Skip to main content

tv   Legal Experts Testify on Voting Rights Act  CSPAN  July 14, 2021 3:15pm-5:42pm EDT

3:15 pm
constructively knew of this rights-violating content. you have to know that as a social media platform it is impossible to be perfect at this. right? i think that's another thing that congress knows. it is impossible to be perfect at this. if they do put an impossible standard in front of the platforms that gives them -- >> you can see the reftd of this washington journal segment on our website c-span.org. right now, we will take you live to a senate judiciary subcommittee hearing on voting rights. >> i do want to thank all of you for being here today. yesterday, president biden issued in effect a call to action an urgent plea to protect democracy amidst an onslaught of state laws restricting voting rights. he declared that, quote, we are
3:16 pm
facing the most significant test of our democracy since the civil war. end quote. we must, president biden said, quote have the will to save and strengthen our democracy. during the civil rights movement then president johnson made a similar call to action. in the summer of 1965, state troopers mercilessly attacked john lewis and 600 others as they crossed the bridge in selma, alabama, in peaceful protest of discriminatory voting laws. in the wake of the attack, and as the nation came together to grieve, president johnson called for an end to voting discrimination in america. two days later, congress announced it would take up that call in legislation. and just five months after bloody sunday, as it came to be known, the voting rights act was passed by congress with broad bipartisan support. the purpose of today's hearing
3:17 pm
is to heed president biden's call. that call to action to protect our democracy just as congress heeded president johnson's call in 1965. we are going to explore the real world impact of two deeply flawed anti-democratic supreme court decisions undermining the voting rights act, shelby county in 2013, and brino vich just two weeks ago. this morning, i met with a number of deeply courageous members of the texas house of representatives. they shared their harrowing stories of the impact of the supreme court's recent decision in texas. which has some of the most extreme voting restrictions in the country. efforts to purge the voting rolls including efforts to purge
3:18 pm
tens of thousands of newly naturalized citizens eager to exercise their constitutional right to vote as americans. efforts to criminalize the right to vote, putting people in prison for improperly filing a provisional ballot. efforts to limit voting hours, and mail-in balloting which are critical for opportunities to vote for thing like medical professionals, individuals serving in the military and veterans. sadly, there are similar stories from states across the country. and those stories include the threats of criminal prosecution and intimidate the exercise of fundamental rights and what so deeply impressed me about the stories i heard this morning from those members of the texas legislature and a number of them are here in the audience today
3:19 pm
is the effect on their exercise of rights their exercise of rights as american citizens. we cannot let these attacks on democracy stand. before shelby county and brino vich, the voting rights act was immensely successful. the department of justice and american voters were able to use the voting rights act to halt well over 1,000 discriminatory election rules. the voting rights act became known as the crown jewel of the civil rights movement. and in subsequent decades, the voting rights act was reauthorized five times, five times, with bipartisan support. beginning in the 1980s, the courts began to chip away on its protections. on july 1 the supreme court
3:20 pm
struck its latest blow gutting section two. the 6-3 partisan decision was a stunning display of judicial overreach and activism. the text of section two of the voting rights act plainly require the members of every racial group have equal voting opportunities. and yet the court's decision in brino witch is completely untethered from the text that congress enacted as justice kagan said in her powerful dissent, the majority did not like the statute congress wrote, so it, quote, wrote its own set of rules limiting section two from multiple direction. end quote. bryano vich follows the court's equally devastate partisan 5-4 decision in shelby county in 2013. following shelby county, states have been free to pass voting
3:21 pm
restrictions without preclearance process to assess whether the changes are racially discriminatory. and they have, in 2021 alone, 17 states already passed 28 laws to restrict voting rights. approximately 21,000 polling places nationwide that serve voters on election day have been eliminated since shelby county. and millions of voters have been purged from the voter rolls. the supreme court is at a low point of legitimacy when its decisions undermine the institution of our democracy. and in shelby county and brino vich, the court undermined all
3:22 pm
the -- in the voting rights act. voting rights are not and should not be a partisan endeavor not in this great country, the united states of america. but if the senate is unable to meet this moment and reauthorize the voting rights act because of republican opposition to voter protections that have been passed with overwhelming bipartisan support for over 50 years, we are forced to consider all of our options, including eliminating the filibuster. indeed, i have long been in favor of eliminating the filibuster. it was one of my first votes as a member of the united states senate. i was one of only 12 that voted to eliminate the filibuster. but i have seen over the past ten years, one by one, many, many of my colleagues reach the same conclusion that reform is necessary.
3:23 pm
because the truth is that voting rights are truly bipartisan. they are widely supported throughout american society on the left, the right, center, in the private and public sectors. polling shows the vast majority of voters support equal access to the ballot box. and just today more than 160 companies have released a public letter of support for the john lewis voting rights advancement act. protecting the right to rote is a matter of living up to america's founding ideals that our government, quote, derives its just powers from consent of the governed. end quote. as a tsunami of voter suppression bills crashes on this nation, my deepest hope is that today we can renew a bipartisan commitment to protecting voter rights in this
3:24 pm
country. i turn to the ranking member. >> thank you, mr. chairman. it has long been said that hypocrisy is the trip out a that vice pays to virtue. in few areas is this more clearly true than when it comes to voting rights. today we see democrats giving long emotional speeches about protecting the right to vote. but today's congressional democrats do not believe in the right to vote. they do not believe in democracy, and they are championing efforts to take away the right to vote from american citizens. the rhetoric that is being used by joe biden, boo chuck schumer, by other democrats, is consistently inflammatory. in indeed one of the phrases they like to use today is jim crow 2.0. i ronically, and inadvertently, there is some truth to what they are saying. because we do have legislation
3:25 pm
pending before congress that would, indeed, be jim crow 2.0. it's worth asking what was jim crow 1.0? jim crow 1.0 were a series of racist laws that were written by democrats, that were enforced by democrats, whose purpose was to prevent the voters from ever voting democrats out of power. jim crow was offensive. it was racist. it was bigoted. it was wrong. and it was the democratic party to wrote, enforced and implemented it. so what's jim crow 2.0? it is the latest efforts of democrats to write laws to prevent the voters from voting democrats out of power. before the senate is pending s-1. what the authors have orwellianly entitled the for the people act but many are rightly calling it the corrupt
3:26 pm
politicians act. the only objective of the corrupt politicians act is to keep democrats in power for the next hundred years, to take away the right of american voters to vote democrats out of power. how does it do that? corrupt politicians act would strike down every voter id law in the country. 80% of americans voters support voter id, 60% of african-americans support voter id. what would the corrupt politicians act do? undermine every one of those laws. mind you, the documents say we support the right to vote. so we are going to take away the decision made by voters to enact voter id laws. what else does the act plan to do? 29 states prohibited ballot harvesting. that's a corrupt process where you send operatives to collect the battle of others. a paid operative toerks from the dnc will go into a nursing home,
3:27 pm
collect hundreds of battle from seniors some of whom may no longer be competent ten to make a decision. the reason 29 states prohibited it is that it invites fraud n. a scrupulous operative, it is very simple for that operative with someone with diminished capacity for them to vote the ballot the way they want it to. if someones that temerity to vote for the other side the corrupt operative can just throw that ball in the trash and never mail it in. if you actually cared about the integrity of elections you would can't to stop ballot harvesting. what does the contribute politicians act do? strikes down every law that prohibits ballot harvesting. and mandates it anythingwide. if the democrats, who say they protect the right to vote believed it, why do they want to strike down what the voters chose to adopt? which is protecting the integrity of their elections? the corrupt politicians act automatically registers to
3:28 pm
register every person who interacts with the government in any way. if you get an unemployment check, a welfare check, if you have a driver's license, go to a public college or university, bingo, you are automatically registered to vote. what is the predicted and, in fact, intended consequence of that? that millions of illegal immigrants would be automatically registered to vote. in fact, the corrupt politicians act explicitly immunizes the state officials who would be registering illegal immigrants to vote. when you are registering illegal immigrants to vote you are stealing the right to vote from american citizens. that is not protecting the right to vote. that is stealing the right to vote. if corrupt politicians act mandates that felons all across the country be allowed to vote. because democrats have made the decision that if millions of illegal immigrants and millions of felons and murderers and rapists and child moe lesters
3:29 pm
are voting, they believe they are likely to vote for democrats. just a moment ago the chairman said that voting rights legislation should not be partisan. well, the corrupt politicians act is nakedly partisan. and what really admits the entire joke, federal election commission, when it was enacted in the act of watergate, it was designed to be bipartisan, three republicans, three democrats. what does the crypt politicians act do? makes it partisan, two republicans and three democrats so they would have the agency to use as an attack dog to use as a political weapon not to protect integrity or follow the law but to ensure that democrats can never be beaten and that voters don't have a right to vote. when congressional democrats talk about shelby county and wanting to make every jurisdiction in america subject to d.o.j. preclearance, understand what that means. that means your state
3:30 pm
legislature at your home doesn't have the ability to pass laws concerning voting without getting an unelected bureaucrat in the department of justice to sign off on it first. mind you, this is after joe biden is nominated and senate democrats have confirmed extreme partisans to the department of justice. kristen clark, who is a left wing radical activist, would be in charge of voting laws all across the country with the ability to stop any elected legislature from passing laws concerning voting. i ask you if you actually believe the rhetoric from democrats that you wanted to protect the right to vote, why the hell would you say you can't vote in the state legislatures unless an unelected democratic who is not accountable to the people says it is okay? this is not about the right to vote. we heard some stringent rhetoric about the supreme court's burn vich decision. i tell you i was proud to lead
3:31 pm
an amicus brief for 11 senators in the case. state of arizona quite reasonably prohibited ballot harvesting because ballot harvesting invites fraud and is corrupt. and the supreme court, by a vote of 6-3, agreed with the position that i advocated on behalf of 11 senators that states have the authority to protect the integrity of their election. we should protect everyone's right to vote. i will note by the way the civil rights decision legislation that has been adopted, the civil rights act of 1964, a significantly greater percentage of republicans voted for it than did democrats. 82% of the republicans in the senate voted for the civil rights act of 1964. 69% of democrats did. we should protect the right to vote, and that means not striking down common sense voter integrity laws. that means not subjecting elected state legislatures to oversight by unelected
3:32 pm
bureaucrats. that means protecting the right to vote for everyone regardless of race, regardless of ethnicity. and one of the ways you protect the right to vote is enacting common sense protections to stop that right from being stolen. and unfortunately, congressional democrats are not interested in doing that. >> thank you senator cruz. i understand some of the other members of the committee may want to make an opening statement. senator leahy is recognized. >> thank you. thank you, senator. i thought now we have heard the red rick, let's go to the reality. i look at my state, which has some of the most open voting anywhere, both in how you can qualify and who can vote.
