (52 U.S.C.
10302(a)) is amended by striking ``violations of the fourteenth or
fifteenth amendment'' and inserting ``violations of the 14th or 15th
Amendment, violations of this Act, or violations of any Federal law
that prohibits discrimination in voting on the basis of race, color, or
membership in a language minority group,''.
SEC. 3. CRITERIA FOR COVERAGE OF STATES AND POLITICAL SUBDIVISIONS.
(a) Determination of States and Political Subdivisions Subject to
Section 4(a).--
(1) In general.--Section 4(b) of the Voting Rights Act of
1965 (52 U.S.C. 10303(b)) is amended to read as follows:
``(b) Determination of States and Political Subdivisions Subject to
Requirements.--
``(1) Existence of voting rights violations during previous
25 years.--
``(A) Statewide application.--Subsection (a) applies
with respect to a State and all political subdivisions
within the State during a calendar year if--
``(i) 15 or more voting rights violations
occurred in the State during the previous 25
calendar years; or
``(ii) 10 or more voting rights violations
occurred in the State during the previous 25
calendar years, at least one of which was
committed by the State itself (as opposed to a
political subdivision within the State).
``(B) Application to specific political
subdivisions.--Subsection (a) applies with respect to a
political subdivision as a separate unit during a
calendar year if 3 or more voting rights violations
occurred in the subdivision during the previous 25
calendar years.
``(2) Period of application.--
``(A) In general.--Except as provided in subparagraph
(B), if, pursuant to paragraph (1), subsection (a)
applies with respect to a State or political
subdivision during a calendar year, subsection (a)
shall apply with respect to such State or political
subdivision for the period--
``(i) that begins on January 1 of the year in
which subsection (a) applies; and
``(ii) that ends on the date which is 10
years after the date described in clause (i).
``(B) No further application after declaratory
judgment.--
``(i) States.--If a State obtains a
declaratory judgment under subsection (a), and
the judgment remains in effect, subsection (a)
shall no longer apply to such State pursuant to
paragraph (1)(A) unless, after the issuance of
the declaratory judgment, paragraph (1)(A)
applies to the State solely on the basis of
voting rights violations occurring after the
issuance of the declaratory judgment.
``(ii) Political subdivisions.--If a
political subdivision obtains a declaratory
judgment under subsection (a), and the judgment
remains in effect, subsection (a) shall no
longer apply to such political subdivision
pursuant to paragraph (1), including pursuant
to paragraph (1)(A) (relating to the statewide
application of subsection (a)), unless, after
the issuance of the declaratory judgment,
paragraph (1)(B) applies to the political
subdivision solely on the basis of voting
rights violations occurring after the issuance
of the declaratory judgment.
``(3) Determination of voting rights violation.--For purposes
of paragraph (1), a voting rights violation occurred in a State
or political subdivision if any of the following applies:
``(A) Final judgment; violation of the 14th or 15th
amendment.--In a final judgment (which has not been
reversed on appeal), any court of the United States has
determined that a denial or abridgement of the right of
any citizen of the United States to vote on account of
race, color, or membership in a language minority
group, in violation of the 14th or 15th Amendment,
occurred anywhere within the State or subdivision.
``(B) Final judgment; violations of this act.--In a
final judgment (which has not been reversed on appeal),
any court of the United States has determined that a
voting qualification or prerequisite to voting or
standard, practice, or procedure with respect to voting
was imposed or applied or would have been imposed or
applied anywhere within the State or subdivision in a
manner that resulted or would have resulted in a denial
or abridgement of the right of any citizen of the
United States to vote on account of race, color, or
membership in a language minority group, in violation
of subsection (e) or (f), or section 2 or 203 of this
Act.
``(C) Final judgment; denial of declaratory
judgment.--In a final judgment (which has not been
reversed on appeal), any court of the United States has
denied the request of the State or subdivision for a
declaratory judgment under section 3(c) or section 5,
and thereby prevented a voting qualification or
prerequisite to voting or standard, practice, or
procedure with respect to voting from being enforced
anywhere within the State or subdivision.
``(D) Objection by the attorney general.--The
Attorney General has interposed an objection under
section 3(c) or section 5 (and the objection has not
been overturned by a final judgment of a court or
withdrawn by the Attorney General), and thereby
prevented a voting qualification or prerequisite to
voting or standard, practice, or procedure with respect
to voting from being enforced anywhere within the State
or subdivision.
``(E) Consent decree, settlement, or other
agreement.--A consent decree, settlement, or other
agreement was entered into, which resulted in the
alteration or abandonment of a voting practice anywhere
in the territory of such State that was challenged on
the ground that the practice denied or abridged the
right of any citizen of the United States to vote on
account of race, color, or membership in a language
minority group in violation of subsection (e) or (f),
or section 2 or 203 of this Act, or the 14th or 15th
Amendment.
``(4) Timing of determinations.--
``(A) Determinations of voting rights violations.--As
early as practicable during each calendar year, the
Attorney General shall make the determinations required
by this subsection, including updating the list of
voting rights violations occurring in each State and
political subdivision for the previous calendar year.
``(B) Effective upon publication in federal
register.--A determination or certification of the
Attorney General under this section or under section 8
or 13 shall be effective upon publication in the
Federal Register.''.
(2) Conforming amendments.--Section 4(a) of such Act (52
U.S.C. 10303(a)) is amended--
(A) in paragraph (1), in the first sentence of the
matter preceding subparagraph (A), by striking ``any
State with respect to which'' and all that follows
through ``unless'' and inserting ``any State to which
this subsection applies during a calendar year pursuant
to determinations made under subsection (b), or in any
political subdivision of such State (as such
subdivision existed on the date such determinations
were made with respect to such State), though such
determinations were not made with respect to such
subdivision as a separate unit, or in any political
subdivision with respect to which this subsection
applies during a calendar year pursuant to
determinations made with respect to such subdivision as
a separate unit under subsection (b), unless'';
(B) in paragraph (1) in the matter preceding
subparagraph (A), by striking the second sentence;
(C) in paragraph (1)(A), by striking ``(in the case
of a State or subdivision seeking a declaratory
judgment under the second sentence of this
subsection)'';
(D) in paragraph (1)(B), by striking ``(in the case
of a State or subdivision seeking a declaratory
judgment under the second sentence of this
subsection)'';
(E) in paragraph (3), by striking ``(in the case of a
State or subdivision seeking a declaratory judgment
under the second sentence of this subsection)'';
(F) in paragraph (5), by striking ``(in the case of a
State or subdivision which sought a declaratory
judgment under the second sentence of this
subsection)'';
(G) by striking paragraphs (7) and (8); and
(H) by redesignating paragraph (9) as paragraph (7).
(b) Clarification of Treatment of Members of Language Minority
Groups.--Section 4(a)(1) of such Act (52 U.S.C. 10303(a)(1)) is amended
by striking ``race or color,'' and inserting ``race, color, or in
contravention of the guarantees of subsection (f)(2),''.
SEC. 4. DETERMINATION OF STATES AND POLITICAL SUBDIVISIONS SUBJECT TO
PRECLEARANCE FOR COVERED PRACTICES.
The Voting Rights Act of 1965 (52 U.S.C. 10301 et seq.) is further
amended by inserting after section 4 the following:
``SEC. 4A. DETERMINATION OF STATES AND POLITICAL SUBDIVISIONS SUBJECT
TO PRECLEARANCE FOR COVERED PRACTICES.
``(a) Practice-Based Preclearance.--
``(1) In general.--Each State and each political subdivision
shall--
``(A) identify any newly enacted or adopted law,
regulation, or policy that includes a voting
qualification or prerequisite to voting, or a standard,
practice, or procedure with respect to voting, that is
a covered practice described in subsection (b); and
``(B) ensure that no such covered practice is
implemented unless or until the State or political
subdivision, as the case may be, complies with
subsection (c).
``(2) Determinations of characteristics of voting-age
population.--
``(A) In general.--As early as practicable during
each calendar year, the Attorney General, in
consultation with the Director of the Bureau of the
Census and the heads of other relevant offices of the
government, shall make the determinations required by
this section regarding voting-age populations and the
characteristics of such populations, and shall publish
a list of the States and political subdivisions to
which a voting-age population characteristic described
in subsection (b) applies.
``(B) Publication in the federal register.--A
determination or certification of the Attorney General
under this paragraph shall be effective upon
publication in the Federal Register.
``(b) Covered Practices.--To assure that the right of citizens of the
United States to vote is not denied or abridged on account of race,
color, or membership in a language minority group as a result of the
implementation of certain qualifications or prerequisites to voting, or
standards, practices, or procedures with respect to voting newly
adopted in a State or political subdivision, the following shall be
covered practices subject to the requirements described in subsection
(a):
``(1) Changes to method of election.--Any change to the
method of election--
``(A) to add seats elected at-large in a State or
political subdivision where--
``(i) 2 or more racial groups or language
minority groups each represent 20 percent or
more of the political subdivision's voting-age
population; or
``(ii) a single language minority group
represents 20 percent or more of the voting-age
population on Indian lands located in whole or
in part in the political subdivision; or
``(B) to convert one or more seats elected from a
single-member district to one or more at-large seats or
seats from a multi-member district in a State or
political subdivision where--
``(i) 2 or more racial groups or language
minority groups each represent 20 percent or
more of the political subdivision's voting-age
population; or
``(ii) a single language minority group
represents 20 percent or more of the voting-age
population on Indian lands located in whole or
in part in the political subdivision.
``(2) Changes to jurisdiction boundaries.--Any change or
series of changes within a year to the boundaries of a
jurisdiction that reduces by 3 or more percentage points the
proportion of the jurisdiction's voting-age population that is
comprised of members of a single racial group or language
minority group in a State or political subdivision where--
``(A) 2 or more racial groups or language minority
groups each represent 20 percent or more of the
political subdivision's voting-age population; or
``(B) a single language minority group represents 20
percent or more of the voting-age population on Indian
lands located in whole or in part in the political
subdivision.
``(3) Changes through redistricting.--Any change to the
boundaries of election districts in a State or political
subdivision where any racial group or language minority group
experiences a population increase, over the preceding decade
(as calculated by the Bureau of the Census under the most
recent decennial census), of at least--
``(A) 10,000; or
``(B) 20 percent of voting-age population of the
State or political subdivision, as the case may be.
``(4) Changes in documentation or qualifications to vote.--
Any change to requirements for documentation or proof of
identity to vote such that the requirements will exceed or be
more stringent than the requirements for voting that are
described in section 303(b) of the Help America Vote Act of
2002 (52 U.S.C. 21083(b)) or any change to the requirements for
documentation or proof of identity to register to vote that
will exceed or be more stringent than such requirements under
State law on the day before the date of enactment of the Voting
Rights Advancement Act of 2019.
``(5) Changes to multilingual voting materials.--Any change
that reduces multilingual voting materials or alters the manner
in which such materials are provided or distributed, where no
similar reduction or alteration occurs in materials provided in
English for such election.
``(6) Changes that reduce, consolidate, or relocate voting
locations.--Any change that reduces, consolidates, or relocates
voting locations, including early, absentee, and election-day
voting locations--
``(A) in 1 or more census tracts wherein 2 or more
language minority groups or racial groups each
represent 20 percent or more of the voting-age
population of the political subdivision; or
``(B) on Indian lands wherein at least 20 percent of
the voting-age population belongs to a single language
minority group.
``(c) Preclearance.--
``(1) In general.--Whenever a State or political subdivision
with respect to which the requirements set forth in subsection
(a) are in effect shall enact, adopt, or seek to implement any
covered practice described under subsection (b), such State or
subdivision may institute an action in the United States
District Court for the District of Columbia for a declaratory
judgment that such covered practice neither has the purpose nor
will have the effect of denying or abridging the right to vote
on account of race, color, or membership in a language minority
group, and unless and until the court enters such judgment such
covered practice shall not be implemented. Notwithstanding the
previous sentence, such covered practice may be implemented
without such proceeding if the covered practice has been
submitted by the chief legal officer or other appropriate
official of such State or subdivision to the Attorney General
and the Attorney General has not interposed an objection within
60 days after such submission, or upon good cause shown, to
facilitate an expedited approval within 60 days after such
submission, the Attorney General has affirmatively indicated
that such objection will not be made. Neither an affirmative
indication by the Attorney General that no objection will be
made, nor the Attorney General's failure to object, nor a
declaratory judgment entered under this section shall bar a
subsequent action to enjoin implementation of such covered
practice. In the event the Attorney General affirmatively
indicates that no objection will be made within the 60-day
period following receipt of a submission, the Attorney General
may reserve the right to reexamine the submission if additional
information comes to the Attorney General's attention during
the remainder of the 60-day period which would otherwise
require objection in accordance with this section. Any action
under this section shall be heard and determined by a court of
three judges in accordance with the provisions of section 2284
of title 28, United States Code, and any appeal shall lie to
the Supreme Court.
``(2) Denying or abridging the right to vote.--Any covered
practice described in subsection (b) that has the purpose of or
will have the effect of diminishing the ability of any citizens
of the United States on account of race, color, or membership
in a language minority group, to elect their preferred
candidates of choice denies or abridges the right to vote
within the meaning of paragraph (1) of this subsection.
``(3) Purpose defined.--The term `purpose' in paragraphs (1)
and (2) of this subsection shall include any discriminatory
purpose.
``(4) Purpose of paragraph (2).--The purpose of paragraph (2)
of this subsection is to protect the ability of such citizens
to elect their preferred candidates of choice.
``(d) Enforcement.--The Attorney General or any aggrieved citizen may
file an action in a Federal district court to compel any State or
political subdivision to satisfy the obligations set forth in this
section. Such actions shall be heard and determined by a court of 3
judges under section 2284 of title 28, United States Code. In any such
action, the court shall provide as a remedy that any voting
qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting, that is the subject of the action
under this subsection be enjoined unless the court determines that--
``(1) the voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting, is not
a covered practice described in subsection (b); or
``(2) the State or political subdivision has complied with
subsection (c) with respect to the covered practice at issue.
``(e) Counting of Racial Groups and Language Minority Groups.--For
purposes of this section, the calculation of the population of a racial
group or a language minority group shall be carried out using the
methodology in the guidance promulgated in the Federal Register on
February 9, 2011 (76 Fed. Reg. 7470).
``(f) Special Rule.--For purposes of determinations under this
section, any data provided by the Bureau of the Census, whether based
on estimation from sample or actual enumeration, shall not be subject
to challenge or review in any court.
``(g) Multilingual Voting Materials.--In this section, the term
`multilingual voting materials' means registration or voting notices,
forms, instructions, assistance, or other materials or information
relating to the electoral process, including ballots, provided in the
language or languages of one or more language minority groups.''.
SEC. 5. PROMOTING TRANSPARENCY TO ENFORCE THE VOTING RIGHTS ACT.
(a) Transparency.--
(1) In general.--The Voting Rights Act of 1965 (52 U.S.C.
10301 et seq.) is amended by inserting after section 5 the
following new section:
``SEC. 6. TRANSPARENCY REGARDING CHANGES TO PROTECT VOTING RIGHTS.
``(a) Notice of Enacted Changes.--
``(1) Notice of changes.--If a State or political subdivision
makes any change in any prerequisite to voting or standard,
practice, or procedure with respect to voting in any election
for Federal office that will result in the prerequisite,
standard, practice, or procedure being different from that
which was in effect as of 180 days before the date of the
election for Federal office, the State or political subdivision
shall provide reasonable public notice in such State or
political subdivision and on the Internet, of a concise
description of the change, including the difference between the
changed prerequisite, standard, practice, or procedure and the
prerequisite, standard, practice, or procedure which was
previously in effect. The public notice described in this
paragraph, in such State or political subdivision and on the
Internet, shall be in a format that is reasonably convenient
and accessible to voters with disabilities, including voters
who have low vision or are blind.
``(2) Deadline for notice.--A State or political subdivision
shall provide the public notice required under paragraph (1)
not later than 48 hours after making the change involved.
``(b) Transparency Regarding Polling Place Resources.--
``(1) In general.--In order to identify any changes that may
impact the right to vote of any person, prior to the 30th day
before the date of an election for Federal office, each State
or political subdivision with responsibility for allocating
registered voters, voting machines, and official poll workers
to particular precincts and polling places shall provide
reasonable public notice in such State or political subdivision
and on the Internet, of the information described in paragraph
(2) for precincts and polling places within such State or
political subdivision. The public notice described in this
paragraph, in such State or political subdivision and on the
Internet, shall be in a format that is reasonably convenient
and accessible to voters with disabilities including voters who
have low vision or are blind.
``(2) Information described.--The information described in
this paragraph with respect to a precinct or polling place is
each of the following:
``(A) The name or number.
``(B) In the case of a polling place, the location,
including the street address, and whether such polling
place is accessible to persons with disabilities.
``(C) The voting-age population of the area served by
the precinct or polling place, broken down by
demographic group if such breakdown is reasonably
available to such State or political subdivision.
``(D) The number of registered voters assigned to the
precinct or polling place, broken down by demographic
group if such breakdown is reasonably available to such
State or political subdivision.
``(E) The number of voting machines assigned,
including the number of voting machines accessible to
voters with disabilities, including voters who have low
vision or are blind.
``(F) The number of official paid poll workers
assigned.
``(G) The number of official volunteer poll workers
assigned.
``(H) In the case of a polling place, the dates and
hours of operation.
``(3) Updates in information reported.--If a State or
political subdivision makes any change in any of the
information described in paragraph (2), the State or political
subdivision shall provide reasonable public notice in such
State or political subdivision and on the Internet, of the
change in the information not later than 48 hours after the
change occurs or, if the change occurs fewer than 48 hours
before the date of the election for Federal office, as soon as
practicable after the change occurs. The public notice
described in this paragraph in such State or political
subdivision and on the Internet shall be in a format that is
reasonably convenient and accessible to voters with
disabilities including voters who have low vision or are blind.
``(c) Transparency of Changes Relating to Demographics and Electoral
Districts.--
``(1) Requiring public notice of changes.--Not later than 10
days after making any change in the constituency that will
participate in an election for Federal, State, or local office
or the boundaries of a voting unit or electoral district in an
election for Federal, State, or local office (including through
redistricting, reapportionment, changing from at-large
elections to district-based elections, or changing from
district-based elections to at-large elections), a State or
political subdivision shall provide reasonable public notice in
such State or political subdivision and on the Internet, of the
demographic and electoral data described in paragraph (3) for
each of the geographic areas described in paragraph (2).
``(2) Geographic areas described.--The geographic areas
described in this paragraph are as follows:
``(A) The State as a whole, if the change applies
statewide, or the political subdivision as a whole, if
the change applies across the entire political
subdivision.
``(B) If the change includes a plan to replace or
eliminate voting units or electoral districts, each
voting unit or electoral district that will be replaced
or eliminated.
``(C) If the change includes a plan to establish new
voting units or electoral districts, each such new
voting unit or electoral district.
``(3) Demographic and electoral data.--The demographic and
electoral data described in this paragraph with respect to a
geographic area described in paragraph (2) are each of the
following:
``(A) The voting-age population, broken down by
demographic group.
``(B) If it is reasonably available to the State or
political subdivision involved, an estimate of the
population of the area which consists of citizens of
the United States who are 18 years of age or older,
broken down by demographic group.
``(C) The number of registered voters, broken down by
demographic group if such breakdown is reasonably
available to the State or political subdivision
involved.
``(D)(i) If the change applies to a State, the actual
number of votes, or (if it is not reasonably
practicable for the State to ascertain the actual
number of votes) the estimated number of votes received
by each candidate in each statewide election held
during the 5-year period which ends on the date the
change involved is made; and
``(ii) if the change applies to only one political
subdivision, the actual number of votes, or (if it is
not reasonably practicable for the political
subdivision to ascertain the actual number of votes) in
each subdivision-wide election held during the 5-year
period which ends on the date the change involved is
made.
``(4) Voluntary compliance by smaller jurisdictions.--
Compliance with this subsection shall be voluntary for a
political subdivision of a State unless the subdivision is one
of the following:
``(A) A county or parish.
``(B) A municipality with a population greater than
10,000, as determined by the Bureau of the Census under
the most recent decennial census.
``(C) A school district with a population greater
than 10,000, as determined by the Bureau of the Census
under the most recent decennial census. For purposes of
this subparagraph, the term `school district' means the
geographic area under the jurisdiction of a local
educational agency (as defined in section 9101 of the
Elementary and Secondary Education Act of 1965).
``(d) Rules Regarding Format of Information.--The Attorney General
may issue rules specifying a reasonably convenient and accessible
format that States and political subdivisions shall use to provide
public notice of information under this section.
``(e) No Denial of Right to Vote.--The right to vote of any person
shall not be denied or abridged because the person failed to comply
with any change made by a State or political subdivision to a voting
qualification, standard, practice, or procedure if the State or
political subdivision involved did not meet the applicable requirements
of this section with respect to the change.
``(f) Definitions.--In this section--
``(1) the term `demographic group' means each group which
section 2 protects from the denial or abridgement of the right
to vote on account of race or color, or in contravention of the
guarantees set forth in section 4(f)(2);
``(2) the term `election for Federal office' means any
general, special, primary, or runoff election held solely or in
part for the purpose of electing any candidate for the office
of President, Vice President, Presidential elector, Senator,
Member of the House of Representatives, or Delegate or Resident
Commissioner to the Congress; and
``(3) the term `persons with disabilities', means individuals
with a disability, as defined in section 3 of the Americans
with Disabilities Act of 1990.''.
(2) Conforming amendment.--Section 3(a) of such Act (52
U.S.C. 10302(a)) is amended by striking ``in accordance with
section 6''.
(b) Effective Date.--The amendment made by subsection (a)(1) shall
apply with respect to changes which are made on or after the expiration
of the 60-day period which begins on the date of the enactment of this
Act.
SEC. 6. AUTHORITY TO ASSIGN OBSERVERS.
(a) Clarification of Authority in Political Subdivisions Subject to
Preclearance.--Section 8(a)(2)(B) of the Voting Rights Act of 1965 (52
U.S.C. 10305(a)(2)(B)) is amended to read as follows:
``(B) in the Attorney General's judgment, the
assignment of observers is otherwise necessary to
enforce the guarantees of the 14th or 15th Amendment or
any provision of this Act or any other Federal law
protecting the right of citizens of the United States
to vote; or''.
(b) Assignment of Observers To Enforce Bilingual Election
Requirements.--Section 8(a) of such Act (52 U.S.C. 10305(a)) is
amended--
(1) by striking ``or'' at the end of paragraph (1);
(2) by inserting after paragraph (2) the following:
``(3) the Attorney General certifies with respect to a
political subdivision that--
``(A) the Attorney General has received written
meritorious complaints from residents, elected
officials, or civic participation organizations that
efforts to violate section 203 are likely to occur; or
``(B) in the Attorney General's judgment, the
assignment of observers is necessary to enforce the
guarantees of section 203;''; and
(3) by moving the margin for the continuation text following
paragraph (3), as added by paragraph (2) of this subsection,
two ems to the left.
SEC. 7. PRELIMINARY INJUNCTIVE RELIEF.
(a) Clarification of Scope and Persons Authorized To Seek Relief.--
Section 12(d) of the Voting Rights Act of 1965 (52 U.S.C. 10308(d)) is
amended--
(1) by striking ``section 2, 3, 4, 5, 7, 10, 11, or
subsection (b) of this section'' and inserting ``the 14th or
15th Amendment, this Act, or any Federal voting rights law that
prohibits discrimination on the basis of race, color, or
membership in a language minority group''; and
(2) by striking ``the Attorney General may institute for the
United States, or in the name of the United States,'' and
inserting ``the aggrieved person or (in the name of the United
States) the Attorney General may institute''.
(b) Grounds for Granting Relief.--Section 12(d) of such Act (52
U.S.C. 10308(d)) is amended--
(1) by striking ``(d) Whenever any person'' and inserting
``(d)(1) Whenever any person'';
(2) by striking ``(1) to permit'' and inserting ``(A) to
permit'';
(3) by striking ``(2) to count'' and inserting ``(B) to
count''; and
(4) by adding at the end the following new paragraph:
``(2)(A) In any action for preliminary relief described in this
subsection, the court shall grant the relief if the court determines
that the complainant has raised a serious question whether the
challenged voting qualification or prerequisite to voting or standard,
practice, or procedure violates this Act or the Constitution and, on
balance, the hardship imposed upon the defendant by the grant of the
relief will be less than the hardship which would be imposed upon the
plaintiff if the relief were not granted. In balancing the harms, the
court shall give due weight to the fundamental right to cast an
effective ballot.
``(B) In making its determination under this paragraph with respect
to a change in any voting qualification, prerequisite to voting, or
standard, practice, or procedure with respect to voting, the court
shall consider all relevant factors and give due weight to the
following factors, if they are present:
``(i) Whether the qualification, prerequisite, standard,
practice, or procedure in effect prior to the change was
adopted as a remedy for a Federal court judgment, consent
decree, or admission regarding--
``(I) discrimination on the basis of race or color in
violation of the 14th or 15th Amendment;
``(II) a violation of this Act; or
``(III) voting discrimination on the basis of race,
color, or membership in a language minority group in
violation of any other Federal or State law.
``(ii) Whether the qualification, prerequisite, standard,
practice, or procedure in effect prior to the change served as
a ground for the dismissal or settlement of a claim alleging--
``(I) discrimination on the basis of race or color in
violation of the 14th or 15th Amendment;
``(II) a violation of this Act; or
``(III) voting discrimination on the basis of race,
color, or membership in a language minority group in
violation of any other Federal or State law.
``(iii) Whether the change was adopted fewer than 180 days
before the date of the election with respect to which the
change is to take effect.
``(iv) Whether the defendant has failed to provide timely or
complete notice of the adoption of the change as required by
applicable Federal or State law.''.
(c) Grounds for Stay or Interlocutory Appeal.--Section 12(d) of such
Act (52 U.S.C. 10308(d)) is further amended by adding at the end the
following:
``(3) A jurisdiction's inability to enforce its voting or election
laws, regulations, policies, or redistricting plans, standing alone,
shall not be deemed to constitute irreparable harm to the public
interest or to the interests of a defendant in an action arising under
the U.S. Constitution or any Federal law that prohibits discrimination
on the basis of race, color, or membership in a language minority group
in the voting process, for the purposes of determining whether a stay
of a court's order or an interlocutory appeal under section 1253 of
title 28, United States Code, is warranted.''.
SEC. 8. DEFINITIONS.
Title I of the Voting Rights Act of 1965 (52 U.S.C. 10301) is amended
by adding at the end the following:
``SEC. 21. DEFINITIONS.
``In this Act:
``(1) Indian.--The term `Indian' has the meaning given the
term in section 4 of the Indian Self-Determination and
Education Assistance Act.
``(2) Indian lands.--The term `Indian lands' means--
``(A) any Indian country of an Indian tribe, as such
term is defined in section 1151 of title 18, United
States Code;
``(B) any land in Alaska that is owned, pursuant to
the Alaska Native Claims Settlement Act, by an Indian
tribe that is a Native village (as such term is defined
in section 3 of such Act), or by a Village Corporation
that is associated with the Indian tribe (as such term
is defined in section 3 of such Act);
``(C) any land on which the seat of government of the
Indian tribe is located; and
``(D) any land that is part or all of a tribal
designated statistical area associated with the Indian
tribe, or is part or all of an Alaska Native village
statistical area associated with the tribe, as defined
by the Bureau of the Census for the purposes of the
most recent decennial census.
``(3) Indian tribe.--The term `Indian tribe' or `tribe' has
the meaning given the term `Indian tribe' in section 4 of the
Indian Self-Determination and Education Assistance Act.
``(4) Tribal government.--The term `Tribal Government' means
the recognized governing body of an Indian Tribe.
``(5) Voting-age population.--The term `voting-age
population' means the numerical size of the population within a
State, within a political subdivision, or within a political
subdivision that contains Indian lands, as the case may be,
that consists of persons age 18 or older, as calculated by the
Bureau of the Census under the most recent decennial census.''.
SEC. 9. ATTORNEYS' FEES.
Section 14(c) of the Voting Rights Act of 1965 (52 U.S.C. 10310(c))
is amended by adding at the end the following:
``(4) The term `prevailing party' means a party to an action that
receives at least some of the benefit sought by such action, states a
colorable claim, and can establish that the action was a significant
cause of a change to the status quo.''.
SEC. 10. OTHER TECHNICAL AND CONFORMING AMENDMENTS.
(a) Actions Covered Under Section 3.--Section 3(c) of the Voting
Rights Act of 1965 (52 U.S.C. 10302(c)) is amended--
(1) by striking ``any proceeding instituted by the Attorney
General or an aggrieved person under any statute to enforce''
and inserting ``any action under any statute in which a party
(including the Attorney General) seeks to enforce''; and
(2) by striking ``at the time the proceeding was commenced''
and inserting ``at the time the action was commenced''.
(b) Clarification of Treatment of Members of Language Minority
Groups.--Section 4(f) of such Act (52 U.S.C. 10303(f)) is amended--
(1) in paragraph (1), by striking the second sentence; and
(2) by striking paragraphs (3) and (4).
(c) Period During Which Changes in Voting Practices Are Subject to
Preclearance Under Section 5.--Section 5 of such Act (52 U.S.C. 10304)
is amended--
(1) in subsection (a), by striking ``based upon
determinations made under the first sentence of section 4(b)
are in effect'' and inserting ``are in effect during a calendar
year'';
(2) in subsection (a), by striking ``November 1, 1964'' and
all that follows through ``November 1, 1972'' and inserting
``the applicable date of coverage''; and
(3) by adding at the end the following new subsection:
``(e) The term `applicable date of coverage' means, with respect to a
State or political subdivision--
``(1) June 25, 2013, if the most recent determination for
such State or subdivision under section 4(b) was made on or
before December 31, 2019; or
``(2) the date on which the most recent determination for
such State or subdivision under section 4(b) was made, if such
determination was made after December 31, 2019.''.
Purpose and Summary
H.R. 4, the ``Voting Rights Advancement Act of 2019,''
builds on the extensive legislative record developed by the
House Committee on the Judiciary (``Judiciary Committee'')
during the consideration of the Fannie Lou Hamer, Rosa Parks,
and Coretta Scott King Voting Rights Act Reauthorization and
Amendments Act of 2006, which reauthorized the Voting Rights
Act of 1965\1\ (``VRA'' or ``Act'') for another 25 years.\2\
Both Houses of Congress assembled extensive evidence of the
continuing need for preclearance in covered jurisdictions. The
2006 Committee report accompanying the bill noted that the
Judiciary Committee held a dozen hearings that included
testimony from 39 witnesses, and assembled more than 12,000
pages of testimony and documentary evidence from scholars,
election officials, attorneys, the United States Department of
Justice (``DOJ''), and various organizations.\3\
---------------------------------------------------------------------------
\1\Voting Rights Act of 1965, Pub. L. No 89-110, 79 Stat. 445
(codified as amended at 42 U.S.C. Sec. 1973 to 1973aa-6 (2006).
\2\Pub. L. No. 109-246 (2006).
\3\H.R. Rep. No. 109-478, at 5 (2006).
---------------------------------------------------------------------------
H.R. 4 amends the VRA in a variety of ways to reinvigorate
the Act's enforcement mechanisms and, thereby, bolster its
guarantee against voting discrimination by states and
localities on the basis of race, color, or language-minority
status. In sum, H.R. 4 creates a new coverage formula to
determine which states will be subject to the VRA's
preclearance requirement that is based on current evidence of
voting discrimination in response to the Supreme Court's
holding that the previous formula was outdated. In addition,
the bill (1) establishes practice-based preclearance authority;
(2) increases transparency by requiring reasonable public
notice for voting changes; (3) expands judicial authority
impose a preclearance requirement on a particular jurisdiction
after finding violations of any Federal voting rights law; and
(4) establishes an enhanced standard for injunctive relief. In
combination, the changes will restore the VRA's vitality to
protect the right of all Americas to have the equal opportunity
to vote and participate in the political process.
Background and Need for Legislation
BACKGROUND
On June 25, 2013, in Shelby County, Alabama v. Holder,\4\
the Supreme Court struck down portions of the VRA, leaving
American voters vulnerable to tactics of vote suppression and
discrimination. Writing for the majority in the 5 to 4
decision, Chief Justice John Roberts acknowledged that ``voting
discrimination still exists; no one doubts that,''\5\ however,
he noted that the preclearance coverage formula in Section 4(b)
of the VRA--which determines the jurisdictions that are subject
to the VRA's preclearance requirement in Section 5 of the Act--
could ``no longer be used as a basis for subjecting
jurisdictions to preclearance.''\6\ Chief Justice Roberts
stated that the formula was unconstitutional because the
coverage formula was ``based on decades-old data and eradicated
practices,'' making it no longer responsive to current needs
and therefore an impermissible burden on the constitutional
principles of federalism and the equal sovereignty of
states.\7\ He went on to state that the ``[Fifteenth] Amendment
is not designed to punish for the past; its purpose is to
ensure a better future'' and ``[t]o serve that purpose,
Congress--if it is to divide the States--must identify those
jurisdictions to be singled out on a basis that makes sense in
light of current conditions.''\8\ Without Section 4(b), Section
5 is inoperable until Congress enacts a new coverage formula,
which the Court invited Congress to do.\9\
---------------------------------------------------------------------------
\4\570 U.S. 529 (2013).
\5\Shelby Cty., 570 U.S. at 536.
\6\Id. at 557.
\7\Id. at 551.
\8\Id. at 553 (internal citations omitted).
\9\See id. at 557.
---------------------------------------------------------------------------
A. Oversight and Legislative Hearings
At the outset of the 116th Congress, the Committee on House
Administration, led by Chairperson Zoe Lofgren (D-California),
reconstituted the Subcommittee on Elections, which had been
eliminated six years earlier. Under the leadership of
Chairperson Marcia L. Fudge (D-Ohio), the Subcommittee on
Elections conducted an extensive review of the landscape of
voting in America post-Shelby County and examined the current
barriers to voting across the country. The Subcommittee on
Elections took Congress to the American people, engaged with
voters, stakeholders, officials and election administrators,
and collected testimony and evidence on the state of voting
rights and election administration to ensure every eligible
American has equal and fair access to the ballot and the
confidence their ballot is counted as cast.
In November 2019, the Subcommittee of Elections issued a
report titled, ``Voting Rights and Elections Administration in
the United States of America,''\10\ which the Judiciary
Committee has adopted in full as part of its legislative record
in support of H.R. 4. Chairperson Fudge commented on Congress'
critical role in protecting the right to vote for all eligible
Americans:
---------------------------------------------------------------------------
\10\Report on Voting Rights and Election Administration in the
United States of America, Subcomm. on Elections, H. Comm. on House
Admin. (Nov. 2019) [hereinafter ``Subcommittee on Elections Report''].
Nearly 6 years after the Supreme Court decided Shelby
County v. Holder, this report makes clear that voter
suppression and discrimination still exist. It is our
duty as elected Members of Congress to uphold and
defend the Constitution and protect the rights of the
voter. America is great because of her ability to
repair her faults. It is time for us to set the right
example as a democracy and encourage people to vote,
rather than continuing to erect barriers that seek to
suppress the vote and the voices of our
communities.\11\
---------------------------------------------------------------------------
\11\Press Statement, Rep. Fudge Releases Report on Voting Rights
and Elections Administration (Nov. 13, 2019), https://fudge.house.gov/
press-statements/rep-fudge-releases-report-on-voting-rights-and-
elections-administration/.
To collect the contemporaneous evidence called for by the
Supreme Court, the Subcommittee on Elections held hearings in
Alabama, Arizona, Florida, Georgia, North Carolina, North
Dakota, Ohio, and Washington D.C.\12\ An inaugural listening
session was also held in Texas. The hearing in North Dakota was
held on the Standing Rock Sioux Reservation and focused on
issues specific to Native American voters. The Subcommittee on
Elections found an array of tactics in place used to suppress
the votes of targeted communities and barriers that impede the
free exercise of the right to vote. In the course of its
investigation, the Subcommittee of Elections collected over
3,000 pages of wide-ranging testimony and evidence.
Specifically, the Subcommittee of Elections found persistent
discrimination in voting law changes such as purging voter
registration rolls, cut backs to early voting, polling place
closures and movement, voter ID requirements, implementation of
exact match and signature match requirements, lack of language
access and assistance, and discriminatory gerrymandering of
legislative districts at the state, local, and federal level.
