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tv   Lawmakers Examine Elections Clause Congressional Authority  CSPAN  July 14, 2021 8:39am-10:01am EDT

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clause and the role congress plays in regulating federal elections. witnesses answered questions about the founders views on the elections, the history of the elections clause, and federal versus state jurisdiction in constructing laws around voting. this is about an hour and a half. >> are hearing today will examine the broad constitutional authority provided to congress to regulate federal elections under article one, section four clause one of the u.s. constitution c known as the elections clause. the clause reads as follows, quote, times, places and manner of holding elections, for senators and representativesor shall be described 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. the text is clear prescribed the
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duty to state to make regulations for the time, place, and manner of congressional elections, but critically also provide congress with superseding power to make or alter sucher regulations at any time. during the constitutional convention and state ratification debate the framers fought for the inclusion of the elections clause and the broad powers that it confers to congress with supporters the clause was necessary for self-preservation of the federal government in the face of potential -- obstructions to congressional elections. in defense of the elections clause, alexander hamilton wrote in federalist 59 that quote, its propriety rests upon the evidence off this plain proposition. with every government ought to contain in itself the means of its own preservation. the framers had other concerns as well, defending the inclusion of elections clause in the constitution and the federal oversight over congressional
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elections that it would authorize. they were what about the potential forie state lawmakerso abuse the powers and pass election regulations that would be too unequal representation such as partisan and gerrymandering. they also warned about other forms of voter suppression in federal elections that wouldot o unchecked unless congress was about with the remedy of the elections clause to act. the famous warning is true today. today. since the supreme court's 2013 shelby county versus holder decision state legislatures runn the country have passed away the voter suppression efforts including voter id laws and proper voter purges increasingly limited opportunities to access the ballot. this pattern has only further escalated since the 2020 general election. partisan gerrymandering by incumbent political parties, both parties can rent an ongoing obstacle to equal voting rights across various states. in our hearing today we will hear more about what the framers intended when they drafted and
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included the elections clause in the constitution. likewise, the supreme court is been consistent in restoring the election clause providing care about unquote powers to congress to enact federal election regulation that preempt state regulation and is interpreted such powers expansive. for example, in 1932 the supreme court said these comprehensive rules embrace the third to fight a complete code to congressional elections which were not limited to just times and places but to the numerous requirements as to procedure and safeguard which experience shows are necessary in order to enforce the fundamental right involved. in another case, arizona versus intertribal council of arizona in 2013, justice scalia, a renowned conservative justice wrote to the court that the national voter registration act requirement that voters prove theirat citizenship preempted
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arizona's citizenship requirement, , rely on smiley versus home and interest in the elections clause and empowed congress to bring it state regulations governing the time,r places and manner of holding congressional elections and that time places and manner our comprehensive words. it's only one example congress exercising its election clause powers. congress has long exercise its election powers to enact legislation covering various types of federal election regulations from the apportionment act of 1842 which eliminated the general ticket system in favor of the congressional district, to modern examples including the federal election campaign act of 1971 and the uniform and overseas citizens absentee voting act of 1986, as well as the help america vote act in 2002. reliance on the election clause is a source of congressional
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authority has long been supported on a bipartisanha bas. since the house begin inquiry bills sponsors to identify the constitutional authorities to their proposed legislation in recent years, msf cited the election clause for the authority for the legislation more than 230 times. that includes scores of measures introduced by republican members, many of which would've required steps to take -- states to take certain steps and how they conduct their elections in limited certain activities. in the last congress my colleague ranking member davis introduced legislation to deny every election grantsdu to stats that permit third-party individuals. in doing so he cited as as ae constitutional authority for this legislation elections clause of the constitution. but this authority can be used to empower states and citizens to make voting easier, safer and more secure while ensuring the
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suppressive tactics and plans cannot be used to limit or deny access to the ballot box. for example, congress has endeavored to enact new democracy reforms including h.r. one, before the people act under it should election clause powers as those other constitutional provisions. h.r. one low remedy ongoing voter suppression efforts just as a framers intended. the takeover elections -- as claimed by some critics h.r. one typifies an appropriate exercise ofof congressional authority. this screen provides a rare opportunity to explore the contours of the elections clause and provide congress to enact transformational democracy legislation. like h.r. one i look forward to hearing from her witnesses today and i understand mr. davis is on assignment today and maybe join
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us later, but i believe mr. steil will be offering his opening statement. so mr. steil, you are now recognized. >> thank you very much, madam chairwoman. today's hearingaiai is titled "e elections clause: constitutional interpretation and congressional exercise." this is a hearing that our committee should of had before we had hearings on election administration, before the drafting and introduction and passage of h.r. one and before the drafting and introduction of h.r.-4 last congress. clearly se primary role in establishing the times, places and manners upholding elections for senators and representatives. under the constitution, congress has a purely secondary role in this space. this is evident from the weights written. the states are lifted first and congress is listed second. congress is clearly outside these constitutional bounds. these bills prevent any states
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establishing the time, place and manner in which elections are held by establishing a national election system by bureaucrats in washington, d.c. the supreme court ruled this month that states have the power to protect the integrity of their elections through thoughtful, considered legislation, making it easy to vote in hard to treat postop in the case against arizona, the court upheld the state power to ban the use of third-party ballot harvesting. justice alito's opinion stated an entirely legitimate state interest is a prevention of fraud step right can affect a close election fraudulent votes dilute -- dilute the rights of citizens that carry appropriate weight. fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of announced outcomes. public confidence in our elections are something i is ranking member on the
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subcommittee and focused on. ranking member of the committee is leading the way we have seen this as an issue in north carolina. there was fraud resulting ballot harvesting california has had issues as well. despite the well-documented fraud cases, the fraud issues of ballot harvesting, hr-one legalizes this product is nationwide and according to democrats, ballot harvesting is a state of discrimination. fortunately, the screen court ruled this is not the case. the court ruled the intent and totality of the state voting situation matters. justice alito noted that merely implementing voting structures intended to bolster voter confidence such as rules to increase ballot and credit -- integrity does not equal discrimination which is what my