3:33 pm
and we do everything possible for open voting, sometimes of voting, mail-in voting. does this get a partisan result? well, last why are we elected a republican as governor, a democrat as lieutenant governor. and it goes back and forth. in -- it's also the only state that elected one democrat to the united states senate. the only state in the union. that's me. i have no problem with the way we do it. we also have one of the highest percentages of voter turnout of any state in the union. because people know they can vote, they are encouraged to vote and they will be able to vote, old, young, no matter their nationality, and they can vote. it really frustrates me when i
3:34 pm
see so many states who seem to be doing everything possible to limit the ability of people to vote. except for the particular ones they want. mr. chairman, i thank you for holding this hearing about what we have to do to restore the voting rights act in response to the supreme court's sustained effort to cripple it. the vra is one of this party's greatest legislative achievements and enjoyed bipartisan support democrats and republicans alike for virtually its entire existence. so as an afront to the world, congress, two partisan decisions -- making our democracy -- from many who have been wrongfully shut out from it in these decisions have been shut out again. in some ways the decision few weeks ago didn't surprise me. it involved the same playbook as
3:35 pm
the disastrous shellpydown decision of 2013 where a partisan majority in the court replaced congress's clear bipartisan will with its own and gutted section five of the voting rights act. like spellby county, this recent decision ignored the well established intent of congress and invented seemingly out of thin air new hurdle around section two of the vra effectively strak strangling it. let's be clear. gutting section five and section two of the vra is not some exercise in judicial nipplings around the margin. where the vra can somehow improve just a few little thing. section five and section two are the vital organs of the law. section five empowers the justice department to stop discriminatory changes to voting procedures from taking effect,
3:36 pm
something that was supported by both republicans and democrats in the past no matter which party held the presidency. section two empowersed ordinary americans to seek redress in court against voting changes discriminating against minority voters. so the -- is that the supreme court knew exactly what it was doing by nullifying section five and section two of the act. without them, the vra is on life support. we the people are left are very few ways to protect your precious right to vote. of course this decision couldn't have come at a worse moment. empowered by the shelby county decisions, fueled by the former president's big lie that the 2020 election was stolen from him, dozens of states have rushed to enact voter
3:37 pm
suppression laws. with each passing week literally tens of thousands of americans are having their right to vote chipped away. there was already a four alarm fire for america's voting rights before this decision w. the decision, it took away one of the last remaining tools to power the place. vra's section two effectively declared open season to suppress americans' voting right with impunity. i don't think we should sit idly by about this. those who argue restoring the vra is a partisan exercise could use a little history lesson. since its original enactment in 1965, the vr's core provisions have been reauthorized repeatedly. five times. five times, with overwhelmingly republican and democratic votes in congress. presidents nixon, reagan, george
3:38 pm
w. bush, all signed vra's reauthorization into law touting the importance of the landmark law for our democracy. i voted to reauthorize it four times throughout my service in the senate, and i shoot there with both democrats and republicans on the floor of the senate doing that. in fact, i went back to see how many republicans voted the same way i did, how many democrats. here's what i found, the most recent voting rights -- vra reauthorization was in 2006. the vote was 98-0. let me repeat that. 98-0. i think it is clear that every republican and every democrat on
3:39 pm
the senate floor voted for it. you have a lot of the republican senators serving today who voted yes. i suggest everybody check their facts before calling this a partisan effort. it is not. what is partisan the court's decision. let's get to work. i authored the john lewis voting rights. but that got pushed -- -- i hope our republican friends will join us in reauthorizing that vote as they did before. i will put my whole statement in the record. mr. chairman, i appreciate your courtesy letting me pop in and out of this hearing. there was an intelligence matter that i couldn't leave. >> thank you senator leahy. i will introduce witnesses. jose garza, who joins us remotely. has more than 40 years of experience practicing law dealing almost exclusively with
3:40 pm
federal law. his practice areas focus manly on governmental entities and federal litigationing including first and 14th amendment issues, redistricting, federal voting rights, and civil rights. mr. garza recently retired as the litigation director for texas rio grande legal aid, inc., and is currently voting rights counsel for the mexican-american legislative caucus in private practice as the law office of jose garza. he has represented latino voters in voting rights litigation including state-wide redistricting cases. mr. ken accuse nellie. ken is a lawyer, conservative politician, and national chairman of the election transparency initiative. a coalition formed in 2021 to restore confidence in elections and eliminate proposed reforms
3:41 pm
by democrats. he served in the trump administration as the act oog director of u.s. citizenship and immigration services. and then as the acting deputy secretary for the department of homeland security. jennae nelson is associate director, counsel of the naacp legal defense and education fund, a round scholar of voting rights and election law, nelson continues to produce cutting edge scholarship on domestic and comparative election law race and democratic theory. she received a b.a. from new york university and a j.d. from ucla's school of law. upon graduating from law school, ms. nelson clerked on the northern district of illinois and the 8th circuit. russ novelial is senior attorney with judicial watch a conservative, non-partisan
3:42 pm
education foundation whose anything is to promote transparency and integrity in government, politics and law. prior to joining judicial watch he was a lawyer in private practice which focused on government litigation, commercial matters and -- litigation. he is an actor for the civil society for law manufacturesment. -- professor richard hassan is chancellor's professor of law and public -- political science at the university of california irvine. he is a nationally recognized expert in election law and campaign finance regulation. he writes ads well in the areas of legislation, statutory interpretation, remedies, and torts. he hold a b.a. degree with the highest honors from uc berkeley,
3:43 pm
and jd, ma, and ph.d. in political science from ucla. after law school he clerked on the 9th circuit and worked as a civil appellate lawyer in private practice. we will begin by my swearing in of the witnesses as is our custom on the judiciary committee, and then proceed to opening statements. if you would please rise. do you solemnly swear that the testimony that you will give will be the whole truth, the truth, and nothing but the truth, so help you god? >> [ inaudible ]. >> thank you. mr. garza, if we could begin with you. i know you are testifying remotely, as are ms. nelson and mr. hassan.
3:44 pm
>> ranking member cruz, thank you so much for allowing me to come before the committee and testify on these important issues. what i would like to do this afternoon is focus on the impact of these changes of these laws on my clients. i think it's important to start, for instance, with the impact of shelby county in 2013 with the decision in shelby county taking out section five of the voting rights act, the voter id law in texas became enforceable and was immediately enforced. a lawsuit was filed on behalf of minority texans.
3:45 pm
i also represented malt in that case. in the process of going forward with that case, we secured, after testimony and discovery, a decision declaring that the statute, the way it was written at that time, discriminated against latino and african-american and elderly voters. the district court enjoined the enforcement of that law. the state of texas appealed that law to -- that decision to the fifth circuit and secured a stay. one of our clients was margarita lara. she was an elderly, extremely poor texan from the valley of texas. he testified before the court
3:46 pm
and the court sided to his testimony regarding the difficulty that he and his family had financially. extreme poverty. and the burden that it would take for him to secure a new birth certificate to be able to secure the id that was required by the state. that was part of the evidence that was presented. in interviews with us, mr. lara and the other plaintiffs that we presented to the court talked about the importance of voting to those individuals. talked about going on election day to the local polling site, where everyone knew each other, where he was greeted with people that knew him, and the pride that he took in going to cast his ballot on election day. there was an election that was scheduled right after the
3:47 pm
decision came out, and mr. lara was scheduled to vote with the injunction that the court had entered. how, with the stay, he was unable to vote in that election. that was the first election in his long life that he ever missed. we did secure, eventually, a positive decision from the fifth circuit who found that the voter id law -- that violated section two of the voting rights act. unfortunately, became the decision became time, and before a proper remedy could be imposed, mr. lara passed away. so here we have, in real life, a gentleman who was a veteran, who enjoyed voting as a function of his citizenship more than
3:48 pm
anything else, and he missed the last election of his life because the law that had been found to discriminate against minorities under section five and blocked by section five was allowed to go forward because of the shelby county decision. and even after a district court determined that it violated section two, was allowed to go forward again by a stay of that order from the fifth circuit. and the assault on minority votings that i have witnessed in my 40 years of litigation continues today with restrictive voting laws that are being proposed in the texas legislature limiting the time for voting that has no -- no purpose, except to limit the number of people who can vote. thank you.
3:49 pm
>> thanks, mr. garza. mr. accuse nellie. >> chair, ranking member -- >> could you turn on your microphone, please. >> thank you for inviting me here today. i'm ken cuccinelli. i previously served as the attorney general of virginia and currently serve as the national chairman of the election transparency initiative where we work every day to help improve the transparency, security, accessibility and accountability of the elections in every state so every american regardless of party or race has confidence in the outcome of every election. to begin with, as states seek to address the shortcomings in their own election systems it would help to get behind the hyperbolic and libellous rhetoric that each and every rule or procedure is not only an onerous restriction but is allegedly knee jerkingly racist particularly given in america today it is easier to vote than
3:50 pm
ever before. imagine an election with no rules. just a table with a stack of empty battle. nobody is watching the table. nobody is dispensing the ballots. anyone who comes along can fill out a ballot. and since no one is watching, as men as they choose, drop those ballot into at that drop box, for good measure, we'll mail a blank ballot to every game listed on our outdated poll book and let anyone return those ballots to unsecured drop boxes. no one would trust the outcome of that supposedly unrestricted voting process. we need rules, time, place, and manner rules. only citizens can vote. a reasonable rule. citizens have to register, and registrars have to keep poll books up to date. a reasonable rule. one ballot per registered voter. a reasonable rule. manufacturesent transparencies required so everyone can see the election is clean and secure
3:51 pm
from start to finish every step of the way. a reasonable rule. ensure each voter is who they say they are. a reasonable rule. the carter baker commission recommended it and overwhelming majorities of americans support it. nevertheless, the voter id has been particularly political sized by the radical left propaganda machine. despite six months of media-assisted assaults on the basic common sense need for voter id, the american people have been unmoved in their overwhelming support for this basic election integrity measure. it might explain why some very high-profile propounders of the false quote voter id is racist unquote propaganda like stacey abrams have suddenly flipped flop to get on the right side of the polling. so on the basicmen mechanics of how elections should be best run, when you take the constitution discussion out of the overcharged political atmosphere of the day, americans tend to agree on what it takes to run good elections.