The Subcommittee on Elections also found Native Americans are
disproportionately targeted and impacted by voter ID laws and
polling place closures.
---------------------------------------------------------------------------
\12\See Hearings Before the Subcomm. on Elections of the H. Comm.
on House Admin. 116th Cong. (2019).
---------------------------------------------------------------------------
In addition to the Subcommittee on Elections, the Judiciary
Committee and its Subcommittee on the Constitution, Civil
Rights, and Civil Liberties (``Subcommittee on the
Constitution'') held eight hearings on barriers to voting,
continuing evidence of voting discrimination, and Congress's
legal authority to enact remedial legislation.\13\ The
Subcommittee on Civil Rights and Civil Liberties of the House
Oversight and Reform Committee conducted a hearing on
``Protecting the Right to Vote: Best and Worst Practices,''
which examined election practices that maximize access to the
ballot for eligible voters and disenfranchise eligible voters
or increase obstacles to voting.\14\ At this hearing, directors
from civil rights organizations testified about voter
suppression tactics across the country. Collectively, the
hearings before the three committees produced strong
contemporaneous evidence of ongoing discriminatory laws and
practices that result in suppression of the right to vote
against racial and language minorities.
---------------------------------------------------------------------------
\13\See Hearings Before the H. Comm. on the Judiciary and Subcomm.
on the Constitution, Civil Rights, and Civil Liberties of the H. Comm.
on the Judiciary, 116th Cong. (2019).
\14\See Protecting the Right to Vote: Best and Worst Practices:
Hearing Before the Subcomm. on Civil Rights and Civil Liberties of the
H. Comm. on Oversight and Reform, 116th Cong. (May 1, 2019).
---------------------------------------------------------------------------
The Judiciary Committee also received additional written
testimony and reports from interested governmental and non-
governmental organizations (NGOs) and private citizens,\15\
which the Judiciary Committee adopts in their entirety as part
of the legislative record in support of H.R. 4. In all, the
three committees have assembled thousands of pages of
testimony, documentary evidence, and appendices from over 126
groups and individuals, including State and local elected
officials, tribal officials, scholars, attorneys, and other
representatives from the voting and civil rights community and
Members of Congress. In addition to the oral and written
testimony, the Judiciary Committee requested, received, and
incorporated into its hearing record a series of comprehensive
reports that have been compiled by NGOs that have expertise in
voting rights litigation and extensively documented: (1) the
extent to which discrimination against minorities in voting has
and continues to occur; (2) the impact of the suspension of
Section 5 preclearance on the voting rights of minority voters
and (3) the continued need for the expiring provisions of the
VRA.\16\
---------------------------------------------------------------------------
\15\See An Assessment of Minority Voting Rights Access in the
United States, U.S. Comm'n on Civil Rights (2018).
\16\See The Case for Restoring and Updating the Voting Rights Act,
Am. Civil Liberties Union (2019); Democracy Defended: Analysis of
Barriers to Voting in the 2018 Midterm Elections, The NAACP Legal Def.
and Educ. Fund (2019); Democracy Diverted: Polling Place Closures and
the Right to Vote, The Leadership Conference Educ. Fund (2019); Field
Hearing Report Identifying and Removing Barriers to Political
Participation by Native Voters, The Native Am. Rights Fund (2019);
Practice Based Preclearance: Protecting Against Tactics Persistently
Used to Silence Minority Communities' Votes, Asian Americans Advancing
Justice, Mexican Am. Legal Def. and Educ. Fund, NALEO Educ. Fund
(2019); The State of Voting Rights Litigation, Brennan Center for
Justice (2019); Voting Discrimination Against Racial and Ethnic
Minorities 1994-2019, Lawyers' Comm. for Civil Rights Under Law (2019).
---------------------------------------------------------------------------
In summary, the Judiciary Committee advances H.R. 4 in the
face of overwhelming record evidence--developed over the course
of the hearings discussed above--that states and their
political subdivisions have continued to engage in voting
discrimination in the years since the 2013 Shelby County
decision.
B. Committee Statement on Importance of the Preclearance Process
When Congress passed the VRA in 1965, it sought to deliver
on what had long been an empty promise to African Americans and
other people of color: the right to participate in our
democracy as equal citizens. The Act not only prohibited states
from denying the right to vote on the basis of race, but also
required certain states and local jurisdictions that had
practiced the most severe forms of discrimination to get
approval from the DOJ, or from a court, before making any
changes to their voting laws.
Congress enacted 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. Even after the passage of earlier federal
civil rights laws, states would continue to enact laws designed
to disenfranchise African American voters, like literacy tests;
and when those laws were struck down by the courts after years
of litigation, the states would simply switch to some other
method of voter suppression, like poll taxes.
This relentless game of whack-a-mole meant that African
American voters could be shut out of the polling place even if
they were successful in every lawsuit they brought because by
the time they succeeded in striking down a discriminatory law,
a new one would already be in place to keep them from the
ballot box. So, as the Supreme Court explained when it first
upheld the Voting Rights Act in South Carolina v.
Katzenbach,\17\ Congress put in place the preclearance
requirement ``to shift the advantage of time and inertia from
the perpetrators of the evil to its victims.''
---------------------------------------------------------------------------
\17\383 U.S. 301, 328 (1966).
---------------------------------------------------------------------------
For decades afterward, enforcement of this law improved the
ability of African Americans and other people of color to cast
votes, run for office and equally participate in the political
process. However, because many state and local governments
persisted in attempting to suppress the vote in communities of
color--or to dilute their votes through racial gerrymandering--
Congress reauthorized the VRA in 1970, 1975, 1982, and 2006.
Each time, the legislation passed by overwhelming bipartisan
margins. And each time, Congress kept essentially the same
coverage formula for determining which jurisdictions would be
subject to preclearance based on the evidence compiled in its
legislative record.
In 2013, however, the Supreme Court in Shelby County held
that the coverage formula in the VRA was unconstitutional
because it was not based on current conditions. The Judiciary
Committee heard from dozens of witnesses and assembled
thousands of pages of evidence of ongoing discrimination as it
had done in past reauthorizations, but in the Court's view,
because certain statistics had improved in the jurisdictions
subject to preclearance, Congress could no longer justify
imposing preclearance on those jurisdictions. This
determination was not without controversy on the Court. Justice
Ruth Bader Ginsburg observed in a strongly worded dissent that:
``Throwing out preclearance when it has worked and is
continuing to work to stop discriminatory changes is like
throwing away your umbrella in a rainstorm because you are not
getting wet.''
The Judiciary Committee record indicates that after the
Shelby County decision, a deluge of voter suppression laws were
passed across the nation, including in many states and local
jurisdictions that had been subject to preclearance before the
ruling. For instance, within 24 hours, Texas and North Carolina
moved to reinstitute draconian voter identification (ID) laws,
both of which were later held in federal courts to be
intentionally racially discriminatory. The three separate
committees identified above have heard evidence about these
states and other ongoing voter suppression laws.
The Court also emphasized the equal sovereignty of the
states and on states' authorities to administer elections. In
each reauthorization process, this Committee and Congress as a
whole, has focused on acting within its authority under the
Fourteenth Amendment's guarantee of equal protection under the
law and the Fifteenth Amendment's prohibition on states from
denying the right to vote on the basis of race. Crucially, both
Amendments give Congress the power to enforce these rights ``by
appropriate legislation.'' In its decision in Katzenbach, the
Supreme Court held that this authority under the Fifteenth
Amendment means Congress ``may use any rational means'' to make
laws protecting the right to vote and the Court has deferred to
that authority following each reauthorization. In Shelby
County, however, the Court appeared to depart from this
``rationality test'' and applied a different, possibly
heightened form of scrutiny. After Shelby County, there has
been substantial confusion about the standard, which has
allowed some states free reign to enact stringent voter ID
laws, to purge their voter registration rolls, and to engage in
a host of other measures designed to roll back the achievements
of the Voting Rights Act.
Nonetheless, Congress has the power--and indeed the
obligation--to address this tide of voting discrimination. The
Fourteenth and Fifteenth Amendments expressly empower Congress
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 suspended the DOJ
preclearance procedures, the Court made clear that it was not
striking down preclearance altogether. Rather, it invalidated
the part of the law that determines which jurisdictions are
subject to preclearance. It explained it was doing this because
Congress had not substantially updated that formula for several
decades. In fact, the Court expressly said that Congress could
``draft another formula based on current conditions.''
Based upon the record compiled by the committees and the
NGO's, the Judiciary Committee finds that current conditions
justify the continuation of the Section 5 preclearance process
and that the coverage formula in H.R. 4 is crafted within the
constitutional bounds of congressional authority as defined by
relevant Supreme Court precedent. The right to vote lies at the
very core of our democracy and is foundational to the rule of
law. Though substantial progress has been made, the overall
record, particularly in the wake of suspension of Section 5
preclearance, continues to justify the need for the VRA's
temporary provisions.
C. Need for the Original VRA and Subsequent Reauthorizations
1. Historical Background
a. Constitutional Authority for Federal Regulation of
State and Local Voting Procedures to Combat Racial
Discrimination
While it remains true that, in general, states are left to
regulate their own elections, the post-Civil War amendments to
the U.S. Constitution fundamentally re-ordered the relationship
between the federal and state governments by giving Congress
the express authority to enforce the mandates of those
amendments against the states. In doing so, these amendments
gave Congress both the authority and the obligation to combat
race discrimination by the States and their political
subdivisions.\18\ For instance, the VRA was enacted under
Congress's authority to enforce the Fifteenth Amendment to the
U.S. Constitution, which provides that the right of citizens to
vote shall not be denied or abridged on account of race, color,
or previous servitude.\19\ Likewise, the Fourteenth Amendment
guarantees, among other things, the equal protection of the
laws\20\ and gives Congress the authority to enforce this
guarantee through legislation.\21\ It should also be noted
that, with respect to elections for Congress, Congress has
broad authority under the Constitution's Elections Clause to
supplant state and local voting procedures and practices when
it so chooses.\22\
---------------------------------------------------------------------------
\18\See H.R. 1, the ``For the People Act of 2019'': Hearing Before
the H. Comm. on the Judiciary, 116th Cong. (Jan. 29, 2019) (oral
testimony of Sherrilyn Ifill, President and Dir.-Counsel, NAACP Legal
Defense and Educ. Fund).
\19\U.S. Const., amend. XV, Sec. 1 (``The right of citizens of the
United States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous condition
of servitude.'') and Sec. 2 (``The Congress shall have power to enforce
this article by appropriate legislation'').
\20\U.S. Const., amend. XIV, Sec. 1 (``All persons born or
naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.'').
\21\Id., Sec. 5 (``The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article'').
\22\U.S. Const., art. I, Sec. 4 (``The Times, Places and Manner of
holding Elections for Senators and Representatives, shall be prescribed
in each State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations, except as to the Place of
choosingg Senators.'').
---------------------------------------------------------------------------
b. Brief History of Discriminatory Barriers to Voting
Although the Nation has made substantial progress since the
enactment of the VRA in ensuring full and equal participation
by racial, ethnic, and language minority citizens in the
electoral process, there remain significant and ever-evolving
barriers to such full participation. Additionally, with the
erosion of longstanding federal protections against voting
discrimination, the possibility that this progress may be
erased is ever present. Indeed, there is, sadly, precedent in
the Nation's history for such retrogression, which pervades the
history of civil rights in the United States. A more fulsome
discussion of Congress's constitutional authority appears later
in this Committee report.
i. The Persistence of Racial Discrimination Against
African Americans in Voting Reflects the Deep-
Rooted Racial Ideology That Undergirded Slavery in
the United States
The end of the Civil War and the abolition of slavery
ushered in a brief but important period in American history
where federal lawmakers took significant steps to protect the
civil rights of African Americans and other racial minorities.
During the Reconstruction Era the Fourteenth Amendment and the
Fifteenth Amendment were ratified and the Civil Rights Act of
1866, among other federal civil rights protections, was
enacted.\23\ Though not comprehensive, these legal protections
for, among other things, voting rights--enforced through the
use of federal troops--permitted a nascent multiracial
democracy to form for a brief period in parts of the former
Confederacy.\24\ Yet the centuries-old institution of slavery
established a racial caste system in the United States so
pervasive that it survived the oppressive economic and social
institution that it was intended to preserve. The political
will to maintain the civil rights advancements made in the
Civil War's immediate aftermath soon subsided. The withdrawal
of the last federal troops as part of the Compromise of 1877--
which secured the presidency for Rutherford B. Hayes in the
contested 1876 presidential election--marked the end of the
Reconstruction period.\25\ Without the protection of federal
troops and the political will to enforce the few federal civil
rights laws enacted in the immediate aftermath of the Civil
War, the backlash against gains made in African American voting
was swift. Many former Confederate States moved quickly to
enact laws designed to suppress African American voting rights
while countenancing acts of racial violence and intimidation.
---------------------------------------------------------------------------
\23\Michelle Alexander, The New Jim Crow at 29, The New Press
(2012).
\24\Id.
\25\Bernard Grofman, Lisa Handley, et al., Minority Representation
and the Quest for Voting Equality at 6 (1992).
---------------------------------------------------------------------------
By the 1890s--often considered by civil rights historians
as the nadir of African American civil rights--many southern
States had amended their constitutions to effectively
disenfranchise African American voters and established what
would become known as Jim Crow laws.\26\ An oppressive regime
of legal segregation designed to reassert a racial caste system
akin to that imposed by slavery, Jim Crow laws were designed to
preserve white political supremacy through the denial of civil
rights and the right to vote--the bedrock on which all other
civil rights were founded. Using a combination of ``violence,
voting fraud, white officials' discriminatory use of election
structures (such as gerrymandering and the use of at-large
elections to prevent black office holding), statutory suffrage
restrictions, and, in the waning years of the century, revision
of the `reconstructed' state constitutions,'' reactionary
whites effectively erased the gains in political representation
made by African Americans during Reconstruction.\27\ Indeed,
the enactment of the many barriers to voting that Congress
initially intended the VRA to address can be traced back to
this period.\28\
---------------------------------------------------------------------------
\26\Bernard Grofman and Chandler Davidson, ed., Controversies in
Minority Voting: The Voting Rights Act in Perspective at 10 (1992).
\27\Id. at 10-11.
\28\H.R. Rept. 439, 89th Cong. at 11 (1965).
---------------------------------------------------------------------------
Undergirding Jim Crow laws were the racial attitudes
spawned during slavery, which continued to perpetuate
themselves throughout American society, particularly in the
States of the former Confederacy where Jim Crow was born.
Racial discrimination in voting, however, was legal in many
places throughout the United States, not just the South. For
example, on the eve of the Civil War, every northern State save
New York and all but one in New England disenfranchised African
American voters, and even those States that did permit African
Americans to vote placed qualifications that limited the number
of eligible African American voters.\29\
---------------------------------------------------------------------------
\29\Id. at 8.
---------------------------------------------------------------------------
Furthermore, the concept of white racial superiority
stemming from slavery, and later its successor Jim Crow,
informed societal attitudes towards other racial and ethnic
groups. As the United States' population grew ever more
diverse, other ethnic and racial minorities were also subjected
to voting and other forms of discrimination as well as acts of
racial violence - which were often tolerated if not supported
by local or State authorities. In short, the odious racial
caste system which evolved to justify slavery, and the
historical conflicts between the federal government and Native
American tribes, have attached social stigmas to Americans
belonging to other racial and ethnic minority groups as well.
Additionally, many Native Americans have suffered a long
history of discrimination, both before and after Congress
conferred automatic U.S. citizenship to all Native Americans in
1924.\30\ Moreover, this discrimination has occurred within the
context of historical conflicts between many Native American
tribes and a federal government that often acted in a manner
indifferent to its treaty obligations or antagonistically
towards tribal sovereignty.
---------------------------------------------------------------------------
\30\Indian Citizenship Act of 1924, Pub. L. 68-175, 43 Stat. 253
(1924).
---------------------------------------------------------------------------
It took nearly a century of civil agitation following the
adoption of the Civil War Amendments, culminating in the civil
rights movements of the 1950s, 60s and early 70s to end de jure
racial discrimination in the United States. During this
``Second Reconstruction,'' civil rights activists advanced
legal theories before a receptive Supreme Court to fully
enforce constitutional guarantees of legal equality and used
public protests to shape public opinion to push federal
lawmakers to once again take action to protect the civil rights
of racial and ethnic minorities through the enactment of the
Civil Rights Act of 1964, and, most importantly, the Voting
Rights Act of 1965.
U.S. history since the Civil War has been punctuated by
moments of real promise for the realization of full racial
equality-spurred in part by the initiatives of an engaged
federal government responding to those fighting on behalf of
civil rights for all Americans. Unfortunately, this progress
has been fitful as these periods have been followed by periods
of political backlash, and subsequent backsliding on civil
rights. The Reconstruction Era was the first such period that
provided a brief glimpse of what the Nation could achieve. Like
mercury, however, the racial attitudes born from America's
early dependence on slavery continued to seep into any crack in
the Nation's resolve, taking whatever shape necessary to
perpetuate the racial caste system that had touched almost
every aspect of life in communities across the country for
centuries. It took a ``Second Reconstruction'' spearheaded by
the leaders of the Civil Rights Movement, and the many ordinary
Americans who took up the cause, for the United States to start
living up to its founding ideals.
ii. Brief History of the VRA
The VRA was a remarkable response to the persistence of
racial discrimination in voting and was intended to prevent the
kind of backsliding on voting rights enforcement that occurred
after the Civil War. That it sought to protect the right to
vote was not novel. Instead, what made it indispensable was
that it was structured to prevent those invested in preserving
white supremacy from adapting State laws to evade federal
attempts to enforce the constitutional guarantee of the right
to vote regardless of race.
The 1965 Judiciary Committee report accompanying the VRA
noted both the historic struggle for civil rights and
Congress's failure to protect minority voting rights following
the end of the Reconstruction period and the enactment of Jim
Crow laws. The Judiciary Committee noted in its report that
``[t]he bill, as amended, [is] designed primarily to enforce
the 15th amendment to the Constitution of the United States and
is also designed to enforce the 14th amendment and article I,
section 4''\31\ and that ``[t]he historic struggle for the
realization of this constitutional guarantee indicates clearly
that our national achievements in this area have fallen far
short of our aspirations.''\32\
---------------------------------------------------------------------------
\31\H.R. Rept. 439, 89th Cong. at 6 (1965).
\32\Id. at 8.
---------------------------------------------------------------------------
Although in the years prior to the passage of the VRA,
Congress passed several civil rights bills in 1957, 1960, and
1964,\33\ to facilitate voting rights enforcement litigation by
the DOJ and private plaintiffs, the Judiciary Committee
observed that ``enforcement has encountered serious obstacles
in various regions of the country.''\34\ The Judiciary
Committee found that States quickly adapted their laws in
response to voting rights litigation in order to maintain
racially discriminatory voting, noting ``[t]he history of 15th
amendment litigation in the Supreme Court reveals both the
variety of means used to bar [African American] voting and the
durability of such discriminatory policies.''\35\ Litigation,
even where successful, was not enough to vindicate the voting
rights of racial minorities in these regions. As Justice
Ginsburg noted in her dissent in Shelby County: ``Early
attempts to cope with this vile infection resembled battling
the Hydra. Whenever one form of voting discrimination was
identified and prohibited, others sprang up in its place.''\36\
To slay the beast, Congress had to forge a weapon capable of
defeating each of the Hydra's heads for good.
---------------------------------------------------------------------------
\33\Id. at 9.
\34\Id.
\35\Id. at 8.
\36\570 U.S. at 560.
---------------------------------------------------------------------------
To that end, Congress added a provision to the VRA that
subjected States and political subdivisions with a history of
racial discrimination in voting to a preclearance requirement,
which ``required prior approval or preclearance of a proposed
change to any voting law, and applied only to those states or
political subdivisions'' that fell under its coverage
formula.\37\ As originally enacted, the coverage formula
covered any state or political subdivision that maintained a
``test or device'' as a prerequisite to voting or registering
to vote on November 1, 1964 ``and either less than 50% of
citizens of legal voting age were registered to vote or less
than 50% of such citizens voted in the presidential election in
the year in which the state or political subdivision used the
test or device.''\38\ The preclearance provision was initially
set to expire after five years.
---------------------------------------------------------------------------
\37\History of Enforcement of the Voting Rights Act of 1965:
Hearing before the Subcomm. on the Constitution, Civil Rights, and
Civil Justice, H. Comm. on the Judiciary, 116th Cong. (Mar. 12, 2019)
(written statement of L. Paige Whitaker, Legislative Attorney,
Congressional Research Service at 2).
\38\Id.
---------------------------------------------------------------------------
The Judiciary Committee report noted that each of the six
southern states that fell within the coverage formula and were
subject to the VRA's preclearance requirement ``has had a
general public policy of racial segregation evidenced by
statutes in force and effect in the areas of travel,
recreation, education, and hospital facilities.''\39\ Certain
state and local governments openly espoused racially
discriminatory attitudes, which demonstrated that the
disparities in voter registration and voter participation were
the result of intentional racial discrimination in voting.\40\
---------------------------------------------------------------------------
\39\H.R. Rept. 439, 89th Cong. at 14 (1965).
\40\Id.
---------------------------------------------------------------------------
In light of the foregoing factors, the Judiciary Committee
considered the preclearance provision to be the most critical,
observing:
The judicial process affords those who are determined
to resist plentiful opportunity to resist. Indeed, even
after apparent defeat resisters seek new ways and means
of discriminating. Barring one contrivance too often
has caused no change in result, only in methods.\41\
---------------------------------------------------------------------------
\41\Id. at 10.
For example, the Judiciary Committee report noted that even
where litigation was successful and ``where some registration
has been achieved, [African American] voters have sometimes
been discriminatorily purged from the roll.''\42\ Even during
the enactment of the initial 1965 Act, Congress recognized that
state actions designed to exclude minorities from effectively
participating in the electoral process could take on new forms.
Indeed, the entire preclearance requirement is premised on
Congress having found that litigation alone was not effective,
as States and localities simply found alternative means to
effectuate racially discrimination.
---------------------------------------------------------------------------
\42\Id.
---------------------------------------------------------------------------
While the Civil Rights Movement was successful in pushing
courts and the Congress to end States' overt racially
discriminatory policies, racial discrimination in voting--as in
other facets of American society--continued to persist, and
evolved by taking on new, more covert forms. In the decades
following the enactment of the VRA, both the courts and
Congress--during subsequent reauthorizations of the VRA--took
notice as States and political subdivisions began to adopt new,
less overt methods to limit full minority participation in the
electoral process. Based on substantial evidence presented to
the Judiciary Committee at the time of each reauthorization,
Congress extended the temporary provisions of the VRA in 1970,
1975, 1982, 1992, and 2006, and amended the Act to take account
of new evolving threats to voting rights.\43\ For example, in
1975, the Congress expanded the VRA to cover new geographic
areas after finding ``a systematic pattern of voting
discrimination and exclusion against minority group citizens
who are from environments in which the dominant language is
other than English.''\44\ During the 1982 reauthorization of
the VRA, the Judiciary Committee report observed:
---------------------------------------------------------------------------
\43\See H.R. Rept. 109-478, 109th Cong. (2006).
\44\H.R. Rept. 94-196, 94th Cong. at 16 (1975).
Congress and the courts have long recognized that
protection of the franchise extends beyond mere
prohibition of official actions designed to keep voters
away from the polls, it also includes prohibitions of
state actions which so manipulate the elections process
as to render voters meaningless.\45\
---------------------------------------------------------------------------
\45\H.R. Rept. 97-227, 97th Cong. at 17 (1981).
The Judiciary Committee found that, despite progress made with
regard to increasing minority registration and the number of
minority elected officials, ``manipulation of registration
procedures and the electoral process'' by state actions
continued to ``effectively exclude minority participation from
all stages of the political process.''\46\ These state actions
included ``at-large elections, high fees and bonding
requirements, shifts from elective to appointive office,
majority vote run-off requirements, numbered posts, staggered
terms, full slate voting requirements, residency requirements,
annexations/retrocessions, incorporations, and malapportionment
and racial gerrymandering.''\47\
---------------------------------------------------------------------------
\46\Id. at 14.
\47\Id. at 18.
---------------------------------------------------------------------------
In enacting the VRA, Congress sought to arrest the forces
animating State and local government attempts to evade federal
enforcement of minority voting rights. The effects of past
racial discrimination continue to resound down through the
ages, and much progress remains to be made today towards true
racial and social justice. Moreover, though it has been decades
since Jim Crow ended, the racial attitudes that animated it
remain within living memory and continue to cast a long shadow
across the Nation's legal, economic, and social institutions.
Yet a generation of Americans have come of age without having
to live under the burdens imposed by de jure racial
discrimination. That is in large part because the VRA continues
to be one of the primary bulwarks against voter
discrimination--no matter what method or form such
discrimination takes--and ensuring that the right to vote is
guaranteed fully for all Americans.
iii. First, Second, and Third Generation Barriers to
Voting
Understandably, the original provisions of the VRA focused
primarily on vote denial practices given that de jure racial
discrimination in almost every aspect of public life had been
the policy of many States for decades, effectively abrogating
the voting rights of African Americans and other racial
minorities in defiance of the Fourteenth and Fifteenth
Amendments. Moreover, State and local officials in many States
were also actively engaged in resisting federal efforts to
effectuate minority voting rights. The 1965 Committee report,
however, also makes clear that the VRA was always envisioned to
be a flexible response to conditions ``on the ground'' that
affected the ability of minority voters to exercise effectively
the franchise.
The VRA as initially passed addressed so-called ``first
generation'' barriers to voting that were enacted following the
end of Reconstruction.\48\ These barriers included methods such
as poll taxes, literacy tests, and other devices designed to
facilitate overt disenfranchisement of racial minorities by
preventing them from registering and voting.\49\ By the 1970s,
States and subdivisions determined to discriminate against
minority voters began to adopt other, more subtle barriers to
meaningful participation in the democratic process in response
to increased minority voter registration due to the enforcement
of the VRA.\50\
---------------------------------------------------------------------------
\48\Discriminatory Barriers to Voting: Hearing Before the Subcomm.
on the Constitution, Civil Rights, and Civil Liberties, H. Comm. on the
Judiciary, 116th Cong., (Sept. 5, 2019) (written statement of Steven
Mulroy, Professor of Law, University of Memphis Cecil B. Humphreys
School of Law at 2).
\49\Id.
\50\Id.
---------------------------------------------------------------------------
These so-called ``second generation barriers'' are designed
not to outright exclude minority voters from participation, but
to dilute or underrepresent the strength of their votes.\51\
These include practices such as the racial gerrymandering of
electoral districts; adoption of at-large election districts
rather than smaller, single-member individual electoral
districts; and the annexation of another political subdivision
in order to dilute the ability of minority voters to impact the
outcome of an election. In keeping with the overall purpose of
the VRA, Congress amended the statute to ensure these practices
were forbidden.
---------------------------------------------------------------------------
\51\Id. at 2-3.
---------------------------------------------------------------------------
Finally, while second generation barriers remain a threat
to voting rights, in recent years, States and political
subdivisions have begun adopting ``third generation'' barriers
to make voting more onerous for minority voters.\52\ These
practices include the adoption of procedures making it more
difficult for language minorities to register; placing
burdensome restrictions on third-party voter registration
activities; moving or closing down polling places to increase
the difficulty for minorities to vote; and countenancing
confusing election administration procedures to remain in place
for practices such as provisional balloting and voter ID
requirements.
---------------------------------------------------------------------------
\52\Id. at 3.
---------------------------------------------------------------------------
D. Framework of Congress's Constitutional Authority to Combat Voting
Discrimination
1. Katzenbach and Related Cases
Soon after the VRA was first enacted, the Supreme Court
resoundingly upheld its constitutionality in Katzenbach. In
that case, South Carolina contended that Congress had exceed
its constitutional authorities and ``encroach[ed] on an area
reserved to the States by the Constitution.''\53\ It also
argued that the coverage formula ``violate[d] the principle of
the equality of States.''\54\ The Court posed the following as
the fundamental question in the case: ``Has Congress exercised
its powers under the Fifteenth Amendment in an appropriate
manner with relation to the States?''\55\
---------------------------------------------------------------------------
\53\383 U.S. at 323.
\54\Id.
\55\Id. at 324.
---------------------------------------------------------------------------
The Court held that it had. First, it construed the
Fifteenth Amendment's text and purpose to mean that ``[a]s
against the reserved powers of the States, Congress may use any
rational means to effectuate the constitutional prohibition of
racial discrimination in voting.''\56\ In applying this
``rationality test'' to measures passed pursuant to Congress's
Fifteenth Amendment authority, the Court affirmed that the
Amendment's express grant of authority to Congress means that
Congress is empowered to enact proactive legislation beyond
simply ``forbid[ding] violations of the Fifteenth Amendment in
general terms.''\57\ The Court made clear that any legislation
to enforce the Fifteenth Amendment is constitutional when ``as
in all cases concerning the express powers of Congress with
relation to the reserved powers of the States . . . `Let the
end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but
consist with the letter and spirit of the Constitution . . .
.'''\58\
---------------------------------------------------------------------------
\56\Id. (emphasis added).
\57\Id. at 327.
\58\Id. at 326 (quoting McCulloch v. Maryland, 17 U.S. 316, 421
(1819)).
---------------------------------------------------------------------------
The Court acknowledged that Congress had acted in an
``inventive'' and ``uncommon'' manner in imposing a
preclearance requirement on covered jurisdictions in Sections
4(b) and 5.\59\ Section 4(b) provided the ``coverage formula''
for determining which jurisdictions are subject to the Section
5 preclearance requirement and requires these covered
jurisdictions to ``preclear'' proposed changes in their voting
procedures or practices and submit the proposed changes for
approval by DOJ or by a federal court.\60\ Section 5 requires
jurisdictions covered by Section 4(b) to submit any changes in
their voting procedures or practices for approval by DOJ or by
a federal court. Pursuant to Section 5, DOJ or the court can
block any changes that have discriminatory purposes or
effects.\61\ The coverage formula was triggered if a state or
political subdivision, as of various points in the 1960s or
early 1970s, (1) employed prohibited ``tests or devices'' used
to limit voting; and (2) had fewer than 50% voter registration
or turnout among its voting-age population.\62\ Section 3(c),
known as the ``bail-in'' provision, allows courts to retain
jurisdiction to supervise further voting changes in
jurisdictions where the court has found violations of the
Fourteenth or Fifteenth Amendments. If a jurisdiction is
``bailed in,'' it must submit any changes to its voting
procedures for approval either to the court or to DOJ.\63\ That
provision was not affected by the Court's holding in Shelby
County.
---------------------------------------------------------------------------
\59\Id. at 324, 327; see 52 U.S.C. Sec. Sec. 10303-10304 (1982).
\60\See 52 U.S.C. Sec. 10304(a).
\61\Id.
\62\Id. Sec. 10303(b).
\63\Id. Sec. 10302(c).
---------------------------------------------------------------------------
In Katzenbach, the Court held that Section 5's preclearance
remedy was ``clearly a legitimate response to the problem'' of
voting discrimination.\64\ Given the difficulty of litigating
voting discrimination suits on a case-by-case basis, the Court
held that Congress appropriately decided ``to shift the
advantage of time and inertia from the perpetrators of the evil
to its victims.''\65\ The Court elaborated:
---------------------------------------------------------------------------
\64\383 U.S. at 327-28, 335.
\65\Id. at 328.
---------------------------------------------------------------------------
Congress knew that some of the States covered by
[Section] 4(b) of the Act had resorted to the
extraordinary stratagem of contriving new rules of
various kinds for the sole purpose of perpetuating
voting discrimination in the face of adverse federal
court decrees. Congress had reason to suppose that
these States might try similar maneuvers in the future
in order to evade the remedies for voting
discrimination contained in the Act itself. Under the
compulsion of these unique circumstances, Congress
responded in a permissibly decisive manner.\66\
---------------------------------------------------------------------------
\66\Id. at 335 (internal citations omitted).
As to the coverage formula, the Court held that South
Carolina's arguments regarding the ``equality of [the] States''
applied only to the terms on which states were admitted into
the Union.\67\ It reasoned that Congress justifiably confined
the preclearance remedy to the areas in which voting
discrimination occurred most frequently. Additionally, the
Court viewed South Carolina's criticism that the formula was
inadequately tailored as ``largely beside the point.''\68\
Congress had ``reliable evidence of actual voting
discrimination in a great majority'' of covered jurisdictions;
the formula it devised was ``relevant to the problem of voting
discrimination''; and ``[n]o more was required.''\69\
Katzenbach thus applied a standard akin to rational-basis
review, asking whether the means Congress chose to address the
problems it faced were rationally related to its ends.\70\
---------------------------------------------------------------------------
\67\Id. at 328-29.
\68\Id. at 329.
\69\Id.
\70\See, e.g., Congressional Authority to Protect Voting Rights
After Shelby County v. Holder: Hearing Before the Subcomm. on the
Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the
Judiciary, 116th Cong. (Sept. 24, 2019) [hereinafter ``Congressional
Authority Hearing''] (statement of Justin Levitt, Professor of Law,
Associate Dean for Research and Gerald T. McLaughlin Fellow, Loyola Law
School at 27) [hereinafter ``Levitt Statement'']; see also Richard L.
Hasen, Shelby County and the Illusion of Minimalism, 22 Wm. & Mary Bill
of Rts. J. 713, 716 (2014) (Katzenbach ``gave considerable deference to
congressional determinations about the means necessary to `enforce' the
Fifteenth Amendment prohibition by states in discriminating in voting
on the basis of race and applied a rationality standard of review'').
---------------------------------------------------------------------------
During the same term, the Supreme Court also upheld
Congress's broad authority under the Fourteenth Amendment to
prevent voting discrimination against non-English speakers. In
Katzenbach v. Morgan, the Court upheld a ban on the use of
English literacy tests for voters who were educated in American
schools in other languages.\71\ Prior to the enactment of that
ban, citizens who had moved to New York City from Puerto Rico
were frequently denied the right to vote.\72\ New York City
argued that the ban could be constitutional only if the Court
determined that the State's English literacy test itself
violated the Fourteenth Amendment.\73\ The Supreme Court
rejected that view, holding that--like the enforcement
provision of the Fifteenth Amendment--Section 5 of the
Fourteenth Amendment grants Congress broad ``discretion in
determining whether and what legislation is needed to secure
[the Amendment's] guarantees.''\74\ The Court concluded that
``[i]t was well within congressional authority to say that''
these non-English speakers' right to vote ``warranted federal
intrusion upon any state interests served by the English
literacy requirement,'' and that ``[i]t was for Congress . . .
to assess and weigh the various conflicting considerations''
underlying that determination.\75\
---------------------------------------------------------------------------
\71\384 U.S. 641 (1966). More specifically, the challenged
provision prohibited the use of English literacy tests as to voters who
had successfully completed sixth grade ``in a public school, or in a
private school accredited by, any State or territory, the District of
Columbia, or the Commonwealth of Puerto Rico in which the language of
instruction was other than English.'' Id. at 643 & n.1.
\72\Id. at 644.
\73\Id. at 648.
\74\Id. at 651; see also id. at 650-51 (explaining that these
enforcement powers are ``the same broad powers expressed in the
Necessary and Proper Clause'' of the Constitution, and noting that a
similar analysis applied in Katzenbach).
\75\Id. at 653.
---------------------------------------------------------------------------
The initial VRA was set to expire after five years, and in
1970 Congress renewed it for another five years with some
modifications to the coverage formula.\76\ In 1975, Congress
reauthorized the VRA for another seven years and extended its
coverage to jurisdictions meeting Section 4's coverage criteria
as of November 1972.\77\ Furthermore, Section 203 of the law
added extensive protections for members of language minorities
(i.e., non-English speakers), including by supplementing
Section 2 to prohibit voting discrimination against language
minorities, and requiring provision of language assistance to
voters. Section 203 also expanded the preclearance coverage
formula to include jurisdictions where more than 5 percent of
voting-age citizens did not speak English and where English-
only voting materials had previously been provided.\78\ In
1982, Congress reauthorized the VRA for another 25 years
without changing the coverage formula.\79\
---------------------------------------------------------------------------
\76\Voting Rights Act Amendments of 1970, Pub. L. No. 91-285
(1970).
\77\Voting Rights Act of 1965, amendments, Pub. L. No. 94-73
(1975).
\78\Id. Sec. 203.
\79\Voting Rights Act Amendments of 1982, Pub. L. No. 97-205
(1982).
