tv Asst. Atty. General Testifies on John Lewis Voting Rights Act - Part 2 CSPAN October 28, 2021 6:22pm-7:59pm EDT
it imposes substantial burdens on state and local policy makers and election officials to wade through a bureaucracy before making innocent legitimate policy decision about how to run their elections. i'm sure you've heard that objection numerous times. we also hear that preclearance empowers activists, unaccountable bureaucrats at d.o.j. to make decisions at the expense of local officials. as the leader of the civil rights division, i'd like to give you a chance to respond to those criticisms. i know that i think they were raised before the break and i'm not sure that you've had a chance to respond to them in detail. i'd like to hear you on that score. >> thank you, senator. the department finds that the john lewis voting rights advancement act contains a number of provisions that help
ensure that the bill is truly focused and tailored on the current problems and current conditions in the country when it comes to voting discrimination. there is a bailout provision in the bill that would make it easy for jurisdictions that have had a clean bill of health to exempt themselves from the preclearance obligation. judicial review remains available to jurisdictions that want to bypass the administrative process led by the justice department and instead go to the courts. and there is a very long and deep history of collaboration between the career officials who administer section 5 and the states and localities that routinely make submissions. the process is also fair and transparent. the department has published guidelines that outline for the public how the justice
department undertakes its section review obligation. so in many respects, this bill is responsive to that concern, senator. >> and, by the way, just so everyone understands, the career attorneys in the department of justice are responsible to you as the head of the division, correct? >> that's correct. and they've undertaken this work for decades across both republican and democratic administrations. >> and they're accountable to you and you are accountable to the attorney general who, in turn, reports to the president of the united states, who was elected by the people of our country? >> that is correct. and most importantly, they undertake this work free from political interference, and without any consideration of partisanship at all. >> as you've just said, i
understand that any jurisdiction that wanted to avoid the department of justice could seek preclearance directly from this report? >> correct. >> that's a kind of check and balance, if you will? >> that's correct, senator. >> thank you. thank you, mr. chairman. >> thank you. senator ossoff. >> thank you, mr. chairman. and thank you, ms. clark, for your continued service at the department of justice. mitch mcconnell says the john lewis voting rights advancement act is, quote, unnecessary. according to him it's already illegal to discriminate in voting based on race so no one's rights are threatened. but georgia just recently passed a law restricting voting access that targets voting by mail just after an election where, i don't think incidentally, voters of color relied on absentee ballots at unprecedented levels.
and in the case of black and asian voters of higher rates than white voters. when the preclearance provisions were established in 1965, was it not, ms. clark, precisely because ad hoc litigation proved too costly, time consuming, too easy to obstruct, too easy to delay for the civil rights division to effectively prevent states and local jurisdictions from enacting voting policies that targeted voters of color? >> that's correct, senator. and in many respects we've turned the clock back because today we are left to case by case litigation to challenge voting discrimination that we continue to encounter. and the case by case litigation that we bring is costly, time
intensive, resource intensive. section 2 litigation under the voting rights act has proven to be an inadequate substitute for the important prophylactic protections that have long been provided by section 5. >> and, in fact, by 1963, on the basis of the authorities that the voting rights act of 1957 had afforded, the department of justice, the department had filed 35 suits challenging either discrimination or threats against registration applications filed by black voters. as i believe you quoted in your testimony, then attorney general robert kennedy said that those case by case suits were, quote, a painfully slow way of providing what is, after all, a fundamental right of citizenship, the right to vote.
>> that is correct, senator. and while we had section 5 in place, between 1965 and 2013, the department blocked over 6000 voting changes. 60% of those chiez had evidence of intentional discrimination. so it is a remarkable and sweeping number of voting, discriminatory voting changes that would have taken root but for the important protections that have been provided by section 5. >> thank you, ms. clark. fueled by donald trump's big lie, threats against election workers skyrocketed during the 2020 election in georgia, election workers and officials at all levels, including the republican secretary of state and his staff were harassed and targeted with death threats as were members of their family. polling places around the state received bomb threats from
atlanta to jackson and franklin counties in the northeast to floyd county in the northwest, and bullock in the south. election workers and election officials being able to work free from intimidation and threats is vital to free and fair election. and that's why earlier this week i introduced legislation, the election worker and polling place protection act, to expand and strengthen protections for election workers, their feels, polling places and other election infrastructure. and i want to thank the chairman and my colleagues on this committee for swiftly including my legislation now in the full text of the john r. lewis voting rights advancement act. my question for you, ms. clark, is do you expect that these threats against election workers and polling places may continue to grow in intensity and become more frequent? and why is it important that we strengthen federal protections
for election workers and polling places in the law? >> thank you, senator. attorney general garland recently convened a meeting of over 1400 election officials across the country. a bipartisan group. we know that threats, harassment of poll workers and election officials is a real issue. and we also know that these individuals work tirelessly to run elections in our country. and americans deserve a process which is fair and open and poll workers and election officials who conduct these elections in their communities deserve to be able to do their job free from harassment. the attorney general has convened an elections threat task force to deal with this issue, and the department welcomes the provisions of this bill which would put in place important protections to counter
this very real threat. >> thank you, madam assistant attorney general, for your testimony and your service. mr. chairman, i yield. >> thank you, senator. senator hirono. >> thank you, mr. chairman. it's good to see you, miss clark. thank you for the work that you're doing. last week this committee held a hearing on the supreme court use of the shadow docket to practically overturn roe v. wade by allowing texas's unconstitutional abortion ban to take effect. abortion isn't the only area they used the shadow docket to push its agenda. the supreme court used the shadow docket time and again to restrict voters with access to the polls in wisconsin, alabama, florida, among other states. each time claiming it was improper for koertsz to protect the right to vote so close to an election. there are three supreme court shadow docket rulings that continue as justice sotomayor
put it, the courts, quote, trend of condoning disenfranchisement. republican national committee versus democratic national committee, the supreme court in the shadow docket by 5-4 vote gave wisconsin voters six extra days to receive and mail back absentee ballots, many of which had not been received because state authorities had been overwhelmed by record requests for such ballots due to the covid pandemic. so the supreme court did not allow wisconsin voters six extra days. it was astounding because they were trying to use a deadline for returning those ballots, mailing the ballots that had not even been received. so that was pretty hard to explain in my view, but the supreme court in a 5-4 ruling did that.
