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tv   Asst. Atty. General Testifies on John Lewis Voting Rights Act - Part 2  CSPAN  October 29, 2021 6:26am-8:01am EDT

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>> unelected, unaccountable bureaucrats at doj to make decisions at the expense of local officials. as the leader of the civil rights division, i would like to give you a chance to respond to those criticisms. i think they were raised before
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the break, and i'm not sure you had a chance to respond in detail. ms. clarke: thank you, senator. the department finds the john lewis voting rights advancement back contains a number of provisions that help to ensure the bill is truly focused and tailored on the current problems and conditions in the country when it comes to voting discrimination. there is a bailout provision that would make it easy for jurisdictions that have had a clean bill of health to exempt themselves from the preclearance operation. it remains available to jurisdictions that want to bypass the administrative process led by the justice department instead go to courts. there is a very long and deep history of collaboration between the career officials who
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administer section five in the states and localities that make submissions. the process is fair and transparent. the department has published guidelines how this justice department undertakes section review obligation, so this bill is responsive to that concern, senator. >> by the way, the career attorneys in the department of justice are responsible to use as the head of the division, correct? ms. clarke: correct. they have undertaken this work over decades. >> they are accountable to you, and you are accountable to the attorney general, who in turn reports to the president of the united states, elected by the people of our country.
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ms. clarke: that is correct. they undertake this work free from political interference and without any consideration of partisanship at all. >> and, as you have just said, i understand any jurisdiction it wanted to avoid the department of justice could seek preclearance directly? so that is a check and balance, if you will. ms. clarke: that is correct. mr. chairman, thank you. >> thank you, mr. chairman, and thank you for your continued service at the department of justice. mitch mcconnell says the john lewis voting rights advancement act is "unnecessary," so no
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one's rights are threatened, but georgia recently passed a law restricting voting access the targets voting by mail just after the 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 at higher rates than white voters. when the preclearance division was established in 1965, was it not precisely because ad hoc litigation proved 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? ms. clarke: that is correct, senator.
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in many respects we have turned the clock back. today, we have litigation to challenge voting discrimination. the case-by-case litigation we bring is costly, time intensive, resource intensive. section two litigation under the voting rights act has proven to be in an adequate substitute for the important prophylactic protections that have long been provided by section five. >> by 1963, on the basis of the authority the voting rights act of 1957 afforded the department of justice, the department had filed 35 suits challenging either discrimination or threats against registration applications filed by black
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voters, as i believe you quoted in your testimony, attorney general robert kennedy said those case-by-case suits were "a painfully slow way of providing what is after all a fundamental right of citizenship, the right to vote." ms. clarke: that is correct, senator. while we had section five in place between 1965-2013, the department blocked over 3000 voting changes. 60% of those changes also had evidence of intentional discrimination, and so it is a remarkable and sweeping number of discriminatory voting changes that would have taken root but for the important protections provided by section five. >> thank you, ms. clarks, fueled by donald trump's big lie, threats against workers
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skyrocketed in georgia. election workers and officials at all levels, including the republican secretary of state and his staff were harassed and targeted with the 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, floyd county and the northwest. election workers and election officials being able to work free from intimidation and threats is vital to free and fair elections. that is why earlier this week i introduced legislation, the election worker and polling place protection act, to expand and strengthen protections for election workers, their families, polling places in other election infrastructure, and i want to thank the chairman in my colleagues for swiftly including my legislation, now in
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the full text of the john r lewis voting rights advancement act. my question for you is, do you expect 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 in polling places in the law? ms. clarke: thank you, senator. attorney general garland recently convened a meeting of 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 were tirelessly to run elections in our country, and americans deserve a process which is fair and open, and officials who conduct these