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democratic colleagues continue to claim. not only does the recent supreme court ruling invalidate my democratic colleagues claim but the record has demonstrated this as well. my democratic colleagues have claimed that voter id is used to suppress boats. however, the data clearly disputes this. contrary to democratic claim, voter id requirements of lowering voter turnout sought record turnout with voter id requirements in the 2020 election. i thought it would take this opportunity during a remote hearing to take everyone on the committee to rural america. while i have not found a kinko's, the vice president may be interested to learn that i can confirm folks in rural wisconsin and rural communities across the united states have running water, have electricity and i found this new invention that i don't think was there when vice president biden first ran for senate but it's available now in rural america and it's called a camera phone. it's amazing, it has a camera and a phone and it can actually
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take a photo of an id and can be submitted electronically. shocking and it may not have come to san francisco. vice president kamala harris may not be as the mill your but i encourage everyone to check out the new camera phones that can be used to provide enhanced integrity in our elections for people voting by mail remotely in rural america. additionally, the data used by democratic witnesses in a hearing earlier this year, democratic witness stated that minority participation in the 2016 election was less than the 2012 election and claimed this was due to voter suppression. however, she admitted her analysis relied on self reporting voter information from online surveys to reach her conclusion, not a scientific one. it reverse engineered her desired results and during the committee hearing, i pointed out that her study did not control for the difference in candidacy between barack obama and the
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historically terrible candidacy of hillary clinton. my democratic colleagues invited many college professors to participate in these hearings on hr one or voter suppression, they invited no election officials who actually have administered elections. republicans have invited multiple election administrators including her witness today, the kentucky secretary of state, i present you joining us and together, these individuals have decades of experience and election administration and each one of them have or will testify on how bad hr one is for states. he repeatedly stressed that mandates rep hr one will not work in their jurisdiction. they would be incredibly costly and could even make elections less secure. in contrast, the only two election officials the majority invited to ever actually administer elections prior to testifying. after a thorough review of the committee's record in the recent supreme court decision, i hope
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democrats will abandon their efforts to circumvent the constitution and nationalize our elections. it's clear election system works best when those closest to the people are setting the rules for administering the election, not unelected bureaucrats in washington just as our founding fathers wrote an article four, article one, section four of the constitution. madame chairwoman, i yelled back. >> the gentleman yields back and all other members are invited to submit opening statements for the record. we have a very distinguished panel to hear from today. i would like to welcome each of them and thank them for participating. first we have professor jack rakoff who is the co-professor of history and american studies at stanford university where he has taught since 1980. he is a constitutional historian and principal areas of research
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including the origins of the american revolution and the constitution, the political practice and theory of james madison and the historical knowledge of constitutional litigation. he is the author of six books and has won the pulitzer prize in history. he is a member of the american academy of arts and sciences and the american philosophical society in a past resident of the society for the history of the early american republic. he has a bachelors in history. we also have the vice dean tolson at the usc gould school of law and is a nationally recognized expert election law. her scholarship and teaching focused on the areas of election law, constitutional law, legal history, political parties, the
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election clause, the voting rights act of 1965 and the 14th and 15th amendments. she received her jd from the university of chicago law school . in 2019, her article on the elections clause appeared in the yale law form where she examined the broad powers conferred on the of the elections clause in the underutilization of such powers by congress and the constitutionality of hr one. in her forthcoming book, in congress we trust, she looks at voting rights from founding to the jim crow area and that will be published by cambridge
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university press. daniel is the dean of the university of wisconsin law school. the leading authority -- it is the leading a 30 and a scholarship addresses issues of voting rights, free speech and democratic conclusion. he has published over 50 law review articles on a broad scope of topics. he is the author of election law and a nutshell, the second edition and co-author of election law. previously, the dean served as a professor of constitutional law at ohio state college of law and the dean received his jd from yale law school. he is a former civil rights attorney and has worked on various free-speech, racial justice and voting rights cases. and last but certainly not least, the secretary of state, michael adams, secretary adams
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is kentucky's 86 secretary of state, sworn into his term on january 6, 2020. he established a private practice election law in 20 -- in 2007. he served as general counsel to the republican government association and later expanded his practice representing national political committees, national political figures in statewide campaign efforts. in 2016, he was appointed to the kentucky board of elections. previously, he worked on senator mitch mcconnell's 2002 reelection as deputy general council and was appointed counsel to the u.s. deputy attorney general in the bush administration. hickory adams received his jd from harvard law school and work for the chief u.s. district judge. welcome to all of you you have
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testimony for about five minutes. the clock will help you keep track of time. please summarize in your entire stigmas will be made as part of the record. turn first to professor ra and we welcome your testimony. koff >> thank you very much. a special pleasure for me to hear before you all. the original intentions of the framers of the constitution drafted the times, as is and manner clauses. there are many conclusions i wish to present. the reconstruction of the drafting of the was indicates [indiscernible]
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not only does it give congress broad authority to do test to detect imperfections in the states but it also empowers congress to use its legislative powers creatively. the clause first appeared and it had a detail of the response of the problem of asking what should happen should one of our states fulton their obligation to provide for the election of members of congress? a state willfully tried to sabotage the state elections. the states and often fallen short of fulfilling their federal duties. the framers of the constitution had legitimate reasons to worry about allowing federal elections to become over dependent on voluntary compliance of the state legislations. second, this additional authority which james madison
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gave on august 9, 1787, one part of the clause is actively debated. the two south carolina delegates said there was no reason to have alteration of state regulation of federal elections. madison created this motion. madison argued they were be subject to all the abuses of this discretionary policy. state legislators would share their own security to favor the candidates they wished to succeed. if there were inequalities in the state legislatures, these would be replicated in the design of congressional districts. these potential sources of abuse justified congressional oversight and revision. the framers agreed because the south carolina motion was rejected without a roll call.