in merrill, people -- sorry, people versus alabama, the court stated again, 5-4 vote, a lower court order sought do ensure citizens with a high risk of contracting covid-19 could safely exercise their fundamental right to vote. the district court preliminarily enjoined the alabama laws that enables persons in these situations to be able to vote safely, but the supreme court said, no. the court's -- i'm sorry. majority stayed that relief, forcing high-risk voters to risk their health in order to vote by mail. in razor v. desantis, the court refused to vacate a stay of a lower court ruling that held unconstitutional florida's scheme of disenfranchising
voters too poor to pay outstanding fines and fees. this is like a poll tax. so this was the shadow ruling that justice sotomayor said it continues the trend of condoning disenfranchisement. so we know that there are some 523 anti-voter bills that have been introduced in some 47 states this year alone. so, miss clark, can you think of any time where it's more important to protect voting rights than in the lead up to an election in an environment where hundreds of voter suppression bills are being introduced and where the supreme court is continuing its trend to disenfranchise voters? would you like to talk a little bit about what we're facing and the importance of the kind of legislation we're contemplating?
>> thank you, senator. the department has observed that since 2013, something has changed. the supreme court issued its shelby ruling, and we've started to see states and localities interpret the ruling as essentially a green light to move forward with discriminatory voting measures. the department has brought litigation in texas and north carolina and currently has pending litigation in georgia, but this case-by-case approach has not proven adequate to confront all of the voting discrimination that we are up against. moreover, that case-by-case approach is time intensive, leads to long protracted litigation. and during the course of the litigation, the discriminatory voting measure is actually allowed to take effect and infects the electoral process.
our hope is that congress will move quickly and swiftly to restore the section 5 preclearance process eight years after the shelby ruling. >> and i am running out of time, but the other case, of course, is bonovich case which made it hard to bring a section 2 case. so the more recent supreme court case after shelby created basically i think the supreme court to write its own law and set up criteria that is not even in section 2, so it makes it that much harder. and again, the reason why we need to pass the kind of legislation we're contemplating. thank you, mr. chairman. >> thank you, senator hirano. senator padilla. >> thank you, mr. chair. colleagues, when the voting rights act was enacted in 1965, voter registration rates for
black americans in the south were abysmal up until that point because of the discriminatory laws and policies that made it effectively impossible for them to register. i point this out because largely because of the voting rights act, things have undoubtedly improved since 1965. indeed, more black voters were added to the rolls in the first two years following the passage of the ray than in the previous century. significant barriers to access remain. some communities, particularly communities of color, feel the effect of these barriers more than others. after four decades -- i want to underscore this. after four decades of overwhelming bipartisan majorities of congress affirming the need for the voting rights act with several
re-authorizations, and in reauthorizing acknowledging the need for federal protection of the right to vote, including through preclearance, protecting the right to vote through preclearance, that happened repeatedly over the course of more than 40 years. but today we find ourselves in a place where the republican party line is now the federal protection of right to vote is tantamount to an unconstitutional federal takeover of state elections. my question, ms. clark, is this. in shelby county, the supreme court struck down the coverage formula to determine which jurisdictions had to submit to the preclearance requirement, but has the supreme court ever held preclearance itself to be unconstitutional? >> thank you, senator. no. it essentially gave congress the task to go back to the drawing
board to fashion an approach to coverage that tethers the preclearance process to current conditions. and we know that congress has been carefully studying this issue over the last few years, developing a record that makes clear ongoing voting discrimination remains rampant across the country. and it is not unusual for congress to respond to a court ruling. we saw that with the civil rights restoration act in lili ledbetter fair pay act. so the department welcomes this tint to work with you to update the coverage formula in response to the court's shelby ruling. >> because conditions have changed since 1965. >> conditions have changed. but we know voter discrimination remains -- >> i understand. at the risk of going off on a tangent here, because i think we can apply that more strongly when it comes to the electoral college, but that's a
conversation for another day. back on this topic, from a resource and a timing perspective, i'll call it a damage done perspective, can you spend just a minute on the benefits of a preclearance requirement versus a post-enactment litigation? >> well, senator, the burden on voters is undeniable. discriminatory voting tactic may have taken root and infect the election ral process that is playing out in a community. we know that states have spent millions of dollars defending suits. in texas they spent $3.5 million defending the discriminatory law. in north carolina $5 million defending their omnibus bill the 4th circuit found discriminated with almost surgical precision.
the process is swift, it is easy, it is cheap for jurisdictions to comply with it. and it leaves americans with the benefit of an electoral process that is free from discrimination. >> great, thank you. mr. chair, i want to ask one more question. what may seem to some as not necessarily a voting rights element to this, but it is fundamentally one. not how people can cast their ballots, but as it pertains to the census and the redistricting process which pivotal from a voting rights perspective, it shows the latino population growth over the last decade fueled the population growth of states throughout the country. in california, for example, data shows that between 2010 and 2020, latinos accounted for more than two-thirds of the state's population growth. places like texas similarly experienced significant growth of their latino communities.