3:52 pm
we have seen that one doesn't need fraud to shake confidence in an election. does anyone remember bush v gore? in 2000, florida's election system was held up before world as a sad joke. incompetence, election breakdowns, untrustworthy ballots and machines, and haphazard and inconsistent rules. americans' confidence was shaken. in 2000, the left was screaming its lack of confidence in our elections. again in 2016. again in 2018. highly regarded pollster scat rasmussen wrote an article this year in which he recorded that while 32% of americans lack confidence that america swore in the correct person as president following the election of 2020, 26% held the same view after the election of 2016. and there is not much overlap between those two groups. here in the u.s. senate, you can learn from florida. how the people of florida
3:53 pm
responded to the shocking revelation of just how poor their election system was in 2000? they set about fixing it. they fixed their laws and procedures and in many parts of the state they improved the quality of their personnel. states can and are working to upgrade and improv their election stems. but it is important that washington not step in to dictate its own one size fits all approach that is really more about control of elections by one party than achieving the confidence of the american people in the outcome of our elections. the first and most important thing the senate can do is stick with the voting rights act in its current form the fight actual discrimination where it occurs's noted in burno vich and not about beyond to it a partisan federal takeover of our elections. one need only look back at florida 20 years after bush v gore. when much of the country suffered election breakdowns in their states, florida, the third
3:54 pm
largest state, and the largest swing state, shootly tallied its votes with no significant complaints from either side. citizens can have confidence in their elections. but only if the federal government doesn't force them to eliminate basic rules of fair and accurate elections, as is proposed with s-1, and is rumored with the next rounds of the john lewis bill. thank you. >> thank you very much. and i apologize that i omitted among your qualifications that you are a former attorney general, which is kickly egregious for one who was a former attorney general myself. >> yes. i appreciate that. >> and we have another attorney general -- former attorney general on the dais here. we are this the middle of votes right now. i am going to ask senator cornyn to preside while i go vote.
3:55 pm
and senator cruz will be voting as well. in order, they will be ms. nelson, dr. nobile, and professor hassan. and we'll back i hope by the time you are done. i know the testimony is excellent. i have read it. and i look forward to the questions. thank you. >> thank you, chair blumenthal. i am gin anelson, i am the associate direct council of the naacp elected official defense fund founded by thurgood marshall and leading the fight to defend the voting rights of black citizens for over 80 years. our country's ongoing and soared i had history of racial discrimination in voting is threatening the future and functioning of our multiracial, multiethnic democracy. since the infamous 2013 shelby
3:56 pm
county decision disabled section five voter suppression against black vote and other marginalized groups have metastasized at alarming rates. now the court's most recent decision threatens section two, a signature lumbar force of national reach that immunizes the right to vote from laws based on discriminatory intent or that produce discriminatory results on account of race. the burno vich decision improperly and i will logically departs from the plain text of section two. it ignores precedent and severely curtails the broad application congress intended. and as justice kagan stated in dissent, the new guide posts proposed by the court's conservative majority are, quote, mostly made up factors at odds with section two itself, and mostly inhabit a law-free
3:57 pm
zone, end quote. in other words, burno vich's guide posts are unmoored from both text and truth. for example, the majority discounts the express text of section two which requires an equal opportunity to vote and instead asks whether a state's entire system of voting is sufficiently open to all. contrary to any prior interpretation of section two, and to severely of the factors that originated in this very body,antsly called the senate factors, which have guided section two litigation for decades. another guide post invites courts to compare a challenged voting restriction to burdens in 1982, nearly 40 years ago, when congress amended two to correct the court's previous misreading of the constitute in the city of mobile versus bolden. this ash terry benchmark flouts the text and purpose of section
3:58 pm
two, which is to prohibit unequal voting opportunities between president day racial groups, not to impose 1982 as a reference point for evaluating current laws. another burno vich guide post suggests government actors can disproportionately burden ten voting rights of historically disenfranchised racial groups so long as governments raise a theoretically even unsubstantiating interest in combatting voter fraud this. guide post threatens to return our nation to the time when states adopted facially neutral voting laws under the pretense of the purity of the ballot, but with the intent of excluding black voters from the political process. not only does this guide post find no support in the vra's text, it has basis in the factual record. arizona could not point to any voter fraud to justify its challenge laws. a study of the 834 million
3:59 pm
battle cast in elections between 2000 and 2014 found only 35 credible allegations of in-person voter fraud. by contrast there are volume nows examples of proliferating racial discrimination in voting during the same period. in short, this unscrupulous decision disregards the purpose of section two and, it erektsz an indefensiible bury dwrer for plaintiffs simply because a majority of the court fundamentally disagrees with congress's use of its enforcement powers to legislate broadly to protect the right to vote from racial discrimination. it is nothing short of an attempt the rewrite and weaken section two, resulting in incalculable costs to our democracy. since the disabling of section five, section two has been the primary defense between discriminatory vote denial and abridgement n. 2012 alone ldf
4:00 pm
filed five cases under section two and two more this year. in the first five years following shelby an unprecedented 61 lawsuits were filed under section two. it has been eight years since the chief justice expressly invited congress to update section five's preclearance formula to reflect modern conditions. burno vich has now issued its own tacit invitation for congress to act. and it is within congress's power no less today that it was in 1982 to reject the supreme court's latest misreading of section two and issue bold legislation to protect right to vote n. a week where texas senate legislators took the rare measure of leaving a special session to protest a discriminatory voter suppression bill and beseech the federal government to intervene, the urgent need for congressional action to update the voting rights act with a clear and unequivocal mandate to protect
4:01 pm
the right so vote from partisan express and the corrosive sane of racial victim nation could not be more pronounced. as we approach the first anniversary of the passing of the late congressman, civil rights stalwart and voting rights leader john lewis i urge you to do everything in your power to protect the right to vote, which he described as precious, almost sacred, and the most powerful non-violent tool we have in a democracy. thank you. >> thank you very much. mr. nobile. i did pronounce that correctly? >> correct, senator. >> please proceed. >> thank you. my name is russ nobile, i would like to take a moment a privilege here with the introduction that got left off. i have been in cases enforcing section two and section five.
4:02 pm
before i went into private practice i was a trial attorney at the department of justice which was enforcing the two statutes in question today. i formally introduced my written testimony and previously testified before house. i am am going the try not to repeat some of the things i put in the record but there is one thing i want to emphasize from my written testimony. that's the new standing under the john lewis act. it is going to be a sea change for the department of justice. there is virtually no limit on. i would urge and caution the senate to look at that seriously. i have scoured the internet and i read this stuff vigorously and i have yet to find a single explanation from anyone as to why the attorney general, after 200 and something years needs to suddenly start weighing in on 14th amendment cases. as you begin looking and trying to devise how to respond to the shelby county and burno vich
4:03 pm
cases, i would stress that both cases present distinct questions and have distinct risk and opportunities there. some of the discussion sort of blends the two cases together but they are two distinct cases bringing too disstankt opinions. over the last 15 years you are seeing two trends in election law. you have seen one trend with basically this growing sort of what i am now realize is critical race theory interpretation of voting rights act. then also, you have this explosion of vote denial cases that you didn't have until approximately 2008. vote denial cases -- well, until recently i never thought about how to characterize some of these troubling interpretations the voting rights act. now, having read more materials i understand where they emanate from. in fact, you know, the people i previously worked with, they would promote these theories and of course i was there happy to explain why they probably weren't supported by the law.