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madison's speech also identified problems that the framers faced in designing a system of national political representation step here is madison's lift up her -- list of problems. whether they should be voting by valid -- by ballot or divided by districts or meet in one place or should all vote for one representative or all vote in the district. these and many other points fell on the legislatures. it's important for members of this committee to know that there was no precedent in any american history for the kind of representative system the framers were designing. the american colonies and stents represented states where they were organized. the community representation would never work in the expanding american republic. congressional >> congressional district.
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the state legislatures to have to create with every census. and everything from the actual method of voting to deciding exactly what kind of constituency will be represented. the concept, the clause effectively for congress to examine how it's working or not working and the clauses in our language at anytime. fourth and finally, when americans of the revolution thought about political representation, there was one maximum that consistently guided their thinking, from 1776, and afterwards, that the assembly should be a miniature portion or transcript of the larger society. as adams put it an equal representation or equal interest among the people should have equal interest in it.
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and they would constitute the society, this was a democratic vision over what a government should look like. and their idea was not different from one person rule that guided modern representation since the 1960's, the true goal of democratic politics is not over distortion or exclusion. it invites congress to think boldly -- to form a more perfect union. thank you very much. >> thank you very much, professor. now i'd like to call on dean tolleson for her testimony. >> thank you very much. to the chairperson, ranking member davis, distinguished members. community. i appreciate the opportunity to appear and speak about article 1, section 4, a vast source of
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power and significantly underutilized. and as we know. time would have-- this can supplement or displace the regulatory regime, particularly if the states have jeopardized in some way. under congress, can commandeer state law to implement federal law and voter qualification standards. by invoking a number of constitutional provisions, and qualifications standards, each one stands on firm constitutional footing because they have been validated by supreme court case law and proper congressman classes and when it is perceived to the
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election clause as well as the 14th and 15th amendment than when upped the amendments alone. despite the elections clause untapped potential under federal legislation, hr-1 is unprecedented and is unconstitutional. it is not. voter regulation for regulation under the elections clause, and court reaffirmed as recently as 2013, hr-1 constitutional is not problematic. in addition, to implement election clause legislation as the voter registration act which creates out of all offices in the state that provide public assistance or state-funded programs. they found them to be constitutional. those portions of hr-1 with respect to voter registration
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is constitutionally sound. they've uphold to draw districts and use for hr-11 for federal elections. given those provisions are arguably constitutional and the constitutional objections to the provisions that touch on voter registration, which is in the state's domain. under the elections clause there are circumstances for voter qualification, particularly emphasis where state regulations discourage or unduly impact turnout. the uniform and it-- enacted to the election laws created a ballot specifically for use by military personnel and determined which personnel
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won title to both. and they addressed the exigency, the disenfranchisement protected by state law. and this coupled with congressional power under the 14th and 15th amendment, both invoked as specific authority for hr-1, they looked at qualifications indisputable. excuse me. hr-1 would prohibit individuals in custody from exercising their votes in elections protected by the 14th and 15th elections. and many of the people, disproportionately minority, given the racist of these laws generally are disenfranchised for felonies and misdemeanor offenses. and quote, to protect the
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citizen in the exercise of rights confirmed by the the constitution of the united states-- hr-1 disenfranchisement with this purpose. empowers the body to, again, make or author state law, to commandeer state laws and offices and especially when coupled with congress's power for voter qualification standards. thank you for the opportunity to discuss my research. i welcome any questions that you have. >> thank you very much. dean. turn to the other dean, i'm probably mispronouncing your name, and you'll correct me. >> thank you, ranking committee
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woman. i am the dean at the i have-- i've written on congress' power. the use supreme court has usedment congress's power over congressional election over these laws is paramount under the text of the elections clause and a long line of supreme court precedence. congress has broad, plenary authority. and the principle was justice scalia's opinion in arizona versus inter-tribal council of arizona back in 2013 where he referred to the broad and comprehensive scope of congress's elections clause
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power. in the remainder of my testimony i'll provide some background on what the elections clause means and in particular, how it has been construed by the supreme court. so the elections clause, the text of which, madam chairwoman read earlier, allows states to prescribe rules for the election, only in so far as the court says in foster versus love. and justice scalia said in grant, this was snuns against the possibility that states would try to undermine the union by either failing to have procedures for congressional elections or having ones that were inadequate. and as he put it, legislators
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could at any moment anay-- annihilate it, that is the u.s. government. congress has used broad powers repeated lie through the 1842 apportionment act, the civil wars acts of 1870 and 1871 and more recently through the registration act and help america vote act. i won't go through the precedence that supports these and other laws in which congress's previously exercised elections clause power, but i'll hit a few highlights. in 1979, a case involving the reconstruction era enforcement acts and in that case, the court said that congress may exercise its power as it sees fit and that quote, when exercised the actions of congress in so far as it
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conflicts with the states, necessarily supersedes them. in smily versus holmes, congress may provide a code including registration, protection of voters, protection from fraud and corrupt practices, duties of inspectors and canvassers and making and publishing of election returns. now there was a time in the early 20th century, the courts said that the elections clause didn't reach primary elections, but that was reversed in the united states versus classic case in 1941 where the court clarified indeed the elections clause does allow congress to reach primary as well as general elections. that power under the elections clause of course like any power isn't unlimited, that the power doesn't include to dictate election outcomes or favor or