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elections in their communities deserve to be able to do their job free from harassment. the attorney general has convened a 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 for your testimony in your service. mr. chairman, i give. >> thank you, senator. senator? >> thank you, mr. chairman. it is good to see you. thank you for the work you are doing. last week, this committee held a hearing on the supreme court's use of the shadow docket to overturn roe v. wade by allowing texas'unconstitutional abortion ban to take effect, but it is not the only time it has used the shadow docket. in the lead up to the 2020
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election, the supreme court used the time and again to restrict voters access to paul's in wisconsin, alabama, florida, among other states, each time claiming it was improper to to do that so close to an election. there are three shadow docket rulings that continue as justice sotomayor put it the "trend of condoning disenfranchisement." in republican national committee versus democratic national committee, the supreme court in the shadow docket overturned a district court's injunction that 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 request for such ballots due to the covid pandemic, so the supreme court did not allow wisconsin voters those six extra days, and it was astounding,
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because they were trying to use a deadline for returning those ballots that had not even been received, so that was pretty hard to explain in my view, but the supreme court did that. in another case, the court by a 5-4 vote stayed a lower court order that sought to ensure that the distance with a high risk of contracting covid-19 could safely exercise their fundamental right to vote. the district court joined a pair of alabama laws that enabled persons in these situations to be able to vote safely, but the supreme court said, no. the conservative majority stated that relief, forcing high-risk
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voters to risk their health in order to vote by mail. in another case, the court refused to vacate a stay of a lower court ruling that held unconstitutional florida's scheme of disenfranchising voters to pour to pay outstanding fines and fees. this is like a coal tax. this was the shadow ruling that justice sotomayor said continues the trend of condoning disenfranchisement. so, we know that there are some 523 anti-voter bills that have been introduced in psalm 47 states this year alone -- introduced in some 47 states this year alone. can you think of a time more
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important to protect voting rights in the lead up to an election 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 are facing in the importance of the kind of legislation we are contemplating? ms. clarke: thank you, senator. the department has observed that since 2013 something has changed. the supreme court issued its shell be ruling, and we have started to see states and localities interpret the ruling as essentially a green light to move forward with the 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.
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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 allowed to take affect, and affect the electoral process. our hope is that congress will move quickly and swiftly to restore the section five preclearance process, eight years after the show be ruling. >> i am running out of time, but the other case is the case that made it hard to bring a section two case, and so the more recent supreme court's case created basically, the supreme court decided to write its own ball and set up criteria that it -- law and set up criteria that is not in section two, and that makes it much harder, and again,
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the reason why we need to pass the legislation we are contemplating. >> thank you. senator? >> 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 to that point, because the discriminatory laws and policies that made it effectively impossible for them to register. i point this out largely because of the voting rights act, things have improved since 1965. indeed, more black voters were added to the roles in the first two years following passage that it then in the previous century, but significant barriers to ballot access remains, and in some communities, particularly communities of color, feel the effects of these barriers more than others. after four decades, i want to
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underscore this is after four decades of overwhelming bipartisan majorities of congress affirming the need for the voting rights act with several real authorizations, and in reauthorizing and 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 at federal protection of the right to vote is tantamount to an my question is this. in shelby county, the supreme court struck down the coverage
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formula to determine which jurisdictions have to submit to the preclearance requirement. but has the supreme court ever held preclearance itself to be unconstitutional? >> no, it essentially cave congress -- gave congress the ability to go back. we know that congress has been carefully studying this issue the last few years, developing a record that makes clear that voting discrimination remains rampant across the country. and it is not unusual for congress to respond to the court ruling. the department welcomes this opportunity to work with you to update the coverage formula in response to the courts shelby
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ruling. because conditions have changed since 1965, but we know that voting discrimination remains. >> at the risk of going off on a tangent, because we could talk about the electoral college, but that is for another day. from eight damage done -- from a damage done prescriptive -- perspective, what about litigation? >> the burden on voters is unjust. -- is undeniable. discrimination process might have taken root. and electoral process playing out in a community. states have spent millions of dollars defending suits.