4:04 pm
to make sure the people that did support these that i worked closely with they were sincere in hoping to enforce the law that improved voting rights for racial relations. but that wasn't everyone there. avant-garde interpretations both undermine the act and undermine the ability to enforce civil rights laws. a good example was the department's handling of the 2011 redistricting case in texas. texas opted to file for preclearance in washington, d.c. there was a trial there in the
4:05 pm
primary, the general elections, they did not vote together but they got lumped together. so by doing that, you basically turn a section five district into an etiological district, it is not a racial district, or a district on people being cracked or split or packed. you turn it into an etiological district. of course -- one of the things that gets lost in that discussion of course is that minorities are not fungible homogenized groups that can be
4:06 pm
based together on the fact that they are white. civil rights laws often subsume the individuals, but coalition districts subsumes the entire groups of races and you basically mix everyone together based on who they etiologically support. at some point the vra ceases to protect minor it s its. the other trend it is proliferating is the vote denial cases which bronno vich has touched on. i am running out of time. i want the make sure i hit everything. the provisions in arizona -- if the committee doesn't object, i would like to -- some extra time to maybe finish my comments on vote denial claims, which the burno vich addresses, that's a new standard under section two that had never. there was no previously standard for vote denial cases until
4:07 pm
burno vich came about. of course it involved regulations that controlled who could handle a ballot and where you voted. those are regulations that have actually been around for quite sometime. >> thank you very much. i will start, and since the chairman and -- i'm sorry. we have another. excuse me, professor, hassan, i apologize, since we are doing this in a hybrid fashion, i didn't realize we hadn't gotten to you. >> no problem. thank you. thank you for this opportunity to appear before you today to speak about the supreme court's recent decision in burno vich versus democratic national committee a case which eviscerated section two of the voting rights act outside the context of redistrict. the opinion by justice samuel alito for a six justice conservative majority i goers no
4:08 pm
the relate history of the voting rights act and that warts congress's intent. let me begin with some history. a key component of the act that congress passed in 1965 called section five required states and localities for the history of racial discrimination and voting to ask either the department of justice or a three court panel in washington, d.c. for permission to change a particular voting role. this required districts to show minority voters were not worse off for the change. the idea behind preclearance was to prevent back sliding. a case that became to be none as non-retro greks. section five helped until the 2013 shelby county decision held it was no longer constitutional because it impinged on a state rights of equal sovereignty. it did not deal with
4:09 pm
discriminatory voting laws already on the books. in the years after passage of the vra some tried to use section two. at first, it was allowed. but then the court ruled that challenges -- this revision rejected the standard and embraced the disparate impact standard. it was enough to show that the political processes leading to the -- are not equally open to participation of members of the protected class and that its members have less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice. the 1982 amendment created a broad statute in which congress told courts to look at the totality of circumstances including socioeconomic conditions which could make minority voters face extra barriers to voting as well as the tune useness of supposed neutral justification that
4:10 pm
states could advance for passing restrictive voting rules. although the supreme court interprets section two in interpreting cases, it was not interpreted in vote denial cases in which a state or locality makes it harder for minorities to register to vote. -- so for example, the fifth circuit d one of the country's most conservative courts, held in an unbacked ruling that texas's very strict voter identification law indeed violated section two. then when texas amended its law in response to the lawsuit to make it less onerous, the fifth district ruled it no longer violated section two. rather than focus on the totality of the circumstances test written into the law, and conduct a local functional inquiry as explained in the key 19 2 senate report accompanying the passage of the voting rights act amendment, burno vich offered non-binding so-called
4:11 pm
guide posts for decision. assume textualism introduces ad hoc -- giving states defending restrictive voting laws numerous ways. one guide post holds that if a voting practice was not in practice in 1982 -- nothing in section two's text, history or precedent supports a 1982 benchmark when early voting was scarce and volter registration difficult. this is in fact the opposite of the non-rhett regression principle applied in section five cases. non-rhett regression principle kept sats from making voting worse. burno vich sets 1982 as a baseline. and the burno vich -- turns the totality of the circumstances tenuousness standard on its head. under tenuousness if the
4:12 pm
state -- the state would actually have to prove this was the real justification and not a pretext for crime face. as justice kagan explained in her dissent, throughout american history election firms have a certain antifraud interest in using volter suppression laws but the burno vich guide posts and practice is opposite. repeatedly says voting laws could not be justified even when a state could not point to any fraud in its state. the matter is bores because in burno vich and elsewhere the court has made it hard to win voting suits by relying on racially discriminating intent of a state legislature in passing voting rules. congress should reverse the statutory decision threw carefully crafted legislation just as congress has done in the past approving voting rights renew a.m.s and extensions by prod bipartisan majorities. legislation will have to consider the scope of congress's power especially because the statements in burno vich appears
4:13 pm
like a threat to find new voting legislation unconstitutional. thank you for your time. i look forward to the opportunity to answer questions. >> thank you very much, professor hassan. you know, i want to begin perhaps by asking you about the chief justice's role. because i know that you are familiar with the history here. in 1982, john roberts was a young attorney and special assistant in president reagan's department of justice. it was the same year that congress was debating amending section two to correct a problematic supreme court decision, city of mobile versus bolden. in city of mobile, the supreme court held that voters challenging voting restrictions under section two must meet the purden of showing that the law was adopted with a discriminatory purpose.
4:14 pm
it was insufficient, according to the court's decision, to show that it had discriminatory impact n. 1982, john roberts wrote, i think it was about 25 memos to the attorney general which are in the public archives advocating against an effects test as it was known. ultimately, his plan filed in 1982, the court agreed with the city of mobile and passed a revised section two that made clear that plaintiffs could challenge voting restrictions by showing they had discriminatory impact. so, professor hassan, in what sense is the court's decision in burno vich a vindication a then attorney, now chief justice robert's policy preferences which congress rejected outright in revising section two in 1982? >> thank you for the question,
4:15 pm
senator. i do believe that john roberts, from the 1980s, and through his history on the court, has shown a kind of hostility towards broad protections for racial and ethnic minorities under the voting rights act. as you said, back in the 1980s, he was the point person for the reagan administration. it was clear that congress was going to reauthorize section five of the voting rights act. and the big fight was over what the language of section two of the voting rights act was going to be. there was big pressure to overturn the statutory decision in the city of mobile which effectively rendered section two meaningless as a standard. and congress, especially in its senate report went out of its way to create a functional localized tallitive test to determine are minority voters being denied the same right to
4:16 pm
participate in the voting process. john roberts lost his battle and congress passed a very broad section two n. 2009 in the northwest austin case and in 2013 of the shelby county case he showed his hostility to broad voting rights protections eventually leading the court in strike down the preclearance provision. burno vich, although he isn't the author of the provision, he essentially got what he wanted in 1982, just many decades later which is a return to something like the intent test. although section two is not completely eviscerated the burdens, the road blocks that the court has put in front of minority plaintiffs should not be underestimated. >> thank you. mr. garza, i would like to ask you about the extraordinary events taking place in texas. but i want to preface it by quoting an he can change that took place in the supreme court
4:17 pm
hearing on burno vich between justice berreth and michael carbon, which represented the arizona republican party. the question by justice berreth was, quote, what is the interest of the arizona rnc in keeping out of precinct ballot rules on the books? and michael carbon's answer was, because it puts, us, the republican party, at a disadvantage relative to democrats. politics is a zero sum gain. politics is a zero sum game in that event and in that case, the pretty obvious acknowledgment was that the goal was, in effect, suppression of votes.
4:18 pm
so my question to you is, in texas, for a second time in the last three months, democrats in the state legislature walked out to prevent passage of a voter suppression bill put forward by a republican majority. several of those representatives, as i mentioned earlier, visited me in my office this morning. the proposed legislation has a number of provision, including limiting voting hours, id requirements, and other limits on vote by mail. in your experience, how would enacting laws like this one affect the minority communities, communes of color, in texas, people like the clients you have represented throughout your career? >> so, to begin with, the stated purpose for enacting these provisions is to avoid voter fraud. but there has been no evidence
4:19 pm
associated with that. instead, there has been evidence that where the measures that are being limited and restricted by these proposals have been enacted by local election officials, like for instance opening up the time frame or people to be able to vote -- that that has increased voter turnout, especially among populations of color. so it's pretty -- there doesn't seem to be a -- a non-partisan grounding for the purpose behind these provisions. they will have an adverse impact on minority voters. they will make it harder to vote. and that seems to be their purpose. and that seems to be consistent with the history in texas where
4:20 pm
voting is more considered a privilege than a right. and i have seen over and over again election processes and election rules being interpreted and used in a manner that adversely impacts voters of color. >> thank you. i'll turn to the ranking member for his question. >> thank you, mr. chairman. mr. cuccinelli, good to see you again. 64% of voters, including a majority of black and hispanic voters, want to strengthen voting safeguards that prevent fraud. and that's what your organization is dedicated to doing. if the corrupt politicians act were to pass, it could strike down every voter id law in the country. >> yep. >> would that protect the right to vote? >> no, it undermines it.
4:21 pm
>> how is that? >> and it undermines confidence in the outcome of elections as well, which is also a proper. i mean, this is a lawyer's committee. i will use a court analogy. it is not enough that our justice system produce the highest degree of accurate outcomes possible and just outcomes. it must be understood and viewed to produce those outcomes so that america can have confidence in its justice system. the same is true of our election system. it not only needs to work correctly, by which we mean producing an accurate vote count of legally eligible voters, but it also needs to be clearly seen to to so by winners and losers. so that we can have confidence in the outcome of our elections. i rattled off several 2000, '16, '18, now a discussion following '20 in some places. it has worked on -- both sides have had the concern. there have been good reasons for it over the years. and i would just say, you know,
4:22 pm
the reference to fraud, and since it's texas, the current attorney general of texas, senator, respectfully, spoke recently about 500 plus different voter fraud prosecutions in texas. it isn't that it doesn't exist. >> how is that possible? democrats tell us that voter fraud never occurs in any circumstance, anywhere in the universe. >> well, of course, it has. congress and the house re-ran an election in 2019 because of it. it goes both ways. it was a republican operative committing fraud in that race in north carolina. >> that case was also ballot harvesting, was it not? >> it was. absentee have been particularly, and have always been known to be particularly vulnerable to fraudulent tactics. >> 29 states prohibit ballot harvesting. the corrupt politicians act that departments are pushing would strike down every one of those laws.
4:23 pm
would striking down the restrictions on ballot harvesting, would that protect the right to vote? >> absolutely. no itnd mines both the right and the confidence in the outcome of the election. does double harm? well, we have also seen overwrought rhetoric about the texas election law, the georgia election integrity law. indeed we had moments ago house democrats in the legislature who fled the legislature not doing their jobs who are hiding out here in washington and engaged in a political stunt. what is interesting about the attacks on that legislation is they are strikingly missing specifics. for example, the texas election integrity law that is being debated right now requires voter id for mail-in ballots. does that protect the right to vote? >> absolutely. and i would note that it equalizes the protection of in-person voting as well. something that's happening in other parts of the country with the growth of mail-in voting.
4:24 pm
>> so the texas law that's also being debated perhaps officials from mailing unrequested mail-in battle, from taking everyone on the rolls and mailing them all ballots even if they didn't ask for one. >> that's correct. >> is that a provision that protects the right to vote? >> absolutely. and i will give you a northeast example. in connecticut, where their secretary of state mailed out ballots to everyone on the voter rolls, their outdated rolls on the primary and general elections and hundreds and thousands of those 3.6 million of those ballots were returned with the supposed voter not at that residence. s that an enormous error rate to lob opportunities to participate at clearly illegible residences and voters. >> the texas law that's being debated right now also mandates cameras and live streaming inside central count and early
4:25 pm
vote ballot board meetings and mandates signature verification proceedings cameras in large counties. does that protect the right to vote as well? >> having oversight by citizens definitely protects the right to vote n. my experience as an attorney general, when you provide that kind of transparency in a wide variety of circumstances -- not just elections -- you can talk about it in the sex offender registries. when they know they are going watched they behave better. it is an intelent tactic. >> mr. nobile we have heard overwrought rhetoric about the supreme court's decision in burno vich, which was a 6-3 decision. it wasn't 5-4 it was 6-3. we have heard democrats on this committee suggesting that decision was outrageous, too broad, contrary to law. mr. nobile, am i correct that the biden department of justice filed a letter with the supreme court in burno vich in custom
4:26 pm
the biden department of justice reviewed its prior brief in that case and said, and i quote, the department has now concluded that -- although it does not disagree with the conclusion in that brief, that neither arizona measure violates section two's result test. so the biden d.o.j. explicitly agreed that arizona's law plibting ballot harvesting did not violate the voting rights act. is that right? >> that's correct, senator. >> explain to me how it is that democrats are saying this is a horrible hadcal right wing crazy conclusion -- radical right wing crazy solution that upholding the arizona law can't be done with the voting rights act. is the biden department of justice some crazy right wing radical group? >> probably not. but time will tell.