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disfavor a class of candidates. thank you. >> but congress does, as the court clarified in arizona versus itta has very broad power and as justice scalia said there's good reason for treating elections clauses differently and more favorably than other constitutional powers because congress in the elections clause area, congress isn't acting in a place where the states have preexisting authority before the constitution. now, there is a question before the power ends and clause power begins i'm happy to address in my response, but the bottom line supreme court precedence confirms the elections clause means what it says, that congress has the broad power to make or alter rules governing
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the time, place and manner of conducting congressional elections. thank you, madam chair. >> thank you very much, dean. >> last we have secretary of state michael adams, thank you for joining us secretary adams, recognized for five minutes or so. >> thank you, madam chairwoman and members. community. i'm michael adams kentucky secretary of state. i understand the topic of discussions is the elections clause of our constitution, any day that congress spends considering the text of our constitution is a good day and i wish you every success. my job here is to address policy concerns, congress' role in elections for congress. first some background, i took office last year, and during the pandemic. i asked the legislation for and
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received powers with the governor to permit changes to the assure access, voter safety and we established absentee voting and early voting for the first time in kentucky history. in the days before our june 2020 primary election, kentucky was singled out in a national campaign of harassment and hate and false accusations of voter suppression. and there were calls cursing at us, steams threatening violence and this was directed at us, and by celebrities on twitter, including a member of congress who now shares the senate committee analogous to yours. when the dust settled, kentucky conducted the most successful election in america to that point, safe, orderly, with high turnout. kentuckians knew better how to conduct an election in kentucky
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than did the national media or politicians. expanded voting reforms and enhanced security measures we implemented proved so popular, most are made permanent and in both chambers nearly unanimous. kentucky is the national leader in relex reform, but we're not alone. bipartisan legislation expanding voting opportunities has passed in louisiana and vermont, too. why was kentucky able to pass a bipartisan election reform measure? most significant modernization of our sims since 1891 is and made it both easier to vote and harder to cheat, that had widespread spot and why did louisiana and vermont follow suit? because you did not stop us. two lessons, kentucky knows best what is best for kentucky. i would urge you let kentucky
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be kentucky. louisiana be louisiana and vermont be vermont and let the laboratories of democracy and decentralized election city. vermont passed in mail-in vote that reflects their political culture. even in kentucky expanded voting even in a pandemic, most voters, including most democrats voted in person that reflects our political culture. second lesson election policies should be made not by caucus, not by a think tank, but by election administrators who work in a bipartisan fashion. bipartisanship not only leads to, concerns on both sides accomplished and voters on both sides that the votes are not rigged one way over another. and i understand many of you have of state legislators acting in a bipartisan fashion, and do not be victims of a
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false narrative. i don't agree with every election rule that's been offered by some republican state legislators, but the reality on the ground is more complicated and in this beltway-- the desire to accuse red states, is so strong that media is covering to their own narrative. and cnn said a bipartisan bill expanding access. june 30th, 17 states enacted 28 laws making it harder to vote, including kentucky in their count. on april 8th, "the washington post" reported, democratic governor and deep red kentucky expands voting. and washington post then included 17 states that were allegedly undermining democracy. the cognitive dissonance is so
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strong these outlets don't accept facts from their own reporting when it contradicts this narrative. our politics has grown increasingly harsh even dangerous. and more the big decisions are federalized rather than resolved at state and local levels, i urge you to respect the diversity of our country and the majesty of our 50 different, but well-functioning election systems. thank you so much. >> thank you, mr. secretary. we now come to the time when members of the committee may ask questions for about five minutes and i'll turn first to congressman rafkin, also a constitutional law professor. you're recognized. >> madam chair, thank you for calling this important hearing and thank you for the testimony. and let me start with you, in american history and states have sometimes been in the forefront of expanding and defending the franchise, i into new jersey gave women the right to vote at the beginning of the
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republic, but at the same time the states have often been in the forefront of disenfranchising people with literacy tests, poll taxes, grandfather clauses to disenfranchise. what do you make of the claim of secretary adams that we should trust the states and let kentucky be kentucky and new york be new york. and is that consistent how we've respected voting rights over the last century? >> thank you so much for that question, representative raskin. and there are two important principles here and we have to recognize both of them. states are, of course, laboratories of democracy. it is a great thing about our frlist system that states can experiment, as they so often do, and that includes experimenting with election reforms like same day registration, for example, that a number of states have experimented with and have
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proved quite successful in making it more convenient to vote and increasing turnout. on the other hand there's a competing principle which is that in the end congress has to have the authority to regulate congressional elections, and that includes regulating to protect the fundamental right to vote as it has sometimes has to do. the first noteworthy, or at least one of the first are the enforcement acts which dean tolleson has written about in her scholarship and addressed in her testimony. the reconstruction period. it was vital for congress to exercise its authority under the elections clause, as well as the 14th and 15th amendments to the united states in order to protect the voting rights of newly freed african-americans and so, too, after the