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in texas, they spent $3.5 million defending the discriminatory voter id law. in north carolina, millions spent that the fourth circuit found the ominous -- on an abyss bill discriminated -- omnibus bill discriminatory. this leads to an electoral process free of discrimination. >> thank you. what might see as a voting rights issue, how people can cast their ballots, but as it pertains to the census, pivotal from a voting rights
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perspective, the latino population growth over the last decades fueled the growth across the country. between 2010 and 2020, in california, latinos accounted for more than two thirds of the population. texas was similar. in redistricting, it's critical to ensure fair representation. but this 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, states will conduct redistricting but without the full protections of the voting rights act. so what does -- what remaining tools does the department have
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and how will the department be enhanced by the passage of the john lewis voting rights act? >> we would have section two at the disposal. -- at our disposal. this is not a substitute to what was provided by section five. the case-by-case approach is not enough to stand up to the voting discrimination we see today. and i want to underscore the importance of section five when it comes to redistricting. the department issued an objection in louisiana in 2011 involving a proposed reduction during -- redistricting plan. the department found evidence that the demographer worked
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exclusively with white elected officials in coming up with a plan in which they reduce the lack population and increase the white population, and they excluded black elect doral -- elected officials in drying this map. this illustrates the important role that section five plays at the county and local level that are often places not under a microscope but where voting discrimination has been rampant over time. >> thank you. general clark, again, i want to apologize for the interruption. you are certainly always welcome before this committee and you
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may be dismissed. thank you so much for your testimony. there might be written questions sent your way. we are going to call the second panel. i want to welcome wendy weiser, who founded and directed the program voting rights and election process. also, john greenbaum, chief counsel for the waters committee for civil rights under the law. he oversees the organizations legal projects.
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and i am going to now give the script that senator grassley would give without prejudice. we are going to have the attorney general of indiana if we can hook up with him virtually. attorney general nikita, are you on board yet? we will keep reaching out. ken cuccinelli, decades of experience in government. director of immigration services. active secretary of the department of homeland security. served in the virginia senate.
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was a virginia attorney general and the last one to handle the issue of preclearance. i am hoping that todd rokita can help us. he was attorney general in indiana. a fourth district congressman and their secretary of state. he led the passage of the first in the nation voter id law. 35 states followed suit. first item of business is the swearing in of the witnesses. witnesses who are present,
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please stand. the testimony that you are about to give, is it the whole truth, nothing but the truth, so help you god? >> i do. >> we will start with opening statements of five minutes. we will first recognize wendy weiser. thank you for coming. >> thank you. thank you for the opportunity to testify today on the voting rights act, a critical bulwark against discrimination in our voting system. as we have heard, in the last eight years the supreme court has dealt serious blows to the law and it is now no longer strong enough to protect
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americans from increasingly aggressive voting discrimination. updating the voting rights act could not come at a more critical time. the current assault is staggering. at least 19 states have passed laws this year making it harder to vote. many target voted -- voters of color. turn for nonwhite voters is substantially lower than for white voters, and has been for over 25 years. despite record voter turnout in 2020, only 68% of nonwhite voters participated. we are at the start of the redistricting cycle that is already showing signs of gerrymandering and targeting communities of color.
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only congress can solve the crisis. i will focus today on one aspect of the john lewis act, the geographic plate -- preclearance act. it is focused and necessary. discrimination is widespread but more prevalent in some places than others. there were over 100 20 voting rights violations in the past 25 years in the seven states likely to be covered under this bill for preclearance but fewer than 50 in the states not covered. discrimination has become possible to root out. states have passed voting restriction after voting restriction. the new georgia and texas laws
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for voter suppression come years after overcoming hurdles in those state. states routinely create devious new ways to discriminate voting. what lyndon johnson called genius discrimination when first updating the act. to ensure the formula targets illegal discrimination, it relies on the best evidence. to ensure it targets states with a persistent pattern of discrimination, it captures the states that only meet a high numeric threshold of violation in the past 25 years, and that review period is critical.
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it is not frozen in time but rolls forward. jurisdictions without recent violations will automatically drop out. stronger tools are needed to address discrimination and other places and that is why it is important the bill also expands 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.
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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
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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.
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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 --
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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
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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
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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 improve the transparency, security, accessibility, and accountability of elections in every state so every american has confidence in the outcome of every election, regardless of
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party, race, and if this chosen candidate lost or one. -- won or lost. regardless of color or political party, this is a great accomplishment worthy of celebrating while always looking to improve. instead, many seem to place propaganda in place of truth. some suggest they want to suppress the votes of their fellow americans. this is not new. it has been a long-term strategy. in 2004 in colorado, the dnc
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manual suggested launching a preemptive strike by encouraging minority leadership to denounce voter suppression, issue press release, when no signs of intimidation techniques have emerged yet. i wonder if these minority leaders being used in this way were told they were being used. in 2010, martha coakley was caught red-handed in her losing senate race by releasing a press release that had been drafted and dated the day before the election. her mistake was dating it.
