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tv   Hearing on Voting Rights  CSPAN  July 24, 2021 1:59am-3:31am EDT

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>> january 6: views from the house" starts this sunday at 10:00 p.m. eastern, or listen on the c-span radio app. next, legal experts testify on voting rights and election integrity. the house judiciary subcommittee on the constitution examines the implications of recent supreme court decisions on the topic. witnesses include experts from harvard, the center for justice judicial watch, and the lawyers committee for civil rights under law. this is about 90 minutes. liberties, and civil rights will come to order. without objection, we authorize a federal recess in the subcommittee at any time. welcome today's hearing on the applications of one division
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versus democratic national committee -- of one image versus democratic national committee. i would like to remind members that disseminating written materials offered as part of our hearing today. that would be judiciary docs@mail.house.gov. i call on all witnesses and members to new microphones were not speaking. you may unmute yourself at any time when you secret condition. i will recognize myself for an opening statement. rights are only as strong and meaningful as the ability to enforce them. among the most fundamental rights in our country is the right to vote free from discrimination based on race or ethnicity. at a time when american democracy itself side is under severe threat from demagogue forces and a title wave of voter
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suppression efforts, it is all the more important that we in congress help facilitate strong and expensive support for voting rights. no statute is more important than the voting rights act of 1965 pit yet two weeks ago, the supreme court's conservative majority reiterated its hostility to the vra's purpose of eradicating race discrimination in voting. in reaching the decision, the court compounded the damage inflicted on the voting rights act in 2013 when it effectively gutted the act's most powerful enforcement mechanism, the preclearance requirement. arizona upheld voting measures pursuant to section two of the vra alleging that these measures denied or abridged minority citizens' voting rights on account of race or ethnicity.
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that is what section 2 is about. in 1982 come in response to an earlier supreme court decision restricting the scope of section 2, deliberately accusing -- using very broad and expensive language. section twoa provides that no qualification or prerequisite shall be imposed or applied by any subdivision in a manner that results in the denial of any citizen's right to vote on account of race, color, or language minority status. section 2a violation based on the totality of the circumstances in the political process open to participation by minority citizens. that means that minority citizens have less opportunity than other members of the
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electorate to produce a fate in the process and to elect representatives of their choice. in 1986, the supreme court adopted the historical and social factors taken from the senate report on the 1982 amendments that the court should consider assessing under the totality of the circumstances whether the voting role violates section 2. this has now been in place for four decades. more troubling than the outcome of the individual case was the reason underlying it and its potential impact on future cases involving denial claims under section ii. the court created out of thin air guideposts in assessing denial claims under section 2. these guideposts are found nowhere in the voting rights act, directly contradicts section ii's purpose, and
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financially narrows its scope. as justice kagan wrote in dissent, the court was operating in a law-free zone. this was an activist court not relying on precedent. depending on how lower courts interpret these guideposts, any of them can become a loophole to discriminate against minority citizens. one particularly effective example is the "size of the disparity" guidepost. kind of like a light violation of the law. put another way, this could be
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taken to mean that imposing a little racial this commission in voting is ok. that is really amazing. section ii contemplates no such de minimus exception. section ii allows for no voting qualification or practice or procedure resulting in the richmond of the right to vote -- abridgment of the right to vote. just a little bit of discrimination, just a little bit of racial animosity and political politics over race and justice. the court provides no answer, leaving the door wide open to make the argument and for the lower courts to accept that many kinds of racially disparate burdens are too small to violate sectionii. in the similar vein, the court
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created a mere convenience to -- mere inconvenience to section ii , claiming that it had to account for the usual burdens associated with voting. section ii recognizes no such exception. it puts the cart before the horse. the hope point of section ii is to focus on the jurisdictions social conditions with facially neutral voting rules to determine whether the voting rule which might impose a mere inconvenience or unusual burden on white citizens might have a discriminatory effect on minority citizens' voting opportunity. without that, no court can say whether the voting will imposes a burden that is merely inconvenient. the court's decision is deeply troubling because of implications for section ii, what we have left of the voting rights act after the emasculation in 2013.