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appalling disenfranchisement of african-americans that took place after reconstruction and throughout most of the 20th century. it was again necessary for congress to act, in part, under its elections clause and authority to protect the right to vote. so, yes, we do want to the states to be laboratories of democracy. at the same time congress has to have the ability to protect the rights of those particularly in federal elections as the elections clause allows. >> thank you for that, dean, and the other point raised by secretary adams about election administrators. so i guess it's two parts. one, what do you make of the claim that we should really delegate this decision to election administrators, that they are a better judge of what america needs in terms of voting than, say, the representatives of the people in congress in the house, and in the senate? i was struck by that,
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especially when the let kentucky be kentucky and no one more powerful than his senator, mitch mcconnell in congress. i don't think he has to worry about kentucky's point of view being represented. there's an attack of election administrators going on and saw that in 2020 and donald trump was calling them and telling them to revise their totals. and called secretary of state in georgia, raffensperger. rather than everyone apologizing for it and what do we do, now there's an effort to displace him and run somebody
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against him so they have a sycophantic secretary of state in georgia. what about that idea increa increasingly partisan-- and dean tolleson, start with you. >> thank you for that question. representative. i appreciate secretary adams' point because the states are important laboratory, but sometimes they produce disenfranchising in our history. look at mississippi constitution of 1890 a constitution where the state substantially disenfranchised most of the african-americans within the state and other southern governments followed suit and mississippi's effort, yes, the laboratory point is well-taken, but sometimes use their laboratories for ill. and a list of best practices, it's a list of things that will
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further a national conception of democracy. democracy could not be a state level conception we have to have some sense of who we are as a national democracy if we hold ourselves as a national democracy. hr-1 with that goal, and leaving the discretion over the apparatus in the state. >> my time is up, but could you answer my question. >> i don't have much to add to the discussion, in the bureaucracy-- innovation, i think the best way to think about this is, you know, from the kind of quasi, and fundamental attention would have been two levels of legislatures, the idea that you would have anything like a secretary of state at the state level responding to elections,
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and obviously, would have been anomaly in that period. so what madison was worried about the legislation more than at bureaucratic one. >> the gentleman's time has expired. we'll now turn to the gentleman from georgia. >> thank you, madam chair, and being a part of this hearing today. first thing, before we get into my question, i think we need to separate the argument we're having over the constitutionality of congress's ability to set the times, place and manner. there's two issues that are being inflated in this argument. the first is, the qualification of electors and that is very specific within the constitution and our founders and the courts have upheld that
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the constitution establishes clearly the qualification of electors. and this is a lot of the argument i'm hearing in court cases upheld, yes, the federal congress has the ability to read the constitution, establish who the electors can be and the states do not have the ability to usurp that because that's set in the constitution, it's been upheld several times, the secretary aspect of the argument is the times, places and manner, which our founders says should be taken literally. the british system was broad when he talked about time, places and manner, it included electors in the system and our found through their debate in the constitution are specific in time places and manner. as it was brought up earlier, hamilton made the argument that every government ought to contain within itself the means of its own preservation. the reason for this was during
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the ratification of the constitution, the anti-federalists and those opposed to this provision believed that factions or parties as we could call it do could manipulate election law so they could stay in office indefinitely. that was their argument. hamilton out of the federalist, haven't quoted today, clarified that and after he said every government ought to contain within itself the means of its own preservation, he argued na the provision was a reasonable compromise, but gave congress the secondary powers and here is a quote, whenever extraordinary circumstances might render that into position necessary. so what hamilton is saying, the states have the promissory power that congress only has had a secondary or default power and his argument was in case of states setting times,
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places and manners to where they would not fulfill the seats for congress. that they could manipulate, they could hold congress hostage, per se, if they didn't. and that was the secondary argument that they were making. and that that's why congress has that secondary power, not the primary. yes, the federal government has a primary on qualification and this is getting convoluted in the argument here and i think we need to separate that into the republican's argument here is not with the qualification of the electors, our argument with the states provide or hold the primary responsibility for time, places and manners. and with that, secretary adams, as you know, according to article one, section four as we've been talking about, the time, places and manner, that the states have the primary responsibility for setting that, that even still, many of
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my colleagues on this committee and others are pushing this article one, which is a national takeover of elections which would, in my opinion, circumvent the true event of our founders and our constitution. the question is, how would this one size fits all approach with the election administration, and especially in kentucky, look at the provisions that would substantially, potentially substantially affect elections. >> thank you, congressman, let me give you a pretty riveting example. back when i was drafting the legislation, the modernization since 1891, we made absentee voting easier and early voting and so forth. i had a meeting with high level in the state, he told me secretary adams please don't
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expand mail-in voting, my community doesn't want that, you look at mail-in voting not here to oppose or propose. what's great for them, i respect that. but in kentucky african-americans want to vote in person, democrats want to vote in person, that's our culture and we're different and that's our tradition and how people feel like they have a voice so i think we have to respect that and the best way to do that, let each state do it their own way. >> thank you, i see my time expired and the other questions for the record. in response to your answer there, we know in person voting is the most secure and that's why many prefer to do that, much more secure nan mail-in voting and traditionally that's when we've seen the amount of--