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in 2016, the democrats carried their false voter suppression narrative in the court. it was rejected. the dnc has a lot of resources, and this was a concern. where is the evidence that suppression went on on election day and that the rnc was involved? in 2019, republicans offered to support that year's version of the bill if it included objective measures of voter suppression such as low voter
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turnout by minorities. but there was no interest in such objective standards on the left and the offer was rejected because it would not accomplish their actual goals of facilitating cheating nationwide. not to mention the worst performing states today under such standards would beat massachusetts and oregon, not the states originally covered by the voting rights act. this is a voter turnout message to rile up the base. in 2004, in an attempt to address the concerns of both parties, the rnc chairman made a proposal to the dnc chairman about how the parties could work together to address concerns about potential voter suppression and fraud. thereby attacking any problems and at the same time, working
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together, dramatically increasing the confidence of all americans in the 2004 election. the letters have been put into the record. but the dnc declined to work together to address even their own alleged concerns about voter suppression, presumably because the only interest was in the false narrative, as there was no longer a voter suppression problem to address, thankfully, for america. the direction of this effort flies in the face of the most bipartisan election analysis ever done. i appreciate the chance to answer your questions. >> thank you, mr. critelli.
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test -- mr. kuchta tally. >> thank you members of the committee for inviting me to speak. from my experience as a candidate for federal and state elections, i know how they can and should be run with transparency. in march i was able to testify on senate resolution one and that mandated states to adopt
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automatic voter registration and prohibited protective measures like voter id laws and cleaning up the names that should not be on the list. it sounds ok, but without the accountability and access, you do not have confidence in the election or the right results. now they plan to do the same thing, place local power into the hands of the bureaucrats in washington.
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what does s-4 do? new preclearance requirements and voter id requirements. it is a partisan power grab. this is a politically motivated effort to circumvent the will of the american people, undermining their confidence in our elections. the biden justice department is seeking more power and signaled they will seek unlimited authority over state elections. this is the same department of justice that would be given nearly unlimited power over elections. here are the top five issues i
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see with this legislation. the constitution reserves for the states the primary role of establishing the time and place of holding elections. this seeks to flip that on its head by giving the department of justice the power. the principles of federalism seek to give voters the vote [indiscernible] reinstate and expand outdated
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portions. federal oversight in 1965 was necessary to combat discrimination, physical lack of access to polling places and other barriers that we have overcome. the original intent was to ensure the rights of americans were not infringed upon, and that has been accomplished for decades. they did exactly what they were supposed to accomplish but instead of acknowledging these accomplishments, s-4 looks backwards, not at the current conditions. i have never seen a party that look backs were -- that looks backwards so much to keep themselves relevant.
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the supreme court recognizes shelby, a dramatic change, because there is nothing to see here. they were right. as for dramatically lowers the burden of proof for the plaintiff's in vote denial claims. it pressures judges to consider if a jurisdiction needs voter id requirements, directly attacking the supreme court's standard. without the floater id -- voter
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id requirements, legal voters are disenfranchised by the fraud and illegal vote. voter fraud goes both ways. s-4 does nothing to address a legal voters or take action against illegal voting. it expands the coverage former -- it expands the coverage. it requires preclearance for election laws and all 50 states and if states enact any of these
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requirements, reform is automatically subject to the preclearance process. unfair, unneeded, and unconstitutional. bureaucrats meddling in the business of states, it's not right. it is in direct violation of the united states constitutional. in 2005, photo identification requirement was enforced by president carter. in the wake of these endorsements, states like indiana started passing voter id
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laws. it is common sense, nondiscriminatory protection. i led that passage and implementation of the first voter id law. he became a model for the nation. -- it became a model for the nation. it is constitutional and common sense. s-4 would likely put indiana
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into a preclearance status. s-4 is a clumsy and heavy-handed effort. if s-4 becomes law, i will seek all legal remedies possible to protect our elections and the right of americans and i am confident other states will join. americans must know that there is confidence and common sense in our election processes and yet any power grab like this seeks to undermine the american people's confidence in our election. we don't need to do this. we should not do this. americans will not allow this radical power grab to move forward, and i will be on their side. thank you. >> thank you.