---------------------------------------------------------------------------
The Supreme Court's standard for reviewing the preclearance
requirement and coverage provisions did not change during this
period. In City of Rome v. United States, decided in 1980, the
city of Rome, Georgia contended that Congress exceeded its
authority by allowing preclearance to be granted only if a
change in voting procedures did not have the purpose or effect
of discriminating on the basis of race.\80\ Rome contended that
the Fifteenth Amendment prohibited only purposeful
discrimination, and that Congress's enforcement authority was
therefore limited to preventing such conduct. The Court
rejected this argument, holding that ``even if Sec. 1 of the
[Fifteenth] Amendment prohibits only purposeful discrimination,
the prior decisions of this Court foreclose any argument that
Congress may not, pursuant to Sec. 2, outlaw voting practices
that are discriminatory in effect.''\81\ The Court held that
``Congress could rationally have concluded that, because
electoral changes by jurisdictions with a demonstrable history
of intentional racial discrimination in voting create the risk
of purposeful discrimination, it was proper to prohibit changes
that have a discriminatory impact.''\82\ The Court found ``no
reason . . . to disturb Congress' considered judgment that
banning electoral changes that have a discriminatory impact is
an effective method of preventing States from undoing or
defeating the rights recently won by'' African Americans.\83\
---------------------------------------------------------------------------
\80\446 U.S. 156, 173 (1980).
\81\Id. (footnote omitted).
\82\Id. at 177 (emphasis added).
\83\Id. at 178 (internal quotations and brackets omitted).
---------------------------------------------------------------------------
2. City of Boerne v. Flores, the Fourteenth Amendment, and
the Congruence and Proportionality Test
In a line of cases beginning with City of Boerne v. Flores,
the Supreme Court has articulated limits on Congress's
authority under Section 5 of the Fourteenth Amendment to remedy
discrimination where those remedial measures are applied
against the States.\84\ Although this line of cases does not
involve voting rights, it may have influenced the Court's
analysis in Shelby County, as discussed further below.
---------------------------------------------------------------------------
\84\See 521 U.S. 507 (1997).
---------------------------------------------------------------------------
City of Boerne involved a challenge to the Religious
Freedom Restoration Act of 1993 (``RFRA''), enacted by Congress
to protect the free exercise of religion.\85\ Among other
things, RFRA prohibited State and local governments (as well as
the federal government) from ``substantially burden[ing]'' a
person's exercise of religion absent a compelling interest.\86\
In enacting the statute, Congress acted pursuant to its power
under Section 5 of the Fourteenth Amendment, to enforce the
right to the free exercise of religion (considered applicable
against the States through the Fourteenth Amendment's Due
Process Clause).\87\ The Court held that Congress had exceeded
that authority because the protections and remedies afforded by
RFRA went beyond the requirements of the Free Exercise Clause
of the First Amendment, as the Court had then construed it.\88\
---------------------------------------------------------------------------
\85\See id.; see also Pub. L. No. 103-141 (1993).
\86\Boerne, 521 U.S. at 515-16.
\87\Id. at 517.
\88\Id. at 513-14; see Employment Div., Dep't of Human Res. of
Oregon v. Smith, 494 U.S. 872 (1990).
---------------------------------------------------------------------------
Of most relevance here, the Court held that ``[t]here must
be a congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end.''\89\
It interpreted Section 5 of the Fourteenth Amendment as
``remedial,''\90\ meaning any law enacted through that
authority had to be tethered to remedying violations of the
underlying constitutional right.
---------------------------------------------------------------------------
\89\Boerne, 521 U.S. at 520 (emphasis added).
\90\Id.
---------------------------------------------------------------------------
In City of Boerne, the Court, in fact, pointed to the VRA
as an example of what Congress should do when compiling a
legislative record to support legislation to enforce a
constitutional right. In that case, the Court found that, in
contrast to the extensive record of voting discrimination
assembled by Congress when it passed the VRA, ``RFRA's
legislative record lacks examples of modern instances of . . .
laws passed because of religious bigotry.''\91\ The Court
concluded that ``RFRA is so out of proportion to a supposed
remedial or preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional
behavior.''\92\ Rather, the Court viewed RFRA as designed to
expand the scope of rights protected under the Free Exercise
Clause--which, acting through its enforcement powers under the
Fourteenth Amendment, it could not do.
---------------------------------------------------------------------------
\91\Id. at 530.
\92\Id. at 532.
---------------------------------------------------------------------------
The Court employed this ``congruence and proportionality''
test in limiting other statutes as well. For instance, it held
that Congress exceeded its authority when it passed legislation
subjecting states to lawsuits for money damages based on
certain violations of the Age Discrimination in Employment
Act,\93\ the employment discrimination provision of the
Americans with Disabilities Act (``ADA''),\94\ and the self-
care provision of the Family and Medical Leave Act
(``FMLA'').\95\ The Court, however, upheld damages remedies
applied against states for violations of the family-care
provision of the FMLA\96\ and the public accommodations
provision of the ADA.\97\ In those cases, the Court relied in
substantial part on legislative records documenting historical
and ongoing discriminatory practices (regarding gender-based
parental leave policies in the FMLA case and accommodations for
the disabled in the ADA case).\98\
---------------------------------------------------------------------------
\93\Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 82-83 (2000).
\94\Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356,
374 (2001).
\95\Coleman v. Ct. of App. of Md., 566 U.S. 30, 39 (2012).
\96\Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 740 (2003).
\97\Tennessee v. Lane, 541 U.S. 509, 533-534 (2004).
\98\See Hibbs, 538 U.S. at 730-37; Lane, 541 U.S. at 523-29.
---------------------------------------------------------------------------
In a 2009 case known as Northwest Austin, the Court avoided
directly ruling on a challenge to the constitutionality of the
VRA's coverage formula and preclearance requirement but warned
that ``[t]he statute's coverage formula is based on data that
is now more than 35 years old, and there is considerable
evidence that it fails to account for current political
conditions.''\99\ The Court also acknowledged, but did not
settle a dispute between the parties about whether City of
Boerne's standard applied in cases challenging the VRA.\100\
Instead, the Court observed that ``the [VRA] imposes current
burdens and must be justified by current needs.''\101\ The
Court also noted that ``a departure from the fundamental
principle of equal sovereignty [among states] requires a
showing that a statute's disparate geographic coverage is
sufficiently related to the problem that it targets.''\102\
---------------------------------------------------------------------------
\99\Nw. Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. 193,
203 (2009) (Northwest Austin).
\100\Id. at 204.
\101\Id. at 203.
\102\Id.
---------------------------------------------------------------------------
3. Shelby County v. Holder
About seven years after the reauthorization of the VRA in
2006, the Court invalidated Section 4(b)'s coverage formula in
Shelby County decision. The Court began its analysis by
reiterating the framework it outlined in Northwest Austin
requiring Congress to (1) justify the burdens of preclearance
based on ``current needs'' and (2) demonstrate that the
coverage formula was ``sufficiently related to the problem that
it targets.''\103\ The Court also noted that the scope of
Section 5 was broadened in 2006 to prohibit any voting law that
has the purpose (even if not the effect) of diminishing the
ability of citizens on account of race, color, or language-
minority status to elect their preferred candidates of choice,
and that nothing had been done to ease the restrictions in
Section 5 or narrow the scope of coverage to address concerns
related to the federalism costs imposed by those
provisions.\104\
---------------------------------------------------------------------------
\103\570 U.S. at 542; see also id. at 554 (``Congress--if it is to
divide the States--must identify those jurisdictions to be singled out
on a basis that makes sense in light of current conditions.'').
\104\Id. at 549-50.
---------------------------------------------------------------------------
The Court emphasized the states' traditional autonomy in
administering elections and the importance of federalism
principles writ large.\105\ The Court noted that the federal
government does not ``have a general right to review and veto
state enactments before they go into effect'' and that ``States
retain broad autonomy in structuring their governments and
pursuing legislative objectives.''\106\ The Court did not
expressly state whether it would employ Katzenbach's
``rationality'' test or Boerne's ``congruence and
proportionality'' test. Rather, it stated in a footnote that
``[b]oth the Fourteenth and Fifteenth Amendments were at issue
in Northwest Austin, and accordingly Northwest Austin guides
our review under both Amendments in this case.''\107\ The Court
explained that in Northwest Austin, ``we concluded that `a
departure from the fundamental principle of equal sovereignty
requires a showing that a statute's disparate geographic
coverage is sufficiently related to the problem that it
targets.' These basic principles guide our review of the
question before us.''\108\
---------------------------------------------------------------------------
\105\See id. at 542-44.
\106\Id. at 542-43.
\107\Id. at 542 n.1 (internal citation omitted).
\108\Id. at 542 (internal citation omitted).
---------------------------------------------------------------------------
The Court next observed that voting discrimination had
``changed dramatically'' since the VRA's enactment in
1965.\109\ The most flagrantly discriminatory mechanisms for
suppressing the vote, such as through literacy tests, had been
outlawed for decades. The Court held that the coverage formula
was no longer rational in ``practice and theory'':
---------------------------------------------------------------------------
\109\Id. at 546-47.
At the time, the coverage formula--the means of
linking the exercise of the unprecedented authority
with the problem that warranted it--made sense. We
found that ``Congress chose to limit its attention to
the geographic areas where immediate action seemed
necessary.'' . . . The areas where Congress found
``evidence of actual voting discrimination'' shared two
characteristics: ``the use of tests and devices for
voter registration, and a voting rate in the 1964
presidential election at least 12 points below the
national average.''
We explained that ``[t]ests and devices are relevant
to voting discrimination because of their long history
as a tool for perpetrating the evil; a low voting rate
is pertinent for the obvious reason that widespread
disenfranchisement must inevitably affect the number of
actual voters.'' . . . We therefore concluded that
``the coverage formula [was] rational in both practice
and theory.'' . . . It accurately reflected those
jurisdictions uniquely characterized by voting
discrimination ``on a pervasive scale,'' linking
coverage to the devices used to effectuate
discrimination and to the resulting disenfranchisement.
. . . The formula ensured that the ``stringent remedies
[were] aimed at areas where voting discrimination ha[d]
been most flagrant.''
Nearly 50 years later, things have changed
dramatically . . . In the covered jurisdictions,
``[v]oter turnout and registration rates now approach
parity. Blatantly discriminatory evasions of federal
decrees are rare. And minority candidates hold office
at unprecedented levels.'' . . . The tests and devices
that blocked access to the ballot have been forbidden
nationwide for over 40 years.\110\
---------------------------------------------------------------------------
\110\Id. at 546-47.
The Court further noted that when Congress reauthorized the
VRA in 2006, voter registration among African American and
white voters was nearly equal (and in some instances higher for
African American voters) in the six states originally subject
to preclearance, and that DOJ objected to only a very small
percentage of proposed voting changes in the preceding
decade.\111\
---------------------------------------------------------------------------
\111\Id. at 548.
---------------------------------------------------------------------------
In light of what the Court viewed as significant
improvements in the state of voting rights, what it found most
objectionable was Congress's failure to change the Section 4(b)
coverage formula. As the Court put it: ``Coverage today is
based on decades-old data and eradicated practices. The formula
captures States by reference to literacy tests and low voter
registration and turnout in the 1960s and early 1970s.''\112\
The Court rejected the argument that the coverage formula was
permissible because--regardless of its terms--it resulted in
coverage of jurisdictions that Congress intended to cover and
that had engaged in ongoing voting discrimination practices.
The Court stated:
---------------------------------------------------------------------------
\112\Id. at 551.
The Government's reverse-engineering argument does not
even attempt to demonstrate the continued relevance of
the formula to the problem it targets. And in the
context of a decision as significant as this one--
subjecting a disfavored subset of States to
`extraordinary legislation otherwise unfamiliar to our
federal system' . . . --that failure to establish even
relevance is fatal.\113\
---------------------------------------------------------------------------
\113\Id. at 552 (quoting Northwest Austin, 557 U.S. at 211).
The Court emphasized that to serve the purposes of the
Fourteenth and Fifteenth Amendments, ``Congress--if it is to
divide the States--must identify those jurisdictions to be
singled out on a basis that makes sense in light of current
conditions.''\114\ The Court did not conduct a detailed review
of the voluminous evidence assembled by Congress demonstrating
ongoing, second-generation barriers to voting, because the core
problem, in the Court's view, was that ``Congress did not use
the record it compiled to shape a coverage formula grounded in
current conditions.''\115\
---------------------------------------------------------------------------
\114\Id. at 553.
\115\Id. at 553-54.
---------------------------------------------------------------------------
Significantly, the Court invited Congress to ``draft
another formula based on current conditions.''\116\ The Court
went on to note that, ``[o]ur country has changed, and while
any racial discrimination in voting is too much, Congress must
ensure that the legislation it passes to remedy that problem
speaks to current conditions.''\117\
---------------------------------------------------------------------------
\116\Id. at 557.
\117\Id.
---------------------------------------------------------------------------
NEED FOR LEGISLATION
A. The Judiciary Committee's Factual Findings Demonstrate Substantial
and Continuing Voting Discrimination Since the Shelby County
Decision
Testimony received at the subcommittees' hearings revealed
that after the Shelby County decision in 2013, discriminatory
voting changes were implemented particularly--though not
exclusively--in several jurisdictions formerly subject to the
VRA's preclearance requirement. This extensive evidence shows
that efforts to discriminate persist and evolve, such that a
revised coverage formula is needed to protect minority voters.
Since 2013, at least 23 States have enacted newly
restrictive statewide voter laws.\118\ These statewide voter
laws include strict voter identification laws; voter
registration barriers such as requiring documentary proof of
citizenship, allowing challenges of voters on the rolls, and
unfairly purging voters from rolls; cuts to early voting; and
moving or eliminating polling places.\119\ The impact of the
Shelby County decision was summarized by Kristen Clarke,
President and Executive Director of the Lawyers' Committee for
Civil Rights Under Law, who testified before the Subcommittee
that:
---------------------------------------------------------------------------
\118\See History and Enforcement of the Civil Rights Act of 1965:
Hearing Before the Subcomm. on the Constitution, Civil Rights, and
Civil Liberties of the H. Comm. on the Judiciary, 116th Cong. 4 (2019)
[hereinafter ``VRA History Hearing''] (statement of Catherine Lhamon,
Chair, U.S. Comm'n on Civil Rights [hereinafter ``Lhamon VRA History
Statement'']); Congressional Authority to Protect Voting Rights After
Shelby County v. Holder: Hearing Before the Subcomm. on the
Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the
Judiciary, 116th Cong., Unofficial Tr. 32 (2019) [hereinafter
``Congressional Authority Hearing''] (statement of Joseph D. Rich)
[hereinafter ``Rich Statement'']; Congressional Authority Hearing,
Unofficial Tr. 24 (statement of Debo P. Adegbile, Partner, Wilmer Hale)
[hereinafter ``Adegbile Statement'']; see also Voting Rights and
Election Administration in America: Hearing Before the Subcomm. on
Elections of the H. Comm. on House Admin. 116th Cong. (2019)
[hereinafter ``America Oversight Hearing''] [Lhamon Statement at 36].
\119\See Lhamon VRA History Statement at 4-6; see also Sonia Gill,
The Case for Restoring and Updating the Voting Rights Act, Am. Civil
Liberties Union at 32-44 (2019).
[W]e have vetted complaints from tens of thousands of
voters since Shelby, many revealing systemic voting
discrimination. In short, this is how Shelby has
impacted our democracy.
First, we have seen the resurgence of discriminatory
voting practices, some motivated by intentional
discrimination, and this discrimination has been most
intense in the very jurisdictions that were once
covered by Section 5. They range from the consolidation
of polling sites to make it less convenient for
minority voters to vote to the curtailing of early
voting hours, the purging of minority voters from the
rolls under the pretext of list maintenance, strict
photo ID requirements, abuse of signature match
verification requirements to reject absentee ballots,
the threat of criminal prosecution, and more.
Second, we have seen increased levels of
recalcitrance and hostility among elected officials who
institute and reinstitute discriminatory voting changes
with impunity. Well-known examples come out of North
Carolina, where the legislature adopted an omnibus bill
that the Fourth Circuit found was crafted with surgical
precision. . . .
Third, the loss of public notice regarding changes in
voting practices that could have a discriminatory
effect is significant. Most suppressive actions occur
in small towns sprinkled across the country where
constant oversight is difficult, if not impossible.
Fourth, the public no longer has the ability to
participate in the process of reviewing practices
before they take effect. And between 2000 and 2010, DOJ
received between 4,500 and 5,500 submissions, capturing
between 14,000 and 20,000 voting changes per year.
Without Section 5, communities are in the dark, and
unable to share critical information that can help to
illuminate the discrimination that sometimes underlies
voting changes.
Fifth. The preclearance process had an identifiable
deterrent effect that is now lost.
Sixth. The status quo is not sustainable. Civil
rights organizations are stepping up to fill the void
created by the Shelby decision at insurmountable
expense.
And finally, this will be the first redistricting
cycle in decades if Congress fails to restore the
Voting Rights Act. A little over 12 years ago, both
Chambers of Congress reauthorized the Act with
tremendous bipartisan support. Many members of the
House present for that vote are still here today.
Bipartisan support for the Act has been consistent
across the decades and should remain so today. The
Supreme Court has put the ball in Congress' court, and
this body must undertake action now to help our country
safeguard the right to vote for all.\120\
---------------------------------------------------------------------------
\120\See Continuing Challenges to the Voting Rights Act Since
Shelby Cty. v. Holder: Hearing Before the Subcomm. on the Constitution,
Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary,
116th Cong., Unofficial Tr. 5-6 (2019) [hereinafter ``Shelby
Anniversary Hearing''] (statement of Kristen Clarke, President and
Exec. Dir., Lawyers' Comm. for Civil Rights Under Law) [hereinafter
``Clarke Shelby Statement'']; see also America Oversight Hearing,
Unofficial Tr. 13-15 (2019) (statement of Kristen Clarke, President and
Exec. Dir., Lawyers' Comm. for Civil Rights Under Law) [hereinafter
``Clarke Oversight Statement''].
---------------------------------------------------------------------------
1. United States Commission on Civil Rights 2018 Report
Catherine Lhamon, Chair of the United States Commission on
Civil Rights, testified before the Constitution Subcommittee
about the findings of the Commission's 2018 report on voting
rights.\121\ This 2018 report documented the disturbing trend
of ongoing voting discrimination in States such as Texas,
Georgia, and North Carolina that had previously been subject to
Section 5 preclearance and found that Texas has the highest
number of recent VRA violations in the nation.\122\ Subsequent
testimony submitted to the Subcommittee bolstered the
Commission's findings, particularly with respect to those three
States as well as Alabama.
---------------------------------------------------------------------------
\121\See U.S. Comm. on Civil Rights, An Assessment of Minority
Voting Rights Access in the United States (2018).
\122\See Lhamon Statement at 4; see also America Oversight Hearing
(statement of Catherine E. Lhamon, Chair, U.S. Comm'n on Civil Rights
at 4) [hereinafter ``Lhamon Oversight Statement'').
---------------------------------------------------------------------------
Texas
Within hours of the Shelby County decision, the Texas
Attorney General declared that the state would implement its
restrictive voter ID law notwithstanding the fact that a
federal court had ruled that the same Texas law could not
receive preclearance due to its retrogressive effects on
minority voters.\123\ The Subcommittee heard testimony about
the changing demographics of Texas and that the fear of a
majority-minority electorate had resulted in the implementation
of discriminatory laws, policies, and practices primarily
directed at African American and Latino voters.\124\ Witnesses
described recent examples of voter suppression tactics
including: the reinstatement of at-large voting, criminal and
civil penalties for ``voter fraud'' such as errors on voter
registration forms resulting in a decrease of voter
registration drives, requiring government-issued identification
to vote, widespread purging of voter rolls, a 2019 policy
targeting naturalized citizens to be purged from voter
registration rolls, Texas's failure to comply with the National
Voter Registration Act (NVRA), discrimination against and
hostility toward minority voters by election judges and polling
officials, failure of officials to process voter registrations
of minority voters, delayed opening of polling sites in areas
with large proportions of minority voters, late changes to
polling sites and assigning locations of polling sites that are
inconvenient to minority voters, long voting lines,
nonfunctioning electronic voting equipment, the elimination of
straight-ticket voting, intimidation by state troopers at
polling locations, and harassment of African American voters by
vigilante groups.\125\
---------------------------------------------------------------------------
\123\Federal courts have subsequently found that the Texas voter ID
law is intentionally discriminatory against minority voters. See
Evidence of Current and Ongoing Voting Discrimination: Hearing Before
the Subcomm. on the Constitution, Civil Rights and Civil Liberties of
the H. Comm. on the Judiciary, 116th Cong. (2019) [hereinafter
``Evidence Hearing''] (statement of Myrna Perez, Dir., Voting Rights
and Elections Program, Brennan Center for Justice at NYU School of Law)
[hereinafter ``Perez Statement'']; Oversight Hearing on Voting Rights
and Election Admin. in Ga., Subcomm. on Elections, H. Comm. on House
Admin., 116th Cong. 1 (2019) [hereinafter ``Georgia Oversight
Hearing''] (statement of Gilda Daniels, Dir. of Litigation, Advancement
Project at 3) [hereinafter ``Daniels Statement''].
\124\See Enforcement of the Voting Rights Act in the State of Tex.:
Hearing Before the Subcomm. on the Constitution, Civil Rights, and
Civil Liberties of the H. Comm. on the Judiciary, 116th Cong.,
Unofficial Tr. 18-22, 25-29 (2019) [hereinafter ``Texas VRA Hearing'']
(statements of Ernest I. Herrera, Staff Attorney, Mexican Am. Legal
Def. and Educ. Fund [hereinafter ``Herrera Statement''] and Gary
Bledsoe, President, Texas NAACP and NAACP Nat'l Board Member
[hereinafter ``Bledsoe Statement'']).
\125\See Perez Statement at 3, 5-6, 8; Evidence Hearing (statement
of Derrick Johnson, President and CEO, NAACP at 5-11) [hereinafter
``Derrick Johnson Statement'']); Bledsoe Statement at 1-5; Listening
Session on Voting Rights and Elections in Brownsville Tex., Subcomm. on
Elections, H. Comm. on House Admin., 116th Cong., Unofficial Tr. 76,
78, 82-83, 93-95 (2019) (testimony of Mimi Marziani, President of the
Tex. Civil Rights Project); Listening Session on Voting Rights and
Elections in Brownsville Tex., Subcomm. on Elections, H. Comm. on House
Admin., 116th Cong., Unofficial Tr. 22-24 (2019) (Rolando Rios,
Attorney).
---------------------------------------------------------------------------
Georgia
The Subcommittees heard testimony that after the end of
preclearance in 2013, Georgia voters were faced with a myriad
of discriminatory voting barriers: attacks on third party
registration, restrictive voter identification laws, the
closure of more than 200 precincts, database challenges that
spoiled legitimate registrations, the purging of more than one
million voters, holding registrations of 53,000 people based on
the flawed process of ``exact match,'' election staff who did
not have the resources or training to meet the needs of voters,
long voting lines, naturalized citizens who had to sue for
their voting rights, the lack of ballots in multiple languages
for Limited English Proficient voters, inoperable voting
machines and the inadequate distribution of machines to
communities, poor oversight of county application of state laws
leading to disparate treatment between counties, lines for
districts have been misapplied or miscommunicated forcing do-
over elections or disqualifying otherwise eligible candidates,
rejection of a disturbing number of absentee ballots, and the
inconsistent application of the provisional ballot system
resulting in different standards for the administration of
elections in each of Georgia's 159 counties.\126\
---------------------------------------------------------------------------
\126\See Subcommittee on Elections Report at 69-70; Derrick Johnson
Statement at 11-12; Georgia Oversight Hearing (statement of Stacey
Abrams, CEO and Founder, Fair Fight Action at 2-4) [hereinafter
``Abrams Oversight Statement'']; see also Clarke Oversight Statement at
4-8, 10, Appx. at 6-11.
---------------------------------------------------------------------------
North Carolina
Shortly after the Shelby County decision, North Carolina--a
State where the DOJ had objected to more than 150 voting
practices under preclearance--passed a ``monster'' voter
suppression law (HB 589), the nation's most wide-sweeping voter
suppression law, which resulted in racial discrimination in
accessing the polls, including through closures of poll sites
and long voting lines.\127\ Among other things, the legislation
banned paid voter registration drives, restricted voting by
eliminating same-day voter registration, reduced early voting
by a week, eliminated the option of early voting sites at
different hours, and reduced satellite polling sites for
elderly voters and voters with disabilities.\128\ The
Subcommittee on Elections Report noted that ``leading up to the
2016 election, at least 17 counties made significant cuts to
early voting days and hours, and early voter turnout among
Black voters declined almost nine percent statewide compared to
2012.''\129\ The U.S. Court of Appeals for the Fourth Circuit
described this law as ``the most restrictive voting law North
Carolina has seen since the era of Jim Crow'' with ``provisions
[that] target African Americans with almost surgical
precision.''\130\ Other voter suppression efforts including
gerrymandering, purging of voter rolls, the 2018 voter ID
constitutional amendment, reductions to early voting, issues
with curbside voting, excessively long lines, voting machine
issues, and poll worker misconduct.\131\
---------------------------------------------------------------------------
\127\See H.R. 1: The ``For the People Act of 2019'': Hearing Before
the H. Comm. on the Judiciary, 116th Cong., Unofficial Tr. 53, 86, 113-
14 (2019) [hereinafter ``H.R. 1 hearing''] (testimony of Vanita Gupta)
[hereinafter ``Gupta H.R. 1 Testimony''].
\128\See Legislative Proposals to Strengthen the Voting Rights Act:
Hearing Before the Subcomm. on the Constitution, Civil Rights, and
Civil Liberties of the H. Comm. on the Judiciary, 116th Cong. (2019)
[hereinafter ``VRA Legislation Hearing''] (statement of John C. Yang,
President and Exec. Dir., Asian Americans Advancing Justice-AAJC at 12)
[hereinafter ``Yang Statement'']; see also Subcommittee on Elections
Report at 51-52.
\129\Subcommittee on Elections Report at 51-52 (citations omitted).
\130\See North Carolina State Conference of the NAACP v. McCrory,
831 F.3d 204, 227 (4th Cir. 2016); H.R. 1 Hearing, Unofficial Tr. 21
(Gupta H.R. 1 Testimony); VRA Evidence Hearing (statement of Dale Ho,
Dir., Voting Rights Project, Am. Civil Liberties Union at 7)
[hereinafter ``Ho Statement'']; Levitt Statement at 10; Oversight
Hearing on Voting Rights and Election Admin. in N.C., Subcomm. on
Elections, H. Comm. on House Admin., 116th Cong. (2019) [hereinafter
``NC Oversight Hearing''] (statement of Irving L. Joyner, Professor of
Law, NCCU School of Law and Legal Counsel and Chair, NC NAACP Legal
Redress Comm. at 2) [hereinafter ``Joyner Statement'']; Daniels
Statement at 4.
\131\Perez Statement at 3-7; Joyner Statement at 19-20; NC
Oversight Hearing (statements of Tomas Lopez, Exec. Dir., Democracy
N.C. at 2-5 [hereinafter ``Lopez Statement''] and Caitlin Swain, Co-
Dir., Forward Justice at 3-5, 7-8, 10-11 [hereinafter ``Swain
Statement'']).
---------------------------------------------------------------------------
Alabama
Immediately after the Shelby County decision, Alabama
proceeded to implement new racially discriminatory restrictions
on the ability of its minority citizens to register and vote
including: a photo ID law, the closure of DMV offices in the
``Black Belt'' (areas with the highest proportion of African
Americans) where people need to acquire the necessary photo ID
to vote, restrictive absentee ballot rules, requiring proof of
citizenship to register to vote, closure of polling sites,
untrained poll workers, and felon re-enfranchisement
issues.\132\
---------------------------------------------------------------------------
\132\See Hearing on Voting Rights and Election Admin. in Ala.,
Subcomm. on Elections, H. Comm. on House Admin., 116th Cong. (2019)
[hereinafter ``Alabama Oversight Hearing''] (statement of Jenny
Carroll, Professor of Law, Univ. of Ala. Hugh F. Culverhouse Jr. School
of Law at 1-15) [hereinafter ``Carroll Statement'']; Alabama Oversight
Hearing (statements of James Blacksher, Attorney at 7) [hereinafter
``Blacksher Statement'']; Isabel Rubio, Exec. Dir., Hispanic Interest
Coalition of Ala. at 2-3; Scott Douglas, Exec. Dir., Greater Birmingham
Ministries at 2-3; and Nancy Abudu, Deputy Legal Dir., Voting Rights,
S. Poverty Law Ctr. at 2); America Oversight Hearing, Unofficial Tr. 4
(testimony of Denise Lieberman, Senior Attorney and Program Dir., Power
and Democracy, Advancement Project) [hereinafter ``Lieberman
Testimony''].
---------------------------------------------------------------------------
In addition to the persistent voting discrimination in
specific states, the Subcommittee heard testimony about the
following discriminatory voting practices that have resulted in
the disenfranchisement of minority voters.
2. Restrictions on Voter Registration, Early Voting, and
Voting by Mail
The Constitution Subcommittee received testimony regarding
recent efforts to impede voter registration. For example,
Georgia targeted third-party registration, which impeded
registration by minority voters.\133\ In addition, Stacey
Abrams, a former gubernatorial candidate and founder and Chair
of Fair Fight Action, testified that post-Shelby County,
Georgia's then-Secretary of State ``refused to take action to
process registration forms in a timely manner'' and that there
were ``unpublished internal rules, such as the 90-day blackout
period during which no voter registration forms were processed,
causing delays that denied registrants the right to
vote.''\134\ After the Shelby County decision, Georgia also
implemented the racially discriminatory ``exact match'' policy,
which was discredited and rejected by the U.S. Department of
Justice in 2009 because it presented ``real,'' ``substantial''
and ``retrogressive'' burdens on voters of color.\135\ The
exact match policy requires that the data in a voter
registration application must be an exact match of the voter's
name, and if not, the application is rejected without notice to
the applicant.\136\ In 2016, Georgia entered into a federal
settlement, because 34,000 voters were denied the right to vote
in that election cycle due to the exact match policy, but the
next year Georgia implemented the same discriminatory policy,
which led to approximately 53,000 suspended voter registrations
in 2018, 70 percent of whom were African American voters who
comprised roughly 30 percent of Georgia's eligible voters.\137\
For these reasons, a federal court ultimately put a stop to the
law's implementation only four days before the election,
because of the ``differential treatment inflicted on a group of
individuals who are predominantly minorities.''\138\ Voters
also experienced problems during the November 2018 midterm
elections such as not receiving absentee ballots, waiting in
long lines (e.g., lines at the Pittman Park voting station were
reportedly 300 people deep with a wait time of 3.5 hours),
broken or inoperable voting machines led to voters being turned
away or given provisional ballots.\139\ Ms. Abrams testified
before the Subcommittee that if preclearance was in place, it
would have prevented the state from enacting these
discriminatory laws:
---------------------------------------------------------------------------
\133\See Shelby Anniversary Hearing (statement of Stacey Y. Abrams,
Founder & Chair, Fair Fight Action at 23) [hereinafter ``Abrams
Statement''].
\134\See id. at 23-24.
\135\See Perez Statement at 4; Abrams Statement at 2;
Discriminatory Barriers to Voting: Hearing Before the Subcomm. on the
Constitution, Civil Rights and Civil Liberties of the H. Comm. on the
Judiciary, 116th Cong. (2019) [hereinafter ``Discriminatory Barriers
Hearing''] (statement of Helen Butler, Exec. Dir., Ga. Coalition for
the People's Agenda at 5-6) [hereinafter ``Butler Statement'']; see
also Letter from Loretta King, Acting Assistant Attorney General, U.S.
Dep't of Justice, Civil Rights Division, to Thurbert E. Baker, Ga.
Attorney General (May 29, 2009), https://www.justice.gov/crt/voting-
determination-letter-58.
\136\See Abrams Statement at 50.
\137\See id. at 24.
\138\Georgia Coal. for People's Agenda, Inc. v. Kemp, 347 F. Supp.
3d 1251, 1267 (N.D. Ga. 2018) ; Shanon Van Sant, Judge Rules Against
Georgia Election Law, Calling It A 'Severe Burden' For Voters, Nat'l
Public Radio (Nov. 3, 2018), https://www.npr.org/2018/11/03/663937578/
judge-rules-against-georgia-election-law-calling-it-a-severe-burden-
for-voters.
\139\See Daniels Statement at 5; America Oversight Hearing,
Unofficial Tr. 87 (testimony of Virginia Kase, Chief Exec. Officer,
League of Women Voters) [hereinafter ``Kase Testimony''].
The State of Georgia has found itself in multiple
lawsuits where upon adjudication, the State has been
told that their actions were racially discriminatory.
That means that people have been denied the right to
vote. They will never be able to unring that bell. And
I believe that preclearance--in fact, we know
empirically that preclearance would have permitted more
voters to cast their ballots because the policies that
denied them the right to vote would not have been
enacted.\140\
---------------------------------------------------------------------------
\140\See Abrams Statement at 39.
The Subcommittee on Elections also heard testimony
regarding the signature match policy in Florida, which allows
ballots to be marked ``invalid'' because of a missing signature
or signature mismatch.\141\ One report noted that during the
2014 and 2016 elections, younger and ethnic minority voters
were more likely to have their vote-by-mail ballots rejected
and less likely to have these ballots cured when flagged for a
signature mismatch.\142\ One witness testified that during the
2018 election, approximately 83,000 votes in Florida were
rejected for signature mismatch.\143\ Similarly, California was
sued by a civil rights organization for invalidating tens of
thousands of vote-by-mail ballots, which were rejected because
election officials (who had no expertise in handwriting)
determined that the signature on the envelope did not match the
one on file.\144\
---------------------------------------------------------------------------
\141\See Subcommittee on Elections Report at 70-71.
\142\See id. at 70-71.
\143\See id. at 70.
\144\See id. at 71.
---------------------------------------------------------------------------
In 2019, Tennessee enacted a law that restricts third-party
groups or individuals from registering voters in large-scale
voter registration efforts in disenfranchised, economically
disadvantaged majority-minority communities.\145\ Violations of
this law could result in criminal penalties and civil fines up
to, but not necessarily limited to, $10,000.\146\
---------------------------------------------------------------------------
\145\See Discriminatory Barriers Hearing (statements of Tequila
Johnson, Co-Founder and Vice President, The Equity Alliance at 6 and
statement of Steven J. Mulroy, Bredesen Professor of Law, Cecil C.
Humphreys School of Law, Univ. of Memphis at 9 [hereinafter ``Mulroy
Statement'']); see also America Oversight Hearing, Unofficial Tr. 24-25
(testimony of Kristen Clarke, President and Exec. Dir., Lawyers' Comm.
for Civil Rights Under Law) [hereinafter ``Clarke Oversight
Testimony''].
\146\See Mulroy Statement at 9. A federal court has temporarily
blocked this law, stating that it was ``troublingly vague.'' See Talal
Ansari, Judge Temporarily Blocks Tennessee Voter-Registration Drive
Law, Wall St. Journal (Sept. 12, 2019), https://www.wsj.com/articles/
judge-temporarily-blocks-tennessee-voter-registration-drive-law-
11568322920.
---------------------------------------------------------------------------
The Subcommittees heard testimony about voters who were
denied early voting opportunities or who faced other barriers
to the ballot box. Chairperson Fudge's Subcommittee on
Elections noted that since 2010, several States have reduced
the hours and/or days of early, and in-person voting available
to voters, and that the USCCR Minority Voting Report found that
cuts to early voting can cause long lines with a disparate
impact on voters of color.\147\ For example, Texas voters have
been denied early voting opportunities, including African
American college students who may not have transportation to
polling sites. Before the November 2018 midterm elections,
Waller County, Texas failed to provide adequate early voting
opportunities for students at the Prairie View A&M University,
a historically black university or ``HBCU.''\148\
---------------------------------------------------------------------------
\147\See Subcommittee on Elections Report at 47.
\148\See Texas VRA Hearing (statement of Jayla Allen, Chair, Rock
the Vote at 5-6); see also Subcommittee on Elections Report at 51;
America Oversight Hearing (statement of Deuel Ross, Senior Counsel,
NAACP Legal Def. Fund at 6) [hereinafter ``Ross Statement''].