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>> the gentleman yields back and the gentleman from north carolina, mr. butterfield is recognized. >> thank you very much, madam chair for convening this very important hearing today and certainly, thank you to the witnesses for your testimony and it's good to see all of my colleagues, i look forward to our return to washington. madam chair, as a law student many, many years ago, as a lawyer, as a trial judge, a supreme court justice over the years i've had many occasions to read and reread and study court opinions and law review articles all about the elections clause. and i come to the same conclusion, every time i read it and read about it, the elections clause, seems to me to be unambiguous. so i want to begin today by asking each one of our witnesses the very same question, should congress choose to pass a regulation affecting federal elections, do
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you agree or disagree that such regulation will pre-empty those passed by a state? and let me go to each one of the witnesses. i guess i can go in the same order that you testified. >> yeah, i mean, the basic answer i would offer is yes, i see no harm in it. it's -- you know-- >> unambiguous in your world? >> say again? >> is it unambiguous, the elections clause. >> yes. >> all right, the next witness. >> it's going to state laws and create new laws some places for those states that have independent commissions, for example, would preempt those
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laws because it requires it for some elections, but in some cases it conflict and absolutely preempt. >> sure. >> representative butterfield, i do agree it is unambiguous that under the elections clause congress has broad plenary power over the time, place and manner of conducting congressional elections and you don't have to take my word for it, that's what justice scalia wrote in the opinion reaffirming almost a century and a half of precedent. >> and secretary adams before you respond, you'd noted in your testimony that you were testifying today primarily about policy, in other words, whether congress, whether we should pass election legislation. for the sake of clarity when it comes to the narrow legal question of whether congress can pass legislation and that's
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what my first question is about, would you agree that the elections clause, gives us congress broad and expansive authority to regulate congressional elections, putting aside the policy concerns? >> well, if it's kind of a subjective question with kind of subjective answer. clearly there are certain things congress could do that would go beyond its authority. there are guardrails in our constitutional system. we are a system of dual sovereignty, states and the congress. we see that time and time again in supreme court decision, congress can't require states to do medicaid and-- >> what about mail-in voting, do we have that authority? >> if i could finish my answer, there are limits what congress can tell the states to do and how much they can come and do them, whether they can require them to do certain things in exchange for federal funds, so if you're asking if you have
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significant authority, i certainly think that you do, but-- >> does that include mail-in voting? >> i can't tell you that i've researched this issue perhaps as scholars have. >> you mentioned a moment ago that african-americans in kentucky want to vote in person. how did you arrive at that conclusion? >> well, a couple of things. one, i was told that by a high ranking official of the state naacp. >> and poll after poll across the country is contrary to that decision, minority groups and all groups want the ability to vote absentee as well as early voting and let me who have on if i can. and 20 secondsment i don't have enough time for my final question so i will yield back. thank you. >> the gentleman yields back. mr. styles recognized for five
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minutes. thank you. my tour continues and i've not found kinkos, but found people with access to cameras. and from the university law school, and i'd like to direct my first question if i could, secretary of state on michael adams, and methods of voting, subject to several election subcommittee hearings and some have suggested the mandatory vote by mail. would this guarantee is increase in voter turnout? >> well, in kentucky, no, i don't think that it would. in kentucky, again, the culture, people want to vote in person. before i took office 98% vote in person and 2% absentee and i worked hard to make voting as easy as possible i don't know that it would make much of a
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different, i think that people want to vote in person. in kentucky i quadrupled the number of days that people can vote in person, that's how people choose to vote. >> it seems like the political cultures are different in different states, how people prefer to vote, for example, in kentucky you may want to cast your ballot different than in utah or wisconsin. and the different political cultures exist in different states in the united states. >> yeah, if i could make one overall point today, i'm not here to criticize the proponents of hr-1, i don't agree with many of them, but my argument i don't want to see a republican or democrat bill change the rules. states are different, utah has a vote by mail system and more republican than kentucky is and
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they seem to like that and i don't question that at all. it's super for them, but i don't think in kentucky we would take to that as equally. i think the best way to expand a franchise in kentucky what we saw last year, even though we made absentee voting available, available to all people, they didn't want to vote absentee they wanted to vote in person and still came to vote in person and the easiest and the most cost efficient way was to expand the number of days people could vote in person. >> and in the political cultures and significant geographic footprint. and is the best 0 way to encourage everyone to vote, and to deal with that the state government or the national government? >> well, i think you just look at the record and what we've accomplished in kentucky compared with respectfully with the national government with regard to the administration and proud of what our states
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achieved and you all didn't take over the system, you allowed us to have the republicans and democrats able to come together and pass with almost unanimously voted. >> you're a secretary of state and also an elections attorney. could you walk throughout your interpretation. elections clause just a little further into your testimony? >> yeah, look, i'll be first to admit i've never researched that issue in a scholarly fashion, never pop up in a case i've had for any client of mine, i don't have a whole lot to add in terms of the history or the text of that. i think it speaks for itself. >> i appreciate your testimony today. with that, madam chairwoman, from rural america, i yield
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back. >> and is this coming through i'm travelling myself. >> she's in rural pennsylvania, yes, she's coming through. >> thank you, chairwoman lofgren, i've been anxious to have the discussion about article 1 and i'm pleased to see my former professor, way back in the day longer than i care to admit. because this hearing today. he is the preeminent national authority on the original meaning of the constitution, in fact, the author with that title. i guess i'd like to direct my first question to him, about the clause that we're talking about here, article 1, section 4, heard a lot about time, place and manner, but the second half of that clause is