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and thank you to all of the witnesses for joining us. thank you senators for your tireless work to advance this legislation. john lewis was my mentor for nearly 20 years. for those of us from georgia, for all americans, for people around the world, he represents the very best of public service and self sacrifice in advancing civil rights, voting rights, and human rights. on march 7, 1965 in selma, alabama, when congressman lewis and hundreds of others marched across the bridge into a storm of violence, and that day he had his skull fractured for daring to demand equal access to the
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ballot for black americans in the american south. inspired and motivated by his example and the example of those who gave so much that day, just 10 days later the voting rights act was introduced in the u.s. senate and signed into law by president johnson on august 6, 1965, thanks to the sacrifices of patriots like john lewis. in 2013, the supreme court invited the u.s. congress to update this vital statute and so thanks to the efforts of many senators, we are here to restore and strengthen the voting rights act, to recommit to protecting voting rights and ballot access for voters across the country,
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no matter the color of their skin. it is essential that we pass this legislation. at this time, i would yield to senator durbin for his questions. senator durbin: thank you. i listened to comments made by the indiana attorney general, and i thought to myself, these are echoes of the same argument we have always heard. leave it to the states. things will turn out fine. history tells us otherwise. unless we carefully guard the right to vote for every american, some who tend to exploit the situation. ms. weiser, in your testimony you talk about the findings of professor mccrary. 100 43 violations in the last 25 days -- 25 years -- 143
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violations in the last 25 years in the top eight states most likely. there is 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 of civil rights in america? >> thank you. and absolutely, yes. there is overwhelming evidence. there is ongoing, persistent, growing threat of discrimination threatening the rights to vote as many americans. i mentioned that we are facing a huge surge in legislation efforts to restrict voting access across the country. it's the biggest push since reconstruction. we also see and increase in
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successful litigation across the country as the voting restrictions are piled on top of each other. this is why the constitution gives congress the power to protect the right to vote from discrimination, to put in place measures and enforce the guarantee of equal voting rights. >> you have heard statements made by the other witnesses. it seems to be an echo of the argument of states rights that has been used historically as a justification for discrimination, or at least for the government to take its hands off of state matters. it is a recurrent theme. is there any more validity today
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than in the past? >> i think you are 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, and the national voting registration act of 1993 put requirements that states had to implement with giving people increased voter registration opportunities, including being able to register to vote at drivers license offices. and with respect to voting
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discrimination, we have seen the void in the last eight years after the shelby county in terms of what state years -- states have done to discriminate against voters of color. in georgia, for example, a demographic change is going on. in 2004, whites were 67% of registered voters. today, 53%. what is happening is as voters of color in georgia are able to assert more power at the ballot, you are seeing actions by georgia legislature to make it more difficult for voters of color to participate at the ballot box. >> we should never tolerate any fraud, voter fraud, or abuse of the electoral system by any party or candidate.
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we have scanned if any evidence of voter fraud, time and again, when they spend millions of dollars, it turns out to be a joke. looking for bamboo fibers or whatever they were doing. it turned out there were mow -- it turns out there were more votes for biden. i yield. >> ranking bandler -- ranking member grassley. >> he wrote a letter saying, i have passed hr 42 resurrect and enact new requirements in -- for
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activist groups. what is the danger of moving away in favor of focus on litigation, tactics, and please tell you -- please tell us your experience with groups and how these groups can successfully use these tactics to avoid preclearance. >> the usual burdens of voting have been found to be legitimate . the availability and other
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factors will make it challenging under section two and the ballot prevents courts from considering common sex -- common sense factors. so it is completely subjective and unreasonable. you're basically allowing that if the electoral's like you, you're ok. activist groups drive up and browbeat and force and collude with elected officials to force, embarrass, to enter into a
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consent decree and our founders said the manner and place is to be decided by the state. >> thank you. there is nothing in hr for -- hr four, but i will ask anyway. is there anything in this bill that would impact that? >> the expansive reading i would expect to see from the doj would not simply deal with general elections. they would look at primaries. and primaries can historically
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be discriminatory. we have to guard against discrimination in those nominations come as well and the authority granted to the department of justice under this bill, you can only expect to play a role. one complaint about iowa and new hampshire being early in the calendar for each party is they are more whites 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 it would be subject to preclearance and those outside activist groups could just target those states with litigation, and increased litigation can be a reason to be brought into preclearance.