4:27 pm
>> i feel confident we can predict they are not. yet it seems the rhetoric we are getting from the democratic colleagues does not match reality. i ask unanimous consent that the letter filed by the biden d.o.j. in the burno vich casics police italy saying the arizona laws should with drand scrutiny under the voting rights act, i ask that that be admitted at evidence in this hearing. >> without objection. >> thank you. >> that's right -- senator hirono? >> thank you, mr. chairman. professor hassen, the burno vich opinion just alito claims to be applying section two's totality of circumstances requirement, however, he then introduces what he calls guide posts that should apply to application of the law, things like the size the burden imposed by a challenged voting rule and the degree to custom a
4:28 pm
voting rule departs from what was standard practice when section two was amended in 1982. what impact on the guide points going to have on the ability to successfully bring claims under section two of the voting rights act? >> thank you for that question, senator. i do believe that these five guide posts are going to make it significantly more difficult for either the department of justice or private plaintiffs to win their suits. it is important to understand that these guide posts were, as justice kagan said in her dissent, really law-free and not moored at all. like if you are trying to figure out what did congress mean when it passed section two's revised version in 1982, we know exactly what congress means because congress, in the senate raert, the very influential 1982 senate report gave a lives i believe it was 13 factors to consider.
4:29 pm
justice alito didn't draw from those factors although all of the lower courts who considered this question beforehand did so. he made up these factors out of whole claw and they were guide posts but their more road blocks that states can put up if they are faced with changing voting laws. i think it is important for a court that says it is committed to figuring out what the word meant. we know what these words meant. this was not a court looking to do that. it was looking to roll the clock back and make it harder for voting rights plaintiffs to win in these lawsuits. >> these guide points are not found anywhere in the text of section two. >> that's correct. >> so this is why justice kagan has called it extra textural. it sounds as if when the court does this, especially justice alito, who tends to send out
4:30 pm
signals like this custom result in more lawsuits that ar brought by people who they expect when it gets to the supreme court will be decided in their favor. so when the court does this, are they not writing law themselves? >> so, i think, you know, it's the semantic question as to when courts write law versus interpret law. i think what we can say is that the court did not give a fair interpretation of what section two means. the fact it is even worse. two justices, justices gorsuch and thomas suggested in a concurring opinion that private plaintiffs cannot even bring sues under section two, which is completely contrary to how we have understood it for four decades. on top of that, justice alito made it even harder to bring claims claiming sbegal discrimination under section two. it really has made it significantly harder. and it is not at all connected to either the text or the history or the precedent and how
4:31 pm
the lower courts have uniformly understood what section two meant before this case. >> so for you, professor hassen and ms. nelson, and mr. garza, it is very clear that after shelby county some 13 states immediately passed what we would call voter suppression laws. and now over 00 of these kinds of laws are being considered or enacted in various states. now what should we expect to see now that the supreme court has significantly weakened section two of the voting rights act itself? and why is it so important that we enact the john lewis rights vaptment act and the for the people act in the midst of hundreds of voter suppression bills that are being enacted and considered in some 40-plus states? professor hassen, ms. nellon, mr. garza. >> i will just say briefly that
4:32 pm
the most important thing i thought that congress could do in terms of the voting rights act was to restore preclearance which is what the john lewis advancement act does. it is now clear that congress has more to do in terms of revitalizing section two and telling the court as congress has to tell the supreme court in 1928 that it got section two wrong, that it misunderstood what it meant that it needs to reverse that and impose a standard as one that can be enforced and protect minority plaintiffs across the country. >> do the other two panelists want to weigh in? i would like to hear your views in spite of the fact that my time is running out. i hope the chair will allow the other two witnesses to comment. >> i am happy to respond. section two and section five worked in tandem to protect our democracy from the worst threats that emanate from the history of
4:33 pm
racialized voter suppression in this country. section five was a prophylactic measure that helped to prevent discrimination before it began. and section two was the sweeper. even the discrimination that got through section five or that emanated from jurisdictions that were not covered by section five were able to be attacked and challenged in court through section two. as a result of the burno vich case, there is now an even more formidable barrier to those challenges than existed before. and we know that section two was never a replacement for section five. litigation under section two is costly. it's protracted. and as mr. garcia, with whom i have litigated the texas voter id case noted elections come and go and voters lose the ability to cost their fundamental ballots in elections with no recourse when we rely solely on
4:34 pm
section two. and now we have a section two that is even more difficult to enforce. we need the for the people act and the voting rights advancement act to restore the full robust intentions of the voting rights act and to set national standards for basic ways in which americans can cast their ballots and have faith that they will be counted on an equal basis. >> mr. garza, would you like to add anything? >> i would echo what professor hassen and ms. nelson indicated. i would also point out -- i'm sorry? i would also point out that there already has been an avalanche of voting changes that are being proposed in response to these modifications of the voting rights act by judicial decree. >> yes. >> and you know, this last
4:35 pm
decision by the supreme court is just the culmination of a number of cases that have weakened the impact of section two and the ability of plaintiffs to bring section two cases. the chair has left, i would like to call on senator cornyn who would like to ask a few questions. >> thank you. let me issue a news flash. lawyers disagree about a supreme court decision. happens all the time. every time the court issues a decision, lawyers have different opinions about the correctness of the analysis and the outcome. but as a former justice gentleman,son said, the supreme court is not right -- excuse me. is not final because it is
4:36 pm
right. it's right because it's final. under our system, the supreme court is the last word on interpreting our constitution and laws. and i want to just ask mr. cuccinelli and mr. nobile a few questions. a lot of discussions about the shelby county case in 2013. but i was here in 2006 when we reauthorized the voting rights act. i think one of the most important pieces of legislation ever passed by the united states congress. and the beauty of the voting rights act is it actually worked. as demonstrated in chief justice roberts' opinion. the gap between minority voting participation and white voting majority participation shrunk to almost zero. in fact, in 2020, in texas, we had 66% of registered voters cast their ballot. historic numbers of hispanic and african-american voters
4:37 pm
participated in the election which leads me to the conclusion that anybody who wanted to cast a ballot that was legally qualified to do so had ample opportunity to do so. and they did so in a very robust fashion. but, mr. cuccinelli in the shelby county case chief justice roberts called this preclearance requirement of state voting law changes an extraordinary remedy under the constitution because, as he pointed out, the constitution itself embraces this notion of equal sovereignty among the states and the federal government. obviously, the federal government, under the supremacy clause, has the authority to pass laws like section two of the voting rights act which remains applicable to the entire country and all the states. but section five was very different. it gave the federal government the authority to preclear, or not, changes in state voting
4:38 pm
laws without, frankly, offering any real justification other than they disagreed with it. and this, as i said, was termed an extraordinary remedy. but the problem that the supreme court identified was that congress did not update the 40-year-old formula for which states would be affected by the preclearance requirement. if it had, it would have reflected this -- basically no real difference between minority voting in 2015 i guess it was than between -- no difference between black, hispanic, and angelo voting in that area. so my conclusion is the voting rights act worked pretty darn well. >> yeah. >> but in order to game the system, congress did not update that formula and used a 40-year-old formula, which did
4:39 pm
not reflect the current reality. and it also did not apply uniformly across the states. so different states in different counties even were subject to different requirements. so congress retains the authority to update section four to reflect the current reality, but the fact of the matter is, if congress did update the formula to reflect the current reality, there would be no justification, as chief justice roberts' opinion indicates, for this extraordinary remedy of preclearance. do you agree with my interpretation? would you like the correct it or clarify? >> i do agree. i would like to embellish it a little bit. the chairman used a descriptive example from the south in the voting rights -- civil rights era that culminated in the voting rights act that simply doesn't exist in america any longer. and chief justice roberts said that explicitly in the shelby
4:40 pm
county case. the voting rights act works. the preclearance -- i am going the use the past tense, worked. the tests like literacy tests that existed, the hurdles, poll tax tas put in states covered by preclearance were wiped out, were eliminated. and the barriers to registration and participation were wiped out or eliminated. did it take time for black citizens in those states to register up to the level of the rest of the country? yes. but that happened decades ago, including before 2006, by the way. we have had over 60% voter participation in every presidential election since 2004 and i think you have to go back decades before 2004 to find that same accomplishment. so it worked. that was recognized in shelby county. and one of the reasons shelby county and borno vich are correct is simply because the
4:41 pm
supreme court was dealing with facts and not hysteria, which we are hearing a lot of in condemning these cases. >> if shelby county didn't change the racial participation of hispanics and minorities, and obviously since 2013 there hasn't been a preclearance requirement even for the states that were previously affected, it seems to me that this is no longer about race or voter suppression, but more about political power. senator cruz did a good job of explaining 1-1 and the various attempts to hijack the various election laws. i think one point he left out is that taxpayers would be left to finance on a sick to one basis. for every a candidate races the
4:42 pm
federal government would be required to pay into that election campaign $6 and finance the election of a candidate they ardenly disagree with. let me ask just one last question about these so-called voter suppression laws. in texas, mr. nobile, we have 17 days of early in person voting. in connecticut, the chairman's state, they have zero days of early in-personing voting. do you believe connecticut is suppressing minority voting by having zero days of early voting as opposed to the 17 days that are available in texas? or is there some other explanation? >> let me put it broadly. if they were doing the redoing the coverage formula for section five, new england want patient zero. massachusetts, connecticut, all of them, the data shows that
4:43 pm
racial disparities in turnout and renl station is worse there than almost anywhere else in the country. >> thank you, mr. nobile. senator klobuchar is as i understand it next remotely. >> very good. thank you very much. thank you to all of you for being here. my state had the highest voter turnout in the country, persistently. and we have elected democratic governors, republican governors and jesse ventura. one of the things i have learned from that is what's most important is that people vote, and they feel like they are part of the democracy. and what really concerns me about these efforts which are blatant attempts to limit the freedom to vote is they are right rally messing around with the foundation of our country. i guess i would start with you, mr. garza, because i met today with a number of the texas
4:44 pm
legislators, along with senator warrenic and senator merkley because senator merkley and i lead the for the people bill. which provisions of the legislation that is now being considered in texas are you most concerned with? >> so it's a bad bill all the way around. there are provisions limiting the time frame for when people can vote. i think that's concerning. there are -- you know, there was a misstatement made about how local election -- elected officials are prohibited from sending ballots to voters. actually, they are prohibited from sending applications for mail-in ballots. and there are -- those actions are criminalized. so that there are efforts then