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what gives congress the power to do something different than the state legislatures to do. can you talk about the drafting of such a clause and what the second part of it giving the congress would be with respect to giving the states the authority in the first part? >> the clause-- the clause did not originate in the larger body of the convention, it came out of the work of the committee detail, met between july 26th, and august -- and they took the general resolution and turned it into the working text. constitution. the idea of speaking about the conduct of elections original committee goes on and discussed august 9th and it was discussed primarily not solely, but primarily because the two south
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carolina delegates said the clause was -- and in a sense, it had a long tradition of the colonial and the state legislators dominating. but once the proposal and they spoke robustly in opposition to it. i think the important point i want to stress and it is, i think it does involve anything historically about change over time as much as legally, is to realize that, you know, this was a deeply experimental process. there was no example of designing the kind of national political system that the framers were creating and in my written statement i talk about two nights for every -- and
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representation on a corporate basis, but there's no idea of expanding electors, the kind americans were bound to have and a lot of genuine uncertainty in the very beginning, were we going to represent the states as aggregate constituency. would you do it by districts, by voters in individual districts and these were all the possibilities. i think the important thing to stress, congresswoman scanlon, there was a strong perspectivedy mention, indeed, an experimental dimension to the clause that you would learn more how the national political system would work on the basis of experience. that experience would also-- the question of whether or not issues of discrimination as we think about them now, but for
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which there was a 18th century way to think about this. and that equal measures of society and in some ways, that's a modern notion as well. so i think that thinking about, you know, the second half, you know, the latter part of the clause in these terms, i think would be really helpful. it's not just about protecting the states. it's about models of national representation. >> i mean, coming from pennsylvania, where over the past decade we've had a number of different voter i.d. laws and with a republican legislature where the house majorities leader was reported saying many of these traditions were implemented in order for his party to retain power. that seems to be like the very type of conduct that these framers were rightly skeptical
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of and that we're hearing about states having certain cultures and voting and we know that certain communities have cultures of voting, for example, the black community, that has had a tradition of voting on sunday after church and we've recently seen some state legislators trying to undermine that tradition of voting. so, i guess just finally, i was interested in what you wrote about madison and the skepticism of the types of activities they were in legislators undertaking and polling places and preferring certain voters over other types of voters. i don't know if we can get an answer, but i'll yield back. >> the gentle lady's time expired and i recognize the gentle lady from new mexico for her five minutes. >> unmute though.
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there we go. [laughter] >> thank you, chair lofgren and our witnesses for their important discussion on the constitutionality of federal voting laws. professor rakove, you described awe the founders eloquently described the need for the ability of voters to elect a representative assembly that in john adams word was a miniature, an exact portrait of the people at large of the country. you discuss how that representation might not be what it is today, but today it is supposed to be every citizen whether they be native american, you know, black, latino, white that they need a representative that reflects them and our concern is that that's not happening, that restrictions in terms that are being enacted are targeted so that certain communities cannot, cannot succeed in getting that beautiful portrait
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themselves in congress. can you explain how the elections clause and its history apply to these present day concerns? aren't they in some way-- the concern is similar, correct? >> well, certainly. and written so much about periods of discrimination and the practice of voters. the framers early viewed as laboratoies of democracy, but also could be described as the laboratories of discrimination, and the jim crow, once it was created during the reconstruction and today, in the aftermath of the shelby county decision. obviously not seeing a full scale revival on the basis of what happened in the 1890's and after 1900's, but whether the kind of laws enacted the at the
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state level will have that discriminatory effect and congress as you know, went to great lengths as periodic enactment of the votings vote act to the data that the court seems fairly anxious to deny. but the question, quickly on the history side. the question of a mirror, it was something that both the federalist and anti-federalists actively debated. and the article also known as the federal farmer, try to imagine what it would look like. a middle class quality, that it's easy for to social easy forepeople of wealth decide what they're going to do and intimidate the others. and important in the 18th century, and every member of congress noted.
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the issue of being reelected was not the dominant voting in 18th century politics, but down to 1890, it was three years, meaning the vast majority of members served one term or two. so, the whole idea that our politics would be driven, including the whole gerrymandering process and the united states voters don't choose representatives, representatives choose their voters. and that idea would have been hard to grasp or accept in the late 18th or 19th century, by and large most representatives would be amateurs. you know, they would come and they would go. they would rotate in office. so, it's a good example of this. how much of what we're debating about today would be anticipated by madison. and the whole idea behind the
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federalist was to do their federal duty and accepted, to kind of partisan concerns and madison saw and maybe wrong about this. if you have -- you might get less partisan politics. >> thank you, professor. i wanted to get to at least one other question and it strikes me that unlike rural wisconsin where we heard earlier today that everyone has good access to basic infrastructure, i represent a rural district and many of the rural areas i represent don't have such infrastructure, and in high poverty areas of my rural district, especially in tribal ak areas, access is-- and provisions for native americans voting and provision toss assure that states receive fund so we have fair and
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equitable. and professor tolson, how do you respond to those. >> this is something that has come out over the course of the hearing. the text is although states are mentioned because they get the time, place and manner of elections not because the states are the focus of the elections clause. if you look at the history recounted by the professor, and consider the fact that there was a consideration on the general veto of allstate laws by the national government and veto in the elections clause. i think the general veto was rejected and accepted the veto in the limited clause, reflects the distrust that the national government had with the state legislature over these issues.