the county for latino population growth and redistricting is, therefore, critical to ensuring fair representation. but this redistricting cycle is unlike any other in the past five decades. for the first time since 1965, in light of the supreme court's decision in shelby county and burnovich, states will conduct redistricting without the full protections of the voting rights act. so, ms. clark, my question is, what remaining tools does the department of justice have to help ensure a fair redistricting process? and how are the department's efforts being affected by the john lewis voting rights act? >> thank you, senator. essentially we would have voting rights 2 at our disposal. this is not an adequate substitute for the important protections that had long been
provided by section 5. this case-by-case approach simply is not enough to stand up to the breadth and scope of voting discrimination that we see today. and if i may, i just want to underscore the importance of section 5 when it comes to redistricting. the department had issued an objection in east feliciana parish involving a proposed redistricting plan that would have reduced the black voting population in the district. the department found evidence that the demographer in this matter worked exclusively with white elected officials in coming up with a plan in which they reduced the black population and increased the white population, and they excluded black elected officials in the course of drawing this map. this example illustrates the
important role that section 5 plays at the local level. at the local and county levels that are often places that are not under a microscope, but places where the department has found that voting discrimination has been rampant throughout the test of time. >> thank you. thank you, mr. chier. chair. >> thank you, senator padilla. i want to apologize for the interruption. it wasn't planned and we had a rather important caucus. i hope you understand. you are always welcome before this committee and we thank you for your testimony today. since there are no other senators seeking recognition at this point, you may be dismissed, as they say. thank you so much for your testimony. >> thank you, senator. >> there may be written questions sent your way. we'll contact your staff if that's the case. >> thank you. >> we are going to call the second panel. and i want to welcome wendy
wiser who directs the program at the brennan center for justice at nyu. she founded and directed the voting rights elections project. directed litigation research and advocacy to enhance political participation and prevent voter disenfranchisement. we have also been joined by john greenbaum who serves as chief counsel and senior deputy director for lawyers civil rights under the law where he is responsible for overseeing the organization's legal project including voting rights. and now in a departure from custom and practice, i have been given the introductions of the two republican witnesses, so i am going to give the script that senator glassily would give, without prejudice. i'd like to welcome our two witnesses to the senate judiciary committee this afternoon. if we can connect up with him virtually, we are going to have the attorney general of indiana,
ty rokita. mr. cuccinelli, are you with us virtually? >> i am, senator. >> glad you're here. attorney general rokita, are you on board yet? we'll keep reaching out to his office. let me say a few words about these two witnesses. the honorable ken cuccinelli, decades of experience in government, acting director of u.s. citizenship and immigration services, acting deputy secretary for the department of homeland security during the trump administration, leading spokesman for a variety of issues including election security, served in the virginia senate from 2002 to 2010. and as a virginia attorney general from 2010 to 2014, he was the last attorney general of virginia to handle the issue of preclearance. welcome. attorney general ty rokita i
hope joins us served the hoosiers in indiana. he is the highest state office holder last year. served as the fourth district congressman from 2011 to 2019. he also served as indiana secretary of state from 2002 to 2010. while serving as the indiana secretary of state, he led the passage and implementation, the first in the nation, voter i.d. law which became a model. following his success, 35 states followed suit implementing similar laws protecting the integrity of our elections. so, first item of business is the swearing in of the witnesses. could the witnesses present please stand and those at home stand virtually? and do you affirm the testimony you are about to give the committee be the truth, the whole truth and nothing but the truth so help you god? >> i do. >> the record will reflect the witnesses all answered in the affirmative. senator ossoff of georgia is going to join me here in a
moment and may be presiding over part of this. we'll start with opening statements of five minutes and the first one we'll recognize is wendy wiser. thank you for coming. >> thank you, chairman durbin, ranking member grassley. thank you for the opportunity to testify on strengthening the voting rights act, one of the foundational tests of american democracy, and a critical bulwark against discrimination in our voting system. unfortunately, as we have heard at length, in the last eight years, the supreme court has dealt two serious blows to the law and it is simply no longer strong enough to protect americans from increasingly aggressive voting discrimination. i thank senators leahy and durbin for their exhaustive work in refining and updating the john lewis voting rights act. it couldn't come at a more critical time. the scale is staggering. at least 19 states have passed
33 laws making it harder to vote. many laws target voters of color, exacerbating persistent racial disparities and access. turnout for non-white voters is now substantially lower than that for white voters and has been for over 25 years. and despite record voter turnout in 2020, only 58% of non-white voters participated compared to 71% of white voters. we are at the start of a redistricting cycle that is already showing signs of gerrymandering targeting communities of color. and an alarming wave of efforts to sabotage elections compounds these problems. only congress can solve this crisis. i will focus today on one aspect of the john lewis act, the geographic preclearance formula. the key point, it is new, updated and laser focused.