---------------------------------------------------------------------------
In addition, the Subcommittee on Elections heard testimony
that voters in Florida, particularly voters of color, took
advantage of early voting in high numbers. In 2011, Florida
made cuts to early voting and eliminated the final Sunday of
early voting, which led to long lines at polling locations and
massive wait times, ``wait times that were two to three times
longer in Black and Latino precincts than in White
precincts.''\149\ Also, early voting locations on college
campuses were not equitably assigned, and students at Florida
A&M University, a public HBCU, were not able to vote on
campus.\150\ According to one study that examined on-campus
early voting in Florida during the 2018 general election,
``almost 30 percent of campus early vote ballots were cast by
Hispanic voters, compared to just under 13 percent of early
ballots cast at non-campus locations, and more than 22 percent
of campus early vote ballots were cast by Black voters,
compared to 18 percent of early ballots cast at non-campus
locations.''\151\
---------------------------------------------------------------------------
\149\See Subcommittee on Elections Report at 50 (citing testimony
of Judith Browne Dianis).
\150\See Protecting the Right to Vote: Best and Worst Practices:
Hearing Before the Subcomm. on Civil Rights and Civil Liberties of the
H. Comm. on Oversight and Reform, 116th Cong. (2019) [hereinafter
``Best Practices Hearing''] (statement of Leigh M. Chapman, Dir.,
Voting Rights Program, The Leadership Conference on Civil and Human
Rights at 6) [hereinafter ``Chapman Statement'']; America Oversight
Hearing, Unofficial Tr. 70 (testimony of Barbara Arnwine, National Co-
Chair, Nat'l Comm. for Voter Justice) [hereinafter ``Arnwine
Testimony''].
\151\See Subcommittee on Elections Report at 50-51.
---------------------------------------------------------------------------
As noted in the Subcommittee on Elections Report, one of
the most egregious examples of cutbacks to early voting
occurred in Ohio.\152\ After almost a decade of expanding Ohio
voters' access to the ballot, the State changed course and
drastically limited access to early voting opportunities.\153\
For example, in 2014, Ohio eliminated its ``Golden Week,'' the
period when citizens could register to vote and cast an
absentee ballot on the same day.\154\ In addition, Ohio only
allowed one early, in-person voting site regardless of
population size (e.g., Cuyahoga County has a population of more
than 1.2. million people and is given the same single early
voting site as the smallest counties in the States such as
Vinton County, which has a population of just over 13,100
people).\155\ Also, last minute changes to the early voting
policies created confusion among voters, thereby limiting
voters' access to the polls.\156\ One witness described voter
suppression in Ohio as a ``more subtle erosion of our voting
rights but the results are devastating nonetheless.''\157\ In
2016, Arizona enacted a law limiting collection of mail-in
ballots and making it a felony to knowingly collect and submit
another voter's completed ballot under certain
circumstances.\158\ In 2014, a Georgia state senator criticized
the historic ``Souls to the Polls'' early voting initiative as
a partisan stunt because the poll site was located at South
DeKalb Mall, an area ``dominated by African American shoppers''
and ``near several large African American mega churches,'' and
noted, ``I would prefer more educated voters than a greater
increase in the number of voters.''\159\
---------------------------------------------------------------------------
\152\See id. at 47-50.
\153\Id. at 47-48.
\154\Id. at 48.
\155\Id. at 49.
\156\Id.
\157\See Voting Rights and Election Admin. in Ohio: Hearing Before
the Subcomm. on Elections of the H. Comm. on House Admin., 116th Cong.
(2019) [hereinafter ``Ohio Oversight Hearing''] (statement of Daniel
Ortiz, Outreach Dir., Policy Matters Ohio at 1).
\158\Perez Statement at 5.
\159\See Subcommittee on Elections Report at 51; Georgia Oversight
Hearing (statement of Sean Young, Legal Dir., ACLU of Ga. at 3, 70)
[hereinafter ``Young Statement''].
---------------------------------------------------------------------------
Furthermore, the record evidence establishes that in 2018,
over 2.6 million people submitted vote-by-mail (VBM) ballots in
Florida and that the statewide average of rejected VBM ballots
in the 2018 election was 1.2 percent, which is a rate even
higher than in 2012 or 2016 presidential elections.\160\ In
Broward County, one of three counties that make up the Miami
metropolitan area, the rejection rate was 2.8 percent, and the
rejection rate was even higher among voters between the ages of
18-21.\161\ A witness stated that, ``[a]s the rest of [the]
Country applauded the young organizers from Parkland for
getting engaged in the civic process to make change in their
communities, it is estimated that 15 percent of mail-in ballots
submitted by Parkland residents between the ages of 18 and 21
were never counted in the 2018 election.\162\ Also, based on a
report produced by ACLU Florida and the University of Florida
analyzing the 2014 and 2016 elections, "younger and ethnic
minority voters were much more likely to have their VBM ballots
rejected, and less likely to have their VBM ballots cured when
they were flagged for a signature mismatch.\163\
---------------------------------------------------------------------------
\160\See Voting Rights and Election Admin. in Fla.: Hearing Before
the Subcomm. on Elections of the H. Comm. on House Admin., 116th Cong.
(2019) [hereinafter ``Florida Oversight Hearing''] (statement of Andrew
Gillum, Chair, Forward Florida at 1). Parkland residents between the
ages of 18 and 21 were never counted in the 2018 election.'' Also,
based on a report produced by ACLU Florida and the University of
Florida analyzing the 2014 and 2016 elections, ``younger and ethnic
minority voters were much more likely to have their VBM ballots
rejected, and less likely to have their VBM ballots cured when they
were flagged for a signature mismatch.''
\161\See id. at 1-2.
\162\Id. at 2.
\163\See id.; see also Daniel A. Smith, Vote-By-Mail Ballots Cast
in Florida, ACLU Florida (2018), https://www.aclufl.org/sites/default/
files/aclufl_-_vote_by_mail_-_report.pdf; America Oversight Hearing
(statement of Elena Nunez, Dir. of State Operations and Ballot Measure
Strategies, Common Cause at 4) [hereinafter ``Nunez Statement''].
---------------------------------------------------------------------------
3. Voter ID Laws
Voter ID laws require voters to provide some form of
official identification before they are permitted to exercise
their right to vote. Such requirements disproportionately and
negatively impact certain classes of voters, including racial
minorities, the young, the elderly, and economically
disadvantaged groups, and effectively represent another barrier
to voting.\164\ The record reveals that post-Shelby County,
several States have tried to implement restrictive voter ID
laws, particularly in States with a history of voter
discrimination. For example, in Texas, a formerly covered
jurisdiction under Section 5, the Texas Attorney General,
within hours of the Shelby County decision, announced his
intention to revive a voter identification law (SB14) that was
initially blocked under preclearance.\165\ The law was crafted
to allow voters to use only certain forms of government
identification, including handgun licenses and other forms of
identification disproportionately held by white voters, but
prohibited the use of other forms of identification, including
student IDs, tribal IDs, or other forms of federal or State
government IDs.\166\ Texas was sued and, during the litigation,
the record demonstrated that about 600,000 registered voters
and approximately 1 million unregistered but eligible voters
did not have an approved form of ID.\167\ The voter ID law also
created barriers for voters who were elderly, economically
disadvantaged, or lacked means to obtain an approved form of
ID.\168\ An elderly Latino voter, who testified at trial, took
pride in walking to the polls and voting in every
election.\169\ He did not have a vehicle and did not have the
required IDs under the voter ID law. After Texas enacted the
voter ID law, he was unable to vote in three elections before
his passing.\170\ It was proved at trial that more than half a
million eligible voters were disenfranchised by Texas's voter
ID law, but by the time the plaintiffs prevailed in their
litigation, it was too late to address voting discrimination
that occurred in those elections that took place while the law
remained in effect.\171\
---------------------------------------------------------------------------
\164\See Subcommittee on Elections Report at 59-69; Legislative
Proposals to Strengthen the Voting Rights Act: Hearing Before the H.
Comm. on the Judiciary, 116th Cong. (2019) [hereinafter ``VRA
Legislation Hearing''] (statement of Arturo Vargas, Chief Exec.
Officer, Nat'l Ass'n of Latino Elected and Appointed Officials (NALEO)
at 17) [hereinafter ``Vargas Statement''] (noting ``long line of
surveys and studies has consistently shown that potential African
American, Latino, Native American, and other underrepresented voters
disproportionately lack the identification documents they may need to
register and to vote in person, and disproportionately face barriers to
obtaining required identification''); See Garza Statement at 3;
Listening Session on Voting Rights and Elections in Brownsville Tex.,
Subcomm. on Elections, H. Comm. on House Admin., 116th Cong.,
Unofficial Tr. 31, 36 (2019) [hereinafter ``Texas Listening Session''];
Kase Testimony, Unofficial Tr. 87; see also Practice-Based
Preclearance: Protecting Against Tactics Persistently Used to Silence
Minorities Communities' Votes 39-41 (2019), https://www.maldef.org/wp-
content/uploads/2019/11/Practice-Based-Preclearance-Report-Nov-2019-
FINAL.pdf.
\165\See Levitt Statement at 10; Shelby Anniversary Hearing, Aden
Testimony at 10.
\166\See Derrick Johnson Statement at 5; Shelby Anniversary
Hearing, Aden Testimony at 10.
\167\See Shelby Anniversary Hearing, Aden Testimony at 10. Texas
VRA Hearing (statement of Jose Garza, Voting Rights Counsel, Mexican
Am. Legislative Caucus, Tex. House of Rep. at 4) [hereinafter ``Garza
Statement''].
\168\See Garza Statement at 3; Texas Listening Session, Unofficial
Tr. 31, 36.
\169\See Texas VRA Hearing, Unofficial Tr. 54.
\170\See id. at 55.
\171\See Shelby Anniversary Hearing, Aden Testimony at 4; H.R. 1
Hearing, Unofficial Tr. 77-78 (testimony of Sherrilyn Ifill, President
and Dir.-Counsel, NAACP LDF) [hereinafter ``Ifill Testimony''].
---------------------------------------------------------------------------
Mississippi previously submitted a voter ID measure to the
DOJ for preclearance, but had not obtained approval to
implement it, yet within hours of the Shelby County decision,
Mississippi announced that it would implement this voter ID
law.\172\ Similarly, the day after the Shelby County decision
was handed down, Alabama implemented its voter ID law, which
required voters to present a form of government-issued photo
identification to vote and included a provision that would
allow a potential voter without the required ID to vote if that
person could be ``positively identified'' by two poll workers,
a provision that harkened back to pre-1965 vouch-to-vote
systems.\173\ The Subcommittee on the Constitution received
testimony that about 118,000 registered voters lacked the photo
ID required by this law, that minority voters are two times
more likely than white voters to lack the required ID, and that
African American voters are over four times more likely than
other voters to have their provisional ballots rejected because
of a lack of acceptable ID.\174\ There also were reports that
poll workers were improperly rejecting voters who had valid
photo IDs because their residential addresses on the IDs did
not match the addresses on their voter registration
documents.\175\
---------------------------------------------------------------------------
\172\Perez Statement at 3.
\173\See id.; see also Shelby Anniversary Hearing, Aden Testimony
at 6; Ross Statement at 4.
\174\See Shelby Anniversary Hearing, Aden Testimony at 6; H.R. 1
Hearing, Unofficial Tr. 160 (Ifill Testimony).
\175\See Shelby Anniversary Hearing, Aden Testimony at 7.
---------------------------------------------------------------------------
In particular, Native American voters have faced extreme
difficulty in obtaining the required IDs to vote.\176\ For
example, North Dakota implemented a law requiring voters to
provide IDs with a physical, residential street address,
threatening to disenfranchise thousands of Native Americans
living on rural reservations where many do not have residential
addresses.\177\ Native Americans including veterans, school
teachers, elders, and other life-long voters, who the poll
workers had known their entire lives, were being turned away
from polls because they did not have the required IDs. Voters
described the hurt and humiliation they felt when they were
unable to vote.\178\
---------------------------------------------------------------------------
\176\See Subcommittee on Elections Report at 62-66; James Thomas
Tucker, et al., Field Hearing Report Identifying and Removing Barriers
to Political Participation by Native Voters, The Native Am. Rights Fund
99-109 (2019).
\177\See Subcommittee on Elections Report at 90-97; Evidence
Hearing (statement of Natalie A. Landreth, Senior Staff Attorney,
Native Am. Rights Fund at 3) [hereinafter ``Landreth Statement''];
Derrick Johnson Statement at 11; Shelby Anniversary Hearing, Aden
Testimony at 12; H.R. 1 Hearing, Unofficial Tr. 173-175 (Ifill
Testimony); Lhamon Statement at 5-6; Hearing on Voting Rights and
Election Admin. in the Dakotas, Subcomm. on Elections, H. Comm. on
House Admin., 116th Cong. 1 (2019) [hereinafter ``Dakotas Oversight
Hearing''] (statement of Alysia LaCounte, General Counsel, on behalf of
Turtle Mountain Band of Chippewa at 2-3); Dakotas Hearing (statement of
Myra Pearson, Chairwoman, Spirit Lake Tribe at 1-4); Dakotas Hearing
(statement of Charles Walker, Councilman at Large, on behalf of
Standing Rock Sioux Tribe at 2-6) [hereinafter ``Walker Statement''];
Dakotas Hearing (statement of Roger White Owl, Chief Exec. Officer, on
behalf of Mandan, Hidatsa & Arikara Nation at 2-3).
\178\See Dakotas Hearing (statement of Jacqueline De Leon Staff
Attorney, Native Am. Rights Fund at 1) [hereinafter ``De Leon
Statement'']. See also Dakotas Hearing (statement of O.J. Semans, Sr.
Co-Exec. Dir., Four Directions, Inc. at 2).
---------------------------------------------------------------------------
4. Purging of Voter Rolls
Testimony received by the Subcommittee on the Constitution
established that purging of voter rolls in a racially-
discriminatory manner continues to occur at an extremely high
rate. A report submitted as part of testimony by the Brennan
Center for Justice at New York University School of Law stated
that ``between 2016 and 2018, counties with a history of voter
discrimination have continued purging people from the rolls at
much higher rates than other counties,'' and found that
approximately ``17 million voters were purged nationwide
between 2016 and 2018.''\179\ One witness testified that the
Shelby County decision has had a profound and negative impact:
for the two election cycles between 2012 and 2016,
jurisdictions no longer subject to preclearance had purge rates
significantly higher than jurisdictions that were not subject
to pre-clearance in 2013.\180\ Moreover, Alabama, Arizona,
Indiana, and Maine have written policies that by their terms
violate the 1993 National Voter Registration Act (NVRA) and
provide for illegal purges.\181\ Alabama, Indiana, and Maine
have policies for using data from a database called the
Interstate Voter Registration Crosscheck Program (Crosscheck)
to immediately purge voters without providing the notice and
waiting period required by federal law.\182\
---------------------------------------------------------------------------
\179\Voter Purge Rates Remain High, Analysis Finds, Brennan Center
for Justice at New York Univ. School of Law (Aug. 1, 2019) (analyzing
2019 U.S. Election Assistance Commission data), https://
www.brennancenter.org/our-work/analysis-opinion/voter-purge-rates-
remain-high-analysis-finds; see also America Oversight Hearing
(statement of Michael Waldman, President, Brennan Center for Justice at
3 [hereinafter ``Waldman Statement'']).
\180\See Perez Statement at 6. See also Best Practices Hearing
(statement of Myrna Perez, Deputy Dir., Democracy Program and Dir.,
Voting Rights & Elections, Project Brennan Center for Justice at New
York Univ. School of Law at 7) [hereinafter ``Perez Oversight
Statement''] and Appx. A at 9 (``Purge practices can be applied in a
discriminatory manner that disproportionately affects minority voters.
In particular, matching voter lists with other government databases to
ferret out ineligible voters can generate discriminatory results if the
matching is done without adequate safeguards. African American, Asian
American, and Latino voters are much more likely than Caucasians to
have one of the most common 100 last names in the United States,
resulting in a higher rate of false positives.'')
\181\Federal standards for purges were set in the NVRA. See Perez
Oversight Statement, Appx. E at 1.
\182\See Derrick Johnson Statement at 8; Perez Oversight Statement,
Appx. E. at 1-2.
---------------------------------------------------------------------------
Testimony revealed numerous examples of purging since the
Shelby County decision. For example, Georgia purged
approximately 1.4 to 1.5 million voters between the 2012 and
2016 elections--double its rate between 2008 and 2012.\183\
This represented an additional 750,000 voters purged from its
rolls between 2012 and 2016 as compared to the period between
2008 and 2012. Of the State's 159 counties, 156 reported
increases in removal rates post-Shelby County and included the
State's 86 most populous counties.\184\ In addition, the
increase in purge rates occurred during a period when Georgia
was criticized for several controversial voter registration
practices.\185\ Also, Georgia was sued for blocking
registration applications between 2013 and 2016 based on the
``exact match'' policy, which required that information
(including hyphens in names) match state databases
precisely.\186\ The Subcommittee on the Constitution heard
testimony that in 2017, Georgia purged half a million voters in
a single day, an 8 percent reduction in Georgia's voting
population, and that an estimated 107,000 of these voters were
removed through arguably an unconstitutional application of a
use-it-or-lose-it law.\187\ In addition, during the 2018
elections, a disturbing number of people were given provisional
ballots, not because they were not effectively registered, but
because of ``malfeasance and incompetence of the Secretary of
State's office.''\188\ Stacey Abrams testified that ``due to
the purging of voters and the patterns of purging and the
number of people who were forced to cast provisional ballots
because of the ineffectiveness and the malfeasance of that
process, there is essentially a racial map of African American
communities that were subject to casting provisional ballots
which have to be remedied.''\189\ She described that although
voter turnout was high in 2018, it does not mean that voter
suppression did not occur:
---------------------------------------------------------------------------
\183\Abrams Statement at 3; Perez Oversight Statement, Appx. at 8.
\184\See Perez Oversight Statement, Appx. E at 4.
\185\Id.
\186\Id.
\187\See Derrick Johnson Statement at 7; Abrams Statement at 3.
\188\See Abrams Statement, Unofficial Tr. 61.
\189\Id. at 68.
In the State of Georgia, there has been an argument
that because we had the highest turnout record in
Georgia for voter turnout in 2018, there could not have
been voter suppression. I would argue that that is the
moral equivalent of saying that because more people get
in the water, there can't be sharks.\190\
---------------------------------------------------------------------------
\190\Id. at 58.
Ms. Abrams also testified that while maintaining effective
voter rolls is a legitimate purpose, Georgia's flawed policies
---------------------------------------------------------------------------
have directly harmed minority voters:
There is a legitimate purpose to laws that allow for
the cleaning of rolls for people who have passed
[a]way, for people who are no longer eligible to vote,
for people who moved from the State, and I do not
believe there is any well-intentioned person who would
say that cleaning and maintaining the rolls is
improper.
But what we argue is that the approach that has been
taken has been so egregious and so flawed and sometimes
so directly intended to harm voters of color, that we
have undermined the intention of actually maintaining
access to the rolls.
In the State of Georgia, as I pointed out, 1.4
million people were purged between 2010 and 2018. Half
a million were purged in a single day in the State of
Georgia. That should raise alarms for anyone, because
the reality is when you show up to vote, and you are
told that you cannot cast a ballot because you have
been removed from the rolls, even though you know that
you should not have been, you are now called upon to
become your own attorney, to argue with who is likely a
volunteer that you have the right to vote. And if you
happen to be in one of those hyper-suppressive
communities, that ability may be quashed.\191\
---------------------------------------------------------------------------
\191\See id. at 60-61.
As in Georgia, Texas purged an extremely high number of
voters from its rolls. Texas purged approximately 363,000 more
voters between 2012 and 2014 than it did between 2008 and
2010.\192\ Recently in 2019, the Texas Secretary of State in
concert with the State Attorney General targeted voters based
on their national origin and attempted to remove approximately
95,000 registered voters based on alleged ``voter fraud.''\193\
After issuing an advisory to county voter registrars about non-
citizens and voter registration, the Texas Secretary of State
issued a press release identifying the approximately 95,000
voters as ``non-U.S. citizens [who] have a matching voter
registration record'' and that ``58,000 of whom have voted in
one or more Texas elections.''\194\ After a suit was filed
against the State of Texas, it was determined that the list of
voters had used flawed methodology to identify non-citizen
voters and in doing so inaccurately identified naturalized
citizens as non-citizens.\195\
---------------------------------------------------------------------------
\192\See Perez Oversight Statement, Appx. E at 4.
\193\See Perez Statement at 6; Herrera Statement at 6; Texas VRA
Hearing (Statement of Jerry Vattamala, Dir., Democracy Program, Asian
Am. Legal Def. and Educ. Fund at 6) [hereinafter ``Vattamala
Statement'']; VRA History Hearing, Unofficial Tr. 87 (testimony of
Thomas A. Saenz, President and General Counsel, Mexican Am. Legal Def.
and Educ. Fund) [hereinafter ``Saenz History Statement'']; see also
America Oversight Hearing, Unofficial Tr. 17 (Ho Statement).
\194\See Subcommittee on Elections Report at 43.
\195\See Herrera Statement at 6; Vattamala Statement at 6; Saenz
History Statement at 4.
---------------------------------------------------------------------------
The record evidence establishes that voters in other States
were also purged from rolls based on faulty and inaccurate
databases and records. For example, in Beaufort County, North
Carolina, two-thirds of the voters that were purged from the
roll were African American. One North Carolinian, a 100-year-
old African American woman, lived in Belhaven, North Carolina
her entire life and voted regularly for decades.\196\ Shortly
before the 2016 presidential election, however, her voter
registration was challenged based on a postcard that was sent
in a mass mailing by a local challenge.\197\ Between 2016 and
2018, North Carolina removed 11.7 percent of voters from the
rolls and only 19 of its counties purged fewer than 10 percent
of their voters; no county purged fewer than 8 percent.\198\
These purges have been especially troubling for minority
voters--in 90 out of 100 counties, voters of color were over-
represented among the purged group.\199\ In Ohio, over 200,000
voters were purged who had not voted in the last election and
who allegedly failed to respond after receiving a postcard in
the mail.\200\ For example, Chairperson Fudge's Subcommittee on
Elections noted that a 2016 Reuters analysis of Ohio's voter
purge found that purges of voter rolls have disproportionately
affected minority voters:
---------------------------------------------------------------------------
\196\See NC Oversight Hearing (statement of Patricia Timmons-
Goodson, Vice-Chairwoman, U.S. Comm'n on Civil Rights at 5-6)
[hereinafter ``Timmons-Goodson Statement''].
\197\See id. at 6.
\198\See Perez Oversight Statement, Appx. F at 4.
\199\See id.
\200\See Best Practices Hearing, Unofficial Tr. 13-14; Ohio
Oversight Hearing (statement of Naila Awan, Senior Counsel, Demos at 1-
4) [hereinafter ``Awan Statement'']; See also Perez Oversight
Statement, Appx. E at 6; Derrick Johnson Statement at 7; see also
Voting Rights and Election Admin. in Am.: Hearing Before the Subcomm.
on Elections of the H. Comm. on House Admin., 116th Cong. (2019)
(statement of Hannah Fried, Dir., All Voting is Local at 12-13)
[hereinafter ``Fried Statement''].
`[I]n predominantly African American neighborhoods
around Cincinnati, 10 percent of registered voters had
been removed due to inactivity since 2012, compared to
just four percent in the suburban Indian Hill. The
study further found that more than 144,000 people were
removed from the rolls in Ohio's three largest
counties, which includes the cities of Cleveland,
Cincinnati, and Columbus--hitting hardest neighborhoods
that are low-income and have a high proportion of Black
voters.' Ohio's Secretary of State Frank LaRose
recently revealed errors in the state's purge list as
groups found tens of thousands of people were
wrongfully on the list.\201\
---------------------------------------------------------------------------
\201\See Subcommittee on Elections Report at 42-4; see also
QuickFacts, The Village of Indian Hill city, Ohio, at https://
www.census.gov/quickfacts/thevillageofindianhillcityohio (providing
population estimate of The Village of Indian Hill city as approximately
88% white).
In addition, one witness testified that in Ohio there is
also a concern that new U.S. citizens, such as refugees who
become naturalized citizens, are more susceptible to being
purged erroneously due to lack of understanding about federal
and State laws, intimidation by official notices (e.g., like
the notice sent out by Ohio after a period of inactivity by the
voter), and their limited language skills.\202\
---------------------------------------------------------------------------
\202\See Ohio Oversight Hearing (statement of Elaine Tso, Interim
Co-Chief Exec. Officer, Asian Services in Action at 5).
---------------------------------------------------------------------------
In Virginia, previously covered counties removed
approximately 379,019 more voters between 2012 and 2016 than
between 2008 and 2012.\203\ All the previously covered Virginia
counties except one increased removal rates after Shelby
County.\204\ A contributing factor to the high purge rates
could be due to a highly problematic purge process that
Virginia mounted in 2013.\205\ More than 99 percent of
Virginia's voters live in counties that have increased removal
rates after Shelby County.\206\ Also, nearly 39,000 voters were
removed from Virginia's voter rolls when the State relied on a
faulty database to delete voters who allegedly moved out of the
commonwealth.\207\ In Florida, from 2008 to 2010, the median
purge rate was 0.2 percent and that number jumped to 3.6
percent from 2012 to 2014.\208\ Chairperson Fudge's
Subcommittee on Elections noted that between 2000 and 2012,
Florida engaged in systematic purges of purported ``non-
citizens'' from the voter rolls by comparing rolls to driver's
license data, which is an unreliable method because the
driver's license databases do not reflect citizenship:\209\
---------------------------------------------------------------------------
\203\See Perez Oversight Hearing, Appx. E at 5.
\204\See id.
\205\See id.; Perez Statement at 7.
\206\Perez Oversight Statement, Appx. E at 5.
\207\See Perez Oversight Statement, Appx. E at 1.
\208\See Perez Oversight Statement, Appx. F at 2.
\209\Subcommittee on Elections Report at 44.
The vast majority of voters on Florida's 2012 purge
list were people of color. The data in a federal
complaint alleging Section 2 violations (based on
Florida voter registration data) showed that 87 percent
were voters of color: 61 percent were Hispanic (whereas
14 percent of all registered voters in Florida were
Hispanic); 16 percent were Black (whereas 14 percent of
all registered voters were Black); 16 percent were
White (whereas 70 percent of registered voters were
White); and 5 percent were Asian American (whereas only
2 percent of registered voters were Asian).\210\
---------------------------------------------------------------------------
\210\Id. at 44-45.
In 2013, Florida officials sought to purge thousands of
voters who were purportedly non-citizens, but during the prior
year, Florida's purge list was inaccurate and was reduced from
180,000 supposed non-citizens to approximately 2,700.\211\
Between 2016 and 2018, Florida purged more than 7 percent of
its voters.\212\ In 2016, New York election officials
erroneously purged over 200,000 names from the rolls, with no
public warning and little notice to those who had been
purged.\213\
---------------------------------------------------------------------------
\211\See Perez Statement at 7.
\212\See Perez Oversight Statement, Appx. F at 2.
\213\See Perez Oversight Statement at 4.
---------------------------------------------------------------------------
In Arkansas, the Secretary of State sent the county clerks
more than 7,700 names to be removed because of purported felony
convictions.\214\ The roster, however, was highly inaccurate
and included people who had never been convicted of a felony as
well as persons with prior convictions whose voting rights had
been restored.\215\ In Arkansas, voters who supposedly had
criminal convictions were purged from the voter rolls, but the
list erroneously included people who did not have convictions,
but were involved in other court proceedings such as civil
legal proceedings for a divorce.\216\
---------------------------------------------------------------------------
\214\See id. at 4; Perez Statement at 7.
\215\See Perez Statement at 7.
\216\See Perez Oversight Statement, Appx. E at 5.
---------------------------------------------------------------------------
5. Voting Suppression Issues Related to Polling Sites
The Subcommittees received testimony that voters were
unable to vote due to the closure and relocation of polling
sites, transportation to polling sites, intimidation of voters,
and other issues, primarily in communities of color.\217\ A
report by the Leadership Conference on Civil and Human Rights,
submitted as part of testimony, analyzed polling places in over
750 counties that were previously covered under Section 5 and
found that 1,688 polling sites were closed between 2012 and
2018, almost double the 868 closures found in the previous
report.\218\ For example, Georgia has had a long troubled
history involving polling sites.\219\ Indeed, Georgia's
practices for maintaining and reporting polling place data to
the U.S. Election Assistance Commission (EAC) were so
inaccurate and unreliable that a civil rights advocacy
organization was not able to include Georgia in a 2016
report.\220\ Reporting by a major newspaper, however, revealed
that since the Shelby County decision, approximately 214
polling places have closed in the State, and most of the
counties that closed polling places had significant African
American populations.\221\ Ms. Abrams described the poll sites
issues in Georgia as creating a ``chilling effect'' on the
right to vote:
---------------------------------------------------------------------------
\217\See Subcommittee on Elections Report at 53-59; Practice-Based
Preclearance: Protecting Against Tactics Persistently Used To Silence
Minorities Communities' Votes at 42-48 (2019), https://www.maldef.org/
wp-content/uploads/2019/11/Practice-Based-Preclearance-Report-Nov-2019-
FINAL.pdf; see also America Oversight Hearing, Unofficial Tr. 69-71
(testimony of Hannah Fried, Dir., All Voting is Local).
\218\See Vargas Statement at 20-21 (``[P]olling place relocation
plans frequently move voting further from communities of color, even
though members of those communities have less access to transportation
and less flexibility to set aside work and family-related obligations
to travel to and wait at polling locations . . . The geographic
concentration of communities of color makes it more likely that many
minority voters suffer when a polling places [sic] closes, and more
likely that decisionmakers purposefully or incidentally put minority
voters at [sic] disadvantage by withdrawing resources from their
communities.''); Rich Statement at 5; Evidence Hearing (Statement of
Vanita Gupta, President and CEO, The Leadership Conference on Civil and
Human Rights at 4) [hereinafter ``Gupta Evidence Statement''] (``The
Shelby decision paved the way for systematic statewide efforts to
reduce the number of polling places in Texas (-750), Arizona (-320),
and Georgia (-214). Quieter efforts to reduce the number of polling
places without clear notice or justification spread throughout
Louisiana (-126), Mississippi (-96), Alabama (-72), North Carolina
(-29), and Alaska (-6)); Democracy Diverted, Polling Place Closures and
the Right to Vote, The Leadership Conference Education Fund (2019),
http://civilrightsdocs.info/pdf/reports//Democracy-Diverted.pdf.
\219\See Butler Statement at 2-3; Abrams Statement at 3-4; Georgia
Oversight Hearing (statement of Cliff Albright, Cofounder, Black Votes
Matter at 1-3) [hereinafter ``Albright Statement''].
\220\See Chapman Statement at 4.
\221\See id.; see also Gupta Evidence Statement at 3-4 (``We found
1,173 fewer polling places in 2018--despite a significant increase in
voter turnout.'' Since Shelby, Texas has closed 750 polling places;
Arizona closed 320; Georgia, 214; Louisiana, Mississippi, North
Carolina, and Alabama trail behind them.).
We also know that Georgia had an extraordinary number
of poll closures. We had 214 polls close out of roughly
3,000. Those are largely African American communities.
And while those poll closures may have been permissible
because of some nuance of law, what we found was that
there was a disproportionate effect on communities of
color, largely African American, particularly poor. If
you do not own transportation, and there is no public
transportation, the closure of a polling place that is
2 miles from your house now being moved to 10 miles
from your house has not only a chilling effect on your
right to vote, it absolutely negates your ability to
cast that vote. . . .\222\
---------------------------------------------------------------------------
\222\Abrams Statement at 68.
One of the most egregious examples of attempted polling
place closures happened before the November 2018 midterm
election in Randolph County where the Board of Elections
proposed to close seven out of the nine polling places in a
county whose population is 60 percent African American.\223\
The poll closures in Randolph County would have had the effect
of requiring African American voters in poor rural areas, many
lacking transportation, to travel long distances to vote,
potentially dissuading many from voting.\224\ In Fulton County,
the Board of Elections violated State law that required proper
public notice in its attempt to close polling places in
neighborhoods that were over 80 percent African American,
affecting over 14,000 voters.\225\ In Irwin County, the Board
of Elections tried to close the only polling place that existed
in the only African American neighborhood of the county,
affecting thousands of voters, contrary to the recommendations
of the non-partisan Association of County Commissioners of
Georgia. The board alleged that it wanted to close the polling
place to save costs, but managed to keep open a polling place
located at the Jefferson Davis Memorial Park in a neighborhood
that was 99 percent white.\226\
---------------------------------------------------------------------------
\223\See Derrick Johnson Statement at 9-10; Chapman Statement at 4;
Young Statement at 2.
\224\See Chapman Statement at 4.
\225\See Young Statement at 2-3.
\226\Id.
---------------------------------------------------------------------------
Voters in Georgia also were subjected to extremely long
lines, sometimes being forced to wait for hours on end to
vote.\227\ A polling place in Grady County was relocated only
two weeks prior to the 2018 elections in Grady County without
proper notice to the community.\228\ Voters arrived at the
original polling place and had to be directed to the actual
proper location.\229\ There were a number of people who had
left work to vote and drove to the original location, but
because they had limited time to be away from work, they could
not drive to the proper location and were unable to vote.\230\
One witness testified that a group of seniors at a county
senior center arranged to ride to the polling site with Black
Votes Matter on the ``Blackest Bus in America,'' but a
Jefferson County official instructed the seniors to return to
the center on the alleged basis that county policy prohibits
political activities on county property.\231\
---------------------------------------------------------------------------
\227\See Ifill Testimony at 6.
\228\See H.R. 1 Hearing, Unofficial Tr. 150-51.
\229\See id.
\230\See id.
\231\See Albright Statement at 2.
---------------------------------------------------------------------------
In Texas, voters lost approximately 750 polling locations
since the Shelby County decision and most of the closures (590)
took place after the 2014 midterm election.\232\ Many of the
closures took places in counties with a significant population
of African American and Latino citizens: Dallas County (41
percent Latino and 22 percent African American) closed 74
polling locations, Travis County (34 percent Latino) closed 67,
Harris County (42 percent Latino and 19 percent African
American) closed 52, Brazoria (30 percent Latino and 13 percent
African American) closed 37, and Nueces County (63 percent
Latino) closed 37.\233\
---------------------------------------------------------------------------
\232\See Gupta Evidence Statement at 5.
\233\Id.
---------------------------------------------------------------------------
In Arizona, polling places were closed throughout the
State, many with significant populations of Latino voters. In
advance of the 2016 general election, Maricopa County (31
percent Latino) closed 171 polling locations, Mohave County (16
percent Latino) closed 34, Cochise County (35 percent Latino)
closed 32, and Pima County (37 percent Latino) closed 31.\234\
The scale of closures is also alarming: Cochise County (-65
percent), Graham County (-50 percent), Mohave County (-49
percent), and Gila County (-48 percent), all of which closed
about half or more of their polling places.\235\ Cochise
County, for example, is located on the U.S.-Mexico border and
has had a long history of problems providing ballot access to
its Latino voters.\236\ In the 2012 election, prior to the
Shelby decision, the EAC reported that there were 49 polling
places serving the county's 130,000 residents; in 2016, the
number of polling places dropped to 18.\237\
---------------------------------------------------------------------------
\234\See id.
\235\See id.
\236\See Chapman Statement at 3-4.
\237\Id.
---------------------------------------------------------------------------
In addition, voters were burdened with long lines at the
polling sites. In Texas, in some instances, once voters waited
for an inordinate amount of time in one line, they had to stand
in a different line to get a provisional ballot.\238\ There
were long lines in Charleston, South Carolina, and during
election night as the elections were being called, African
Americans voters were still standing in line after two to three
hours.\239\ Voters in Florida experienced similar issues due to
poll site closures and the lack of accessibility to sites.\240\
The Subcommittee also heard testimony about the widespread
problems with inaccessibility at polling sites for voters with
disabilities, specifically in New Hampshire and Kansas.\241\
---------------------------------------------------------------------------
\238\See Ifill Testimony at 169.
\239\See id.
\240\See Gupta H.R. 1 Testimony at 182.
\241\See Lhamon Statement at 5; see generally America Oversight
Hearing, statement of Michelle Bishop, Voting Rights Specialist,
National Disability Rights Network at 105-107.