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in short, the election clause has broad authority for hr-1, and another point. a talk about culture and there's not a political culture, and -- the ability of states the manner and for instance and when states are using that ability --. >> thank you so much my time expired. >> i see the ranking member, mr. davis has joined us, mr. davis, you are now recognized for five minutes. >> well, thank you, madam chair, nice to see the witness. sorry i haven't been here the whole time and keeping a tab on the testimony and an eye on mr. style, and the ranking side. but it's great to see everybody, can't wait to see all of new person again. and start my questions,
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mr. secretary, i do want to say thank you for coming here today. it's great to see you a few weeks ago in washington. as the chief election official for the state of kentucky, do you believe the federal government should mandate how states and jurisdictions administer elections? >> well, i certainly don't have a problem with some basic provisions, ndra that congress is going to have. i don't want a micromanagement of our elections systems because states are simply different. the first argument. with respect to congress i think we do a better job at the state level especially across the aisle to actually work with each other and get things done, it's a less toxic atmosphere than in washington. >> i mean, a toxic atmosphere anywhere compared to washington d.c. the last two election cycles, mr. secretary we saw a record
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turnout in 2018 and record presidential year turnout in 2020 and the democrats have not been able to produce a single voter whose state was suppressed and even stacey abrams testified that voter turnout doesn't matter. could you explain to me? >> i'm sorry, what was the last part of your question. >> i said, even stacey abrams testified before this company on voter turnout that it doesn't really matter. so i'm lost. can you explain how that makes sense when we've had record turnout and have not been able to-- the committee has not been able to have a singer voter whose vote was suppressed and they're leading a voice on voter suppression, ms. abrams said that voter turnout doesn't matter. i think it does. do you? >> well, sure. i think it does. i'm really proud in our election last year and amidst
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the pandemic the highest turnout we had, over 2 million voters voted and i'm proud of it and from my side of the oil from the decisions i made to make voting easier and did it in a way, particularly the security of our elections, the integrity and we expanded early voting and we found that about even during the pandemic they preferred to go in person. and i don't -- coming up with what works best for them. >> did any of the changes you made like voter i.d. impact voter turnout? >> well, interestingly, the first laws that i got passed was the photo i.d. to vote and that was an issue i ran on and there were chicken little concerns, the sky falling, but that didn't disenfranchise
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anybody. to be clear ur law was humanely drafted and bent over backwards to sit down with interest groups on both sides to make sure we didn't have anything in there that would prevent from voting and we were humane how we did it, but in a pandemic we ensured that people were able to vote and verify. >> and the voting election officials on these reforms prior to enactment and i know you -- in 2020. can you tell us briefly how do you get the local election officials to get the reforms that many of my colleagues on this committee were impossible to implement and in-person voting in kentucky in 2020? >> i think it's really important that election administrators be at the table, at the center of the table in
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devising elections rules. these things shouldn't be written up by a caucus or a think tank. they should be done at the table and we're less ideological on these things and letting people vote. we found that urban county clerks didn't like relying on mail voting as the primary method. they said the constituents preferred in person when possible. due to age or disability, you have that right accord to go the constitution. most democrats wanted to vote, most republicans wanted to vote in person and how do we achieve that and to do that we've expanded early voting for the first time in our history. >> thank you very much to the witnesses. i've run out of time. and talking to you, mr. secretary, so i didn't get a chance to request questions of the others. appreciate the opportunity, madam chair, i'm happy to jump
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off. thanks again. >> general ranking member is back and now i recognize myself for a few questions. >> dean, it's been alleged that if congress exercises its jurisdiction in the elections clause it would constitute constitutional problems of anti-commandeering, specifically, i'm interested in the redistricting provisions and whether the court has led this issue to say -- can you address that? >> yes, thank you for that question. in fact, in the decision which committee members will recall rejected a constitutional challenge to partisan gerrymandering, the courts reaffirmed congress' broad
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power to regulate congressional elections, specifically including redistricting. and the court referenced favorably, the apportionment act of 1842, the first of congress' power of drawing congressional districts and the congressional representation process. and went on to explain that congress specifically does have the power to make laws regarding congressional districting. so there wasn't really wasn't much question about congress' power to apportionment to redistricting. >> to fulfill our commitment for live coverage of congress. the senate is about to gavel in. nominations for the equal
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community commission, and at lunchtime will meet with president biden and discuss infrastructure legislation. live coverage of the senate on c-span2. the presiding officer: the senate will come to order. the chaplain, dr. barry black, will lead the senate in prayer. the chaplain: let us pray. eternal lord god, the fountain of wisdom, teach us this day that you continue to work for the good of those who love you. strengthen the hearts of our lawmakers against temptations,


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