it is necessary because even though discrimination is now widespread, it is much more prevalent in some places than others. according to our count, there were over 120 voting rights violations over the past 25 years in the seven states likely to be covered under this bill for preclearance, but fewer than 50 in the 39 states that are not close to coverage. without pre-clearance, discrimination has become impossible to root out in these places. states have voting restriction upon voting restriction, passing new ones as old ones are struck down in what amounts to legal whack a mole. the georgia protection laws, the worst in the country, come after years of voting hurdles in those states. states routinely devise devious ways to discriminate in voting. what president lyndon johnson called ingenious discrimination when first enacting the voting rights act. the geographic coverage formula
has been updated and tailored with precisions to meet current conditions following the supreme court's guidance. to ensure that the formula targets illegal discrimination, it relies on the best evidence established violations of voting discrimination laws. to ensure that it targets states with a persistent pattern of discrimination, it captures only those states that meet a high numeric threshold of violations over the past 25 years. and that 25-year review period is critical, ensuring enough time to identify where discrimination is persistent. and to ensure that it targets where discrimination is current, the review period is not frozen in time, but rolls forward. the duration of preclearance coverage is limited to ten years, so jurisdictions without recent violations will automatically drop out, and they can easily bailout before then.s
other national protections. as justice kagan observed, this is a perilous moment for the nation's commitment to equal citizenship. safeguarding our democracy and protecting voting rights is one of the most sacred responsibilities this body has. the house has passed the bill and now it's up to the senate to act without delay to pass the john lewis act and freedom to vote act. thank you. >> thank you. do we have attorney general roe kita? we are still waiting. mr. greenbaum, you may proceed for five minutes. >> thank you for giving me the
opportunity to testify today on ways in which congress can restore and improve one of the nation's most important laws, the voting rights act. it is important congress pass the john lewis act of 2021 to remedy the damage to voting rights caused by the supreme court's decision in shelby versus holder. my written testimony goes into detail the revisions but i will focus on two items in the senate bill that amend section two. the first addresses the shelby decision by importing the concept from section five into section two. this will allow an aggrieved party to -- voting changes that
worsen the voting opportunities of people of color. this is a necessary weapon in the fight against discriminatory voting practices and response to current needs that might be subject to geographic coverage. it would fill a gap because the supreme court has made clear that the retrogression analysis is analytically distinct. the current needs for law outweigh the current burdens. we have seen a proliferation of retrogressive -- retrogression
is a concept the supreme court has found to be constitutional. because the law would be national, the ruling about shelby county would not come into play. the second thing is vote denial being restored to pre-brenna fitch time. when congress amended section two to allow discriminatory -- it did so as a scheme to eradicate discrimination voting. in 1992 congress announced section two was to capture the subtle practices but are clearly
the line -- clearly and line of the latest discriminations. interacts with social and historical conditions to cause inequality in voting opportunities. the foundation has been used. there must be a disparate burden on the voting rights and the burden must be caused by the challenged voting practice because it interacts to social and historical conditions of racial discrimination.
the supreme court decision provided guidelines for future treatment of section two that were contrary. they decision it runs contrary to congress's decision in 1982. the eight years since the shelby decision have left voters of color more vulnerable than they have been in decades. records demonstrate that without section five, voting discrimination increased.
by creating new hurdles, the stakes are raised. congress must act. thank you for the opportunity to testify. -- >> we work every day to help improv elections in every state so that every american is confident, regardless of party or race and regardless of whether ones chosen candidate won or lost. today it's easier to register a vote more than ever in our history, regardless of where you live, what color you are or what party you affiliate with. this is a great accomplishment
where the of celebrating, while only looking to improve. instead, many in this body seek to advance propaganda. everyone who wants clean and transparent elections is called despicable names. this course of conduct is not new. in 2003, a new york times editorial called election integrity a code phrase for voter suppression. that summarizes the false narrative we are seeing. in 2004, in colorado, the dnc election manual suggested launching a, quote, preemptive strike by encouraging minority leadership to denounce voter suppression, issue press releases and play stories when
no signs of intimidation techniques had emerged yet, and quote. i wonder if the minority leaders being used in that way were told they would be used. in 2010, my former colleague, martha who coakley was caught red handed using the tactic of preemptive accusation, with a statement from the day of the election -- unless you consider making up an accusation safe. following the 2016 presidential election, the democrats took the false voter suppression narrative to court. an obama era appointed judge rejected those claims as false. he said, you have presented me with no evidence of actual
voter suppression efforts. on the day of the election, both the dnc had a lot of resources. and this was a big concern. where is the evidence that suppression was going on on election day? and then an inference that the rnc was involved. he found that there was none. the bill we are focused on, the republicans focused on that bill, and included objective measures for voter suppression, such as low voter registration by minorities or low turnout by minorities. but there was no interest in such objective standards on the left. and that offer was rejected. it did not accomplish the actual goal. not to mention the worst performing state today under such objective standards would
be states like massachusetts and oregon, not states originally covered by the voting rights act. this advances the false narrative for a false narrative to rile up their base. in 2004, in an attempt to -- a detailed proposal was made about how both parties could work together to address concerns about voter suppression and fraud, they are by attacking any such problems, dramatically increasing the confidence of all americans in the 2004 election. i have put these two letters back and forth into the record. consistent with what was later discovered, mcauliffe used the strategy of false accusations of voter suppression, as seen
in the 2004 colorado race, the dnc declined to work together to address concerns about voter suppression, presumably because they are only interested in the false narrative. but there was no longer a voter suppression problem to address, thankfully, for america. i would also note the entire direction of this effort flies in the face of the carter center commission recommendation, the most comprehensive election analysis ever done. and with that i appreciate the time to answer your questions. >> thank you mr. cuccinelli, i understand the attorney general, mr. rokita has joined us remotely. you are recognized for five minutes, mr. rokita. >> thank you to the committee for inviting me to speak. speak.
my experience as an indiana election officer and as attorney general and as a candidate in federal and state elections -- i know how elections can and should be run, with transparency and public confidence. i was able to testify before the senate rules committee on senate resolution one. i'm here to share with americans and with hoosiers about how this is a power grab for our elections. the bill mandated automatic voter registration, basically live balloting. also protective measures such as state voter i.d. laws, meant to clean up names that shouldn't be on the roles.
without the balance of the accountability and the access, you don't have the right result, a lot of the time. that biden administration justice department is resurrecting the voting rights act. and placed power over local elections to advance partisan, unelected bureaucrats. and bureaucrats in washington haven't been in congress. so what does this mean? new requirements for certain election reforms, like voter i.d., for example to be declared bipartisan department of justice. it's a power grab.