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the standard in this bill is not limited and democrats rejected the ultimate goal being the standard, minority voter turnout and restriction was an ongoing standard and 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 preclearance before it was outlawed by shelby. could you talk to us about the standards for preclearance that were in place for virginia then versus the standards that would force virginia into preclearance if it was passed? >> preclearance as it existed pre-shelby, going back to 1965, it was certainly needed and
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required. and it worked, as the supreme court found. but as it continued on up to 2013, there is no question the burden was quite significant. preclearance for those states met preclearance of everything. if you moved a polling place, move within a school from where you voted, you had to get it cleared by the federal government. and each of those opportunities is an opportunity to bend your states election system to the will of those in the doj and even president obama's inspector general found the voting section was hiring those from the radical left, predominant even then, and you can fully expect that trend to get worse.
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so the place where these questions -- these are literally the most rabid left-wing lawyers you can find in the federal government. >> ms. weiser, in the shelby county decision, the supreme court invited congress to update the preclearance formulas. >> correct. >> can you address how that formula and other provisions in the john lewis bill are crafted to encompass the states and practices that pose the greatest threat of voter discrimination, avoiding either over or under inclusion? >> absolutely. as i noted, states come into preclearance based on actions,
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proven violations of the law based on racial discrimination and voting. it is not based on things in 1965. in his current, ongoing, -- it is current, ongoing, and rolls forward. courts are required to consider the strength of the plaintiff's case. in addition, it is tailored to get jurisdictions that not only have proven violations, but a persistent pattern of violations over a long time and it is tailored by limiting the coverage period to ensure jurisdictions will not stay covered if they have not had violations in the last decade. and it is not just officials in
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the department of justice. the jurisdiction can choose if they want to go to the doj or a three-judge federal court to submit preclearance requests. >> mr. greenbaum, 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 color. this is known as the retrogression provision of the bill. why is this so important? how does it differ from existing sections and how is it different to retrogression under preclearance? >> the concept of retrogression is one that through section five we are familiar with in terms of how to apply retrogression.
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in basic terms, what it means is, does the law makes things worse for voters of color, which is a much more straightforward test than the existing results test that requires a number of factors and takes longer to litigate and has harder cases to resolve. retrogression is a more simple concept and one that the supreme court has signed off on through section five. they largely created the standard of retrogression. under section two it would be different and that it would cover all areas of the country. it would not be limited to particular places or particular types of voting changes.