4:45 pm
that intimidate local election officials from trying to help people vote, assist people in voting. i think those are -- >> isn't it also the fact that if you have more than three people that you are taking to the polls you have to sign some kind of statement or affidavit? >> yes. so there are restrictions on assisting voters to the polls, and assisting voters at the polls. >> and also, defining your disability? there is something in there on that? >> yes, additional affidavits that need to be filed by voters. i think all of the things that are included in the bill are things that have been tested and have been increased voter participation. so there is no evidence of voter fraud regarding these matters. there is evidence of increased voter participation. and those are the things that are being limited. >> all right. thank you. ms. nelson, along these lines,
4:46 pm
we have identified a lot of these issues. georgia has passed a law that is kind of unbelievable in some of its provisions. how does a for the people act -- we know the john lewis act will help in one important way, with identifying those policies in states that engage in discriminatory conduct going forward, which is one of the issues. it would be forward-looking. they would have to come before the justice department to -- for approval. but the for the people act is actually firmly grounded in the constitution. there is a provision in the constitution that has never been doubted that says the congress can make and alter provisions governing federal elections. and that's one of the things that interests me so much about the bill. can you talk about some of the important protections in this and how it could simply create some national standards for voting instead this mess,
4:47 pm
including how we count the ballots after, with some states, including some blue states waiting and not even starting counting them until after the election is over, and then everyone is kept in suspense for weeks? anyoneway, go ahead. >> the act is a comprehensive and expansive piece of legislation that equalizes voting across all the states. senator cornyn pointed out there is early voting in texas, and none in connecticut. i think we've learned over the course of several decades that expanding opportunities for eligible americans to vote only enhances our democracy. it only invites more people to exercise a fundamental constitutional right. and it is something we should all be encouraging. the for the people act does that by creating a baseline of two weeks of early voting across the country. it also creates a program of automatic voter registration so
4:48 pm
that only eligible americans will be automatically registered. it takes the ownous off of everyday americans to have to register themselves. and unlike what senator cruz said earlier, it doesn't allow people who are not eligible to vote to be registered. it limits it only to those eligible americans, which is a benefit for all americans. it also includes same-day registration, as well as on line registration. and includes a number of other provisions, including welcoming returning citizens back into our electorate after they have served their time. these are all democracy-expanding provisions that we now know 67% of voters support. unlike much of the rhetoric we've her today, the principles of the for the people act are overwhelmingly supported by american electorate. that includes 56% of republican voters, 68% of independent
4:49 pm
voters, and 77% of democratic voters. this shows that this law is not a partisan issue. it's not a partisan -- it is not partisan propaganda. it is an american issue and it strengthens our democracy across the board. >> i would note your point about people voting after they have completed their sentences, their prison sentences. florida, while electing republicans statewide, actually voted overwhelmingly, i think it was 65% to allow people who had completed their prison sentences to vote. and so i think one of the points we want to make here and that i made as chair of the rules committee is that this you have just done. there is bipartisan support as we saw during the pandemic for people voting safely n the way that they would prefer. and that's the core of this bill. that's why i know we will eventually be successful. so thank you very much, all of
4:50 pm
you. >> thank you senator klobuchar. senator lee. >> mr. cuccinelli you certained as the attorney general the state of virginia before the shelby case and after the shelby case. what can you tell us about your experience with the section five preclearance process prior to the shelby us about your experience complying with section two in virginia. after the shelby decision was rendered. >> of course there's always the, at least theoretically unreconcilable dichotomy where section two ledge mattly demands that race not be taken into account in establishing voting laws and procedures and section five demands preclearance states take race into account in for instance redistricting in particular. so after shelby county a couple
4:51 pm
of the small number of d.o.j. section two cases caught pre-clearance stapts, texas was one state, in a situation where under shelby county they weren't supposed to taken race into account but it was explicitly done, it was a catch-22 at that time. that's gonna way for the next set of redistricting. the burden of complying with preclearance is pretty extraordinary with over 10,000 elections in this country if you move your polling place, in virginia where i was, from the fire house to the school house, had you to get federal permission. if you moved it from the cafe to the gym you had to get preclearance, everything
4:52 pm
provided preclearance, there was no detail of your election system too small to be demanded to be precleared bit federal government. and of course it is partially a deterrent to making any changes. so evolution of state systems under that circumstance slower than it ever would be, that's to the perspective of good governance, running state well. >> i read hr 4 as require preclearance states base the on allegations not proof of voter -- could it be every point is preclearance. >> seems to be the point. especially with 25 year look back. >> wouldn't that exacerbate for attorney general. >> it would exist for every
4:53 pm
state, all it takes is allegations by attorney general or settlements, easy way to get state into preclearance under the circumstances under hr4 is to sue small election jurisdictions which can't afford to litigate and settle in ways that are not disadvantageous to them and that settlement counts as one of the strikes against that state for bringing it into preclearance over 25 years, then that state is in preclearance. this nothing to do -- nothing to do with disparity s discrimination based on race or any other reason. >> mr. notebill, is there any data that suggests combat state enforced votr discrimination cannot be accomplished on case by case basis under the voting right act. >> no that's what the act
4:54 pm
suggests, you had section five, when section five went away, when it was initially enacted you always had permanent provision of session two. >> was your experience in department of justice consistent with what mr. cuccinelli described preshelby and post shelby. >> it gets pretty granular, the supreme court few times said which way it should go but in one case, alabama i think, they sued over budgetary changes, it get that's intimate what a jurisdictions does. that's not a section five change but that's some insight how granular it will get. >> now we've dissected the fact potentially every jurisdictions in america could be subject to preclearance. >> hr 4 has two forms of preclearance the national version and the traditional version, that sometimes gets
4:55 pm
mixed up. it's got national coverage for election integrity measures and triggering mechanism for traditional section five. everyone's covered regardless. and some people may be bothed by both. >> they might be covered in both respects. in your opinion, what are the section two violation that's are so rampant that are so pervasive as to warrant pre-clearance? anything analogious to conditions that we saw with the initial enactment of the voting rights act and the application of section five? anything like that? >> not currently. i mean, of course as mr. cuccinelli mentioned settlements or a mechanism for triggering mechanism and in mississippi state i represented in voting right cases and they could cost millions of dollars
4:56 pm
and a lot of cases don't involve consent decrease or prima facia showing in court. >> do department of justice attorneys -- or did you see department of justice attorneys communicate with outside groups when making decisions whether to bring any of these cases? >> yeah, i mean, they would always go solicit information or insight or views from volkswagen insights or advocacy groups in section five, the influence they know how to do it, they've been doing it a while and they've had personal relationships with all these people. they would pick up the phone and call them and be expedited, a lot of it spelled out in the dog report of 2013 of which i was there and can corroborate virtually everything in it. >> in your view is the voting rights section sufficiently
4:57 pm
non-partisan that you could say they could make these decisions without any appearance or reality of being outcome-driven or politically-motivated. >> i mean, it's not non-partisan, as a practical matter, it's just not. can they set that aside? there's some people in that section that are pathological incapable of setting aside their views >> senator lee, we're going to have a second round, i want to enable senator padilla to go and i will call you back. senator padilla. >> thank you, mr. chair. i know our time is limited and the hour is long but i wanted to minimum get in one question directed at professor hasin. professor, justice alito, like many of my republican colleagues, has held himself out to be a champion of textualist
4:58 pm
judicial philosophy with the premise that judges should start with the word of the statute as they would be understood at the time they were written, and if they are clear go no further. any additional analysis would step beyond the role of a judge and is considered, quote, inappropriate judicial activism. but writing the burn vich opinion justice alito reached a conclusion entirely divorced of the text of the voting rights act. his analysis was but for the majority of the supreme court textualism only applies when convenient to reaching the desired case outcome. professor can you explain how
4:59 pm
this opinion effectively ignores the text of section 202 of the voting right act. >> thank you, senator, so, the first thing i would say is that justice kagan's opinion in the dye dissent is much more faithful to the words of the context in which they were written. justice alito has not been as strong of a textualist as other justices. think of gorsuch and thomas especially they signed on to this opinion, it was 6-3 opinion, the six conservative justice including three appointed by trump, has been strong textualists. and justice kavanaugh wrote a wrong word in harvard law review. yet they came up with guide post
5:00 pm
that has absolutely no connection to the text of the statute or even to precedent, which is something textualists will often look to. or to just the earlier versions of section two and, again, this part of the act was rewritten in 1982 because the supreme court got it wrong in 1980 in the city of mobile versus bolden case when court said section two didn't cover discriminatory results and congress clearly put it back in and any textualist would under as justice kagan explains in her dissent, the first question is are they treated worse, if you can say they were treated worse that's what should be charge of that. and justice alito was smoke and mirrors to make mistakes in this
5:01 pm
area. >> one question for all five witnesses, a simple yes, no question. i ask that you each respect my question with simple yes or no response. the preface of the question was this, when i was in high school government class, i remember our teacher teaching us that our democracy works best when as many eligible people participate. did my high school teacher get it right? yes or no. professor hasin >> yes. >> miss nelson? >> yes. >> mr. garza? >> yes. >> mr. cuccinelli? >> yes. and with confidence and transparency. >> mr. noble. >> yes. >> thank you. i mean, it seems like a simple concept but i ask it for the record because i've heard far
5:02 pm
too often, not just from several of my republican colleagues this year but for many years from republican leaders including elections officials across the country, in supposed philosophy of all we want the to do is make it easier to vote but harder to cheat. the data suggests, we've got the harder to cheat down pretty good. every study, every investigation, has not only documented but quantified voter fraud in america is exceedingly, exceedingly rare. what my colleagues seem to have forgotten about is the first part of the mantra, easier to vote piece. as former secretary of the state of california having not just championed but successfully implemented a lot of the measures called for in the for the people act, policies like automatic voter registration,
5:03 pm
same-day voter registration. no-excuse vote by mail. ability to choose voter location in their county most convenient to them, if that's their choice. same-day registration. and more. we know that -- it's not just good for the voter in terms of improving ballot access, actually these policies taken together also help improve election security and protect the integrity of our election. if -- so yes election integrity is a concern and possibility but we all agree with my high school teacher you all said yes, government has role and possibility in facilitating that participation of all eligible voters that's what should be driving the action of congress and state houses today. thank you. mr. chair? >> thanks senator padilla.