---------------------------------------------------------------------------
Native American voters in particular have continued to face
unique barriers with regard to voting. As noted by the
Subcommittee on Elections Report, those barriers include ``high
rates of poverty and homelessness on reservations, a lack of
traditional addresses, difficulties obtaining required IDs and
registering to vote, and long distances to travel to polling
locations.''\242\ The Subcommittee on Elections Report also
noted that research conducted by the National Congress of
American Indians found that for Native Americans, the voter
turnout rate is five to 14 percentage points lower than the
rate of many other racial and ethnic groups.\243\
---------------------------------------------------------------------------
\242\Subcommittee on Elections Report at 108.
\243\Id. at 87.
---------------------------------------------------------------------------
At hearings before the Subcommittee on the Constitution and
Chairperson Fudge's Subcommittee on Elections in Arizona and
North Dakota, tribal leaders, litigators, and advocates
testified about voting disenfranchisement in Native American
communities.\244\ The Subcommittees received testimony
regarding voting challenges faced by Native American voters and
communities, including the closure of polling locations, the
lack of satellite voting offices on Native American
reservations, long distances and lack of transportation to
polling locations, voter ID laws that exclude tribal
identification cards as accepted ID, the lack of translated
voting materials in Native languages, purging voters with non-
traditional mailing addresses from the rolls, the assignment of
voters to incorrect precincts based on inadequate voter
registration forms, vote dilution due to redistricting,
unreliable technology and lack of access to the internet, and
voters who are homeless or facing housing instability.\245\
---------------------------------------------------------------------------
\244\See id. at 85-108.
\245\See Subcommittee on Elections Report at 89-108; Discriminatory
Barriers Hearing at 7-8 (Statement of Dr. James Thomas Tucker, Pro Bono
Voting Rights Counsel, Native Am. Rights Fund) [hereinafter ``Tucker
Statement'']; Lhamon Statement at 4; Landreth Statement at 3; VRA
Legislation Hearing (Statement of Bryan L. Sells at 5, 17-19); Voting
Rights and Election Admin. in Am.: Hearing Before the Subcomm. on
Elections of the H. Comm. on House Admin., 116th Cong. (2019)
(testimony of Catherine E. Lhamon, Chair, U.S. Comm'n on Civil Rights);
see generally James Thomas Tucker, et al., Field Hearing Report
Identifying and Removing Barriers to Political Participation by Native
Voters, The Native Am. Rights Fund (2019).
---------------------------------------------------------------------------
For example, Alaska has proposed a shift to vote by mail,
but mail delivery is a significant issue. Mail delivery is slow
and often by air service, which can take as long as two to
three weeks.\246\ As noted in the Subcommittee on Elections
Report, testimony received before the Alaska State Advisory
Committee to the U.S. Commission on Civil Rights revealed that
during times of inclement weather, some villages may be
inaccessible by air for several weeks at a time.\247\ In-person
voting in Alaska poses barriers to access as well, because the
poll sites are often too far away from where residents live.
Some Native American voters had to travel for a hundred miles
to get to a poll site.\248\ In one case, a polling place was
moved away from a village and the Native Alaskan voters' only
option was to travel to their polling site by airplane.\249\ In
another case, a Native American elder had to walk two miles to
be able to get to a voting place.\250\ In Nevada, for example,
the closest polling locations were extremely far away, some
located hundreds of miles away from native communities.\251\ In
Kansas, Native American voters, who brought a tribal ID, were
turned away at the polling place because poll workers were not
aware that tribal IDs were considered an acceptable ID under
State law.\252\ For Native Americans living in North Dakota,
there were several issues included ill-equipped polling sites
that ran out of ballots, extremely long distances to polling
site locations, confused voters showing up at the wrong polling
site, voters including college students being turned away
because of the lack of an approved ID, the lack of early voting
opportunities in Indian country, and the failure to provide
notice regarding polling site locations.\253\ Utah moved to
all-mail balloting in 2014, but allowed in-person early voting
at a single location, which was easily accessible to White
voters, but three times less accessible to Navajo voters who
had to drive approximately three hours to get to the polling
site.\254\ In addition, a vote-by-mail option may be facially
neutral and beneficial to voters who do not have easy access to
a polling site, but in Arizona, for example, only 26 percent of
Native Americans reside on a U.S. Postal Service carrier route
as opposed to 96% of non-Native Americans who live on these
routes.\255\ Recently, States also have made efforts to pass
laws prohibiting the so-called practice of ``ballot
harvesting,'' which would make it a crime for groups or
individuals to collect and transmit ballots for voters, and
ultimately disenfranchises voters living in rural areas who are
disabled, elderly, and/or lack transportation to the
polls.\256\
---------------------------------------------------------------------------
\246\See Subcommittee on Elections Report at 102.
\247\Id.
\248\See Gupta H.R. 1 Statement at 175.
\249\Subcommittee on Elections Report at 105.
\250\See Lhamon Statement at 38.
\251\See Tucker Statement at 18.
\252\See Lhamon Statement at 37-38.
\253\See Subcommittee on Elections Report at 90-97.
\254\See Subcommittee on Elections Report at 53 (citing testimony
of Kristen Clarke).
\255\See Gupta Evidence Statement at 23; see also Tucker Statement
at 20 (explaining states like Nevada and California give discretion to
country clerks to designate precincts in rural and tribal areas as all
vote-by-mail if they do not meet a designated threshold of registered
voters which results in the suppression of Native American voter
participation); Landreth Statement at 2 (``outside of Pima and Maricopa
counties, only 18 percent of Native Americans have home mail
delivery''); James Thomas Tucker, et al., Field Hearing Report
Identifying and Removing Barriers to Political Participation by Native
Voters, The Native Am. Rights Fund 129, 132 (2019).
\256\See Voting Rights and Election Admin. in Am.: Hearing Before
the Subcomm. on Elections of the H. Comm. on House Admin., 116th Cong.
(2019) (testimony of Elena Nunez, Dir. of State Operations and Ballot
Measure Strategies, Common Cause); James Thomas Tucker, et al., Field
Hearing Report Identifying and Removing Barriers to Political
Participation by Native Voters, The Native Am. Rights Fund 154-155
(2019; Subcommittee on Elections at 98-102.
---------------------------------------------------------------------------
States also have denied limited English proficient (LEP)
voters the right to language assistance and assistance by a
person of the voter's choice.\257\ For example, in Texas in
2015, Williamson County denied an Indian American voter the
right to have her son act as her interpreter because her son
was registered to vote in a neighboring county, which was
prohibited by the Texas Election Code.\258\ In 2018, about one
week before the 2018 midterm election, a civil rights
organization received reports that election officials in Harris
County, Texas announced that volunteer Korean interpreters
would no longer be allowed to offer their assistance to LEP
voters within poll sites and would have to stay beyond the 100-
foot zone outside of poll sites, where they would not be able
to assist nearly as many LEP voters.\259\ Witnesses also
testified that language assistance was lacking in Florida for
Haitian Creole and Spanish-speaking voters, and in North
Carolina for Puerto Rican voters. \260\
---------------------------------------------------------------------------
\257\See Voting Rights and Election Admin. in Am.: Hearing Before
the Subcomm. on Elections of the H. Comm. on House Admin., 116th Cong.
(2019) (statement of John Yang, President and Exec. Dir., Asian Am.
Advancing Justice (AAAJ) at 9); Voting Rights and Election
Administration in Am.: Hearing Before the Subcomm. on Elections of the
H. Comm. on House Admin., 116th Cong. (Oct. 17, 2019) (statement of
Arturo Vargas, Chief Exec. Officer, NALEO Educ. Fund at 6-7).
\258\See Vattamala Statement at 7.
\259\See Vattamala Statement at 7.
\260\See Subcommittee on Elections Report at 73; Florida Oversight
Hearing (Statement of Marleine Bastien, Exec. Dir., Family Action
Network Movement and FANM in Action at 2); Batista Statement at 1; see
also Shelby Anniversary Hearing (Statement of Kira Romero-Craft,
Managing Attorney, Latino Justice, PRLDEF at 2-3).
---------------------------------------------------------------------------
Furthermore, the Subcommittee on the Constitution received
testimony about racist propaganda that targeted minority
candidates, meritless lawsuits against voting rights
organizations, and voter intimidation and harassment at polling
locations.\261\ For example, in New Jersey, Asian American
candidates for the local school board were targeted with anti-
immigrant and xenophobic mailers and flyers.\262\ One witness
testified that the investigative unit of the Georgia Secretary
of State's office is extremely aggressive and has engaged in a
pattern of intimidation, including pursuing frivolous cases
against voting rights organizations and conducting home visits
to individual voters or activists, and community organizers
with the intention of creating a chilling effect on civic
engagement.\263\ In North Carolina, there was a visible
presence of KKK members and swastikas on the street near pro-
voting marches as well as derogatory comments from bystanders
during elections following the Shelby County decision.\264\
Witnesses also testified that state troopers were present near
and in polling sites. For example, in Cordele, Georgia, a
voting activist who partnered with Black Votes Matter was
providing rides to the polls when he was stopped and issued a
parking ticket by a state trooper.\265\ The trooper called for
backup resulting in seven patrol cars. Also, in New York, 30
Chinese American voters, many of whom were college students,
suffered baseless citizenship and voter registration
challenges, impeding their right to vote.\266\
---------------------------------------------------------------------------
\261\See Voting Rights and Election Admin. in Am.: Hearing Before
the Subcomm. on Elections of the H. Comm. on House Admin., 116th Cong.
(2019) (statement of Elena Nunez, Dir. of State Operations and Ballot
Measure Strategies, Common Cause at 2-3).
\262\See Yang Statement at 10.
\263\See Albright Statement at 2.
\264\See Lhamon Statement at 4-5.
\265\See Albright Statement at 2.
\266\See Lhamon Statement at 5.
---------------------------------------------------------------------------
6. Vote Dilution
Numerous States, including Alabama, Arizona, Georgia,
Louisiana, North Carolina, Texas, and Mississippi, have
continued to use redistricting plans and other means to dilute
the strength of votes cast by racial and language minority
voters.\267\ For example, in 2015, the Fayette County
Commission in Georgia attempted to revert to an at-large voting
system in a special election in 2015 to replace an African
American Commissioner who passed away unexpectedly.\268\ In
Gwinnett County, Georgia in 2015, the redistricting plans for
the County Board of Commissioners and Board of Education
resulted in no African American, Latino, or Asian American
candidates being elected to those boards despite the fact that
the county is considered to be one of the more racially diverse
counties in the southeastern portion of the United States.\269\
Also, the Emanuel County School Board in Georgia was sued for
diluting the strength of African American voters by ``packing''
most of them into one district and dispersing the remaining
African American voters among the other six districts.\270\
African American citizens comprised 81 percent of the voting-
age population in one of the districts and a minority in all of
the other six.\271\ Although African American citizens made up
one-third of the county's voting-age population and close to
half of the students in Emanuel County, and although African
American candidates had run in other districts, there had never
been more than one African American member on the School Board
at one time as a result of this practice.\272\
---------------------------------------------------------------------------
\267\See Subcommittee on Elections Report at 75-79; Practice-Based
Preclearance: Protecting Against Tactics Persistently Used to Silence
Minorities Communities' Votes at 23-28 (2019), https://www.maldef.org/
wp-content/uploads/2019/11/Practice-Based-Preclearance-Report-Nov-2019-
FINAL.pdf.
\268\See Subcommittee on Elections Report at 78-79.
\269\See id. at 79; Greenbaum Statement at 20-21.
\270\See id. at 21.
\271\Id.
\272\Id. at 21-22.
---------------------------------------------------------------------------
The Alabama state legislature's redistricting plan for
Birmingham eliminated the nine majority-African American and
nine majority-white district balance in the Jefferson County
House Delegation, which had provided African American
legislators the ability to block unwanted local bills, and
replaced it with ten majority-white and only eight majority-
African American districts.\273\ In 2015, over the objections
of African American members of Jefferson County's delegation,
the state legislature passed a statute giving majority-white
municipalities in Jefferson County and neighboring majority-
white county governments power to appoint members to the
Birmingham Water Works Board, which previously had been
appointed solely by the Birmingham City Council.\274\ This
diluted the political power of a majority-African American
electorate over one of the most profitable water systems in
Alabama and a valuable asset for Birmingham's economic
development.\275\
---------------------------------------------------------------------------
\273\See Blacksher Statement at 7-8.
\274\See id. at 8.
\275\Id.
---------------------------------------------------------------------------
In 2017, the at-large scheme of electing members to the
Board of Commissioners in Jones County, North Carolina was
challenged on the basis that the method diluted the voting
strength of African American voters.\276\ No African American
candidate had been elected to the Jones County Board of
Commissioners since 1998.\277\ The North Carolina General
Assembly also drew district lines that split a large
historically black college, down the middle. One part of the
campus was included in one district while the other was in
another for the purpose of diluting the African American
vote.\278\
---------------------------------------------------------------------------
\276\See Greenbaum Statement at 24-25.
\277\Id.
\278\See Timmons-Goodson Statement at 4.
---------------------------------------------------------------------------
In Texas, state officials have refused to recognize the
growth of the Latino voter population and failed to create new
Latino-majority districts,\279\ and attempted to dilute the
vote of Asian Americans and other minority voters.\280\ In
addition, Pasadena, Texas converted two single-member district
positions on the city council to at-large seats in order to
prevent the emergence of a Latino majority city council.\281\
Pasadena was not required to secure preclearance, and the
discriminatory change went into effect immediately upon
enactment.\282\
---------------------------------------------------------------------------
\279\See Saenz History Statement at 2; see also Greenbaum Statement
at 27.
\280\See Vattamala Statement at 8.
\281\See Vargas Statement at 9; Herrera Statement at 3-4.
\282\See Herrera Statement at 4.
---------------------------------------------------------------------------
Prior to Shelby County, the Arizona legislature submitted a
change to the DOJ for Section 5 preclearance and proposed
adding two at-large members to a five-single district board in
the Maricopa County Community College District, which has a
history of racially polarized voting.\283\ The DOJ issued a
``more information letter'' based on concerns that the changes
would weaken the electoral power of minority voters on the
board and the state legislature did not seek to implement the
change.\284\ After the Shelby County decision, the change was
implemented, and a Latino candidate lost an at-large seat and
two of the at-large members who won were white.\285\
---------------------------------------------------------------------------
\283\See Greenbaum Statement at 9.
\284\See id.
\285\Id.
---------------------------------------------------------------------------
In Louisiana, African American citizens make up 32 percent
of the population, but just one of the State's seven Supreme
Court districts is majority African American in population. As
a result, six of the seven justices on the most powerful court
in the State are white and the State's Supreme Court districts
have not been redrawn since 1999. Similarly, ``The Mississippi
Plan,'' which is codified in the 1890 Mississippi Constitution,
is a racially discriminatory election system that has prevented
African American candidates from winning a statewide office.
The plan requires that candidates running for state-wide office
such as governor or attorney general must win not only a
majority of the popular votes, but also a majority of the
State's 122 House districts, of which two-thirds are majority
white.\286\ If no candidate meets both requirements, a
statewide election is decided by the state house of
representatives.\287\ This has resulted in no African American
candidates winning statewide office in over 130 years despite
Mississippi having the highest African American population in
the United States.\288\
---------------------------------------------------------------------------
\286\See Debbie Elliott, Black Voters Sue Over Mississippi's Jim
Crow-Era Election Law, All Things Considered, Nat'l Public Radio (Sept.
24, 2019), https://www.npr.org/2019/09/24/763510668/black-voters-sue-
over-mississippis-jim-crow-era-election-law.
\287\See id.
\288\Id.
---------------------------------------------------------------------------
As noted by Chairperson Fudge's Subcommittee on Elections
Report, in 2019, the Supreme Court held, in a 5-4 majority
opinion, that partisan gerrymandering claims are not
justiciable because they present a political question beyond
the reach of the federal courts.\289\ Chief Justice Roberts,
writing for the majority, noted that while federal courts can
resolve ``a variety of questions surrounding districting,''
including racial gerrymandering, it is beyond their power to
decide when political gerrymandering has gone too far.\290\ The
Subcommittee on Elections notes that this decision jeopardizes
the rights of millions of minority voters, cedes the field to
State courts, and fails to set a national protection
standard.\291\ As noted in the Report, ``[w]ithout the full
protection of the Voting Rights Act requiring states and
localities with a history of discriminatory practices to
preclear their new maps, states could arguably create
discriminatory maps, but color them in the rhetoric of party
affiliation, not race.''\292\
---------------------------------------------------------------------------
\289\See Rucho v. Common Cause, 139 S. Ct. 2484, 2508 (2019).
\290\Id. at 2496; see id. at 2498-2508.
\291\Subcommittee on Elections Report at 76.
\292\Id. at 77.
---------------------------------------------------------------------------
7. Obstacles to Restoring the Right to Vote
Formerly incarcerated individuals continue to be
disenfranchised and denied the right to vote. As noted in the
Subcommittee on Elections Report, the ``criminal justice system
disproportionately targets, arrests, sentences, and
incarcerates people of color,'' and ``disenfranchisement
policies for felony convictions . . . disproportionately impact
communities of color.''\293\ For example, African American
voters are four times more likely to lose their right to vote
than the rest of the voting-age population and disparities in
the criminal justice system have stripped one in every 13
African Americans of their right to vote, which is four times
the disenfranchisement rate of non-African Americans.\294\
---------------------------------------------------------------------------
\293\Id. at 119.
\294\Id.
---------------------------------------------------------------------------
The Subcommittees were presented with testimony regarding
recent efforts to place additional burdens on the right to vote
for people who are released from prison.\295\ For example,
although Florida recently passed a referendum ending permanent
disenfranchisement for the formerly incarcerated, the Florida
legislature responded by passing a law that denies voter
eligibility to any individuals with outstanding costs, fines,
fees, and restitution associated with their felony
convictions.\296\ Similarly, Alabama requires formerly
incarcerated individuals to pay their fines and fees before
they can register to vote.\297\ Tennessee requires that these
individuals pay all legal financial obligations, fines, and
fees, including child support, before they may have their right
to vote restored, a provision that places an enhanced burden on
low-income individuals.\298\ Texas also has prosecuted formerly
incarcerated individuals for mistakenly voting. For example, in
Tarrant County, an individual mistakenly voted because she
thought that once she was released from incarceration, she
would have the right to vote restored. Texas prosecuted her for
this mistake.\299\
---------------------------------------------------------------------------
\295\See id. at 119-23; Voting Rights and Election Admin. in Am.:
Hearing Before the Subcomm. on Elections of the H. Comm. on House
Admin., 116th Cong. (Oct. 17, 2019) (statement of Brenda Wright, Senior
Advisor for Legal Strategies, Demos at 9-10); Voting Rights and
Election Admin. in Am.: Hearing Before the Subcomm. on Elections of the
H. Comm. on House Admin., 116th Cong. (2019) (Statement of Michael
Waldman, President, Brennan Center for Justice at 6-7); Voting Rights
and Election Admin. in Am.: Hearing Before the Subcomm. on Elections of
the H. Comm. on House Admin., 116th Cong. (2019) (Testimony of Denise
Lieberman, Senior Attorney and Program Dir., Power and Democracy,
Advancement Project at 84); Voting Rights and Election Admin. in Am.:
Hearing Before the Subcomm. on Elections of the H. Comm. on House
Admin., 116th Cong. (2019) (Testimony of Virginia Kase, Chief Exec.
Officer, League of Women Voters at 86-87); James Thomas Tucker, et al.,
Field Hearing Report Identifying and Removing Barriers to Political
Participation by Native Voters, The Native Am. Rights Fund 111-114
(2019).
\296\See Subcommittee on Elections Report at 120-21; VRA
Legislation Hearing (Statement of Janai Nelson, Associate Dir. Counsel,
NAACP Legal Def. Fund at 8) [hereinafter ``Nelson Statement'']; VRA
Evidence Hearing (testimony of Dale Ho, Dir., Voting Rights Project,
Am. Civil Liberties Union at 31-32); Perez Testimony at 4; Ifill
Testimony at 7; see also Perez Oversight Statement, Appx. H at 1-2;
Best Practices Hearing (testimony of Ho at 16-17); Voting Rights and
Election Admin. in Fla: Hearing Before the Subcomm. on Elections of the
H. Comm. on House Admin., 116th Cong. (2019) [hereinafter ``Florida
Oversight Hearing''] (statement of Andrew Gillum at 28); see also
Voting Rights and Election Admin. in Am.: Hearing Before the Subcomm.
On Elections of the H. Comm. on House Admin., 116th Cong. (2019)
(statement of Deuel Ross, Senior Counsel, NAACP Legal Def. Fund at 22).
\297\See Subcommittee on Elections Report at 122; Carroll Statement
at 11.
\298\See H.R. 1 Hearing, Unofficial Tr. 82-83 (testimony of Ifill);
Mulroy Statement at 8 (noting felon disenfranchisement law has a
discriminatory impact: ``Tennessee is thus one of only 4 states where
more than 20% of adult black population is disenfranchised.'').
\299\See Subcommittee on Elections Report at 123; Bledsoe Statement
at 4.
---------------------------------------------------------------------------
B. Analysis of the Impact of Shelby County
As a result of the Shelby County decision, States and
counties that were previously required to obtain preclearance
from the federal government before changing their voting laws
and practices were able to enact measures with the purpose and
effect of reducing the vote of minority communities. Although
such laws and practices may still be challenged through Section
2 litigation, the evidence above demonstrates that after-the-
fact litigation cannot adequately stem this tide of
discriminatory measures. Therefore, in advancing H.R. 4,
Congress is doing as the Supreme Court invited it to do in
Shelby County: passing a new coverage formula for the VRA's
preclearance requirement.\300\ Updating the Section 4(b)
coverage formula to determine which jurisdictions are subject
to federal preclearance under Section 5 will allow the VRA to
operate as intended. Re-establishing the preclearance
requirement will stop discriminatory measures in certain
jurisdictions with a recent history of discrimination before
they can be enacted, as Congress had intended in passing the
VRA.
---------------------------------------------------------------------------
\300\Shelby Cty., 570 U.S. at 557.
---------------------------------------------------------------------------
Testimony received by the Subcommittees revealed that, in
the time leading up to the VRA's reenactment in 2006 and
continuing into the present, discriminatory voting measures
have been highly concentrated in jurisdictions that were
previously subject to preclearance under Section 4(b). Dr.
Peyton McCrary noted that, although the Court correctly
observed in Shelby County that outright vote denial does not
persist to the degree it did when the VRA was first enacted,
Congress nevertheless assembled an extensive record of
discriminatory voting changes that would have diluted minority
voting strength--including intentionally discriminatory
changes--enacted by States and counties but blocked by Section
5 objections.''\301\ As Dr. McCrary explained:
---------------------------------------------------------------------------
\301\VRA History Hearing (statement of Peyton McCrary, Professorial
Lecturer in Law, George Washington University Law School at 2).
Once the 1965 Voting Rights Act suspended the use of
discriminatory tests or devices and began sending
federal examiners into covered jurisdictions with the
lowest voter registration levels, African Americans
began to register and vote in significant numbers. In
response Southern legislatures often adopted new
electoral procedures designed to dilute the growing
minority voting strength, drawing on the experience of
jurisdictions which had already adopted these
mechanisms before 1965. Use of at-large elections--
requiring candidates to run city-wide or county-wide
rather than from smaller districts or wards--was the
cornerstone of the vote dilution structure, along with
---------------------------------------------------------------------------
the use of multi-member legislative districts.
The evidence before Congress when reauthorizing
Section 5 of the Voting Rights Act in 2006 included
data from a study of all the objections interposed by
the Department of Justice. Between 1965 and 2000 over
80 percent of all objections were to changes that would
have diluted minority voting strength and no more than
15 percent of the objections addressed changes that
would deny or abridge minority voting strength. From
2000 through mid-2004, when the study was completed,
less than 12 percent of the changes involved denial or
abridgement, while 88 percent addressed problems of
vote dilution.
In addition, Professor J. Morgan Kousser presented
compelling and persuasive testimony regarding the need for a
preclearance requirement particularly in the formerly covered
jurisdictions. Professor Kousser noted that as Congress
approached the 25-year renewal deadline of Section 5 in 2006,
the need to satisfy the Boerne ``congruence and
proportionality'' standard spurred Section 5 proponents to
compile an extensive factual record of ongoing voting
discrimination, but that the record may not have been
persuasive to the Court because ``it was not consolidated into
one report, quantified to determine how `congruent' the
geographical scope of Section 4 was with the geographical
incidence of voting discrimination.''\302\ In addition, the
Court in Shelby County viewed the ``fundamental problem'' as
Congress's failure in 2006 to update its coverage formula based
on the record that it compiled.\303\ The Court accordingly did
not pass judgment on whether the kind of record assembled by
Congress could support a revised coverage formula that has a
sufficiently ``logical relation'' to current and recent
evidence of discrimination.\304\
---------------------------------------------------------------------------
\302\See VRA Legislation Hearing (statement of Professor J. Morgan
Kousser, Cal. Inst. of Tech. at 4-5) [hereinafter ``Kousser
Statement''].
\303\Shelby Cty., 570 U.S. at 554.
\304\Id.
---------------------------------------------------------------------------
In the wake of the Northwest Austin case, Professor Kousser
began to create a database of all voting rights actions under
any federal or State statutes or constitutional provisions,
including lawsuits, settlements and consent decrees, objections
interposed by DOJ under Section 5, and requests by DOJ for more
information under Section 5. This database includes 4,090
minority victories under federal law and 389 under the
California Voting Rights Act from 1957 through 2019.\305\ His
analysis of the database resulted in four principal points: (1)
the original coverage scheme of Section 4(b), as amended in
1975 and 1970, fit the pattern of proven violations of voting
rights extraordinarily well--92 percent of the total actions in
which minorities were successful concerned State and local
jurisdictions within the areas of Section 4(b) coverage; (2)
voting rights violations did not diminish over long periods of
time--there were more than three times as many in the 25 years
after the 1982 renewal of the VRA than there were in the 25
years from 1957 to 1982, and over 90 percent continued be
concentrated in covered jurisdictions; (3) the pattern of
voting rights actions is less the product of the degree of
discrimination than of the opportunities of litigation and
administrative action made available by congressional and
especially by Supreme Court decisions; and (4) the striking
success of minorities in using the State-level California
Voting Rights Act to shift from at-large elections to single
member districts reinforces the third point about the pattern
of voting rights actions.\306\
---------------------------------------------------------------------------
\305\See Kousser Statement at 1.
\306\See id. at 1-2.
---------------------------------------------------------------------------
Professor Kousser analyzed whether the Section 4(b)
coverage formula was a congruent means to combat the injury it
aimed to prevent or remedy, i.e., whether the pattern of VRA
actions fit the Section 4(b) coverage scheme.\307\ As shown in
the table below, out of 3,771 of the 4,090 total successful
voting rights actions for the period between 1957 and 2019,
these actions concerned areas that were covered under Section
4(b) of the VRA. In other words, approximately 92 percent of
the total voting actions in which minorities were successful
concerned State or local jurisdictions within the area of
Section 4(b) coverage.\308\
---------------------------------------------------------------------------
\307\See id. at 4-5, 7-10.
\308\Id. at 7.
TABLE 1.--THE TEMPORAL AND GEOGRAPHICAL PATTERN OF SUCCESSFUL VOTING RIGHTS ACTIONS, 1957-2019
----------------------------------------------------------------------------------------------------------------
Total #
Topic Years of # in Covered % in Covered
Actions Jurisdictions Jurisdictions
----------------------------------------------------------------------------------------------------------------
Total # of actions..................................... 1957-2019 4,090 3,771 92.2
1957-1981 819 798 97.4
1982-2006 3,059 2,825 92.4
2007-2019 187 130 69.5
1957-1965 84 83 98.8
----------------------------------------------------------------------------------------------------------------
In addition, Kousser noted that the number of actions more
than tripled in the time period from the renewal of the VRA in
1982 through the most recent reauthorization in 2006 (3,059
total actions), as compared to the period before enactment of
the modern federal voting rights law in 1957 through the 1982
VRA renewal (819 total actions).\309\ Additionally, comparing
the number of actions after 2006 through 2019 with the number
between 1957 and the passage of the VRA in 1965, a period in
which, according to the Court, voting discrimination was
``pervasive . . . flagrant . . . widespread . . . rampant,''
Professor Kousser found more cases per annum in the latter than
in the earlier years (15.5 cases per year for 2007-19 vs. 10.5
per year for 1957-65).\310\ He also found that more than two-
thirds of the voting rights actions after 2006, the time of the
most recent reauthorization of the VRA, were concentrated in
covered jurisdictions.\311\ He observed that based on the data,
``if Congress had started from scratch in 2006, it could hardly
have developed a more accurate coverage scheme than it
did.''\312\
---------------------------------------------------------------------------
\309\See VRA Legislation Hearing (Kousser Statement at 7).
\310\Id. at 8.
\311\Id.
\312\Id.
---------------------------------------------------------------------------
In addition, Professor Kousser analyzed voting rights
actions excluding actions involving Section 5 and found that
five out of six successful non-Section 5 actions originated in
covered jurisdictions:\313\
---------------------------------------------------------------------------
\313\Id.
TABLE 2.--OTHER POSSIBLE EXPLANATIONS OF THE CONGRUENCE OF THE PRE-SHELBY CONGRUENCE OF THE COVERAGE SCHEME AND
VOTING RIGHTS ACTIONS
A. Cases Not Involving Section 5
----------------------------------------------------------------------------------------------------------------
Total #
Topic Years of # in Covered % in Covered
Actions Jurisdictions Jurisdictions
----------------------------------------------------------------------------------------------------------------
# Actions under Section 2.............................. 1965-2019 1,291 1,066 82.6
# Actions under Section 2, Sections 203 or 208, 1965-2019 1,605 1,312 81.7
Fourteenth or Fifteenth Amendments....................
----------------------------------------------------------------------------------------------------------------
Furthermore, Professor Kousser found that the pattern is
not the result of a concentration of minorities (i.e., where
minorities resided) in covered jurisdictions.\314\ Controlling
for the minority percentage in population, the covered
jurisdictions were six to 12 times as likely to develop cases
as compared to non-covered jurisdictions as shown in Table 2B
below.\315\
---------------------------------------------------------------------------
\314\See Kousser Statement at 9.
\315\Id.
B. Counties with Different Proportions of Minorities
------------------------------------------------------------------------
% Non-Hispanic White Citizen Covered Counties Non-Covered Counties
Voting Age Population -------------------------------------------
(CVAP), 2010 % %
----------------------------- Counties # Counties #
with Minority with Minority
Minority Successes Minority Successes
Successes Successes
------------------------------------------------------------------------
>80% Non-Hispanic White..... 36.0 283 6.2 44
<=80% Non-Hispanic White.... 80.9 3,236 11.9 276
------------------------------------------------------------------------
From a slightly older version of this database.
Professor Kousser observed that in counties with a higher
number of white voters--specifically, those in which non-
Hispanic white Americans exceeded 80 percent of the citizen
voting age population (CVAP)--the proportion of counties with
at least one successful voting rights action was six times as
high in the covered counties as in the non-covered counties (36
percent compared to 6.2 percent) and 6.4 times as many actions
originated in covered as in non-covered heavily white counties
(283 compared to 44).\316\ Professor Kousser also determined
that the contrast is even more striking in the counties with a
lower number of white voters, where there were 6.8 times as
many successful actions in covered as in non-covered counties
(80 percent vs. 11.9 percent), and 11.7 times as many total
actions (3,236 compared to 276) in covered as in non-covered
jurisdictions.\317\
---------------------------------------------------------------------------
\316\See Kousser Statement at 9.
\317\Id.
---------------------------------------------------------------------------
In drawing his conclusion about the pattern of
discrimination in the formerly covered jurisdictions, Professor
Kousser testified that the data demonstrates that the coverage
formula in Section 4(b) was tailored to target the most
problematic jurisdictions for minority voters:
Since litigation can be brought under those
provisions against jurisdictions throughout the
country, the pattern in this table makes it even
clearer that voting discrimination has been centered in
those areas covered under Section 4. This is especially
true because some Section 2 cases in covered
jurisdictions didn't have to be filed, because Section
5 had already either deterred discrimination or been
settled by objections under Section 5. The 82%
concentration of Section 2 cases in covered
jurisdictions therefore is no doubt an underestimate of
the concentration of discrimination there.\318\
---------------------------------------------------------------------------
\318\Kousser Statement at 8.
In addition, Professor Kousser's voting rights events map
illustrates the contrast between covered and non-covered
jurisdictions with regard to the number of voting rights
actions in the 3,143 counties or county-equivalents in the
United States. In 2,393 counties or county-equivalents (i.e.,
76 percent), there were no voting rights actions at all. As
indicated by the skyscrapers (indicating multiple actions), the
voting rights actions are concentrated in the southern states
that were initially covered in the original 1965 VRA, and in
Texas and Arizona, which became covered states in the 1975
---------------------------------------------------------------------------
amendments.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Based on this and other evidence gathered throughout the
Judiciary Committee's consideration of H.R. 4, the Judiciary
Committee finds that in the absence of Section 5, efforts to
discriminate against minority voters persist and evolve
particularly in the formerly covered states. As such, there is
a need for the protection of voting rights of minority voters
and the reestablishment of the preclearance regime. As
discussed further below, H.R. 4's revised coverage formula
reflects this recent and ongoing evidence of voting
discrimination.
C. The Record Bolsters Congress's Constitutional Authority to Adopt a
New Coverage Formula and Related Measures
As outlined above, Congress has broad authority under the
Fourteenth and Fifteenth Amendments to prohibit and
affirmatively prevent voting discrimination against racial and
language minorities.\319\ Congress also has plenary authority
to enact legislation regulating ``[t]he times, places and
manner of holding elections for Senators and
Representatives.''\320\
---------------------------------------------------------------------------
\319\See Katzenbach, 383 U.S. at 325-27 (discussing Congress's
enforcement powers under the Fifteenth Amendment); Morgan, 384 U.S. at
648-51 (same, with respect to Fourteenth Amendment).
\320\U.S. Const., art. I Sec. 4 cl. 1.
---------------------------------------------------------------------------
The foregoing establishes a substantial record of ongoing
discrimination, particularly in formerly covered jurisdictions
and in recent years during which the Court rendered the VRA's
preclearance mechanism inapplicable. In light of that record,
the Judiciary Committee concludes it is necessary to restore a
preclearance process in those jurisdictions where voting
discrimination has been substantial and persistent.
Furthermore, the Judiciary Committee concludes it is necessary
to apply a preclearance mechanism with respect to particular
voting practices that are most likely to result in
unconstitutional discrimination. The Judiciary Committee also
concludes that other, related measures discussed below are
needed to effectuate this legislation.
The Judiciary Committee does not reach these determinations
lightly. The Supreme Court has made clear that the VRA
``imposes current burdens and must be justified by current
needs,'' and that any preclearance coverage formula must be
``sufficiently related to the problem that it targets.''\321\
---------------------------------------------------------------------------
\321\Shelby Cty., 570 U.S. at 542 (quoting Northwest Austin, 557
U.S. at 203).
---------------------------------------------------------------------------
Nevertheless, although the Court invalidated Section 4(b)'s
coverage formula in Shelby County, it ``issue[d] no holding on
[Section] 5 itself.''\322\ Rather, the Court indicated that
Congress could ``draft another formula based on current
conditions.''\323\ Furthermore, the Court cited Katzenbach
approvingly throughout its opinion. Although it disagreed with
the Justice Department's interpretation of Katzenbach, it in no
way purported to overrule that decision. For example, in
explaining the showing needed to defend Section 4(b)'s coverage
formula, the Court noted that ``Katzenbach reasoned that the
coverage formula was rational because the `formula . . . was
relevant to the problem''' that the VRA sought to address.\324\
---------------------------------------------------------------------------
\322\Id. at 557.
\323\Id.
\324\Id. at 551-52 (quoting Katzenbach, 383 U.S. at 329).
---------------------------------------------------------------------------
As such, Shelby County ``leaves open substantial room for
Congress to establish new criteria'' for a coverage
formula.\325\ Shelby County requires that any such formula must
be ```relevant to the problem''' that Congress is targeting and
based on ``facts having [a] logical relation to the present
day.''\326\ Beyond that, the Court did not state any particular
requirements for a new formula. Accordingly, the Judiciary
Committee has carefully tailored the proposed legislation to
address specific and contemporary practices that deny or
abridge the right to vote on the basis of race or language
minority status. Furthermore, nothing about the Court's opinion
in Shelby County cast doubt on Congress's ability to enact
other measures to prevent voting discrimination that are less
burdensome than a preclearance requirement.\327\
---------------------------------------------------------------------------
\325\Adegbile Testimony at 4.