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plaintiffs will have a harder time prevailing. it did provide congress with the option to respond with the legislative fix. i think i witnesses for participating in today's hearing i look forward to the testimony. now i would like to recommend the ranking member, who today will be the gentlelady from minnesota, for a brief statement. >> thank you very much, mr. cheerful from today's subcommittee hearing is about the supreme court's decision in brnovich, and this is the fourth hearing the committee has held since april. today we will hear the same talking points which are being repeated daily in the mainstream media. i don't know anyone who wants to prevent minorities or anyone from voting, but i have many
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constituents who are calling on me to protect the integrity of our elections. let me be clear, republicans want every legally cast vote to be counted and want every election to be free from fraud and error. there are many commonsense ways of doing this which many of us could agree on behind closed doors, including the provisions from this case. with this decision, the supreme court refused to politicize the voting rights act and transfer the authority to regulate elections from the states to the courts. the election clause of the united states constitution gives the state legislatures the authority to prescribe the times, places, and manners of all holding elections, and that essentially what arizona did with its out-of-precinct policies, commonsense measures that uphold the integrity of their state's election. the dnc disagreed and tried to
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politicize the vra by challenging these measures under section ii. on july 1, 2021, the supreme court issued its decision, which presented the court with its first opportunity to weigh in on the vra's section ii claims that challenged voting laws regulating the time, place, and manner of casting a ballot. the court held that arizona's regulations governing out of precinct voting did not violate section ii, although justice alito did not announce a test to govern all similar vra section ii challenges, the court found that equal openness of election procedures remains a touchdown in establishing whether there is a violation of section ii, and courts must examine the totality of the circumstances. the court received a letter from the justice department agreeing
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the case presented no vra section ii violations. i look for to discussing the implications of the case on future section ii litigation. like the shelby decision and contrary to misinformation, this decision does not gut the vra. even after this decision, section ii remains an effective tool to stop discriminatory voting law. the decision denies critics the opportunity to use the vra as a partisan tool to stop policy decisions basically disagree with. following the 2020 election, several states passed commonsense election integrity reform measures, which we could agree with many of them behind closed doors. unfortunately, we have seen april's narrative pushed-- a false narrative pushed in an attempt to build a false
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narrative of voter suppression around the vra. legislatures are-- legislators are being maligned as trying to harm the measures they are trying to secure. georgia's commonsense election integrity lies being attacked as discriminatory. instead of attacking the motives of good americans on both sides, we should be working together to ensure that both minorities are protected from discrimination and that our elections are secured from front. -- fraud. i look forward to discussing this landmark voting rights decision today and i think all of the witnesses for being with us today, i thank you, mr. chairman. i yelled back. -- yield back. rep. cohen: thank you. i appreciate your opening statement and filling in for mr. johnson today. i recognize the gentleman from the great state of new york, the
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empire state, mr. nadler. rep. nadler: mr. chairman, i appreciate you holding today's hearing in response to the supreme court's decision in brnovich versus the democratic committee, which narrows the scope of the voting rights act of 1965. section ii prohibits procedures that discriminate on the basis of race, color, membership in certain language minority groups. while the extent of fraud remains to be seen, the brnovich decision appears to have significant undermined section ii's voting rights protections. it will likely make it harder for plaintiff to prove denial comes under the results test which congress adopted in 1982 as a guide to determine whether the plaintiff has established a challenge to voting practices violates prohibitions on discrimination when the practice while facially neutral
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has a discriminatory effect. one silver lining is that at least congress has the ability to undo any potential damage the court has inflicted on section 2 . that is because the majority's opinion, brnovich disposed solely on the interpretation of section 2, unsupported by the statute's text, and which congress can correct through legislation. congress included section 2 in the voting rights act with the important purpose of protecting minority citizens from racial discrimination in voting in those areas of the country that were not subject to complete clearance under section 5. in 1980, the supreme court interpreted section 2 to prohibit only those voting measures that were motivated by discriminatory purpose, narrowing what had been the scope of section 2. in response, in 1982, congress amended section 2's language to