this legislation is not honest. it is politically motivated to circumvent the will of the american people, undermining confidence in our elections. the biden justice department is seeking more power, and has already signaled they will use unlimited authority over state elections. i know this because this is the same department of justice that has unlimited power over elections if this bill were to become law and is partisan. this is outlined further in my written testimony that i will present today. -- constitutional mandate on its head, and the department of
justice will strengthen elections, with the power to overturn any election law based on the win of the party in power. that should never be. it's important to note that laws based on what is best, to respond with type of elections. why? the principles of federalism seek to -- and you can't [inaudible] [inaudible] expand outdated portions of the voting rights act. it was enacted in 1945 1965, to pass over discrimination. physical, inaccessible polling places.
other barriers to the ballot box. and the original intent was to ensure that rights were not infringed upon. and that has been accomplished. thankfully, the via wright did what it was intended to accomplish. like i said. but we look backwards to conditions in 1965, not the correct conditions that exist in 2021. i have never seen a bill that looks backwards so much. to keep themselves relevant. >> the u.s. supreme court recognized that this dramatic change, reflects how widely accessible voting is today. the supreme court is correct. black and hispanic voters are
participating at higher rates. as for lower suburban [inaudible] andalusian plans [inaudible] . consider subjective factors and [inaudible] and are unforgettable by election officials. [inaudible] judges consider the fact of whether [inaudible] directly attacking the supreme court standard. that i was a part of when i was secretary of state. however, without the photo i.d. requirements, legal citizen voters are disenfranchised by the fraud that will result in this part of the vote. it goes both ways. as for focuses on both solution,
minorities by the does nothing to address the dilution for legal voters. [inaudible] it expands the coverage formula. draconian and i needed. [inaudible] state law stands in jeopardy over the mayor preliminary as required by practiced based, unquote, certain election laws. not just subject to the new coverage formula. it is based in that election law [inaudible] and voting location, redistricting to reform that is automatically subject to the preclearance process. unfair and i needed. and on top of [inaudible] we are having to be approved by
a politically appointed bureaucrat at a partisan justice department. it is not right. i will end with this. [inaudible] interfere with the state legislator's ability to protect [inaudible] and a direct violation of the constitution. in 2005, a bipartisan commission created by former president carter and and photo identification required. if you would say that president carter is any kind of conservative. yet he endorsed it. in the wake of these endorsements faced by indiana, over a decade ago [inaudible] the supreme court upheld the voter i.d. law as a common sense and nondiscriminatory [inaudible] . while serving as indiana secretary of state, i lead the implementation. indiana's voter i.d. law became
a model and voter turnout went up. because of that, 35 states followed in an these loans. indiana has seen no [inaudible] since the supreme court upheld our law. yet they supreme court put indiana in a preclearance tabs. and in need of a preclearance review. [inaudible] detail those exact common sense protections. so here is the bottom line. it is a heavy-handed in partisan effort to overturn the will of the people. earlier this month, with my attorney general colleague, i was joined by congressional leadership in opposing [inaudible] . i'm prepared to seek a legal
remedies possible to protect the constitution and the right of american citizens to and i'm confident that states will join. americans know they there must be problems in our election process. or any federal program. seek to undermine further the american confidence in our elections. we shouldn't do this. >> these programs will not move forward and i'm going to be on their. side thank you. thank you. and thank you to all of the witnesses for joining us today. thank you to senator durbin and lake erie for their tireless work with legislation. congressman john lewis was my mentor for nearly 20 years. for those of us from the state
of georgia, all americans -- for people all around the world, he represents the very best of public surface and self sacrifice and advancing civil rights, voting rights, and human rights. -- in 1965 in selma, alabama, when congressman lewis and hundreds of others marched across the bridge, and selma alabama, into a storm of violence. and congressman lewis said they had a skull fracture for daring to demand equal access to the ballot for black americans in the american south. that was march 7th 1965. inspired and motivated by the example of john lewis and the others who gave so much that day. just ten days later, the voting rights act was introduced in
the united states senate, and it was signed into law by president johnson on august 6th, 1965. thanks to the sacrifices of patriots like john lewis. in 2013 the supreme court invited the united states congress to update this vital voting rights statute, and still thanks to the efforts of senator durbin and lake and we are here to restore and strengthen the voting rights act, to recommit to protecting the voting rights on the ballot access for voters in georgia and across the country, no matter the color of their skin. it is essential that we passed this legislation and at this time i would yield to senator durbin for his questions. >> thank you, senator. i just want to say at the outset --
i'd like to say the comments made, i thought to myself these are echoes of the same arguments that we have always heard. leave it to the states. things will turn out just fine. history tells us otherwise. history tells us unless we carefully guard the right to vote for every american some lieutenant to exploit the situation -- miss wiser in your testimony you talked about the findings of professor mccrary -- a staggering 1043 violations in the last 25 years. 143 violent elation's in the last 25 years in the top eight states. there's still a challenge that the supreme court did not get it right in shelby. is there evidence to back up the fact that we are still facing threats that is at the
heart of the civil rights of america? >> thank you very much for that question and absolutely, yes. there is overwhelming evidence. in the record for this congress, of an ongoing, persistent and growing threat of discrimination threatening the rights to vote of many, many americans. i mentioned already that we are facing a huge surge and legislative efforts to restrict access to voting access across the country. it's the biggest push since reconstruction. we are also seeing an increase in successful litigation across the country as the jurisdictions are -- voting restrictions upon voting restrictions. these are precisely the reasons why the constitution gives congress the power under the 14th and 15th amendment to
protect the right to vote from discrimination to put in place measures to deter and remedy discrimination and voting and enforce the constitution guaranteeing equal voting rights. >> you've heard the statements that have been made by two of the other witnesses in this panel. it seems to me to be an echo of the argument of the states rights which has been used historically as a justification for discrimination, for at least for the government to take its hands off of state matters. is a recurrent theme. is there any more validity today and in the past? >> i think you are absolutely right, senator. if you want to talk about the progress that has been made the last several decades, actions by congress have been a critical part of that. the voting rights act in 1965, but i would not leave it there.