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he could apply to any change, anywhere in the country -- could apply to any change anywhere in the country. it requires the plaintiffs to go and prove to a federal judge that a particular voting change puts voters of color in a worse position than before. what we have seen with a lot of laws passed this year, a number of changes appear to be retrogressive, such as changes that make it more difficult for people to vote by mail than what we saw in 2020 is that black and asian voters are the ones who voted by mail most frequently, as well as limitations on the use of drop boxes, which voters of color used in a
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disproportionate number. it creates a clear, easier to administer standard for the courts to follow. >> senator klobuchar. >> justice ginsberg's dissent in shelby county noted that the sentence right to vote was used in five places and each of those amendments contains the same broad involvement of congress to enact appropriate legislation to enforce the protected rights. the implication is unmistakable. congress holds the reins in making equal votes real. can you explain why time and time again the constitution
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recognizes the role for the federal government, and why it is congress and not state legislature that is interested to make the voting rights equal for all citizens? >> 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 to even create an entire code of voting for federal elections, as the late justice scalia affirmed. one of the main concerns the framers of the constitution had was that voting rights, including elections, federal elections, would be manipulated by partisans at the state level
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that might try to disenfranchise or engage in 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 actually enforce equality after the civil war, because states were not trusted with that. >> very good. i know in your testimony, you mention to vote act. you noted that section two cases are extremely time-consuming and resource intensive. taking proactive steps like section five of the preclearance
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formula is an important measure to prevent voter suppression laws from having to be litigated in a courtroom. that is one reason why the committee worked on the freedom to vote act to set basic national standards. can you talk about why it is important to pass the john lewis bill and freedom to vote act in order to proactively prevent discriminatory laws from being enacted? >> absolutely. the preclearance requirement has long worked, but for the shelby county decision, was the most successful provision that stopping the worst discriminatory measures from going into place in jurisdictions with the worst history. it stops them in their tracks before being put in place. but that was just for new voting changes and the rest of the
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country without that same history of discrimination had to rely on the section two of the voting rights act. bringing case-by-case litigation is time consuming, expensive, and while pending, discriminatory measures continue. what the for the people act does is put standards, a set of rules every american can rely on, regardless of race, and that can be manipulated -- and if manipulated for discriminatory reasons, it is much easier for courts to enforce. together, the bills work to fill the hole and meet the crisis we are facing today in voting rights in america. >> mr. greenbaum, -- mr.
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greenbaum? >> really what we have seen since shelby county is an incredible proliferation on discrimination against people of color in terms of voting, beginning with the day shelby was announced when the attorney general in texas where the voter id law had been prevented from going in place under section five. said ok, we are going to move forward with that voter id law, and we spent the next several years my organization, the department of justice, other organizations, going to court to get that law struck down, that it was discriminatory under the voting rights act. ultimately, getting a fifth surface -- fifth circuit in our favor and we went for our fees.
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the fifth circuit affirmed our field award of $6.8 million. we know that texas spent at least $3.5 million on that lawsuit. so we spent several years litigating, finally preventing that law from going into effect, which affected people during those three years in between. and will timidly between -- and ultimately is going -- it is going to cost the state of texas more than $10 million for moving forward without law. sen. kobuchar: very good point. thank you very much. thank you, mr. chair. sen. durbin: thank you, senator klobuchar. senator her robo, you are recognized for five minutes. >> thank you, mr. chairman. it is not a coincidence that shortly after shelby county sub 13 states passed voter suppression laws, and now with the conservative majority firmly
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ensconced in the supreme court with three trump justices, we are seeing dozens of voter suppression laws being enacted, supposedly to prevent widespread voter fraud. which has not been shown to be the case at all. earlier, i noted three supreme court shadow docket rulings that continue the court's friend as justice sotomayor peart -- put it, condoning disenfranchisement by the court. ms. wisner and mr. greenbaum, do you agree with justice sotomayor's dissent, noting the court is condoning this enfranchisement? >> thank you for that question. the courts continue to play a critical role in protecting voting rights for all americans. unfortunately, it is the case that the supreme court has consistently rolled back the
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strength of voting rights protections, making it much harder for voters to enforce those rights. and seems to be portending that there might be more to come. that is why it is absolutely critical for congress to step in and protect voting rights. the court has actually said that congress has broad powers to enact legislation to protect americans voting rights, and where the court is not fulfilling its obligation, congress can really meet that constitutional obligation for america. mr. greenbaum: 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 have been talking about. shelby and berkowitz. one of the things i find
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especially disturbing about the brain of edge case is it really flies in the face of congressional intent, by the court's decision, that case, adding a whole new set of factors that courts are supposed to consider that none of that appears in the statute itself. none of it appears in the congressional history in 1982. and it flies in the face of what this body did in 1982 to try to eradicate discrimination voting. it actually -- there are aspects of that decision that seemed to almost encourage jurisdictions to move forward with mechanisms that are discriminatory. it is a tremendous concern. thank you. sen. hirono: that is exactly what happened. justice alito, who is a justice that signals certain things that