\326\Shelby Cty., 570 U.S. at 551 (quoting Katzenbach, 383 U.S. at
329); see id. at 556 (criticizing the 2006 coverage formula because it
was ``based on 40-year-old facts having no logical relation to the
present day.'').
\327\See id. at 537 (noting Section 2 of VRA was ``not at issue in
this case.'').
---------------------------------------------------------------------------
Finally, the Committee notes that while the record compiled
by the three Subcommittees establishes the continuing
pervasiveness of a variety of barriers to voting in certain
jurisdictions, H.R. 4 does not expressly list all of them as
bases for triggering the preclearance requirement in its
``covered practices'' provision. While Congress's
constitutional authority is broad enough to support including
all of these barriers as bases for requiring preclearance,
Congress here chooses to exercise its discretion and restraint
by limiting the scope of that provision to those practices
listed in the bill. The Committee notes that while these
barriers are not expressly listed as bases for practice-based
preclearance, they may still constitute violations of the VRA
in specific cases, and the Committee expects the DOJ and others
to pursue jurisdictions engaged in such violations. In
addition, Congress will continue to monitor developments as to
those barriers not expressly covered by the bill to determine
whether it is necessary to amend the VRA in the future.
1. The Continuing Need for Preclearance
The Judiciary Committee concludes that a tailored
preclearance provision is necessary to address the significant
and pervasive voting discrimination described above. The
Judiciary Committee heard evidence of a ``resurgence of
discriminatory voting practices, many motivated by intentional
discrimination,'' and that ``this discrimination has been most
intense in the very jurisdictions that were once covered by
Section 5.''\328\ Professor Kousser's analysis, in particular,
demonstrates that discriminatory measures have been heavily
concentrated in specific jurisdictions.\329\ That heavy
concentration warrants ```disparate geographic coverage''' for
preclearance.\330\ Indeed, a preclearance remedy that failed to
tailor coverage in jurisdictions where discriminatory measures
have occurred with the highest frequency could create precisely
the types of unjustifiable burdens that the Court described in
Shelby County. The evidence of discriminatory practices that
have emerged in previously covered jurisdictions subsequent to
the Court's holding in Shelby County is particularly
persuasive. The Court in Katzenbach found it compelling that
other statutory remedies enacted up to that point had failed to
stop patterns of abuses. So too here, the evidence demonstrates
that even where plaintiffs facing discrimination have succeeded
in litigation under Section 2 of the VRA, that success has come
at a great price and often only after substantial harms have
ensued.
---------------------------------------------------------------------------
\328\Clarke Shelby Statement at 2.
\329\Kousser Statement at 7-9.
\330\Shelby Cty., 570 U.S. at 542 (quoting Northwest Austin, 557
U.S. at 203).
---------------------------------------------------------------------------
As one scholar explained, after-the-fact litigation results
all too often in ``justice delayed.''\331\ In North Carolina,
for example, the legislature decided to move forward with a
draconian voter ID bill the day after Shelby County was
decided.\332\ The bill was signed into law in August 2013 and
was immediately challenged in court. Nevertheless, the law was
in operation during the 2014 midterm primaries and
elections.\333\ It was only in mid-2016--following a series of
delays--that the law was struck down following a jury trial.
The court held that the law ``target[ed] African Americans with
almost surgical precision,''\334\ but because of those delays,
voters in North Carolina were subject to an intentionally
discriminatory measure during an election cycle.
---------------------------------------------------------------------------
\331\Levitt Testimony at 9.
\332\Id. at 10.
\333\Id.
\334\N.C. State Conf. of the NAACP v. McCrory, 831 F.3d 204, 214
(4th Cir. 2016).
---------------------------------------------------------------------------
A similar scenario unfolded in Texas. One practitioner
explained that the NAACP ``successfully challenged Texas' voter
ID law,'' with the trial court holding that the law was
discriminatory in both purpose and effect.\335\ The United
States Court of Appeals for the Fifth Circuit agreed that the
law was discriminatory at least in effect. As that witness
explained, however, ``during the 3 years in which we litigated
the case through trial, and before voters received relief,
Texas elected a U.S. Senator, all 36 members of the Texas
delegation to the U.S. House of Representatives, a Governor, a
Lieutenant Governor, Attorney General, Controller, all 150
Members of the State house, over 175 trial court judges, and
over 75 District Attorneys. Relief simply was too late for
voters across all of those elections.''\336\
---------------------------------------------------------------------------
\335\Shelby Anniversary Hearing, Unofficial Tr. 33 (Aden
Testimony).
\336\Id. at 33-34; see also Levitt Testimony at 11.
---------------------------------------------------------------------------
Another practitioner noted more generally that ``because
elections take place during the time that Section 2 litigation
is pending, government officials are often elected under
election[] regimes that are later found to be discriminatory--
and there is no way to adequately compensate the victims of
voting discrimination after-the-fact.''\337\ This practitioner
noted that in the ten successful Section 2 cases brought by the
ACLU, ``more than a dozen elections were held between the time
of the filing our case and the ultimate resolution of that
case. In the interim, more than 350 federal, State, and local
government officials were elected under regimes that were later
found by a court to be racially discriminatory, or which were
later abandoned by the jurisdiction.''\338\
---------------------------------------------------------------------------
\337\Ho Testimony at 12.
\338\Id.; see also id. Appx. A (spreadsheet listing elections that
were held during the course of litigation). Mr. Ho noted that this was
a conservative estimate because it did not include local elections. Id.
at 12 & n.43.
---------------------------------------------------------------------------
Sean Young of the ACLU of Georgia likewise stressed the
critical need for preclearance and explained that Section 2
litigation is not an adequate remedy on its own.\339\ For
example, he explained that after the Shelby County decision,
the Georgia General Assembly put a plan in place that resulted
in a decrease of African American board members from 67 percent
to 28 percent on the Sumter County Board of Education.\340\
Ultimately, a court struck down the plan as discriminatory
under Section 2 of the VRA. But Mr. Young noted that the
litigation lasted five years and cost ``hundreds if not
thousands of attorney hours, and thousands of dollars in expert
fees,'' and resulted in five years of ``discriminatory
elections taking place over and over'' during which ``African
American school children and their parents did not have their
interests adequately represented the board.''\341\
---------------------------------------------------------------------------
\339\See Subcommittee on Elections Report at 81 (citing testimony
of Sean Young).
\340\Id.
\341\Id.
---------------------------------------------------------------------------
In addition to the time consuming aspect of litigation,
other witnesses noted the extraordinarily high costs of
bringing such challenges, which could run up to several million
dollars.\342\ For example, witnesses who appeared before the
Subcommittee for Elections noted that costs for a Section 2
case can range from hundreds of thousands of dollars to $10
million.\343\ Moreover, one witness testified that these costs
are particularly burdensome for Native American tribes, which
have limited resources to spend on attorney's fees.\344\
---------------------------------------------------------------------------
\342\See Saenz History Statement.
\343\See Subcommittee on Elections Report at 79-83.
\344\Id. at 89.
---------------------------------------------------------------------------
Accordingly--as Congress concluded when it first adopted
the preclearance provision in the VRA--the Judiciary Committee
concludes that Congress should ``shift the advantage of time
and inertia'' away from States and subdivisions that have
persistently engaged in discriminatory practices.\345\
---------------------------------------------------------------------------
\345\Katzenbach, 383 U.S. at 328.
---------------------------------------------------------------------------
2. The Need to Update and Clarify Certain Temporary and
Permanent Provisions of the VRA
a. Coverage Formula
Section 3 of H.R. 4 contains a new coverage provision
intended to meet the requirements set out in Shelby County.
First, a State as a whole would be covered if during the past
25 years (1) 15 or more voting rights violations occurred
within the State; or (2) 10 or more voting rights violations
occurred within the State, at least one of which was committed
by the State itself. Second, a political subdivision would be
covered if three or more voting rights violations occurred in
that subdivision during the past 25 years. If those criteria
are met, a State or subdivision would remain covered for ten
years.
The legislation defines several types of events or
incidents as ``voting rights violations.'' The definition
includes: (A) a final judgment by a court that a State or
subdivision engaged in voting discrimination in violation of
the Fourteenth or Fifteenth Amendment; (B) a final judgment by
a court that a State or subdivision engaged in voting
discrimination in violation of Section 2 or Section 203 of the
VRA; (C) a final judgment by a court denying a State or
subdivision's lawsuit seeking to obtain preclearance (i.e., a
determination by a court that a proposed change in voting
procedures by a covered jurisdiction cannot go forward); (D) an
objection by DOJ blocking a covered jurisdiction from moving
forward with a proposed change in voting procedures, where the
objection has not been withdrawn or overturned by the final
judgment of a court; or (E) a settlement or consent decree that
results in a State or subdivision abandoning or altering a
proposed change to its voting procedures, where a challenge to
the proposed change contended that the change violated the VRA
or the Fourteenth or Fifteenth Amendment.
This coverage formula cures the primary defect identified
in Shelby County: it depends upon recent information, rather
than ``decades-old data and eradicated practices.''\346\ It
``creates a dynamic standard, based on each jurisdiction's
recent history, whereby geographic coverage will adjust by
moving the temporal window of triggering violations
forward.''\347\ To the extent this revised coverage formula
encompasses many of the same jurisdictions that were subject to
coverage under Section 4(b), that overlap is a result of those
jurisdictions' persistence in enacting discriminatory measures,
as documented above.\348\
---------------------------------------------------------------------------
\346\Shelby Cty., 570 U.S. at 551.
\347\Adegbile Testimony at 5.
\348\See Kousser Statement at 7-9; see also Sonia Gill, The Case
for Restoring and Updating the Voting Rights Act, Am. Civil Liberties
Union at 32 (2019).
---------------------------------------------------------------------------
The formula encompasses events or circumstances that
occurred up to 25 years prior, a ``lookback period'' that the
Judiciary Committee assesses is needed to identify (as
Katzenbach described) ``voting discrimination where it persists
on a pervasive scale.''\349\ As one practitioner observed:
---------------------------------------------------------------------------
\349\Katzenbach, 383 U.S. at 308.
[T]he 25-year lookback is an especially important
provision because a shorter period might not be a broad
enough window to indicate whether or not voting rights
violations have been pervasive under Katzenbach,
especially given the nature of elections, which are
cyclical and occur every two or four years. That is all
the more true because election changes tend to happen
around the census and redistricting, which occur once a
decade.\350\
---------------------------------------------------------------------------
\350\Adegbile Testimony at 25.
By aggregating repeated instances of voting discrimination
over a reasonably significant period of time, the coverage
formula more reliably identifies jurisdictions in need of
preclearance than would a formula based on relatively few
instances occurring in a more recent timeframe. As one scholar
put it, the formula ``seeks to identify recidivists for whom
more potent medicine may be necessary, based on facts rather
than assumptions.''\351\
---------------------------------------------------------------------------
\351\Levitt Testimony at 28.
---------------------------------------------------------------------------
Additionally, the types of findings or circumstances
constituting a ``voting rights violation'' for purposes of the
coverage formula are reasonably related to findings of
unconstitutional practices. Even assuming the Fifteenth
Amendment prohibits only voting practices that are
intentionally discriminatory, the Supreme Court has repeatedly
held that Congress's enforcement authority extends well beyond
the power to prohibit practices that the Amendment already
makes unlawful.\352\ As discussed earlier, in City of Rome, the
Court upheld a provision of Section 5 that allowed preclearance
to be granted only if a proposed voting change did not have a
discriminatory purpose and would not have a discriminatory
effect. The Court explained that Congress may ``prohibit state
action that, though itself not violative of [the Fifteenth
Amendment], perpetuates the effects of past
discrimination.''\353\ And the Court found ``no reason . . . to
disturb Congress' considered judgment that banning electoral
changes that have a discriminatory impact is an effective
method of preventing States from `undoing or defeating the
rights recently won by''' African American voters.\354\
---------------------------------------------------------------------------
\352\See, e.g., City of Rome, 446 U.S. at 173-75; Katzenbach, 383
U.S. at 325-27; see also Levitt Testimony at 23-25.
\353\City of Rome, 446 U.S. at 176.
\354\Id. at 178 (quoting Beer v. United States, 425 U.S. 130, 140
(1976)) (internal quotations and brackets omitted).
---------------------------------------------------------------------------
In this instance, Congress likewise is entitled to
deference in determining the indicia of voting discrimination
that may identify unconstitutional behavior by State and local
jurisdictions or that may identify other practices likely to
``undo[] or defeat'' recent progress. Provisions (A) and (B),
as described above, require a final court judgment that a State
or subdivision has engaged in the kind of voting discrimination
that Congress plainly has the authority to prohibit. Provision
(C) likewise requires a court finding that a proposed voting
change by a State or subdivision was put forward with a
discriminatory purpose or would have discriminatory impact.
Although provisions (D) and (E) do not require court findings,
they address situations where a State or subdivision may have
attempted to engage in an unlawful practice that is never
adjudicated by a court because DOJ blocked it from taking
effect, or because the parties settled. Accordingly, the
coverage formula ensures that the legislation is ``remedial''
under City of Boerne and its progeny.
Finally, the coverage formula ensures that facts justifying
coverage for a State or subdivision do not become stale over
time. Coverage is limited to a ten-year period, at the end of
which it is reassessed anew. Moreover, States and subdivisions
would retain the ``bailout'' mechanism built into the VRA. This
ensures that coverage is ``dynamic and tethered to a recent
history of serious voting rights violations.''\355\
---------------------------------------------------------------------------
\355\Adegbile Testimony at 27; see also Levitt Testimony at 29
(``The overall structure of preclearance in H.R. 4 not only builds in
reference to current conditions, it builds in breathing room.'').
---------------------------------------------------------------------------
b. Preclearance Based on Known Practices
Section 4 of H.R. 4 would also impose a preclearance
requirement for any jurisdiction seeking to engage in certain
practices that may be likely to result in discrimination
against minority groups. These ``covered practices'' include:
(1) creating or adding ``at-large'' seats for elected offices,
where the jurisdiction includes racial or language minority
populations above a certain percent threshold; (2)
redistricting that reduces the voting-age population of a
particular racial or language minority group by 3% of more,
where the jurisdiction includes racial or language minority
populations above a certain percent threshold; (3)
redistricting that increases the population of a racial or
language minority group by 10,000 or by 20% of the voting-age
population or more; (4) changing requirements for documentation
or other qualifications needed to cast a vote; (5) reducing or
altering the provision of multilingual voting materials; and
(6) reducing or moving voting locations, where the jurisdiction
includes racial or language minority populations above a
certain percent threshold.\356\
---------------------------------------------------------------------------
\356\Practice-Based Preclearance: Protecting Against Tactics
Persistently Used to Silence Minorities Communities' Votes 42-48
(2019), https://www.maldef.org/wp-content/uploads/2019/11/Practice-
Based-Preclearance-Report-Nov-2019-FINAL.pdf.
---------------------------------------------------------------------------
Importantly, this form of ``known practices coverage''
avoids engaging in the ``disparate treatment of States'' that
the Court in Shelby County found problematic under the
principle of equal sovereignty.\357\ It applies equally across
all jurisdictions, or across all jurisdictions with certain
percent thresholds of minority populations. Moreover, it does
not ban any of the covered practices outright--even though the
Supreme Court has held that Congress can in fact ban practices
that are thought to correlate with voting discrimination.\358\
Given the evidence documented and referenced in this Report,
the Judiciary Committee has ample grounds to conclude that each
of these practices creates at least a risk of unconstitutional
voting discrimination. As such, Congress has authority to
require an additional layer of scrutiny through preclearance
before such practices are permitted to go into effect.
---------------------------------------------------------------------------
\357\Shelby Cty., 570 U.S. at 544.
\358\See Morgan, 384 U.S. at 649-52; see also Oregon v. Mitchell,
400 U.S. 112, 150 (1970) (upholding nationwide ban on literacy tests).
---------------------------------------------------------------------------
c. Bail-in Preclearance
Section 2 of H.R. 4 would strengthen the ``bail-in''
provision in Section 3(c) of the VRA--which allows courts to
subject certain jurisdictions to preclearance--by permitting
courts to bail in jurisdictions where there have been
violations of the VRA and other federal prohibitions against
discrimination in voting, in addition to instances where there
have been violations of the Fourteenth or Fifteenth Amendment.
Because this provision would apply on a case-by-case basis with
individual judgments left to the courts, it is inherently
tailored to the facts on the ground in each jurisdiction.
d. Notice
Section 5 of H.R. 4 would require State and local
jurisdictions to publicize certain types of changes in their
voting practices and to provide other types of information that
may be relevant in assessing potential violations of the VRA.
As one scholar explained, this provision ``aims to provide
citizens with additional information about the electoral pinch
points where gathering the data about jeopardy to voting rights
has proved most problematic in the past: changes at the last
minute before an election, changes in the polling place
resources available for a given election, and changes in the
district lines determining the electorate for a given
election.''\359\ This type of reporting requirement entails a
relatively low burden on States and plainly bears a logical
relation to facilitating Congress's ability to enforce the law.
---------------------------------------------------------------------------
\359\Levitt Testimony at 31.
---------------------------------------------------------------------------
e. Federal Election Observers
Section 6 of H.R. 4 would add to the Attorney General's
authority to assign federal election observers under Section 8
of the VRA. It would permit DOJ to assign election observers in
instances where doing so is considered necessary to enforce
statutory provisions of the VRA (rather than solely to enforce
the Fourteenth and Fifteenth Amendments). It would also permit
DOJ to assign election observers for the purpose of enforcing
bilingual election requirements. Any burden imposed on States
by this provision is minimal and should not raise the types of
federalism and sovereignty concerns discussed in Shelby County.
f. Injunctive Relief
Lastly, Section 7 of H.R. 4 would empower private parties
(in addition to DOJ) to file lawsuits for injunctive relief if
a State or political subdivision is about to engage in a change
to voting practices that the plaintiff believes will violate
the VRA. Furthermore, Section 7 would require the court hearing
the case to grant relief to the plaintiff if the court
determines that the complaint has raised a ``serious question''
regarding the lawfulness of a change in voting practices, and
if the court determines that the balance of interests and
hardships favors the plaintiff.
This standard departs somewhat from the typical standard
for obtaining a preliminary injunction, under which a plaintiff
must show that he or she ``is likely to succeed on the merits''
and is likely to suffer ``irreparable harm'' absent an
injunction, and must demonstrate that the overall balance of
interests tilts in his or her favor.\360\ However, the Supreme
Court has repeatedly held that Congress may alter common-law
standards for seeking equitable relief so long as the
``alternative comports with constitutional due process,''
particularly in cases presenting issues of public
interest.\361\ As one scholar has explained, ``the cost and
difficulty of amassing evidence and expertise sufficient to
secure timely preliminary relief in a voting case often remains
greater than in most other contexts, the clock often remains
shorter, and the damage of a discriminatory election remains
irreparable.''\362\ As such, ``[i]t is rational . . . to
establish a standard for the granting of preliminary injunctive
relief designed to address these distinct characteristics in
election cases.''\363\ The Judiciary Committee assesses that
such a standard is not only ``rational'' but may be critical to
ensuring that elections are not conducted under voting
procedures that are ultimately held to be unlawful and
discriminatory.
---------------------------------------------------------------------------
\360\ See, e.g., Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008).
\361\ Levitt Testimony at 29 (citing, inter alia, Yakus v. United
States, 321 U.S. 414, 441-42 (1944); United States v. Oakland Cannabis
Buyers' Coop., 532 U.S. 483, 496-97 (2001); see also Porter v. Warner
Holding Co., 328 U.S. 395, 398 (1946).
\362\Levitt Testimony at 30; see also also Sonia Gill, The Case for
Restoring and Updating the Voting Rights Act, Am. Civil Liberties Union
at 38-49 (2019).
\363\ Levitt Testimony at 30.
---------------------------------------------------------------------------
3. Additional Congressional Authority Pursuant to the
Elections Clause
As the foregoing discussion demonstrates, Congress has
ample authority to adopt H.R. 4 under the Fourteenth and
Fifteenth Amendments to the Constitution. Additionally,
pursuant to the Elections Clause of the Constitution, Congress
has authority to pass the proposed legislation insofar as it
pertains to federal elections for members of Congress. The
Elections Clause provides: ``The Times, Places and Manner of
holding Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof; but the
Congress may at any time by Law make or alter such Regulations,
except as to the Places of choosing Senators.''\364\
---------------------------------------------------------------------------
\364\ U.S. Const., art. I Sec. 4 cl. 1.
---------------------------------------------------------------------------
The Supreme Court has explained that the Elections Clause
provides Congress ``general supervisory power over the whole
subject'' of federal elections.\365\ As one scholar explained,
Congress during Reconstruction relied on this authority in
enacting certain statutes governing federal elections, and the
Supreme Court upheld one such statute based on that
authority.\366\ Much more recently, in a case striking down a
State law that imposed term limits on members of the House, the
Court explained that the process for ``electing representatives
to the National Legislature'' arose as a ``new right'' created
by ``the Constitution itself.''\367\ As such, federalism
concerns that may typically arise under the Tenth Amendment
when Congress displaces the power of the States do not apply in
the federal elections context. Rather, the Elections Clause is
a relatively rare instance in which the Constitution delegated
power to the States to regulate elections and reserved power to
Congress to change those regulations.\368\
---------------------------------------------------------------------------
\365\ Ex parte Siebold, 100 U.S. 371, 387 (1879).
\366\ Congressional Authority Hearing (testimony of Franita Tolson,
Vice Dean for Faculty and Acad. Affairs and Professor of Law, Univ. of
S. Cal., Gould School of Law at 6) [hereinafter ``Tolson Testimony''].
\367\ U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 805 (1995).
\368\ See id. (structure of the Elections Clause ``is consistent
with our previous recognition that, in certain limited contexts, the
power to regulate the incidents of the federal system is not a reserved
power of the States, but rather is delegated by the Constitution'');
see also Tolson Testimony at 5 (``the Clause is impervious to the
federalism concerns that have constrained congressional action under
the Fourteenth and Fifteenth Amendments.'').
---------------------------------------------------------------------------
By its plain text, the Elections Clause does not require
that Congress act in furtherance of any particular purpose when
it regulates federal elections. Thus, Congress's authority is
not limited to remedying violations of other constitutional
provisions.\369\ For example, in a decision issued the same
month as Shelby County, the Supreme Court struck down an
Arizona law requiring voting registrants to produce evidence of
citizenship; the Court (in a decision authored by Justice
Scalia) held that the law was preempted by the National Voter
Registration Act (NVRA), which was enacted under Congress's
Elections Clause authority.\370\ The NVRA requires use of a
uniform federal form to register voters, and the Court
accordingly held that Arizona could not alter or add to the
paperwork required to register to vote. The Court observed:
---------------------------------------------------------------------------
\369\ See Tolson Testimony at 5.
\370\ Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1,
20 (2013).
The Clause's substantive scope is broad. ``Times,
Places, and Manner,'' we have written, are
``comprehensive words,'' which ``embrace authority to
provide a complete code for congressional elections'' .
. . . The power of Congress over the ``Times, Places
and Manner'' of congressional elections ``is paramount,
and may be exercised at any time, and to any extent
which it deems expedient . . . .''\371\
---------------------------------------------------------------------------
\371\ Id. at 8-9 (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932);
Siebold, 100 U.S. at 392 (emphasis added)).
Accordingly, the Elections Clause supplies authority for
Congress to enact this legislation, including its coverage
formula and preclearance mechanisms, insofar as the legislation
affects the ``Times, Places, and Manner'' for electing members
of Congress. For example, the Clause clearly allows Congress to
regulate the circumstances in which State or local governments
move polling places or change early voting practices for
elections to federal office. The case just described further
demonstrates that Congress may regulate the manner in which
States register voters for federal elections, including by
regulating identification requirements.
If the legislation were sustained only based on the
Elections Clause and not based on Congress's enforcement
authority under the Fourteenth or Fifteenth Amendments, then it
presumably could no longer apply with respect to purely State
or local elections. As one scholar noted, however, ``states and
local governments use many of the same practices in federal
elections as they do for state and local elections. For
example, voters are registered simultaneously in federal,
state, and local elections in most states. Voters also go to
the same polling place, at the same time, and vote on one
ballot for federal, state, and local elections in most
places.''\372\ Thus, as a practical matter, Congress's use of
its Elections Clause authority may still impact state and local
election practices.
---------------------------------------------------------------------------
\372\ Tolson Testimony at 10.
---------------------------------------------------------------------------
D. Representative Johnson's Argument Against H.R. 4 is Unavailing
During the Judiciary Committee markup of H.R. 4,
Representative Mike Johnson (R-LA) offered an amendment that
would have added a rule of construction providing that a
``voting rights violation'' shall only consist of intentional
discrimination based on race, color, or language-minority
status. He contended that the Fourteenth and Fifteenth
Amendments do not grant Congress the authority to adopt
measures beyond those that remedy intentional voting
discrimination. According to this view, the VRA's prohibition
on State and local voting laws that have a discriminatory
effect on minority voters is constitutionally suspect because
it is not ``congruent and proportional'' to the harm--despite
many voting rights cases alleging that a given voting law or
practice has a discriminatory effect often also present
evidence of a discriminatory purpose. Instead, Representative
Johnson contended that the VRA's prohibition on ``neutral''
voting laws with a discriminatory effect is a ``substantive''
act that goes beyond Congress's power ``to enforce'' the
guarantees of the Fourteenth and Fifteenth Amendment.
Representative Johnson's contention is unavailing. To begin
with, the Supreme Court has not expressly applied the
``congruence and proportionality test'' to the VRA, despite
being urged to do so by litigants in Shelby County, and has
only applied it to non-voting rights cases involving claims
under the Fourteenth Amendment.
In any event, the Supreme Court has long made clear that
Congress has broad constitutional authority to enact
legislation in order to remedy and root out the grave and
persistent constitutional harm of voting discrimination. The
Court has recognized that in response to litigation and other
efforts, those wishing to discriminate against minority voters
have relied on less overt methods of voting discrimination,
implementing voting laws and procedures aimed at diluting
minority voting strength. Indeed, the Supreme Court expressly
held in City of Rome that ``even if . . . the [Fifteenth]
Amendment prohibits only purposeful discrimination, the prior
decisions of this Court foreclose any argument that Congress
may not, pursuant to [its enforcement authority], outlaw voting
practices that are discriminatory in effect.''\373\ If Congress
has authority to outlaw any changes to voting practices that
have discriminatory effects, then it is equally within
Congress's enforcement power to make determinations about
preclearance coverage based upon whether a State or subdivision
has repeatedly enacted measures that are found to have unlawful
discriminatory effects. In addition, a definition of a ``voting
rights violation'' that is limited to a finding of intentional
discrimination could exclude a great many instances in which
courts find discriminatory effects but do not adjudicate--
because they do not need to--whether intentional discrimination
has occurred.
---------------------------------------------------------------------------
\373\ 446 U.S. at 173 (emphasis added).
---------------------------------------------------------------------------
Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress, the following hearings were used to consider
H.R. 4:
H.R. 1, the ``For the People Act of 2019,''
House Committee on the Judiciary, January 29, 2019
``History and Enforcement of the Voting
Rights Act of 1965,'' Subcommittee on the Constitution,
Civil Rights, and Civil Liberties, House Committee on
the Judiciary, March 12, 2019
``Enforcement of the Voting Rights Act in
the State of Texas,'' Subcommittee on the Constitution,
Civil Rights, and Civil Liberties, House Committee on
the Judiciary, May 3, 2019
``Continuing Challenges to the Voting Rights
Act Since Shelby County v. Holder,'' Subcommittee on
the Constitution, Civil Rights, and Civil Liberties,
House Committee on the Judiciary, June 25, 2019
``Discriminatory Barriers to Voting,''
Subcommittee on the Constitution, Civil Rights, and
Civil Liberties, House Committee on the Judiciary,
September 5, 2019
``Evidence of Current and Ongoing Voting
Discrimination,'' Subcommittee on the Constitution,
Civil Rights, and Civil Liberties, House Committee on
the Judiciary, September 10, 2019
``Congressional Authority to Protect Voting
Rights After Shelby County v. Holder,'' Subcommittee on
the Constitution, Civil Rights, and Civil Liberties,
House Committee on the Judiciary, September 24, 2019
``Legislative Proposals to Strengthen the
Voting Rights Act,'' Subcommittee on the Constitution,
Civil Rights, and Civil Liberties, House Committee on
the Judiciary, October 17, 2019
In addition, the Judiciary Committee considered the record
compiled over the course of several hearings before other
committees. Specifically, the Judiciary Committee considered
testimony and other evidence presented to the Subcommittee on
Elections of the Committee on House Administration at hearings
on voting rights and election administration in America, seven
field hearings in Alabama, Arizona, Florida, Georgia, North
Carolina, North Dakota, and Ohio, and a listening session in
Texas, as well as to the Subcommittee on Civil Rights and Civil
Liberties of the House Committee on Oversight and Reform in a
hearing on protecting the right to vote.
Committee Consideration
On October 23, 2019, the Judiciary Committee met in open
session and ordered the bill, H.R. 4, favorably reported as an
amendment in the nature of a substitute, by a rollcall vote of
19 to 6, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Judiciary Committee advises
that the following rollcall votes occurred during the Judiciary
Committee's consideration of H.R. 4:
1. An amendment by Mr. Johnson (LA) to add a rule of
construction providing that the act and any amendment made by
it that a voting rights violation shall consist only of
intentional discrimination that occurs on the basis of race,
color, or membership in a language minority group was defeated
by a rollcall vote of 6 to 18.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
2. Motion to report H.R. 4, as amended, favorably was
agreed to by a vote of 19 to 6.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Judiciary Committee
advises that the findings and recommendations of the Judiciary
Committee, based on oversight activities under clause 2(b)(1)
of rule X of the Rules of the House of Representatives, are
incorporated in the descriptive portions of this report.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Judiciary Committee has
requested but not received a formal cost estimate for this bill
from the Director of Congressional Budget Office. The Judiciary
Committee has requested but not received from the Director of
the Congressional Budget Office a formal statement as to
whether this bill contains any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
Duplication of Federal Programs
No provision of H.R. 4 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Judiciary Committee states that pursuant to clause
3(c)(4) of rule XIII of the Rules of the House of
Representatives, H.R. 4 would amend the Voting Rights Act of
1965 to establish a new coverage formula to determine which
states would be subject to the Act's preclearance requirements
and also expands other existing enforcement mechanisms in the
Act.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 4 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
Section 1. Short Title. Section 1 sets forth the short
title of the bill as the ``Voting Rights Advancement Act of
2019'' (``VRAA'').
Section 2. Violations Triggering Authority of Court to
Retain Jurisdiction. Section 2(a) amends Section 3(c) of the
Voting Rights Act of 1965 (the ``VRA''). Section 3(c) of the
VRA, known as the ``bail-in'' provision, currently allows
courts to retain jurisdiction to supervise further voting
changes in jurisdictions where the court has found violations
of the Fourteenth or Fifteenth Amendments. If a jurisdiction is
``bailed in,'' it must submit any changes to its voting
procedures for approval either to a U.S. district court or to
the Attorney General. Section 2(a) strikes ``violations of the
Fourteenth and Fifteenth amendment'' and inserts ``violations
of the Fourteenth or Fifteenth Amendments, violations of this
Act, or violations of any Federal law that prohibits
discrimination in voting on the basis of race, color, or
membership in a language minority group.'' By amending this
language, Section 2(a) strengthens the ``bail-in'' provision by
permitting courts to bail in jurisdictions where there have
been violations of the VRA and other federal prohibitions
against discrimination in voting, in addition to instances
where there have been violations of the Fourteenth or Fifteenth
Amendments.
Section 2(b) of the bill makes technical and conforming
amendments to Section 3(a) of the VRA.
Section 3. Criteria for Coverage of States and Political
Subdivisions. Section 3(a)(1) of the bill amends Section 4(b)
of the VRA by inserting a new coverage formula intended to meet
the requirements set out in Shelby County. Formerly, Section
4(b) provided the coverage formula for determining which
jurisdictions were subject to the Section 5 preclearance
requirement. The coverage formula was triggered if a state or
political subdivision, as of various points in the 1960s or
early 1970s, (1) employed prohibited ``tests or devices'' used
to limit voting and (2) had fewer than 50 percent voter
registration or turnout among its voting-age population. In
Shelby County, the Court held that Section 4(b) was
unconstitutional because it imposed current burdens that were
no longer responsive to the current conditions in the voting
districts in question.
Under the new coverage formula in Section 3(a)(1), ``a
State and all political subdivisions within the State'' would
be covered if, during the previous 25 calendar years, there
were (1) 15 or more voting rights violations or (2) ten or more
voting rights violations and at least one violation was
committed by the state itself, rather than a political
subdivision (e.g., county, town, school district). In addition,
Section 3(a)(1) provides that a political subdivision would be
covered if three or more voting rights violations occurred in
that subdivision during the past 25 years. Section 3(a)(1) also
specifies that the 25-year coverage period would be on a
rolling basis to keep up with current conditions and ends 10
years after a jurisdiction is covered.
Section 3(a)(1) provides that if a state or political
subdivision obtains declaratory judgment and the judgment
remains in effect, coverage under preclearance shall no longer
apply unless voting rights violations occur after the issuance
of a declaratory judgment.
Section 3(a)(1) defines several types of events or
incidents as ``voting rights violations.'' The definition
includes:
(1) a final judgment by a court that a state or
political subdivision engaged in voting discrimination
``on account of race, color, or membership in a
language minority group, in violation of the Fourteenth
or Fifteenth Amendment'';
(2) a final judgment by a court that a state or
political subdivision engaged in voting discrimination
in violation of Section 2 (prohibits any state or
political subdivision from enacting any ``voting
qualification or prerequisite to voting or standard,
practice, or procedure . . . which results in a denial
or abridgement of the right of any citizen of the
United States to vote on account of race or color,'' or
on account of ``member[ship] [in] a language minority
group'') or Section 203 (requires that language
minorities receive voting materials, assistance, and
information in the language of the applicable minority
group) of the VRA;
(3) a final judgment by a court denying a state or
political subdivision's lawsuit seeking to obtain
preclearance (i.e., a determination by a court that a
proposed change in voting procedures by a covered
jurisdiction cannot go forward);
(4) a denial of preclearance by the Attorney General
under Section 3(c) or Section 5 (sets out transparency
provisions that will make it more difficult for states
and subdivisions to hide problematic voting changes
before an election), which prevents a covered
jurisdiction from moving forward with a proposed change
in voting procedures; or
(5) a consent decree, settlement, or other agreement
which results in the alteration or abandonment of a
voting rights practice that had been challenged as
discriminatory.
Section 3(a)(1) sets forth the timing of determinations of
voting rights violations by the Attorney General and requires
that the determinations are made ``[a]s early as practicable
during each calendar year . . . including updating the list of
voting rights violations occurring in each State and political
subdivision for the previous calendar year.'' This section also
provides that the determination or certification of the
Attorney General shall be effective upon publication in the
Federal Register.
Section 3(a)(2) of the bill makes conforming amendments to
Section 4(a) of the VRA. Section 4(a) provides the mechanism by
which a covered jurisdiction can ``bail out'' of the
preclearance requirement. Essentially, a jurisdiction must
demonstrate to a court that it has not engaged in
discriminatory practices and has complied with the preclearance
process in the preceding 10 years.
Section 3(b) of the bill amends Section 4(a)(1) by striking
``race or color,'' and inserting ``race, color, or in
contravention of the guarantees of subsection (f)(2),'' which
protects the voting rights of a member of a language minority.
Section 4. Determination of States and Political
Subdivisions Subject to Preclearance for Covered Practices.
Section 4 of the bill would add after Section 4 of the VRA a
new ``Section 4A'' that would provide a new ``practice-based
preclearance'' formula for known practices that would apply
nationwide and cover voting law changes that have historically
been used to discriminate against voters.
New Section 4A(a)(1) provides that each state and political
subdivision must identify all new laws, regulations, or
policies that include voting qualifications or prerequisites to
voting covered by subsection (b), and ensure that no covered
practice is implemented unless it has been precleared.
New Section 4A(a)(2) provides that the Attorney General, in
consultation with the Director of the Bureau of Census and the
heads of other governmental offices, must determine as early as
possible each calendar year the voting-age populations and
characteristics of those populations, and publish a list of the
states and subdivisions to which a voting-age population
characteristic described in the ``Covered Practices'' section.