5:04 pm
senator lee, i interrupted you, if the ranking member has no objection, i'll let you continue. >> i'm -- i'm stunned with the suggestion that was made by one of our colleagues moments ago with the involvement of one of our witnesses. to the effect that justice alito used textualism and originallism as a pretext to uphold reprehensible voting practices it's simply not true and i believe that statement was made with reckless disregard for its truthfulness. if you are going to come in here and assail one of the finest you'rists that ever served on the highest court in this country, you better be prepared for it. you might disagree with the decision as far as a policy outcome. you might even disagree with the way he read it.
5:05 pm
i don't. he got it right. but don't come in here and say that because you disagree with it you think he's using it as a veneer, as a pretext, to getting away with something reprehensible. that's not fair. that's not accurate. you cheapen this entire process when you do that. though, i hope that those who make that suggestion will apologize and retract what they said because it is wrong. not just factually incorrect but it's morally wrong. don't do that. that's not what happened. you know that's not what happened. now look we've been told repeatedly over and over again that the last election was the biggest election turn out in history. the most diverse electorate in history. you get feverish cries of
5:06 pm
discrimination and voting has been relentless in reaching a feverish pitch so much they're causing people to not only depart from the facts and law but from basic standards of human decent sensy -- i'm baffled over the state of hysteria, i see no evidence of a federal take over of elections nor do you see authority what they're doing, the constitution is an oath we swore to uphold and defend, can't treat it like an inconvenient truth, it is not, it's the law. it doesn't empower us to take over elections. likewise, the vast majority of americans support common sense reforms to election laws requiring voter identification, banning ballot harvesting, securing drop boxes, and yet the
5:07 pm
left lost its mind because the supreme court held that common sense reforms in arizona do not violate the voting rights act. and they done the. the -- and they don't. the text makes that very clear. certainly it cannot be that any voting requirements are unacceptable yet that's exactly what we heard at naseum from the left since day one of this congress. it's to the point that an activist d.o.j. has taken to harassing the states. by bringing frill louse case. by bringing five frivolous cases against them, asking americans to make it easier to vote and harder to cheat. if we're told we can't make basic refors to ensure the integrity of the elections then
5:08 pm
none of our votes mean anything and we're all disenfranchised, i want every legitimate vote to count and that can't happen if we refuse to make common sense, nondiscriminatory reforms to secure elections. that is, make no mistake, what this is about. and, look, you can't step in and try to impose what really would amount to a defacto nationwide pre-clearance standard. and expect that that's going to pass constitutional muster. must as people were trying to characterize this as if we were living in the immediate post or pre-post jim crow era, that is not where we are. the very same practices that prompted pre-clearance and the need for pre-clearance in the
5:09 pm
1960s are not there. section two is still in place for when actual instances of discrimination take place. and those are adequate remedies. i have yet to hear a single explanation from any advocate of hr4 as to why those are inadequate. i have yet to see a single shred of evidence indicating there are so many section two cases mounting,nd going unaddressed and unresolved as to warrant defacto nationwide preclearance. we can't let this happen. it's not constitutional. the arguments we just heard about justice alito are patently wrong and unfair. thank you >> thank you, senator. we have a big difference of opinion but i just want to go back to what the supreme court said about preclearance. not that it was unconstitutional
5:10 pm
and striking it down in shelby county but that it wasn't needed any more. in fact, chief justice roberts majority opinion in shelby county acknowledged that preclearance had worked. senator cornyn, i think, here just a little while ago said preclearance worked, none of them said it was nonconstitutional. >> to be clear that's not what i'm saying, i'm saying hr 4 is -- [ inaudible ] >> but going back to the supreme court's opinion, justice roberts said, quote, conditions had changed, end quote. and in the south there was no longer any need for it. frankly, as late, justice ginsburg said in dissent throwing out preclearance with
5:11 pm
when it's worked when it makes discriminatory changes is like throwing away an umbrella in a rain storm because you're not getting wet. end quote. well, now we're getting wet. in the wake of shelby county numerous states rushed to pass restrictive laws. law that's restricted access to the ballot, that had previously been blocked through the preclearance process. including stricter voter id laws, restrictions on early and absentee voting and elimination of voter registration opportunity. i'd lake to ask miss nelson because you've litigated around the country what's been your experience in the wake of the shelby county decision? what have you seen in >> in the wake of the shelby county decision we've seen a rise in votr suppression that
5:12 pm
is absolutely stunning and that is just an assault on the progress that the voting right act made over decades. section five took away the basic filter in jurisdictions with known history of racial discrimination to ensure that those jurisdictions would not continue to discriminate on the basis of race. we clearly do not agree with the outcome of the shelby county decision but it must be reiterated that the shelby county decision was very clear on the point that section five is constitutional. it struck down section four which is the trigger for section five, and chief justice roberts invited congress to update that formula to ensure it reflected modern conditions. that is exactly what the voting right advancement does. it updates the voting rights act
5:13 pm
with more conditions and questions about jurisdictions and findings, not allegations, actual findings of discriminate napgs and concessions -- discrimination to ensure only those jurisdictions that continue to discriminate on the basis of race are subject to prefederal clearance it is unconstitutional under the enforcement powers of the 14th and 15th to require racial discrimination to submit voting changes for preclearance, as a question whether those new changes will have discriminatory impact. it's not punitive. it's not a finding in and of itself. it's a way for the federal government to ensure our elections are free of racial discrimination. in the absence of section five we've seen countless violations of the voting right act, the
5:14 pm
same day that the shelby decision came down the state of alabama, the state of texas resurrected voting laws that had been found be discriminatory under section five. they resurrected them and began the process of implementing them. lo-and-behold they had the discriminatory impact that was predicted. we seen copy cat legislation following the end of section five and we've been litigating furiously to try to beat those discriminatory laws back. but litigation as i mentioned before is not a remedy. because elections occur and elected officials are installed and those decisions made in context of racial discrimination cannot be undone. that is why it is imperative that this body move forward at the invitation of chief justice roberts and now the at invitation of the court in its
5:15 pm
attempt to weaken section two in burn vich that it move forward with clear legislation that is a mandate to protect the right to vote profill arctically and by strengthening section two. >> thank you. i think you made very clearly the point that is paramount here that our goal is to restore a preclearance process under section five, to restore section two what it was before burn vich and the john lewis voting rights advancement act would accomplish those rotes by amending the act of 1965 is currented by a -- is supported by a broad away of business, community leaders and political officials. to that end, i want to put into the record a letter that's been
5:16 pm
signed by 160 such major companies in the country urging passage of the john lewis voting right advancement act. that concludes my questions. do you have any questions senator cruz? >> thank you, mr. chairman. just a moment ago the chairman said the burnvich session evisceraterated section two of the voting rights act. i want to confirm what we talked about earlier, is correct that the biden justice department agreed that the arizona being challenged were consistent with and satisfied the voting rights act. >> it is correct. and if i can add one point there's a lot of talk about the five circumstances that five load star that justice alito put in his opinion in burn, those are the extent of any burden,
5:17 pm
departure of any historical benchmark, significance of any disparity, the opportunity to register -- the other opportunities to register sand vote, and the significance of the state entrance. that is section 2, 101. none of that is anything new. everybody that brings a section two case, you look at the size of the disparity, we look at the history, look at the burden, you look at the other opportunities, every section two case you do that. in dilution case doesn't matter you got jingles, you got this argument that alito deviated from the text is sort of unfounded. >> mr. cuccinelli, can you tell this committee about actual jim crow lows, how do -- crow laws, how do they operate? >> sure, i have to say when the president of the united states
5:18 pm
throws around the cleaning up of elections by saying it's the new jim crow, it's offensive to the real thing, it's like people claiming racism as an a excuse to accomplish other goals diminishes occurrences of actual racism. i'm from virginia, i bring parts of the 1902 virginia constitution, arctical 2 i urge the committee to accept this as record of real jim crow lows, it's about the franchise, poll taxes, property requirements, lit ras yay requirements and runs around literacy requirements where whites get access to the vote where blacks could not. it allows those active in war for united states or confederate states to be registered to vote regardless of the other test or son of such person. that's called the grandfather clause. let me read to you the spirit of
5:19 pm
this constitution in article 9, section 140. i'm going to read the whole thing. white and colored children shall not be taught in the same school. period. that's what's going on in the 1902 virginia constitution. that's jim crow laws. i brought with me a six-page test from 189 test from 19, i want to say '58, in georgia, had you to pass this test to register to vote. i was head of cis we gave citizenship test that's were a cake walk next to this. i wonder if everybody in this committee could name every judge in the judicial circuit you live in, i can't and i was deputy attorney general attorney general. i'd submit this as well. this is a jim crow impediment to people voting, literacy bar and
5:20 pm
these kind of tests, you can find this in california, connect kebt, delaware. these are real jim crow laws. >> which party wrote the jim crow laws. >> almost universally written by the democratic party certainly in virginia and across the south. >> which party enforced the laws. >> democratic party universally. >> which benefit benefits. >> one party maintained for decades about the democratic party. >> and jim crow laws were designed to keep which party in office? >> the democratic party. >> so today the democrats are at it again. among other things they're advocating subjecting every state election law to be able to be vetoed by an unelected bureau krat at the department of justice. an unelected bureaucrat at the department of justice can veto
5:21 pm
voter id law elected by the voters that respecting democracy >> no it's undermining democracy how is undermining the democracy. >> when the will of the people as expressed through elected representatives make policy choices in their sovereign state and a federal bureaucrat rolls in with the power to undo that entire process, you are vetoing by an unelected person, the results and the will of the elected representatives in that state. that under mines democracy and makes elections less useful to the people. >> well, and it's impossible to miss why it is that democrats want to give unelected bureaucrats in the department of justice veto power of every state legislature in america. because those unelected bureaucrats are hard radical leftist activists.