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he would like to revisit, but writing in that case, which i find astounding. because he creates -- i think he rights laws, he creates what he calls a nonexhaustive list of guideposts for section two cases, including the size of the burden imposed by challenge voting rule, the degree to which a voting rule departs from what was standard practice when section two was and ended in 1982 -- was amended in 1982. this size of any disparities on members of different racial or ethnic groups. the opportunities provided by a state's entire system of voting, when assessing the burden imposed by challenge provisionl. and the strength of the state interest is served by a challenge voting rule, and requiring codes -- courts to repair the voting restrictions. to the burdens of voting, and
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then two. my gosh, i find this. case to be completely astounding talk about judicial activism. i can see where section two cases was made even 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 state, i think sometimes we don't understand quite how with surgical precision, some of these voter suppression laws are. ms. weiser, can you give a specific example of a voter id law that is surgically targeted so it makes it harder for black voters, for example, to vote? ms. weiser: yes, thank you. as you note, the inquiry into voter id laws, it is not whether or not all voter id laws are discriminatory. it is a case-by-case examination based on the particular design
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of the law. and some of the laws are very clearly both intended to discriminate based on race and are designed clearly to do so. one that comes to mind is in north dakota, there was a voter id 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, but that was found to be intentionally discriminatory. the texas voter id law that mr. greenbaum referred to was found to be intentionally discriminatory by the district court and was ultimately found to be -- to have a discriminatory result. and it surgically chose it edification -- chose identification so as to have that impact. it included carry license as
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acceptable forms of id but not state employee ids or state university ids, which were disproportionately held by black and latino voters in texas. sen. hirono: those legislatures and acting these laws know very well whose votes they are suppressing. that is why they are doing it. i think it is so nefarious. voting is a fundamental right. i am a naturalized u.s. citizen. one of the first things i did was -- did when i turned 18 was vote. we should do everything we can to make sure everyone can exercise their right to vote. thank you very much for what you are doing. thank you, mr. chairman. sen. durbin: thank you, senator hirono. seeing no other senators seeking recognition, i will in closing ask each one more question. in the shelby county, the holder decision, the supreme court, as
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you affirmed in your testimony, expressly invited the united states congress to update the coverage formulas necessary for the department of justice to execute its authorities under section five of the -- of the voting rights act. we have taken that seriously and done that work. based upon the evidence, we have trap -- draft of those updates. they 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 in the united states congress do not use the authority we have under article one, section four, and the 14th and 15th amendments to protect valid access by enacting this legislation, what do you see for the future of voting rights, especially for minority voters in the united states? ms. weiser: thank you for that question.
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there is no question we are at a critical moment with respect to attacks on voting rights, voting discrimination, even efforts to sabotage election results achieving fever pitch discriminatory redistricting abuses, and court rollbacks of rights. if congress does not act, i fear there is no question that this vote suppression is not only going to continue to proliferate, but that americans of color are going to be disenfranchised in large numbers because of their race. and that is fundamentally at odds with the promise of our constitution, of our democracy. and this is something that congress emphatically has the power and duty to stop. and i will say when preclearance was in effect beforehand, as justice ginsburg noted famously in dissent of the shelby county decision, it was working very well and throwing away
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preclearance, just because we are not seeing a spike in discrimination is like throwing away an umbrella in a rainstorm because you are not getting what. we saw what happened after preclearance went away. we got very, very wet. there was a daily lucia 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. sen. ossoff: thank you. mr. greenbaum? mr. greenbaum: i would agree with my colleague. i think we are seeing the greatest attack on the right to vote since 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 you are seeing that because of this gap, what you are seeing
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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 certain states, 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 is coming from a very cynical place. it is really disturbing, for me, as a career civil rights and voting rights lawyer, to see the
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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 at in a lot of ways, intentionally designed to make it more difficult for voters of color. 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 enacted legislation that is going to allow people to exercise their most, fundamental of rights and that is the right to vote. thank you, senator. sen. ossoff: thank you, mr. greenbaum. thank you to all of the witnesses appearing before the committee today. before we adjourn, i would like to enter a report from the leadership concert --
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documenting voting conditions in states and jurisdictions previously hundred 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 "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. than to restore the voting rights act of 1965 for which he bled and nearly died to protect that precious, almost sacred
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right to vote. in 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] [indiscernible background noise] >> thank you. we really appreciate everything you have done.
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