Section 4 of the bill sets forth that a ``determination or
certification of the Attorney General under this paragraph
shall be effective upon publication in the Federal Register.''
New Section 4A(b) defines the following as ``covered
practices'' and includes additional protections for Native
American voters:
(1) any change to the method of election to (a) add
seats elected at-large or (b) convert one or more seats
elected from a single-member district to one or more
at-large seats or seats from a multi-member district in
a state of subdivision where ``2 or more racial groups
or language minority groups each represent 20 percent
or more of the political subdivision's voting-age
population'' or ``a single language minority group
represents 20 percent or more of the voting-age
population on Indian lands located in whole or in part
in the political subdivision'';
(2) any change or series of changes within a year to
the boundaries of jurisdictions that reduces by 3 or
more percentage points the proportion of the
jurisdiction's voting-age population that is comprised
of members of a single racial group or language
minority group in a state or subdivision where ``2 or
more racial groups or language minority groups each
represent 20 percent or more of the political
subdivision's voting-age population'' or ``a single
language minority group represents 20 percent or more
of the voting-age population on Indian lands located in
whole or in part in the political subdivision'';
(3) any change to redistricting in a state or
subdivision where any racial group or language minority
group experiences a population increase over the
preceding decade of at least 10,000 or 20 percent of
voting-age population of the state or subdivision;
(4) any change to requirements for documentation or
proof of identity to vote such that the requirements
will exceed or be more stringent than those set out in
Section 303(b) of the Help America Vote Act of 2002 or
such requirements under state law on the day before the
date of enactment of the VRAA;
(5) any change that reduces multilingual voting
materials or alters the manner in which such materials
are provided or distributed, where no similar reduction
or alteration occurs in materials provided in English;
or
(6) any change that reduces, consolidates, or
relocates voting locations, including early, absentee,
and election-day voting locations: (a) in 1 or more
census tracts wherein 2 or more language minority
groups or racial groups represent 20 percent or more of
the voting-age population of the political subdivision;
or (b) on Indian lands wherein at least 20 percent of
the voting-age population belongs to a single language
minority group.
New Section 4A(c)(1) sets forth a preclearance process for
the covered practices described above. A state or political
subdivision may institute an action in the United States
District Court for the District of Columbia for a declaratory
judgment that the covered practice ``neither has the purpose
nor will have the effect of denying or abridging the right to
vote on account of race, color, or membership in a language
minority group.'' The covered practice cannot be implemented
unless and until the court enters such judgment. A state or
subdivision can forego pursuing the described court action and
implement the covered practice if the Attorney General has not
interposed an objection within 60 days. Section 4A(c)(1)
provides that the Attorney General or any aggrieved citizen may
file an action in a U.S. district court to compel any state or
political subdivision to satisfy the preclearance requirements.
The court must provide injunctive relief as a remedy unless the
``voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting'' is not a
covered practice or the State or political subdivision has
complied with the preclearance requirements.
New Section 4A(c)(2) provides that any covered practice
defined in New Section 4A(b) that has the purpose of effect of
diminishing the ability of citizens to elect their preferred
candidates of choice on account of race, color, or language
minority status is considered a denial or abridgement of the
right to vote for purposes of this practice-based preclearance
provision.
New Section 4A(c)(3) defines ``purpose'' as used in Section
4A to include any discriminatory purpose.
New Section 4A(d) grants authority to the Attorney General
or a private party to file a civil action in federal district
court to compel any state or locality to comply with this
section. Such actions are to be heard before a three-judge
panel. This subsection requires such a court to enjoin the
challenged voting practice unless the challenged practice is
not a covered practice the jurisdiction has precleared the
challenged practice.
New Section 4A(e) specifies that the calculation of the
population of a racial or language minority group must be
carried out using the methodology outlined in regulatory
guidance. That regulatory guidance governing redistricting
under Section 5 of the VRA.
New Section 4A(f) provides that Census Bureau data, whether
estimates or actual enumerations, cannot be subject to
challenge or review in court for purposes of any determinations
under this section.
New Section 4A(g) defines ``multilingual voting materials''
as used in this section to mean ``registration or voting
notices, forms, instructions, assistance, or other materials or
information relating to the electoral process, including
ballots, provided in the language or languages of one or more
language minority groups.''
Section 5. Promoting Transparency to Enforce the Voting
Rights Act. Section 5 adds after Section 5 of the VRA a new
Section 6. New Section 6 imposes new notice and disclosure by
states and political subdivisions for three voting-related
matters, including: (1) late breaking voting changes involving
federal elections (e.g., changes in voting standards or
procedures enacted 180 days before a federal election); (2)
polling resources involving federal elections (e.g.,
information concerning precincts/polling places, number of
voting age and registered voters, voting machines, and poll
workers); and (3) redistricting, reapportionment, and other
changes in voting districts involving federal, state, and local
elections. Section 5 of the bill also provides that public
notice for each of these matters must be in a format that is
accessible to voters with disabilities such as those who have
low vision or who are blind.
Section 6. Authority to Assign Observers. Section 6 of the
bill amends Section 8 of the VRA. Section 8 of the VRA
currently allows DOJ to assign federal election observers to
covered jurisdictions where the Attorney General has received
``meritorious complaints'' from residents, local officials, or
organizations that voting violations are likely to occur, or
where the Attorney General determines that assignment of
observers is ``otherwise necessary'' to enforce the Fourteenth
or Fifteenth Amendment. These observers must be authorized to
enter polling places to observe whether people who are entitled
to vote are being permitted to do so, and to observe the
processes in which votes are tabulated. Section 6 would give
the Attorney General authority to assign election observers in
instances where doing so is considered necessary to enforce
statutory provisions of the VRA rather than solely to enforce
the Fourteenth and Fifteenth Amendments. It would also permit
election observers to be assigned for the purpose of enforcing
bilingual election requirements.
Section 7. Preliminary Injunctive Relief. Section 7 of the
bill amends Section 12(d) of the VRA. Section 12(d) currently
provides that, ``Whenever any person has engaged or there are
reasonable grounds to believe that any person is about to
engage in any act or practice prohibited by section 2, 3, 4, 5,
7, 10, 11, or subsection (b) of this section, the Attorney
General may institute for the United States, or in the name of
the United States, an action for preventive relief, including
an application for a temporary or permanent injunction,
restraining order, or other order, and including an order
directed to the State and State or local election officials to
require them (1) to permit persons listed under this Act to
vote and (2) to count such votes.''
Section 7 clarifies the scope and the persons who are
authorized to seek injunctive relief. Section 7 strikes
``section 2, 3, 4, 5, 7, 10, 11, or subsection (b) of this
section'' and inserts ``the Fourteenth or Fifteenth Amendment,
this Act, or any Federal voting rights law that prohibits
discrimination on the basis of race, color, or membership in a
language minority group.'' Section 7 also strikes ``the
Attorney General may institute for the United States, or in the
name of the United States,'' and inserts ``the aggrieved person
or (in the name of the United States) the Attorney General may
institute'' lawsuits for injunctive relief, thereby empowering
private parties to file lawsuits for injunctive relief if a
state or political subdivision is about to engage in a change
to voting practices that the complainant believes will violate
the VRA. Furthermore, Section 7 would require the court to
grant relief to the plaintiff if the court determines that the
complaint has raised a ``serious question'' regarding the
lawfulness of a change in voting practices, and if the court
determines that the balance of interests and hardships favors
the plaintiff. Typically, a plaintiff seeking a preliminary
injunction must show that plaintiff ``is likely to succeed on
the merits''; the plaintiff must also typically show a
likelihood of suffering ``irreparable harm'' absent an
injunction, and must demonstrate that the overall balance of
interests tilts in the plaintiff's favor. This provision would
therefore bolster the ability of private parties to obtain
relief in court on an expedited basis, and without having to
demonstrate conclusively that a change in voting procedures
will violate the VRA.
Section 8. Definitions. Section 8 of the bill amends Title
I of the VRA by clarifying several definitions related to the
Native American voting population. The defined terms include
``Indian,'' ``Indian Lands,'' ``Indian Tribe,'' ``Tribal
Government,'' and ``Voting-Age Population,'' which are referred
to in amended Section 4 of the VRA.
Section 9. Attorneys' Fees. Section 9 of the bill adds at
the end of Section 14(c) of the VRA, which provides definitions
for the Act's attorneys' fee provision, a definition for
``prevailing party'' to mean ``a party to an action that
receives at least some of the benefit sought by such action,
states a colorable claim, and can establish that the action was
a significant cause of a change to the status quo.''
Section 10. Other Technical and Confirming Amendments.
Section 10 of the bill makes technical and conforming
amendments to Sections 3(c), 4(f), and 5 of the VRA.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, H.R. 4, as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
VOTING RIGHTS ACT OF 1965
* * * * * * *
TITLE I--VOTING RIGHTS
* * * * * * *
Sec. 3. (a) Whenever the Attorney General or an aggrieved
person institutes a proceeding under any statute to enforce the
voting guarantees of the fourteenth or fifteenth amendment in
any State or political subdivision the court shall authorize
the appointment of Federal observers by the United States Civil
Service Commission [in accordance with section 6] to serve for
such period of time and for such political subdivisions as the
court shall determine is appropriate to enforce the voting
guarantees of the fourteenth or fifteenth amendment (1) as part
of any interlocutory order if the court determines that the
appointment of such observers is necessary to enforce such
voting guarantees or (2) as part of any final judgment if the
court finds that [violations of the fourteenth or fifteenth
amendment] violations of the 14th or 15th Amendment, violations
of this Act, or violations of any Federal law that prohibits
discrimination in voting on the basis of race, color, or
membership in a language minority group, justifying equitable
relief have occurred in such State or subdivision: Provided,
That the court need not authorize the appointment of observers
if any incidents of denial or abridgement of the right to vote
on account of race or color, or in contravention of the
guarantees set forth in section 4(f)(2), (1) have been few in
number and have been promptly and effectively corrected by
State or local action, (2) the continuing effect of such
incidents has been eliminated, and (3) there is no reasonable
probability of their recurrence in the future.
(b) If in a proceeding instituted by the Attorney General or
an aggrieved person under any statute to enforce the voting
guarantees of the fourteenth or fifteenth amendment in any
State or political subdivision the court finds that a test or
device has been used for the purpose or with the effect of
denying or abridging the right of any citizen of the United
States to vote on account of race or color, or in contravention
of the guarantees set forth in section 4(f)(2), it shall
suspend the use of tests and devices in such State or political
subdivisions as the court shall determine is appropriate and
for such period as it deems necessary.
(c) If in [any proceeding instituted by the Attorney General
or an aggrieved person under any statute to enforce] any action
under any statute in which a party (including the Attorney
General) seeks to enforce the voting guarantees of the
fourteenth or fifteenth amendment in any State or political
subdivision the court finds that [violations of the fourteenth
or fifteenth amendment] violations of the 14th or 15th
Amendment, violations of this Act, or violations of any Federal
law that prohibits discrimination in voting on the basis of
race, color, or membership in a language minority group,
justifying equitable relief have occurred within the territory
of such State or political subdivision, the court, in addition
to such relief as it may grant, shall retain jurisdiction for
such period as it may deem appropriate and during such period
no voting qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting different from
that in force or effect [at the time the proceeding was
commenced] at the time the action was commenced shall be
enforced unless and until the court finds that such
qualification, prerequisite, standard, practice, or procedure
does not have the purpose and will not have the effect of
denying or abridging the right to vote on account of race or
color, or in contravention of the guarantees set forth in
section 4(f)(2): Provided, That such qualification,
prerequisite, standard, practice, or procedure may be enforced
if the qualification, prerequisite, standard, practice, or
procedure has been submitted by the chief legal officer or
other appropriate official of such State or subdivision to the
Attorney General and the Attorney General has not interposed an
objection within sixty days after such submission, except that
neither the court's finding nor the Attorney General's failure
to object shall bar a subsequent action to enjoin enforcement
of such qualification, prerequisite, standard, practice, or
procedure.
Sec. 4. (a)(1) To assure that the right of citizens of the
United States to vote is not denied or abridged on account of
[race or color,] race, color, or in contravention of the
guarantees of subsection (f)(2), no citizen shall be denied the
right to vote in any Federal, State, or local election because
of his failure to comply with any test or device in [any State
with respect to which the determinations have been made under
the first two sentences of subsection (b) or in any political
subdivision of such State (as such subdivision existed on the
date such determinations were made with respect to such State),
though such determinations were not made with respect to such
subdivision as a separate unit, or in any political subdivision
with respect to which such determinations have been made as a
separate unit, unless] any State to which this subsection
applies during a calendar year pursuant to determinations made
under subsection (b), or in any political subdivision of such
State (as such subdivision existed on the date such
determinations were made with respect to such State), though
such determinations were not made with respect to such
subdivision as a separate unit, or in any political subdivision
with respect to which this subsection applies during a calendar
year pursuant to determinations made with respect to such
subdivision as a separate unit under subsection (b), unless the
United States District Court for the District of Columbia
issues a declaratory judgment under this section. [No citizen
shall be denied the right to vote in any Federal, State, or
local election because of his failure to comply with any test
or device in any State with respect to which the determinations
have been made under the third sentence of subsection (b) of
this section or in any political subdivision of such State (as
such subdivision existed on the date such determinations were
made with respect to such State), though such determinations
were not made with respect to such subdivision as a separate
unit or in any political subdivision with respect to which such
determinations have been made as a separate unit, unless the
United States District Court for the District of Columbia
issues a declaratory judgment under this section.] A
declaratory judgment under this section shall issue only if
such court determines that during the ten years preceding the
filing of the action, and during the pendency of such action--
(A) no such test or device has been used within such
State or political subdivision for the purpose or with
the effect of denying or abridging the right to vote on
account of race or color or [(in the case of a State or
subdivision seeking a declaratory judgment under the
second sentence of this subsection)] in contravention
of the guarantees of subsection (f)(2);
(B) no final judgment of any court of the United
States, other than the denial of declaratory judgment
under this section, has determined that denials or
abridgements of the right to vote on account of race or
color have occurred anywhere in the territory of such
State or political subdivision or [(in the case of a
State or subdivision seeking a declaratory judgment
under the second sentence of this subsection)] that
denials or abridgements of the right to vote in
contravention of the guarantees of subsection (f)(2)
have occurred anywhere in the territory of such State
or subdivision and no consent decree, settlement, or
agreement has been entered into resulting in any
abandonment of a voting practice challenged on such
grounds; and no declaratory judgment under this section
shall be entered during the pendency of an action
commenced before the filing of an action under this
section and alleging such denials or abridgements of
the right to vote;
(C) no Federal examiners or observers under this Act
have been assigned to such State or political
subdivision;
(D) such State or political subdivision and all
governmental units within its territory have complied
with section 5 of this Act, including compliance with
the requirement that no change covered by section 5 has
been enforced without preclearance under section 5, and
have repealed all changes covered by section 5 to which
the Attorney General has successfully objected or as to
which the United States District Court for the District
of Columbia has denied a declaratory judgment;
(E) the Attorney General has not interposed any
objection (that has not been overturned by a final
judgment of a court) and no declaratory judgment has
been denied under section 5, with respect to any
submission by or on behalf of the plaintiff or any
governmental unit within its territory under section 5,
and no such submissions or declaratory judgment actions
are pending; and
(F) such State or political subdivision and all
governmental units within its territory--
(i) have eliminated voting procedures and
methods of election which inhibit or dilute
equal access to the electoral process;
(ii) have engaged in constructive efforts to
eliminate intimidation and harassment of
persons exercising rights protected under this
Act; and
(iii) have engaged in other constructive
efforts, such as expanded opportunity for
convenient registration and voting for every
person of voting age and the appointment of
minority persons as election officials
throughout the jurisdiction and at all stages
of the election and registration process.
(2) To assist the court in determining whether to issue a
declaratory judgment under this subsection, the plaintiff shall
present evidence of minority participation, including evidence
of the levels of minority group registration and voting,
changes in such levels over time, and disparities between
minority-group and non-minority-group participation.
(3) No declaratory judgment shall issue under this subsection
with respect to such State or political subdivision if such
plaintiff and governmental units within its territory have,
during the period beginning ten years before the date the
judgment is issued, engaged in violations of any provision of
the Constitution or laws of the United States or any State or
political subdivision with respect to discrimination in voting
on account of race or color or [(in the case of a State or
subdivision seeking a declaratory judgment under the second
sentence of this subsection)] in contravention of the
guarantees of subsection (f)(2) unless the plaintiff
establishes that any such violations were trivial, were
promptly corrected, and were not repeated.
(4) The State or political subdivision bringing such action
shall publicize the intended commencement and any proposed
settlement of such action in the media serving such State or
political subdivision and in appropriate United States post
offices. Any aggrieved party may as of right intervene at any
stage in such action.
(5) An action pursuant to this subsection shall be heard and
determined by a court of three judges in accordance with the
provisions of section 2284 of title 28 of the United States
Code and any appeal shall lie to the Supreme Court. The court
shall retain jurisdiction of any action pursuant to this
subsection for ten years after judgment and shall reopen the
action upon motion of the Attorney General or any aggrieved
person alleging that conduct has occurred which, had that
conduct occurred during the ten-year periods referred to in
this subsection, would have precluded the issuance of a
declaratory judgment under this subsection. The court, upon
such reopening, shall vacate the declaratory judgment issued
under this section if, after the issuance of such declaratory
judgment, a final judgment against the State or subdivision
with respect to which such declaratory judgment was issued, or
against any governmental unit within that State or subdivision,
determines that denials or abridgements of the right to vote on
account of race or color have occurred anywhere in the
territory of such State or political subdivision or [(in the
case of a State or subdivision which sought a declaratory
judgment under the second sentence of this subsection)] that
denials or abridgements of the right to vote in contravention
of the guarantees of subsection (f)(2) have occurred anywhere
in the territory of such State or subdivision, or if, after the
issuance of such declaratory judgment a consent decree,
settlement, or agreement has been entered into resulting in any
abandonment of a voting practice challenged on such grounds.
(6) If, after two years from the date of the filing of a
declaratory judgment under this subsection, no date has been
set for a hearing in such action, and that delay has not been
the result of an avoidable delay on the part of counsel for any
party, the chief judge of the United States District Court for
the District of Columbia may request the Judicial Council for
the Circuit of the District of Columbia to provide the
necessary judicial resources to expedite any action filed under
this section. If such resources are unavailable within the
circuit, the chief judge shall file a certificate of necessity
in accordance with section 292(d) of title 28 of the United
States Code.
[(7) The Congress shall reconsider the provisions of this
section at the end of the fifteen-year period following the
effective date of the amendments made by the Fannie Lou Hamer,
Rosa Parks, Coretta Scott King, Cesar E. Chavez, Barbara C.
Jordan, William C. Velasquez, and Dr. Hector P. Garcia Voting
Rights Act Reauthorization and Amendments Act of 2006.
[(8) The provisions of this section shall expire at the end
of the twenty-five-year period following the effective date of
the amendments made by the Fannie Lou Hamer, Rosa Parks,
Coretta Scott King, Cesar E. Chavez, Barbara C. Jordan, William
C. Velasquez, and Dr. Hector P. Garcia Voting Rights Act
Reauthorization and Amendments Act of 2006.]
[(9)] (7) Nothing in this section shall prohibit the Attorney
General from consenting to an entry of judgment if based upon a
showing of objective and compelling evidence by the plaintiff,
and upon investigation, he is satisfied that the State or
political subdivision has complied with the requirements of
section 4(a)(1). Any aggrieved party may as of right intervene
at any stage in such action.
[(b) The provisions of subsection (a) shall apply in any
State or in any political subdivision of a State which (1) the
Attorney General determines maintained on November 1, 1964, any
test or device, and with respect to which (2) the Director of
the Census determines that less than 50 per centum of the
persons of voting age residing therein were registered on
November 1, 1964, or that less than 50 per centum of such
persons voted in the presidential election of November 1964. On
and after August 6, 1970, in addition to any State or political
subdivision of a State determined to be subject to subsection
(a) pursuant to the previous sentence, the provisions of
subsection (a) shall apply in any State or any political
subdivision of a State which (i) the Attorney General
determines maintained on November 1, 1968, any test or device,
and with respect to which (ii) the Director of the Census
determines that less than 50 per centum of the persons of
voting age residing therein were registered on November 1,
1968, or that less than 50 per centum of such persons voted in
the presidential election of November 1968. On and after August
6, 1975, in addition to any State or political subdivision of a
State determined to be subject to subsection (a) pursuant to
the previous two sentences, the provisions of subsection (a)
shall apply in any State or any political subdivision of a
State which (i) the Attorney General determines maintained on
November 1, 1972, any test or device, and with respect to which
(ii) the Director of the Census determines that less than 50
per centum of the citizens of voting age were registered on
November 1, 1972, or that less than 50 per centum of such
persons voted in the Presidential election of November 1972. A
determination or certification of the Attorney General or of
the Director of the Census under this section or under section
8 or section 13 shall not be reviewable in any court and shall
be effective upon publication in the Federal Register.]
(b) Determination of States and Political Subdivisions
Subject to Requirements.--
(1) Existence of voting rights violations during
previous 25 years.--
(A) Statewide application.--Subsection (a)
applies with respect to a State and all
political subdivisions within the State during
a calendar year if--
(i) 15 or more voting rights
violations occurred in the State during
the previous 25 calendar years; or
(ii) 10 or more voting rights
violations occurred in the State during
the previous 25 calendar years, at
least one of which was committed by the
State itself (as opposed to a political
subdivision within the State).
(B) Application to specific political
subdivisions.--Subsection (a) applies with
respect to a political subdivision as a
separate unit during a calendar year if 3 or
more voting rights violations occurred in the
subdivision during the previous 25 calendar
years.
(2) Period of application.--
(A) In general.--Except as provided in
subparagraph (B), if, pursuant to paragraph
(1), subsection (a) applies with respect to a
State or political subdivision during a
calendar year, subsection (a) shall apply with
respect to such State or political subdivision
for the period--
(i) that begins on January 1 of the
year in which subsection (a) applies;
and
(ii) that ends on the date which is
10 years after the date described in
clause (i).
(B) No further application after declaratory
judgment.--
(i) States.--If a State obtains a
declaratory judgment under subsection
(a), and the judgment remains in
effect, subsection (a) shall no longer
apply to such State pursuant to
paragraph (1)(A) unless, after the
issuance of the declaratory judgment,
paragraph (1)(A) applies to the State
solely on the basis of voting rights
violations occurring after the issuance
of the declaratory judgment.
(ii) Political subdivisions.--If a
political subdivision obtains a
declaratory judgment under subsection
(a), and the judgment remains in
effect, subsection (a) shall no longer
apply to such political subdivision
pursuant to paragraph (1), including
pursuant to paragraph (1)(A) (relating
to the statewide application of
subsection (a)), unless, after the
issuance of the declaratory judgment,
paragraph (1)(B) applies to the
political subdivision solely on the
basis of voting rights violations
occurring after the issuance of the
declaratory judgment.
(3) Determination of voting rights violation.--For
purposes of paragraph (1), a voting rights violation
occurred in a State or political subdivision if any of
the following applies:
(A) Final judgment; violation of the 14th or
15th amendment.--In a final judgment (which has
not been reversed on appeal), any court of the
United States has determined that a denial or
abridgement of the right of any citizen of the
United States to vote on account of race,
color, or membership in a language minority
group, in violation of the 14th or 15th
Amendment, occurred anywhere within the State
or subdivision.
(B) Final judgment; violations of this act.--
In a final judgment (which has not been
reversed on appeal), any court of the United
States has determined that a voting
qualification or prerequisite to voting or
standard, practice, or procedure with respect
to voting was imposed or applied or would have
been imposed or applied anywhere within the
State or subdivision in a manner that resulted
or would have resulted in a denial or
abridgement of the right of any citizen of the
United States to vote on account of race,
color, or membership in a language minority
group, in violation of subsection (e) or (f),
or section 2 or 203 of this Act.
(C) Final judgment; denial of declaratory
judgment.--In a final judgment (which has not
been reversed on appeal), any court of the
United States has denied the request of the
State or subdivision for a declaratory judgment
under section 3(c) or section 5, and thereby
prevented a voting qualification or
prerequisite to voting or standard, practice,
or procedure with respect to voting from being
enforced anywhere within the State or
subdivision.
(D) Objection by the attorney general.--The
Attorney General has interposed an objection
under section 3(c) or section 5 (and the
objection has not been overturned by a final
judgment of a court or withdrawn by the
Attorney General), and thereby prevented a
voting qualification or prerequisite to voting
or standard, practice, or procedure with
respect to voting from being enforced anywhere
within the State or subdivision.
(E) Consent decree, settlement, or other
agreement.--A consent decree, settlement, or
other agreement was entered into, which
resulted in the alteration or abandonment of a
voting practice anywhere in the territory of
such State that was challenged on the ground
that the practice denied or abridged the right
of any citizen of the United States to vote on
account of race, color, or membership in a
language minority group in violation of
subsection (e) or (f), or section 2 or 203 of
this Act, or the 14th or 15th Amendment.
(4) Timing of determinations.--
(A) Determinations of voting rights
violations.--As early as practicable during
each calendar year, the Attorney General shall
make the determinations required by this
subsection, including updating the list of
voting rights violations occurring in each
State and political subdivision for the
previous calendar year.
(B) Effective upon publication in federal
register.--A determination or certification of
the Attorney General under this section or
under section 8 or 13 shall be effective upon
publication in the Federal Register.
(c) The phrase ``test or device'' shall mean any requirement
that a person as a prerequisite for voting or registration for
voting (1) demonstrate the ability to read, write, understand,
or interpret any matter, (2) demonstrate any educational
achievement or his knowledge of any particular subject, (3)
possess good moral character, or (4) prove his qualifications
by the voucher of registered voters or members of any other
class.
(d) For purposes of this section no State or political
subdivision shall be determined to have engaged in the use of
tests or devices for the purpose or with the effect of denying
or abridging the right to vote on account of race or color, or
in contravention of the guarantees set forth in section 4(f)(2)
if (1) incidents of such use have been few in number and have
been promptly and effectively corrected by State or local
action, (2) the continuing effect of such incidents has been
eliminated, and (3) there is no reasonable probability of their
recurrence in the future.
(e)(1) Congress hereby declares that to secure the rights
under the fourteenth amendment of persons educated in American-
flag schools in which the predominant classroom language was
other than English, it is necessary to prohibit the States from
conditioning the right to vote of such persons on ability to
read, write, understand, or interpret any matter in the English
language.
(2) No person who demonstrates that he has successfully
completed the sixth primary grade in a public school in, or a
private school accredited by, any State or territory, the
District of Columbia, or the Commonwealth of Puerto Rico in
which the predominant classroom language was other than
English, shall be denied the right to vote in any Federal,
State, or local election because of his inability to read,
write, understand, or interpret any matter in the English
language, except that in States in which State law provides
that a different level of education is presumptive of literacy,
he shall demonstrate that he has successfully completed an
equivalent level of education in a public school in, or a
private school accredited by, any State of territory, the
District of Columbia, or the Commonwealth of Puerto Rico in
which the predominant classroom language was other than
English.
(f)(1) The Congress finds that voting discrimination against
citizens of language minorities is pervasive and national in
scope. [Such minority citizens are from environments in which
the dominant language is other than English.] In addition they
have been denied equal educational opportunities by State and
local governments, resulting in severe disabilities and
continuing illiteracy in the English language. The Congress
further finds that, where State and local officials conduct
elections only in English, language minority citizens are
excluded from participating in the electoral process. In many
areas of the country, this exclusion is aggravated by acts of
physical, economic, and political intimidation. The Congress
declares that, in order to enforce the guarantees of the
fourteenth and fifteenth amendments to the United States
Constitution, it is necessary to eliminate such discrimination
by prohibiting English-only elections, and by prescribing other
remedial devices.
(2) No voting qualification or prerequisite to voting, or
standard, practice, or procedure shall be imposed or applied by
any State or political subdivision to deny or abridge the right
of any citizen of the United States to vote because he is a
member of a language minority group.
[(3) In addition to the meaning given the term under section
4(c), the term ``test or device'' shall also mean any practice
or requirement by which any State or political subdivision
provided any registration or voting notices, forms,
instructions, assistance, or other materials or information
relating to the electoral process, including ballots, only in
the English language, where the Director of the Census
determines that more than five per centum of the citizens of
voting age residing in such State or political subdivision are
members of a single language minority. With respect to section
4(b), the term ``test or device'', as defined in this
subsection, shall be employed only in making the determinations
under the third sentence of that subsection.
[(4) Whenever any State or political subdivision subject to
the prohibitions of the second sentence of section 4(a)
provides any registration or voting notices, forms,
instructions, assistance, or other materials or information
relating to the electoral process, including ballots, it shall
provide them in the language of the applicable language
minority group as well as in the English language: Provided,
That where the language of the applicable minority group is
oral or unwritten or in the case of Alaskan Natives and
American Indians, if the predominate language is historically
unwritten, the State or political subdivision is only required
to furnish oral instructions, assistance, or other information
relating to registration and voting.]
SEC. 4A. DETERMINATION OF STATES AND POLITICAL SUBDIVISIONS SUBJECT TO
PRECLEARANCE FOR COVERED PRACTICES.
(a) Practice-Based Preclearance.--
(1) In general.--Each State and each political
subdivision shall--
(A) identify any newly enacted or adopted
law, regulation, or policy that includes a
voting qualification or prerequisite to voting,
or a standard, practice, or procedure with
respect to voting, that is a covered practice
described in subsection (b); and
(B) ensure that no such covered practice is
implemented unless or until the State or
political subdivision, as the case may be,
complies with subsection (c).
(2) Determinations of characteristics of voting-age
population.--
(A) In general.--As early as practicable
during each calendar year, the Attorney
General, in consultation with the Director of
the Bureau of the Census and the heads of other
relevant offices of the government, shall make
the determinations required by this section
regarding voting-age populations and the
characteristics of such populations, and shall
publish a list of the States and political
subdivisions to which a voting-age population
characteristic described in subsection (b)
applies.
(B) Publication in the federal register.--A
determination or certification of the Attorney
General under this paragraph shall be effective
upon publication in the Federal Register.
(b) Covered Practices.--To assure that the right of citizens
of the United States to vote is not denied or abridged on
account of race, color, or membership in a language minority
group as a result of the implementation of certain
qualifications or prerequisites to voting, or standards,
practices, or procedures with respect to voting newly adopted
in a State or political subdivision, the following shall be
covered practices subject to the requirements described in
subsection (a):
(1) Changes to method of election.--Any change to the
method of election--
(A) to add seats elected at-large in a State
or political subdivision where--
(i) 2 or more racial groups or
language minority groups each represent
20 percent or more of the political
subdivision's voting-age population; or
(ii) a single language minority group
represents 20 percent or more of the
voting-age population on Indian lands
located in whole or in part in the
political subdivision; or
(B) to convert one or more seats elected from
a single-member district to one or more at-
large seats or seats from a multi-member
district in a State or political subdivision
where--
(i) 2 or more racial groups or
language minority groups each represent
20 percent or more of the political
subdivision's voting-age population; or
(ii) a single language minority group
represents 20 percent or more of the
voting-age population on Indian lands
located in whole or in part in the
political subdivision.
(2) Changes to jurisdiction boundaries.--Any change
or series of changes within a year to the boundaries of
a jurisdiction that reduces by 3 or more percentage
points the proportion of the jurisdiction's voting-age
population that is comprised of members of a single
racial group or language minority group in a State or
political subdivision where--
(A) 2 or more racial groups or language
minority groups each represent 20 percent or
more of the political subdivision's voting-age
population; or
(B) a single language minority group
represents 20 percent or more of the voting-age
population on Indian lands located in whole or
in part in the political subdivision.
(3) Changes through redistricting.--Any change to the
boundaries of election districts in a State or
political subdivision where any racial group or
language minority group experiences a population
increase, over the preceding decade (as calculated by
the Bureau of the Census under the most recent
decennial census), of at least--
(A) 10,000; or
(B) 20 percent of voting-age population of
the State or political subdivision, as the case
may be.
(4) Changes in documentation or qualifications to
vote.--Any change to requirements for documentation or
proof of identity to vote such that the requirements
will exceed or be more stringent than the requirements
for voting that are described in section 303(b) of the
Help America Vote Act of 2002 (52 U.S.C. 21083(b)) or
any change to the requirements for documentation or
proof of identity to register to vote that will exceed
or be more stringent than such requirements under State
law on the day before the date of enactment of the
Voting Rights Advancement Act of 2019.
(5) Changes to multilingual voting materials.--Any
change that reduces multilingual voting materials or
alters the manner in which such materials are provided
or distributed, where no similar reduction or
alteration occurs in materials provided in English for
such election.
(6) Changes that reduce, consolidate, or relocate
voting locations.--Any change that reduces,
consolidates, or relocates voting locations, including
early, absentee, and election-day voting locations--
(A) in 1 or more census tracts wherein 2 or
more language minority groups or racial groups
each represent 20 percent or more of the
voting-age population of the political
subdivision; or
(B) on Indian lands wherein at least 20
percent of the voting-age population belongs to
a single language minority group.
(c) Preclearance.--
(1) In general.--Whenever a State or political
subdivision with respect to which the requirements set
forth in subsection (a) are in effect shall enact,
adopt, or seek to implement any covered practice
described under subsection (b), such State or
subdivision may institute an action in the United
States District Court for the District of Columbia for
a declaratory judgment that such covered practice
neither has the purpose nor will have the effect of
denying or abridging the right to vote on account of
race, color, or membership in a language minority
group, and unless and until the court enters such
judgment such covered practice shall not be
implemented. Notwithstanding the previous sentence,
such covered practice may be implemented without such
proceeding if the covered practice has been submitted
by the chief legal officer or other appropriate
official of such State or subdivision to the Attorney
General and the Attorney General has not interposed an
objection within 60 days after such submission, or upon
good cause shown, to facilitate an expedited approval
within 60 days after such submission, the Attorney
General has affirmatively indicated that such objection
will not be made. Neither an affirmative indication by
the Attorney General that no objection will be made,
nor the Attorney General's failure to object, nor a
declaratory judgment entered under this section shall
bar a subsequent action to enjoin implementation of
such covered practice. In the event the Attorney
General affirmatively indicates that no objection will
be made within the 60-day period following receipt of a
submission, the Attorney General may reserve the right
to reexamine the submission if additional information
comes to the Attorney General's attention during the
remainder of the 60-day period which would otherwise
require objection in accordance with this section. Any
action under this section shall be heard and determined
by a court of three judges in accordance with the
provisions of section 2284 of title 28, United States
Code, and any appeal shall lie to the Supreme Court.
(2) Denying or abridging the right to vote.--Any
covered practice described in subsection (b) that has
the purpose of or will have the effect of diminishing
the ability of any citizens of the United States on
account of race, color, or membership in a language
minority group, to elect their preferred candidates of
choice denies or abridges the right to vote within the
meaning of paragraph (1) of this subsection.
(3) Purpose defined.--The term ``purpose'' in
paragraphs (1) and (2) of this subsection shall include
any discriminatory purpose.
(4) Purpose of paragraph (2).--The purpose of
paragraph (2) of this subsection is to protect the
ability of such citizens to elect their preferred
candidates of choice.
(d) Enforcement.--The Attorney General or any aggrieved
citizen may file an action in a Federal district court to
compel any State or political subdivision to satisfy the
obligations set forth in this section. Such actions shall be
heard and determined by a court of 3 judges under section 2284
of title 28, United States Code. In any such action, the court
shall provide as a remedy that any voting qualification or
prerequisite to voting, or standard, practice, or procedure
with respect to voting, that is the subject of the action under
this subsection be enjoined unless the court determines that--
(1) the voting qualification or prerequisite to
voting, or standard, practice, or procedure with
respect to voting, is not a covered practice described
in subsection (b); or
(2) the State or political subdivision has complied
with subsection (c) with respect to the covered
practice at issue.
(e) Counting of Racial Groups and Language Minority Groups.--
For purposes of this section, the calculation of the population
of a racial group or a language minority group shall be carried
out using the methodology in the guidance promulgated in the
Federal Register on February 9, 2011 (76 Fed. Reg. 7470).
(f) Special Rule.--For purposes of determinations under this
section, any data provided by the Bureau of the Census, whether
based on estimation from sample or actual enumeration, shall
not be subject to challenge or review in any court.