5:22 pm
in 2013 the department of justice inspector general issued a scathing report detailing the civil rights decision ignoring the resume of qualiied attorneys and hiring from aclu, naacp -- more over a recent hearing in the house, former lawyer in that division, maureen reirden testified she was shocked how political the conduct of the lawyers were and some of the dishonesty miss reirden testified too she said after the court sanctioned d.o.j. with $594,000 for colorado misconduct with aclu and other organizations, continued to work with these organizations.
5:23 pm
is that consistent with your experience? >> that is. >> can you describe the politicalization that you saw when working in the department of justice. >> mind you, i left in 2012 but was there when it was relevant to the oig report, virtually everything in that report i can corroborate and saw. i know and respect maureen, everything she said, i watched her testimony and believe everything maureen said. staff has a way of sorting out people's political views. i don't know the people that's been hired since i left but i have a hard time imagining anything changes the culture of the locker room, so to speak, it's tough too change that. >> today's hard left as opposed to voter id laws. democrats succeed in giving unelected bureaucrats at d.o.j. veto power over voter id law
5:24 pm
would any state in the country be able to pass a voter id law? >> no. >> final question. senator klobuchar and one the democratic witnesses said if the corrupt politicians act were passed into law that no illegal aliens would be registered to vote. is that remotely credible? if not, why? >> no it's not. the terms of the bill, the draft bill clearly, not only would register millions of non-citizens, including illegal aliens because they get into state databases, that's not nefarious. states inter act with people that live in their states. >> illegal aliens have driver's license. >> they do in many states. >> millions have licenses. >> absolutely. >> they would mostly be automatically registered. >> yes the bill said individuals not citizens.
5:25 pm
and it criminalizing, the chairman expressed the worry about using criminal statutes to intimidate, it intimidates state and local officials with new federal criminal penalties of they ask questions, vaguely worded -- >> [ overlapping speakers ] state official who's register from liability from registering illegal aliens >> not only that, it removes penalties for anyone registered to vote this way from actually voting in elections and there by denying other americans the quality of the vote i heard on a bipartisan basis here today everyone values. >> does allowing millions of illegal aliens to vote does it protect the right to vote for american citizens. >> it utterly under mines it. >> why? >> it cancels out millions of american votes, don't know how many it will effect but i do know it will be an enormous
5:26 pm
number. heck, i'd want a recount race for my state legislature. i remember going back to the first state race and doug wilder won by 6,000 votes. bob mcdonald won close. current attorney general won by few hundred of the difference it would make in turning elections is enormous and because it's unknowable in terms of the numbers it would gut confidence in the american people in the outcomes of our elections. >> thank you. >> mr. hasin, you've heard mr. mobile say in effect that justice alito adhered to the wording of the statute, is that your view? >> it's absolutely not my view. and far from apologizing to justice alito as senator lee suggested, i want to double down and say this is a opinion unmoore to the text.
5:27 pm
for a full explanation you can read justice kagan's dissent that goes on for many pages and explains this. let me give just one example. one of the factors that the senate recognized in it's 1982 report accompanying the revision of section two to put in the results test is one factor that would show a violation of section two is that the state offers a tenuous justification for its law. so what this means is, the state's often, as justice kagan explains in her dissent, states often will use neutral-sounding rationals for passing laws. like preventing fraud, promoting voter confidence, protecting the purity of ballot box and what congress decided when it passed section two in the revised form in 1982 you got to see if that's a real justification. if a state comes forward to say
5:28 pm
we're trying to prevent fraud you put the state to the evidence and say where is the everyone evidence of fraud that would justify this law. some laws are justified in preventing fraud. i don't think all claims of laws being anti-fraud is wrong, sometimes that's correct, but what the senate report and text of section two required asks is this a real reason of the state has to put forward its evidence, where's your evidence of fraud? what justice alito says in one of five so-called guide posts he tells us are not factors, he's not committing anything for the future but here are some things to look at. he says the strength of the state's interest and says explicitly that the state can assert an interest in preventing voter fraud and then not prove that voter fraud fraud is a
5:29 pm
problem as a pretext. this is what i mean, anti textualism turns section two on the head by letting the state get a free pass at the same time upping the burdens that apply to minority voters. so if a allow is only a quote, usual burden of voting, or inconvenience, even if it has a disparate impact under minority voters under justice alito interpretation that's not a section two that's the opposite of -- justice alito is not following precedent. he is not following text. he is doing the exact opposite. this is not as one of the witnesses said voting rights act 101, it's a per version of the voting act. every time i read the burnvich decision i get angry how justice
5:30 pm
alito warped the act and turned it that protects minority voters to something that protects states on attacks on law that's are discriminatory. >> thank you. let me ask you, in realtime. not at time of jim crow but right now we're seeing a wave of tsunami of voter suppresion laws, the laws passed by arizona, florida and george and texas potentially,sion laws, the laws passed by arizona, florida and george and texas potentially, that reduce the hours of voting in person voting are those voter suppression laws done by republican or democratic controlled legislatures? >> well, i think if you look today, almost all of the cut
5:31 pm
backs in voting rules are being passed almost on party lines by republican legislatures and republican elected officials. >> so those laws that limit balloting hours and polling places or the circumstances of mail-in voting, or absente voting, or in the case of harris county in texas, 24-hour battoting balloting, laws that have all of those voting suppression laws are passed along party lines with by and large republican-controlled legislatures approving them, correct? >> yes, that's correct. >> and i think we have it from -- actually, the -- the lawyer representing the arizona republican party in the united
5:32 pm
states supreme court when he was asked and i citeed it earlier by justice barrett, what is the interest of the arizona republican party in keeping out of precinct ballot rules on the books, end quote. by the way, out of precinct ballot rules forbid votes from being counted when out of precinct what's the effect of those from being counted, michael -- quote, it puts us republican party at a disadvantage relative to democracy, politics is a zero-sum game. end quote. i thought we'd had have some degree of bipartisan agreement. voting is a good thing. and everyone one of the witnesses, in fact, agree with
5:33 pm
senator padilla's high school teacher that maximum participation in voting by eligible citizens is a good thing. instead of voter suppression we ought to be engaged in voter encouragement. but that's not the result of these voter suppression laws that are enable and emboldened by burnvich and shelby county and we need the john lewis advancement act to protect those rights. i understand the ranking member has something to put in the record. >> senator lee asked me to introduce this letter from mitchell an attorney analyzing the georgia reform bill, without objection i would like to enter this letter into record. >> yes. >> if i might ask a couple questions. >> sure. >> the chairman suggested
5:34 pm
moments ago that limiting early voting is somehow voter suppression and even racist, mr. cuccinelli do you know how many days early voting state of texas has? >> yeah, state of texas has 17 early days of voting. >> do you know how many days of early voting georgia has. >> georgia has 17 days of early vote. >> do you know how many days of early voting arizona has. >> 18 days of early voting. >> how about chairman's home state of connecticut? >> zero. >> connecticut has zero? i thought early voting was racist voter suppression >> i don't think it is but certainly the allegations has been made. >> how about delaware, home state of president biden, surely they have more? >> no early voting in delaware. >> zero. >> not one day. >> why are they claiming no early is voter suppression when states like connecticut and
5:35 pm
delaware have zero, nada, zilch. >> because it's politically convenient to do so. >> i might point out to the ranking member what his own residents told me earlier today, i wish he had been there, the effects on their practical access to the ballot place, the intimidation that has taken place in texas as a result of those laws, and in connecticut we are moving towards expanding voting access through both statutes and constitutional amendments. it is exactly the opposite trend, instead of constraining and restricting ballot access as it is being threatened in the state of texas, state of connecticut is moving to expand voting rights. >> mr. chairman, what do you deal with the fact voter turn
5:36 pm
out has increased and minority turn out has increased in the states you're demonizing right now? >> voting turn out increased across the country and as the ranking member well knows, the rights of individuals are not measured in the overall numbers of turn out, they're measured in individual access to the ballots. a measure that restrikeouts a measure that restrikeouts in a discriminate tore re and the purpose of the advancement act is to open that access. >> may i, vote -- with. >> we're moving in the direction of opening ballot access, statutes that have been passed during this session of the legislate your and constitutional amendment to be
5:37 pm
passed overall. -- i have to say -- don't mean to interrupt -- we have a vote that i believe -- we can carry on this dialogue if you want to take a recess, senator cruz, there's a vote ongoing. >> my comment will be 30 seconds, mr. chairman. in the naacp versus mccrory case five years ago the trial court went painstakingly through the experts, it's petitioners, and found their academic writing concluded outside of the parameters of the case that early voting either you need change in turn out or modestly reduced turn out, it was referred to as convenience voting by some of the experts, and it is more convenient but does not increase turn out according to the kak democratic writings of the according to the academic
5:38 pm
writings of the experts on the left. >> this hear something adjourned. it will be a week, the record will be kept open for that week for anyone to ask questions. i thank the witnesses and my colleagues for participating. thanks very much.
5:39 pm
5:40 pm
5:41 pm
federal reserve chair will testify before the senate banking committee on thursday at 9:30 eastern, on cspan3, online cspan.org or listen on the free cspan radio app. now testimony from fbi director christopher wray, he answered questions about the january 6th attack on the capitol and gun rates and other issues.

40 Views

info Stream Only

Uploaded by TV Archive on