the scooch anatomy refer to the increase in voter registration -- a national voter registration act which congress passed in 1993, enabled and put a requirement that states had to implement with giving people increased voter registration opportunities, including being able to vote to, register to vote drivers license offices and public assistance offices and etc. and with respect to voting discrimination, which the voting rights act covers, we've seen the void in the last eight years after shelby county in terms of what states have done to discriminate against voters of color. in states like georgia, for example, you have a demographic
change going on in georgia. in 2004, whites were 67% of the registered voters. today, whites are 53% of the registered voters. and what is happening is as voters of color in georgia are able to assert more power at the ballot, you are seeing actions by the georgia legislature to make it more difficult for voters of color to participate at the ballot box. >> in closing with the last 30 seconds, should we say that we should never tolerate any fraud, voter fraud, or abuse of our electoral system by either party or any candidate? i will tell you that we have scanned, if any evidence, of voter fraud that is justified some of the actions -- by some of these activists on the other side. time and again, when they spend thousands, even millions of dollars, it turns out to be a choke. looking for bamboo fibers at
the ballots, or whatever else they want to. a turns out they found more votes for joe biden in the official count then initially. this voter fraud is no reason, unless they could clearly prove, and in most cases they're not even close. thank you. >> thank you, ranking member grassley is recognized for five minutes. >> thank you. let me start -- he told us he had to go. so you wrote a letter on september 13th to congressional leadership and i quote, i have passed hr4 with resurrect and enact new requirements in jurisdiction's targeted for litigations by activists groups. what is the danger of moving away from -- favor of focus on litigation, tactics and please tell, us in your experience, what groups
and how these groups can successfully use these tactics to avoid put preclearance. >> thank you, senator. the burdens offer several factors -- the usual burdens of voting [inaudible] what's they found and reaffirmed. although our election procedure has been -- used by other destructions. or alternative voting regarding fraud. some factors will make it challenging for future candidates to win. under section two, as i understand it. the immediate factors as whether it violates --
are completely suggestive and unreasonable. you are basically allowing an election -- elections, because you are a liberal state, if it doesn't like you in their own discretion they get to decide if you need to be (coughing) sometimes they collude with other elected officials -- to force their, out of fear, out of intimidation, whatever, to enter into a consensus -- it's violating to the u.s. constitution. >> thank you. i'm going to go to cuccinelli. i think i know the answer.
there is nothing in the hr4 -- i'm going to ask, is there anything in this bill that might impact that? >> certainly the expansive readings that i would expect to see from the biden harris -- led by kristen clark that you heard earlier, would not simply deal with general elections, they will certainly wait and to -- historically i think it was [inaudible] discriminatory. that we have to guard against discrimination and the authority granted to the department of justice under this bill, you can fully expect to play a role. one of the complaints about
iowa and new hampshire being early in the calendar for each of the parties is that they are more white in the nation as a whole. under this legislation, those are two states that were not under the voting rights act previously. the preclearance, meaning that would be subject to preclearance and i would extend to the comment to say that those outside activist groups could simply target those states with litigation, and the occurrence of litigation can be sure -- to be brought into preclearance. this comment is a violation, it might be true if it were limited to violation. but that is not the standard in the spill. i would note that the democrats rejected the ultimate goal being the standard, the goal being minority vote out turnout and restriction, that was rejected as an ongoing standard
on their part. it gives away the fact that this is a partisan power grab, not an attempt to solve a problem with minority voting. >> you were attorney general with clear preclearance before. could you talk to us about the standards for preclearance that were in place for virginia then, versus the standards that were forced virginia and to preclearance if they passed? that's my last question. >> senator, preclearance, as it existed pre-shelby, you go back to 1965, it was certainly needed and required. it worked. the supreme court found that. but as it continued on up to 2013, there is no question the burden was quite significant. preclearance for those states meant preclearance of everything. if you moved a polling place,
if you move within a school for where you voted you had to get that pre-cleared by the federal government, and each of those opportunities as the federal -- federal government would view it, it's an opportunity to bend your states election system to the will of those in the justice department and even president obama's inspector general found that the voting section was hiring those from the radical left, they were predominant, even back then, and you heard the commitment -- you could expected to get worse. so the place where the questions will be judged, it's not an objective set of a professional career lawyers. these are literally the most rabid left-wing partisan lawyers you could find in the federal government. >> thank you, ranking member grassley. miss wiser, in the shelby
county decision, the supreme court invited congress to update the preclearance formulas. >> correct. >> miss wiser, can you address how that preclearance covered formula and other provisions in the john lewis bill -- carefully crafted to encompass the states and voting practices that pose the greatest threat of voter discrimination, avoiding ever -- either over or under inclusion? >> thank you for your question. absolutely. as i noted, the states come in to put preclearance based on their actions. actually proven violations of the law based on racial discrimination in voting. it is not cohen -- in 1965, it is still current, ongoing. it is not the case that these are just mere lawsuits. they actually have to result in either official findings,
liability or consent decrees that are entered by court and actually require courts to consider whether the finding is fair. in addition, it is tailored -- not only proven violations over a long period of time. it is tailored also by limiting the coverage period and offering -- to ensure jurisdictions will not stay covered if they have not had violations within the last decade. it is not partisan officials within the department of justice, it's not career officials, it's the jurisdiction that can choose whether or not if they want to go to the department of justice or a three judge federal court to simply create -- preclearance requests. >> thank you, miss wiser. mr. green bomb, the john lewis bill includes a critical provision that under section