(g) Multilingual Voting Materials.--In this section, the term
``multilingual voting materials'' means registration or voting
notices, forms, instructions, assistance, or other materials or
information relating to the electoral process, including
ballots, provided in the language or languages of one or more
language minority groups.
Sec. 5. (a) Whenever a State or political subdivision with
respect to which the prohibitions set forth in section 4(a)
[based upon determinations made under the first sentence of
section 4(b) are in effect] are in effect during a calendar
year shall enact or seek to administer any voting qualification
or prerequisite to voting, or standard, practice, or procedure
with respect to voting different from that in force or effect
on [November 1, 1964, or whenever a State or political
subdivision with respect to which the prohibitions set forth in
section 4(a) based upon determinations made under the second
sentence of section 4(b) are in effect shall enact or seek to
administer any voting qualification or prerequisite to voting,
or standard, practice, or procedure with respect to voting
different from that in force or effect on November 1, 1968, or
whenever a State or political subdivision with respect to which
the prohibitions set forth in section 4(a) based upon
determinations made under the third sentence of section 4(b)
are in effect shall enact or seek to administer any voting
qualifications or prerequisite to voting, or standard,
practice, or procedure with respect to voting different from
that in force or effect on November 1, 1972] the applicable
date of coverage, such State or subdivision may institute an
action in the United States District Court for the District of
Columbia for a declaratory judgment that such qualification,
prerequisite, standard, practice, or procedure neither has the
purpose nor will have the effect of denying or abridging the
right to vote on account of race or color, or in contravention
of the guarantees set forth in section 4(f)(2), and unless and
until the court enters such judgment no person shall be denied
the right to vote for failure to comply with such
qualification, prerequisite, standard, practice, or procedure:
Provided, That such qualification, prerequisite, standard,
practice, or procedure may be enforced without such proceeding
if the qualification, prerequisite, standard, practice, or
procedure has been submitted by the chief legal officer or
other appropriate official of such State or subdivision to the
Attorney General and the Attorney General has not interposed an
objection within sixty days after such submission, or upon good
cause shown, to facilitate an expedited approval within sixty
days after such submission, the Attorney General has
affirmatively indicated that such objection will not be made.
Neither an affirmative indication by the Attorney General that
no objection will be made, nor the Attorney General's failure
to object, nor a declaratory judgment entered under this
section shall bar a subsequent action to enjoin enforcement of
such qualification, prerequisite, standard, practice, or
procedure. In the event the Attorney General affirmatively
indicates that no objection will be made within the sixty-day
period following receipt of a submission, the Attorney General
may reserve the right to reexamine the submission if additional
information comes to his attention during the remainder of the
sixty-day period which would otherwise require objection in
accordance with this section. Any action under this section
shall be heard and determined by a court of three judges in
accordance with the provisions of section 2284 of title 28 of
the United States Code and any appeal shall lie to the Supreme
Court.
(b) Any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting that
has the purpose of or will have the effect of diminishing the
ability of any citizens of the United States on account of race
or color, or in contravention of the guarantees set forth in
section 4(f)(2), to elect their preferred candidates of choice
denies or abridges the right to vote within the meaning of
subsection (a) of this section.
(c) The term ``purpose'' in subsections (a) and (b) of this
section shall include any discriminatory purpose.
(d) The purpose of subsection (b) of this section is to
protect the ability of such citizens to elect their preferred
candidates of choice.
(e) The term ``applicable date of coverage'' means, with
respect to a State or political subdivision--
(1) June 25, 2013, if the most recent determination
for such State or subdivision under section 4(b) was
made on or before December 31, 2019; or
(2) the date on which the most recent determination
for such State or subdivision under section 4(b) was
made, if such determination was made after December 31,
2019.
SEC. 6. TRANSPARENCY REGARDING CHANGES TO PROTECT VOTING RIGHTS.
(a) Notice of Enacted Changes.--
(1) Notice of changes.--If a State or political
subdivision makes any change in any prerequisite to
voting or standard, practice, or procedure with respect
to voting in any election for Federal office that will
result in the prerequisite, standard, practice, or
procedure being different from that which was in effect
as of 180 days before the date of the election for
Federal office, the State or political subdivision
shall provide reasonable public notice in such State or
political subdivision and on the Internet, of a concise
description of the change, including the difference
between the changed prerequisite, standard, practice,
or procedure and the prerequisite, standard, practice,
or procedure which was previously in effect. The public
notice described in this paragraph, in such State or
political subdivision and on the Internet, shall be in
a format that is reasonably convenient and accessible
to voters with disabilities, including voters who have
low vision or are blind.
(2) Deadline for notice.--A State or political
subdivision shall provide the public notice required
under paragraph (1) not later than 48 hours after
making the change involved.
(b) Transparency Regarding Polling Place Resources.--
(1) In general.--In order to identify any changes
that may impact the right to vote of any person, prior
to the 30th day before the date of an election for
Federal office, each State or political subdivision
with responsibility for allocating registered voters,
voting machines, and official poll workers to
particular precincts and polling places shall provide
reasonable public notice in such State or political
subdivision and on the Internet, of the information
described in paragraph (2) for precincts and polling
places within such State or political subdivision. The
public notice described in this paragraph, in such
State or political subdivision and on the Internet,
shall be in a format that is reasonably convenient and
accessible to voters with disabilities including voters
who have low vision or are blind.
(2) Information described.--The information described
in this paragraph with respect to a precinct or polling
place is each of the following:
(A) The name or number.
(B) In the case of a polling place, the
location, including the street address, and
whether such polling place is accessible to
persons with disabilities.
(C) The voting-age population of the area
served by the precinct or polling place, broken
down by demographic group if such breakdown is
reasonably available to such State or political
subdivision.
(D) The number of registered voters assigned
to the precinct or polling place, broken down
by demographic group if such breakdown is
reasonably available to such State or political
subdivision.
(E) The number of voting machines assigned,
including the number of voting machines
accessible to voters with disabilities,
including voters who have low vision or are
blind.
(F) The number of official paid poll workers
assigned.
(G) The number of official volunteer poll
workers assigned.
(H) In the case of a polling place, the dates
and hours of operation.
(3) Updates in information reported.--If a State or
political subdivision makes any change in any of the
information described in paragraph (2), the State or
political subdivision shall provide reasonable public
notice in such State or political subdivision and on
the Internet, of the change in the information not
later than 48 hours after the change occurs or, if the
change occurs fewer than 48 hours before the date of
the election for Federal office, as soon as practicable
after the change occurs. The public notice described in
this paragraph in such State or political subdivision
and on the Internet shall be in a format that is
reasonably convenient and accessible to voters with
disabilities including voters who have low vision or
are blind.
(c) Transparency of Changes Relating to Demographics and
Electoral Districts.--
(1) Requiring public notice of changes.--Not later
than 10 days after making any change in the
constituency that will participate in an election for
Federal, State, or local office or the boundaries of a
voting unit or electoral district in an election for
Federal, State, or local office (including through
redistricting, reapportionment, changing from at-large
elections to district-based elections, or changing from
district-based elections to at-large elections), a
State or political subdivision shall provide reasonable
public notice in such State or political subdivision
and on the Internet, of the demographic and electoral
data described in paragraph (3) for each of the
geographic areas described in paragraph (2).
(2) Geographic areas described.--The geographic areas
described in this paragraph are as follows:
(A) The State as a whole, if the change
applies statewide, or the political subdivision
as a whole, if the change applies across the
entire political subdivision.
(B) If the change includes a plan to replace
or eliminate voting units or electoral
districts, each voting unit or electoral
district that will be replaced or eliminated.
(C) If the change includes a plan to
establish new voting units or electoral
districts, each such new voting unit or
electoral district.
(3) Demographic and electoral data.--The demographic
and electoral data described in this paragraph with
respect to a geographic area described in paragraph (2)
are each of the following:
(A) The voting-age population, broken down by
demographic group.
(B) If it is reasonably available to the
State or political subdivision involved, an
estimate of the population of the area which
consists of citizens of the United States who
are 18 years of age or older, broken down by
demographic group.
(C) The number of registered voters, broken
down by demographic group if such breakdown is
reasonably available to the State or political
subdivision involved.
(D)(i) If the change applies to a State, the
actual number of votes, or (if it is not
reasonably practicable for the State to
ascertain the actual number of votes) the
estimated number of votes received by each
candidate in each statewide election held
during the 5-year period which ends on the date
the change involved is made; and
(ii) if the change applies to only one
political subdivision, the actual number of
votes, or (if it is not reasonably practicable
for the political subdivision to ascertain the
actual number of votes) in each subdivision-
wide election held during the 5-year period
which ends on the date the change involved is
made.
(4) Voluntary compliance by smaller jurisdictions.--
Compliance with this subsection shall be voluntary for
a political subdivision of a State unless the
subdivision is one of the following:
(A) A county or parish.
(B) A municipality with a population greater
than 10,000, as determined by the Bureau of the
Census under the most recent decennial census.
(C) A school district with a population
greater than 10,000, as determined by the
Bureau of the Census under the most recent
decennial census. For purposes of this
subparagraph, the term ``school district''
means the geographic area under the
jurisdiction of a local educational agency (as
defined in section 9101 of the Elementary and
Secondary Education Act of 1965).
(d) Rules Regarding Format of Information.--The Attorney
General may issue rules specifying a reasonably convenient and
accessible format that States and political subdivisions shall
use to provide public notice of information under this section.
(e) No Denial of Right to Vote.--The right to vote of any
person shall not be denied or abridged because the person
failed to comply with any change made by a State or political
subdivision to a voting qualification, standard, practice, or
procedure if the State or political subdivision involved did
not meet the applicable requirements of this section with
respect to the change.
(f) Definitions.--In this section--
(1) the term ``demographic group'' means each group
which section 2 protects from the denial or abridgement
of the right to vote on account of race or color, or in
contravention of the guarantees set forth in section
4(f)(2);
(2) the term ``election for Federal office'' means
any general, special, primary, or runoff election held
solely or in part for the purpose of electing any
candidate for the office of President, Vice President,
Presidential elector, Senator, Member of the House of
Representatives, or Delegate or Resident Commissioner
to the Congress; and
(3) the term ``persons with disabilities'', means
individuals with a disability, as defined in section 3
of the Americans with Disabilities Act of 1990.
Sec. 8. (a) Whenever--
(1) a court has authorized the appointment of
observers under section 3(a) for a political
subdivision; [or]
(2) the Attorney General certifies with respect to
any political subdivision named in, or included within
the scope of, determinations made under section 4(b),
unless a declaratory judgment has been rendered under
section 4(a), that--
(A) the Attorney General has received written
meritorious complaints from residents, elected
officials, or civic participation organizations
that efforts to deny or abridge the right to
vote under the color of law on account of race
or color, or in contravention of the guarantees
set forth in section 4(f)(2) are likely to
occur; or
[(B) in the Attorney General's judgment
(considering, among other factors, whether the
ratio of nonwhite persons to white persons
registered to vote within such subdivision
appears to the Attorney General to be
reasonably attributable to violations of the
14th or 15th amendment or whether substantial
evidence exists that bona fide efforts are
being made within such subdivision to comply
with the 14th or 15th amendment), the
assignment of observers is otherwise necessary
to enforce the guarantees of the 14th or 15th
amendment;]
(B) in the Attorney General's judgment, the
assignment of observers is otherwise necessary
to enforce the guarantees of the 14th or 15th
Amendment or any provision of this Act or any
other Federal law protecting the right of
citizens of the United States to vote; or
(3) the Attorney General certifies with respect to a
political subdivision that--
(A) the Attorney General has received written
meritorious complaints from residents, elected
officials, or civic participation organizations
that efforts to violate section 203 are likely
to occur; or
(B) in the Attorney General's judgment, the
assignment of observers is necessary to enforce
the guarantees of section 203;
the Director of the Office of Personnel Management shall assign
as many observers for such subdivision as the Director may deem
appropriate.
(b) Except as provided in subsection (c), such observers
shall be assigned, compensated, and separated without regard to
the provisions of any statute administered by the Director of
the Office of Personnel Management, and their service under
this Act shall not be considered employment for the purposes of
any statute administered by the Director of the Office of
Personnel Management, except the provisions of section 7324 of
title 5, United States Code, prohibiting partisan political
activity.
(c) The Director of the Office of Personnel Management is
authorized to, after consulting the head of the appropriate
department or agency, designate suitable persons in the
official service of the United States, with their consent, to
serve in these positions.
(d) Observers shall be authorized to--
(1) enter and attend at any place for holding an
election in such subdivision for the purpose of
observing whether persons who are entitled to vote are
being permitted to vote; and
(2) enter and attend at any place for tabulating the
votes cast at any election held in such subdivision for
the purpose of observing whether votes cast by persons
entitled to vote are being properly tabulated.
(e) Observers shall investigate and report to the Attorney
General, and if the appointment of observers has been
authorized pursuant to section 3(a), to the court.
* * * * * * *
Sec. 12. (a) Whoever shall deprive or attempt to deprive any
person of any right secured by section 2, 3, 4, 5, or 10 or
shall violate section 11(a), shall be fined not more than
$5,000, or imprisoned not more than five years, or both.
(b) Whoever, within a year following an election in a
political subdivision in which an observer has been assigned
(1) destroys, defaces, mutilates, or otherwise alters the
marking of a paper ballot which has been cast in such election,
or (2) alters any official record of voting in such election
tabulated from a voting machine or otherwise, shall be fined
not more than $5,000, or imprisoned not more than five years,
or both.
(c) Whoever conspires to violate the provisions of subsection
(a) or (b) of this section, or interferes with any right
secured by section 2, 3, 4, 5, 10, or 11(a) shall be fined not
more than $5,000, or imprisoned not more than five years, or
both.
[(d) Whenever any person] (d)(1) Whenever any person has
engaged or there are reasonable grounds to believe that any
person is about to engage in any act or practice prohibited by
[section 2, 3, 4, 5, 7, 10, 11, or subsection (b) of this
section] the 14th or 15th Amendment, this Act, or any Federal
voting rights law that prohibits discrimination on the basis of
race, color, or membership in a language minority group, [the
Attorney General may institute for the United States, or in the
name of the United States,] the aggrieved person or (in the
name of the United States) the Attorney General may institute
an action for preventive relief, including an application for a
temporary or permanent injunction, restraining order, or other
order, and including an order directed to the State and State
or local election officials to require them [(1)] (A) [to
permit] to permit persons listed under this Act to vote and
[(2)] (B) [to count] to count such votes.
(2)(A) In any action for preliminary relief described in this
subsection, the court shall grant the relief if the court
determines that the complainant has raised a serious question
whether the challenged voting qualification or prerequisite to
voting or standard, practice, or procedure violates this Act or
the Constitution and, on balance, the hardship imposed upon the
defendant by the grant of the relief will be less than the
hardship which would be imposed upon the plaintiff if the
relief were not granted. In balancing the harms, the court
shall give due weight to the fundamental right to cast an
effective ballot.
(B) In making its determination under this paragraph with
respect to a change in any voting qualification, prerequisite
to voting, or standard, practice, or procedure with respect to
voting, the court shall consider all relevant factors and give
due weight to the following factors, if they are present:
(i) Whether the qualification, prerequisite,
standard, practice, or procedure in effect prior to the
change was adopted as a remedy for a Federal court
judgment, consent decree, or admission regarding--
(I) discrimination on the basis of race or
color in violation of the 14th or 15th
Amendment;
(II) a violation of this Act; or
(III) voting discrimination on the basis of
race, color, or membership in a language
minority group in violation of any other
Federal or State law.
(ii) Whether the qualification, prerequisite,
standard, practice, or procedure in effect prior to the
change served as a ground for the dismissal or
settlement of a claim alleging--
(I) discrimination on the basis of race or
color in violation of the 14th or 15th
Amendment;
(II) a violation of this Act; or
(III) voting discrimination on the basis of
race, color, or membership in a language
minority group in violation of any other
Federal or State law.
(iii) Whether the change was adopted fewer than 180
days before the date of the election with respect to
which the change is to take effect.
(iv) Whether the defendant has failed to provide
timely or complete notice of the adoption of the change
as required by applicable Federal or State law.
(3) A jurisdiction's inability to enforce its voting or
election laws, regulations, policies, or redistricting plans,
standing alone, shall not be deemed to constitute irreparable
harm to the public interest or to the interests of a defendant
in an action arising under the U.S. Constitution or any Federal
law that prohibits discrimination on the basis of race, color,
or membership in a language minority group in the voting
process, for the purposes of determining whether a stay of a
court's order or an interlocutory appeal under section 1253 of
title 28, United States Code, is warranted. A jurisdiction's
inability to enforce its voting or election laws, regulations,
policies, or redistricting plans, standing alone, shall not be
deemed to constitute irreparable harm to the public interest or
to the interests of a defendant in an action arising under the
U.S. Constitution or any Federal law that prohibits
discrimination on the basis of race, color, or membership in a
language minority group in the voting process, for the purposes
of determining whether a stay of a court's order or an
interlocutory appeal under section 1253 of title 28, United
States Code, is warranted.
(e) Whenever in any political subdivision in which there are
observers appointed pursuant to this Act any persons allege to
such an observer within forty-eight hours after the closing of
the polls that notwithstanding (1) their listing under this Act
or registration by an appropriate election official and (2)
their eligibility to vote, they have not been permitted to vote
in such election, the observer shall forthwith notify the
Attorney General if such allegations in his opinion appear to
be well founded. Upon receipt of such notification the Attorney
General may forthwith file with the district court an
application for an order providing for the marking, casting,
and counting of the ballots of such persons and requiring the
inclusion of their votes in the total vote before the results
of such election shall be deemed final and any force or effect
given thereto. The district court shall hear and determine such
matters immediately after the filing of such application. The
remedy provided in this subsection shall not preclude any
remedy available under State or Federal law.
(f) The district courts of the United States shall have
jurisdiction of proceedings instituted pursuant to this section
and shall exercise the same without regard to whether a person
asserting rights under the provisions of this Act shall have
exhausted any administrative or other remedies that may be
provided by law.
* * * * * * *
Sec. 14. (a) All cases of criminal contempt arising under the
provisions of this Act shall be governed by section 151 of the
Civil Rights Act of 1957 (42 U.S.C. 1995).
(b) No court other than the District Court for the District
of Columbia shall have jurisdiction to issue any declaratory
judgment pursuant to section 4 or section 5 or any restraining
order or temporary or permanent injunction against the
execution or enforcement of any provision of this Act or any
action of any Federal officer or employee pursuant hereto.
(c)(1) The terms ``vote'' or ``voting'' shall include all
action necessary to make a vote effective in any primary,
special, or general election, including, but not limited to,
registration, listing pursuant to this Act, or other action
required by law prerequisite to voting, casting a ballot, and
having such a ballot counted properly and included in the
appropriate totals of votes cast with respect to candidates for
public or party office and propositions for which votes are
received in an election.
(2) The term ``political subdivision'' shall mean any county
or parish, except that where registration for voting is not
conducted under the supervision of a county or parish, the term
shall include any other subdivision of a State which conducts
registration for voting.
(3) The term ``language minorities'' or ``language minority
group'' means persons who are American Indian, Asian American,
Alaskan Natives or of Spanish heritage.
(4) The term ``prevailing party'' means a party to an action
that receives at least some of the benefit sought by such
action, states a colorable claim, and can establish that the
action was a significant cause of a change to the status quo.
(d) In any action for a declaratory judgment brought pursuant
to section 4 or section 5 of this Act, subpenas for witnesses
who are required to attend the District Court for the District
of Columbia may be served in any judicial district of the
United States: Provided, That no writ of subpena shall issue
for witnesses without the District of Columbia at a greater
distance than one hundred miles from the place of holding court
without the permission of the District Court for the District
of Columbia being first had upon proper application and cause
shown.
(e) In any action or proceeding to enforce the voting
guarantees of the fourteenth or fifteenth amendment, the court,
in its discretion, may allow the prevailing party, other than
the United States, a reasonable attorney's fee, reasonable
expert fees, and other reasonable litigation expenses as part
of the costs.
* * * * * * *
SEC. 21. DEFINITIONS.
In this Act:
(1) Indian.--The term ``Indian'' has the meaning
given the term in section 4 of the Indian Self-
Determination and Education Assistance Act.
(2) Indian lands.--The term ``Indian lands'' means--
(A) any Indian country of an Indian tribe, as
such term is defined in section 1151 of title
18, United States Code;
(B) any land in Alaska that is owned,
pursuant to the Alaska Native Claims Settlement
Act, by an Indian tribe that is a Native
village (as such term is defined in section 3
of such Act), or by a Village Corporation that
is associated with the Indian tribe (as such
term is defined in section 3 of such Act);
(C) any land on which the seat of government
of the Indian tribe is located; and
(D) any land that is part or all of a tribal
designated statistical area associated with the
Indian tribe, or is part or all of an Alaska
Native village statistical area associated with
the tribe, as defined by the Bureau of the
Census for the purposes of the most recent
decennial census.
(3) Indian tribe.--The term ``Indian tribe'' or
``tribe'' has the meaning given the term ``Indian
tribe'' in section 4 of the Indian Self-Determination
and Education Assistance Act.
(4) Tribal government.--The term ``Tribal
Government'' means the recognized governing body of an
Indian Tribe.
(5) Voting-age population.--The term ``voting-age
population'' means the numerical size of the population
within a State, within a political subdivision, or
within a political subdivision that contains Indian
lands, as the case may be, that consists of persons age
18 or older, as calculated by the Bureau of the Census
under the most recent decennial census.
* * * * * * *
Dissenting Views
Title VII of the Civil Rights Act of 1964 was designed to
protect individuals from intentional employment discrimination
on the basis of race, color, religion, sex, or national
origin.\1\ The Senate floor managers of Title VII, Senators
Clifford Case (R-NJ) and Joseph Clark (D-PA), made clear that
Title VII only prohibited intentional discrimination and did
not require statistical parity based on race, religion, or
national origin. In their exhaustive memorandum distributed
prior to Senate debate on the bill, the senators wrote,
``[t]here is no requirement in Title VII that an employer
maintain a racial balance in his work force.'' This
interpretation was reiterated by Senator Hubert Humphrey (D-
MN), who said, ``[i]f [a] Senator can find in Title VII . . .
any language which provides that an employer will have to hire
on the basis of percentage or quota related to color, race,
religion, or national origin, I will start eating the pages one
after another, because it is not in there.''
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\1\Title VII: Unlawful Employment Practices, Civil Rights Act of
1964 42 U.S.C. Sec. 2000e-2, available at https://www.law.cornell.edu/
uscode/text/42/2000e-2.
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Over time, however, Title VII's prohibition of disparate
treatment also came to cover employers' actions that resulted
in a disparate impact on covered groups, even if those actions
were the result of facially neutral policies which were applied
without any intent to discriminate. Alfred W. Blumrosen, the
Equal Employment Opportunity Commission's first Chief of
Compliance, employed ``[c]reative administration'' to draft
regulations which would be interpreted under Title VII
``liberally.''\2\
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\2\See Alfred W. Blumrosen, Black Employment and the Law 53 (1971)
(stating that ``[c]reative administration converted a powerless agency
operating under an apparently weak statute into a major force for the
elimination of employment discrimination''); id. at 58 (stating that
``[t]he objective was to maximize the effect of the statute [Title VII]
on employment discrimination without going back to the Congress for
more substantive legislation''). Blumrosen later admitted that such
regulations did not ``flow from any clear congressional grant of
authority.'' Alfred W. Blumrosen, Strangers in Paradise: Griggs v. Duke
Power Co. and the Concept of Employment Discrimination, 71 Mich. L.
Rev. 59, 95 (1972).
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Under such regulations, Title VII would come to be
interpreted to ban not just intentional discrimination but also
practices that disproportionately and adversely affected the
numerical representation of a covered group, even if such a
practice was neutral by its terms and motivated by no ill will.
The Supreme Court ultimately approved claims based on disparate
impact in the 1971 case of Griggs v. Duke Power Co.\3\
---------------------------------------------------------------------------
\3\401 U.S. 424 (1971).
---------------------------------------------------------------------------
The result of this legal shift is that much discussion of
civil rights has shifted into a numbers game that has nothing
to do with discriminatory treatment based on race. To show how
this numbers game works, take the example of the Department of
Justice's letter declining to ``preclear'' South Carolina's
voter ID law in 2011.\4\ The Department claimed in the letter
that ``minority registered voters were nearly 20% more likely
to . . . be effectively disenfranchised'' by the law because
they lacked a driver's license. But the difference between
white and African-American holders of a driver's license was
only 1.6 percent. The Justice Department used the 20% figure
because, while the state's data showed that 8.4% of white
registered voters lacked any form of DMV-issued ID, as compared
to 10.0% of non-white registered voters, the number 10 is 20%
larger than the number 8.4. It's true mathematically that 10 is
20% larger (actually, 19%--the Justice Department rounded up)
than 8.4, but it clearly distorts the reported difference in
driver's license rates, and it was used to declare the South
Carolina law discriminatory.
---------------------------------------------------------------------------
\4\Letter from the Office of the Assistant Attorney General to C.
Havird Jones, Jr., Esq., Assistant Deputy Attorney General, available
at https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/
l_111223.pdf.
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There are thousands of potential explanations for
differences in outcomes among demographic groups. To just take
just one example, as a group, the data indicates whites have a
higher median age than other minority demographics, and due to
those higher age rates they will generally have more
accumulated resources and work experience, which will lead to
some differences in general outcomes.\5\
\5\Most Common Age in U.S., by Race and Ethnicity, Pew Research
Center (July 6, 2016), available at https://www.pewresearch.org/fact-
tank/2019/07/30/most-common-age-among-us-racial-ethnic-groups/ft_16-06-
23_raceage3-2/.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Going back to the South Carolina voting law example, data
shows that younger people of all races tend to be the least
likely to have driver's licenses.\6\ Consequently, if African
Americans have proportionately more young people in their
demographic group, there will naturally be a disproportionate
number of people in that demographic group without driver's
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licenses.
\6\Vanessa M. Perez, Ph.D., Americans With Photo ID: A Breakdown of
Demographic Characteristics, Project Vote (Feb. 2015), available at
http://www.projectvote.org/wp-content/uploads/2015/06/AMERICANS-WITH-
PHOTO-ID-Research-Memo-February-2015.pdf.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
(Further, researchers including one at Harvard Business
School found that ``U.S. states increasingly require
identification to vote . . . Using a difference-in-differences
design on a 1.3-billion-observations panel, we find the laws
have no negative effect on registration or turnout, overall or
for any group defined by race, gender, age, or party
affiliation. These results hold through a large number of
specifications and cannot be attributed to mobilization against
the laws, measured by campaign contributions and self-reported
political engagement.'')\7\
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\7\Enrico Cantoni & Vincent Pons, Strict ID Laws Don't Stop Voters:
Evidence From a U.S. Nationwide Panel, 2008-2016, National Bureau Of
Economic Research (Feb. 2019), available at https://www.nber.org/
papers/w25522.pdf.
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The disparate impact approach to civil rights--and the
assumption that different outcomes are the result of
discrimination--is fundamentally unsound for the same reason
social scientists are trained that ``correlation does not imply
causation.'' In other words, there can be all sorts of
correlations between one event and another, but that doesn't
answer the question as to why that correlation exists.
Similarly, the idea that a certain neutral policy is
associated with disparate impacts on certain covered classes of
people doesn't imply the disparate result was caused by
discrimination (or anything else in particular). Yet often,
discrimination is often assumed as the cause of disparate
impacts, and, even worse, it is often selectively assumed as
the cause in ways that ignore the influence of culture, for
political purposes.
History of the Voting Rights Act and H.R. 4 Concerns
The Supreme Court struck down the decades-old formula
(Section 4 of the Voting Rights Act of 1964) that Congress
originally crafted to determine which states or localities
would have to get their election law changes pre-approved by
the Justice Department (a process called ``preclearance'').
What the Supreme Court left in place, however, was Section 3 of
the Voting Rights Act, which authorizes federal courts to
impose preclearance requirements on states and localities that
have enacted intentionally discriminatory voting procedures in
violation of the Fourteenth and Fifteenth Amendments. If a
state or locality is found by the federal court to have
discriminated in voting, then the court has discretion to
retain supervisory jurisdiction and impose preclearance
requirements on the state or locality until a future date at
the court's discretion. The Supreme Court also left in place
Section 2 of the Voting Rights Act, which applies nationwide
and allows claimants to sue any jurisdiction for a violation of
voting rights.
Currently, Section 3 allows a federal court to place a
jurisdiction under a preclearance regime if it has demonstrated
``violations of the Fourteenth or Fifteenth Amendment'' that
involve intentional discrimination. H.R. 4, however, adds that
a federal court could place a jurisdiction under a preclearance
regime if it has demonstrated ``violations of this Act; or
violations of any Federal voting rights law that prohibits
discrimination on the basis of race, color, or membership in a
language minority group,'' including those that allow
``disparate impact'' claims.
Another part of H.R. 4 creates a system in which states and
localities can be placed under a Department of Justice
preclearance regime if the Attorney General determines that a
given number of ``violations of any Federal voting rights law
that prohibits discrimination on the basis of race, color, or
membership in a language minority group'' have occurred. Under
the bill, states would be covered under a preclearance regime
for 10 years if the Attorney General determines 10 or more
violations occurred in the state over the previous 25 years,
only one of which would have to be committed by the state
itself as opposed to a locality. Any violation, no matter how
insignificant in context, could count as one of the ``strikes''
against a state or locality. Under the bill, as it would
interact with other current voting rights laws and the relevant
case law, the covered violations could include violations based
not on any evidence of actual discrimination, but on
statistical showings that, for example, moving a polling
station from one block to another a few blocks away had a
statistically disparate impact on minority voters because, say,
2% more minority voters than non-minority voters would have to
walk further to get there. (See also the example of the South
Carolina law described previously, in which the Justice
Department declared the law discriminatory because 1.6% more
African-Americans than whites were affected adversely by a lack
of a driver's license.)
Outside groups have compiled a submission of evidence to
demonstrate the need to amend the Voting Rights Act. The list
of examples overwhelmingly includes Department of Justice
objections to state and local voting rules changes under
Section 5 of the Voting Rights Act, Section 2 cases, and cases
in which a jurisdiction may have stopped defending the case
after the district court level. Department of Justice Section 5
objections are just that, and not official determinations by a
court of ultimate jurisdiction that a state or locality
actually did something illegal under any of the currently valid
other portions of the Voting Rights Act that apply nationwide.
Section 2 cases can continue to be brought today, so such cases
don't demonstrate the need to amend the Voting Rights Act. And
cases in which a jurisdiction may have stopped defending the
case after the district court level may simply indicate the
jurisdiction couldn't afford to continue appealing the case up
to a higher court, where the jurisdiction may ultimately have
won if it could have afforded to.
The power given to the Attorney General under H.R. 4 is
striking. The bill provides that a violation of a voting rights
law has been committed as long as no appeals court has
overturned a lower court's determination. The way the process
oftentimes works in practice is that the Department of Justice
uses its vast resources to effectively coerce localities into
settling voting rights violation claims, or abandoning their
defenses of their voting rules prior to exhausting their
appeals. Faced with the prospect of spending potentially
hundreds of thousands of dollars to successfully litigate a
case to final victory, many localities simply fold and agree to
admit to a violation, or to stop defending themselves, just to
avoid the costly litigation (which nearly always includes
massive requests for the production of documents from the
localities). Even states find these cases enormously expensive,
not only because of the document production they involve, but
because of the expert witnesses who must be tasked with parsing
all manner of statistics alleged to prove one statistically
disparate impact or other. Whenever a state or locality is
pressured into settling a case, or if they cannot afford to
appeal a lower court decision, that would count as a ``final
judgment'' under the bill and count as a strike against them
counting toward coverage.
This dynamic of the Justice Department's coercing
settlements threatens to increasingly politicize the process
under the bill. For example, under the proposal the Justice
Department could flood states and localities with voting rights
violation claims just to see which ones enter into settlements
or stop defending themselves. Then, the Justice Department
could look to see which states come closest to the ``ten
strikes'' threshold under the bill and focus their resources on
getting ``over the top'' within the 25-year time frame.
One need only look to a previous hearing on this issue to
know that H.R. 4 creates a system in which voting laws will be
politicized at the Department of Justice. In Davis v. Guam, the
Ninth Circuit Court of Appeals considered Guam's decision to
restrict voting on a certain plebiscite to ``Native Inhabitants
of Guam,'' thereby excluding from the right to vote anyone who
wasn't a ``Native Inhabitant of Guam.''\8\
---------------------------------------------------------------------------
\8\Opinion, Davis v. Guam, No. 17-15719, D.C. No. 1:11-cv-00035
(9th Cir. July 29, 2019), available at http://cdn.ca9.uscourts.gov/
datastore/opinions/2019/07/29/17-15719.pdf.
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That shockingly discriminatory voter registration form is
pictured here:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
As determined by the Ninth Circuit Court of Appeals, ``our
obligation is to apply established Fifteenth Amendment
principles, which single out voting restrictions based on race
as impermissible whatever their justification. Just as a law
excluding the Native Inhabitants of Guam from a plebiscite on
the future of the Territory could not pass constitutional
muster, so the 2000 Plebiscite Law fails for the same reason.''
That blatantly unconstitutional act of racial voting
discrimination was challenged in court by a private citizen, a
retired service member. The Trump Justice Department was
willing to help Major Davis in his case against Guam, but no
one in the Obama Justice Department lifted a finger to defend
him. Nor did any of the other groups assembled at the hearing--
the NAACP, the ACLU, the Leadership Conference on Civil
Rights--do anything about it. Vanita Gupta was a witness at
that hearing. She is the current head of the Leadership
Conference on Civil Rights, and was the head of the U.S.
Department of Justice's Civil Rights Division during the time
this racial discrimination in voting occurred. At the hearing
reference above she was asked by Mr. Cline, very simply,
``would you agree that that type of discriminatory election [in
Guam] is unacceptable in the Twenty-First Century in the United
States?'' Ms. Gupta could only reply ``I unfortunately cannot
speak to a matter that was under investigation during my full
tenure in the Justice Department.''\9\ That speaks volumes
about how politicized the Department of Justice can be, and how
biased it can be when selectively enforcing what are supposed
to be universal principles.
---------------------------------------------------------------------------
\9\Voting Discrimination: Hearing Before the Subcomm. on Const.,
C.R., & C.L., 116 Cong. 109 (2019) (Statement of Rep. Benjamin Cline),
available at https://www.c-span.org/video/?c4815813/answer.
---------------------------------------------------------------------------
H.R. 4 also contains a requirement that certain election
laws automatically be subject to preclearance. Found in Section
4A of H.R. 4, this ``practice-based preclearance'' would apply
nationwide and would automatically cover election law changes
such as modifying jurisdictional boundaries, voter
qualification laws (including voter ID laws), and changes
regarding bilingual ballot procedures.
Also, Section 3(a) of the bill, creating a new section 4(b)
of the VRA, provides that preclearance applies ``to a State and
all political subdivisions'' if 15 or more voting rights
violations occur by the State or any of its political
subdivision over a 25-year period. That means that all
political subdivisions within a state can become subject to
preclearance based solely on other political subdivisions'
violations, and the state itself can become subject to
preclearance based solely on violations in certain political
subdivisions. That is so even when political subdivisions have
no control over and can't be held responsible for the actions
of other political subdivisions, which may be under the control
of a different political party.
Proponents of H.R. 4 argue that victims of voting
discrimination should not have to spend their time and money to
go to court first to have their claims decided. However, both
Section 3's preclearance provisions and H.R. 4's preclearance
provisions require litigation prior to the preclearance process
going into effect. Indeed, Section 3 preclearance requirements
can be obtained after litigating just a single case. The H.R. 4
preclearance process, by contrast, will require much more
litigation before it can be triggered. Of course, H.R. 4 also
requires certain types of voting laws to be subject to
preclearance without any prior showing of discrimination of any
kind.
Existing law already protects Americans from voting
discrimination: Section 2 of the Voting Rights Act allows
lawsuits, even those based on disparate impacts, to stop State
and local voting laws, including through preliminary
injunctions; and Section 3 of the Voting Rights Act allows
federal judges across the country to put jurisdictions under
preclearance requirements when those jurisdictions have a
record of actual discrimination in voting.
In sum, H.R. 4 unconstitutionally creates a system in which
a politicized Department of Justice can federalize control over
State and local elections when there is no evidence the State
or locality engaged in actual discriminatory conduct.
Signed,
Doug Collins.
Mike Johnson (LA).
Appendix
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[all]