two would allow the attorney general the opportunity to challenge changes in voting practices anywhere in the country that diminish voting rights for voters of colors and i'm here -- referring to the retro gretchen provision of the bill. how does it differ from existing section two and how is it different from retro gretchen under preclearance? >> thank you, senator. the concept of ritual direction is one that through section five we are quite familiar with in terms of how actually applies retrogression. in basic term, what it means is does the law make things worse for voters of color? which is a much more straightforward path and the existing result under section two which requires a number of factors and it takes longer
times to litigate, and harder cases to resolve. retrogression itself is a much more simple concept. one that the supreme court has signed off on through section five. largely creating the standard of retrogression. the retrogression under section two would be different then under section five in that it would cover all areas of the country. so it would not be limited to a particular place without being limited to particular types of voting changes. it could apply to any voting change anywhere in the country. which, unlike section five preclearance, require the plaintiff, whether it be the department of justice or private party, to go into court and prove the federal judge that a particular voting change
put the voters in a worse position than before. and what we've seen with a lot of the laws that have passed this year, including in your state, georgia, a number of the changes appear to be clearly, changes that make it more difficult for people to vote via mail. we saw black and latino voters were the ones who voted by mail most frequently, as well as limitations on these have dropped boxes, which voters of color used in a disproportionate number. it creates a clear, easy to administer -- at least easier to administer standard for the courts to follow. thank you mr. greenbaum. senator klobuchar is recognized for five minutes.
>> let me start with you mr. weiser. the constitution uses the word right to vote, noted by justice ginsburg and her dissent. each of these amendments contains the same broad involvement of congress to an act appropriate legislation. to enforce the protected rights. the implication is unmistakable under our constitutional structure. congress holds the reins and making equal votes real. can you explain why time and time again the constitution recognizes the role for the federal government? and why it is congress and not state legislatures are interested with making the wrote equally real for all citizens? >> thank you for that question. it is absolutely the case that the constitution empowers
congress to make real the guarantee for the right to vote against discrimination. the constitution also grants congress broad power to regulate federal elections, even to create an entire code of voting for federal elections, as justice scalia, the late justice scalia affirmed. one of the main concerns of the framers of the constitution had was that voting rights, including federal elections, would be manipulated by factions and partisans at the state level that might try to disenfranchise or engage in practices like gerrymandering. under the 14th and 15th amendment, which grow out of the unfortunate history of brutal slavery and disenfranchisement of large
swaths of the population, black americans, it was congress that took the reins to enforce the equality after a brutal civil war. states were not trusted with that. >> very good. i know that in your testimony, ms. weiser, you note in your testimony to the committee, the cases are extremely time consuming and resource intensive. which you experience as a litigator and doj. the preclearance formula is an important measure. that is one reason why as chair of the rules committee, we worked on freedom of the vote act to set basic national standards. it's important to pass both the
john lewis bill. and -- law >> absolutely. the preclearance acquirement has long worked. before the shelby county decision, it was the most successful decision, stopping the worst discriminatory measures from going into place in jurisdictions with the worse history. it stops them in their tracks. but that was only four new voting changes and the rest of the country where there was that same history of discrimination had to rely on section two of the voting rights act. bringing case by case litigation is time consuming, expensive, slow, and while it is pending, discriminatory measures continue.
what's the for the people act also does is put standards, a set of rules that every american can rely on, regardless of race and that can't be manipulated for discriminatory or partisan reasons. it's much easier for courts to enforce, administer. they are clear and don't require this multi partisan inquiry. together use bills to fill the hole and meet the crisis we are facing in voting rights in america. >> mr. greenbaum i was actually quoting you but you mentioned ms. weiser in your opening. >> what we have seen since shelby county is an incredible proliferation on discrimination against people of color in terms of voting.
their voter i.d. law had been prevented from going forward, so, okay, we are going to move forward with that voter i.d. law. and we spent the next several years, in prioritization, with ms. weiser's department of justice, going forward to get that law struck down under the voting rights act. ultimately getting the circuit decision in our favor, then we went for our feet. this circuit affirmed our field award of 6.8 million dollars. we spent several years litigating, finally preventing
that law from going into effect, which affected people during those three years in between. and ultimately is going to cost the state of texas more than 10 million dollars for moving forward. with that law. >> very good point. thank you very much. thank you mister chair. >> thank you, senator klobuchar. senator hirono. >> thank you. it's not a coincidence that shortly after shelby county, states passed voter suppression laws, and now with the conservative majority firmly ensconced in the supreme court with three trump justices, we are seeing dozens of voter suppression laws being enacted, supposedly to prevent voter fraud, which has not been shown to be the case at all. earlier i noted three support
supreme court shadow docket rulings that continue the courts trend, as justice sotomayor put it. it is condoning disenfranchisement by the court. ms. weiser and mr. greenbaum do you agree with justice sotomayor's dissent? that it is disenfranchisement? the court is condoning it? >> thank you. the courts continue to play a critical role in protecting voting rights for all americans. unfortunately, it's the case that the supreme court has consistently rollback the strength of voting rights protections, making it much harder for litigants to enforce those rights. and it seems to be portending that there might be more to come. that's why it is critical for congress to step in and protect
voting rights. the courts have actually said that congress has broad powers to enact legislation to protect american voting rights. and where the court is not fulfilling its obligation, congress can really make that constitutional obligation for america. >> i absolutely agree with that. we have seen a number of times, including the cases you cited, senator hirono, as well as the decisions we've been talking about, shelby and brnovich. brnovich. .
exhaustive list of guideposts for section two cases, including the size of the burden imposed by challenge voting rule. the degree to which a voting role departs from what was standard practice. and it was amended in 1982. the size of any disparities on members of different racial or ethnic groups. the opportunities provided by states entire system of voting, when assisting the burden imposed by challenge provisions. and the strength of the state served by a challenge voting rule. i'm requiring codes -- to the burdens of voting and then, 1982, my gosh. i find this to be completely standing. talk about judicial activism. i can see we're section two cases was made harder after this decision. and why we need the legislation
that we are talking about. when we talk about some of the kinds of voter suppression laws that have been enacted by the states, i think sometimes we don't understand quite how, with surgical precision, some of these voter suppression laws are. and so ms. weiser, can you give a specific example of a voter i.d. law that has been specifically targeting so that it makes it harder for black voters, for example, to vote? >> yes, thank you. as you note, the inquiry into voter i.d. laws, it's not whether it's all voter i.d. laws are discriminatory. it's a case by case examination based on the particular design of the law. and some of the laws are very clearly both intended to discriminate based on race. and i designed very clearly to do so. one that comes to mind is in north dakota. there was a voter i.d. law that required a residential address
on the identification itself, despite the fact that 19% of the native american citizens in north dakota lived on reservations without residential addresses. and they tried to change that. that was found to be intentionally discriminatory. the texas voter i.d. law that mr. greenbaum referred to was found to be intentionally discriminatory by the district court. and found to be having a discriminatory result. it's surgically chose identification so is to have that impact. it famously included carry licenses as acceptable forms of i.d. but not state employee i.d.s. or university i.d.s. these were disproportionately held by black latino voters. >> those legislatures enacting these kinds of laws, they know very well whose vote their suppressing.
that is why they're doing it. i think it is just so nefarious. it is -- voting is fundamental right. i am a naturalized u.s. citizen. one of the first things i did when i turned 18, was votes, because i consider so foundational. -- thank you very much for what you are doing. thank you. mister chairman? >> thank you, senator hirono. seeing no other senators, one more question. >> the holder decision, and the supreme court, your phone in your testimony, expressly invited the congress to update the formulas necessary for the. and we have taken that
seriously based on the evidence. the updates are included in this legislation and it is in my view vital that we restore those vital protections for american voters. my question, beginning with you ms. weiser, if we nights it's congress do not use the authority that we have under section four and the 14th and 15th amendment, to protect ballot access, by knocking this legislation, what do you see for the future of voting rights, especially for minority voters? >> thank you for that question. there is no question we are facing a critical moment with respect to attacks on voting rights and voter suppression, voter discrimination, even efforts to sabotage election results. would such discriminatory
restrictive abuses and rollbacks. if congress does not act i fear there is no question this vote suppression is not only going to continue -- americans are going to be disenfranchised in large numbers because of their race, and that is fundamentally at odds with the premise of our constitution and our democracy. this is something that congress and fabric lee has the power and duty to stop. and i will say when plea clearance was in effect beforehand, as justice ginsburg noted famously in the dissent of the shelby county decision, it was working very well and throwing away pleat preclearance, just because we are not seeing a spike in discrimination and like throwing away an umbrella in a rainstorm because you are not getting wet. we saw what happened after preclearance went away. we got very, very wet. there was a daily -- voting discrimination measures.
and that has continued and it is getting more brazen. there is an urgency, and we strongly urge congress to act quickly to pass this vital legislation, as well as the freedom to vote act. thank you, mr. greenbaum. >> i would agree with my colleague. i think we're seeing the greatest attack on the right to vote since the voting rights attack -- the voting rights act was passed. and it is not surprising because you have the state of affairs where there is a big hole in the enforcement power of the federal government private parties to fight against voting discrimination, that we are seeing that because of this gap, what you are seeing is you are seeing legislatures and others using this as an opportunity to introduce measures that are specifically designed to go after voters of color. and this is particularly true in those states where voters of color can make the difference
in terms of who wins and who loses elections. we are seeing these laws being proposed in a certain state, but a disproportionate amount of the activity are in those states where voters of color really are exercising their opportunity to vote and can make a difference in who wins and who loses elections. unfortunately, it's come from a very cynical place. it is really disturbing for me, as a career civil rights voting rights lawyer, to see sort of the cynicism that i think what you are seeing, is you are seeing people putting their own interests ahead of the fundamental right to vote, and being willing to do things that are in a lot of ways, intentionally designed to make
it more difficult for voters of color. so it is absolutely critical, as congress did in 1965, to go after eliminating discrimination voting. it is absolutely critical that congress in 2021 fill that gap that the supreme court has created and enact legislation that is going to allow people to exercise their most fundamental of rights, and that is the right to vote. thank you, senator. >> thank you, mr. green bomb. thank you for all the witnesses appearing before the committee today. before we adjourn i would like to enter the record of a report for leadership conference on civil and human rights documenting voting conditions and states and years diction's previously covered under preclearance. this report covers new york, and i will be entering the record without objection. as referenced in the title of this hearing, my friend congressman john lewis, and if
you are a georgian, an american, still feel his presence profoundly, though he is gone. we have an obligation to live up to and honor his example. he said that the right to vote is quote precious, almost sacred. i can think of no better way to honor the life and legacy of congressman john lewis as our country still mourns his passing last year. then to restore the voting rights act of 1965, for which he bled and nearly died to protect that precious, almost sacred right to vote. the hearing is adjourned. -- and the hearing is adjourned. [captions copyright national cable satellite corp. 2021] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org]