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broaden its scope. congress's concern that state and local policymakers rep. manning: facially neutral--were implementing facially neutral voting practices that could interact with underlying social conditions created by historical discrimination to result in the denial of minorities' right to vote. congress's intent on stopping this more subtle form of discrimination. yet in what only can be described as a usurpation of congress's legislative rope, the court in brnovich announced several new guidepost seemingly from whole cloth that lower courts have been considered in evaluating vote-denial claims. when evaluating claims under these new factors, lower courts could challenge discriminatory yet facially neutral voting practices, the very practices that congress broaden the scope
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of section 2 to confront. none of these new guideposts have any basis in the history of section 2. they appear to conform with what the brnovich majority's view of what section 2 ought to be, not what congress intended to be when it enacted the statute in 1982. as already noted, one guest cast -- congress passed section 2 in response to an earlier supreme court decision that narrowed its scope it it again finds itself in the vision of how to clarify the scope of section 2 to ensure that voting rights protections remain in place. the circumstances congress faces today appear more dire. the brnovich decision paves a new way for racially discriminatory laws across the country, the result of the court's disastrous decision in
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shelby county v. holder, which guarded the -- gutted the recruiter and --preclearance regime. dozens of texas lawmakers are in washington now to prevent a brazen attempt to change the states voting laws congress must ensure that federal protections are in place to block such discriminatory laws. in the dissent to the brnovich decision, justice properly raised the lawn. she wrote, "-- justice kagan properly raised alarm. she wrote, "never has a statute done more to establish a nation's highest ideals, and few laws are more vital in the current moment. yet in the last decade this court is treated no statute worse." i cannot agree more. congress must act where the
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court has failed voters across the country. i look forward to testimony from witnesses, and with that, i yield back the balance of my time. rep. cohen: thank you, mr. chairman. it is my understanding that the gentleman from ohio, mr. jordan, does not have an opening segment. rep. jordan: no thank you, mr. chairman, i associate myself with the remarks of representative fischbach and i look for to hearing from our witnesses. rep. cohen: i will now introduce each of the witnesses and we will recognize his or her testimony i get the introduction before they testify . each of your written statement will be entered into the record in its entirety. to help you stay within the frame, there is a timer within the zoom view that should be visible in your screen.
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before proceeding with your testimony, a reminder you have a legal obligation to provide truthful testimony and any false statements you make may subject you to prosecution. our first witness is the acting director of the democracy program at the brennan center for justice at the new york university school of law, where he focuses on voting rights and elections. he advocates for pro-voter reforms and automatic voter registration and footing rights restoration while fighting back against voter suppression efforts in the courts. prior to joining the brennan center, he practiced law in chicago, where he litigated all matters of civil rights and constitutional matters, and i'm sure he had broad shoulders. he earned his undergraduate and law degrees from northwestern university. he served as a law clerk in the northern district of illinois. your recognize for five minutes
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--you are right nice for five minutes. >> thank -- you are recognized for five minutes. >> thank you, chairman cohen, for the opportunity to testify on the supreme court's decision and how congress should respond. while the supreme court's 2013 shelby county decision help open the floodgates to these efforts to roll back voting rights committee brnovich decision weakens one of the tools we might used to stem the tide. congress must meet this moment as it has in 1965 and 1982 to protect voters from this formation, to provide truly comprehensive protection, congress must restore the voting rights act to its former glory and set a new standard for elections free from discrimination. i would start with a brief expedition of the harm the brnovich decision does and into potential remedies. the first mistake of the
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brnovich majority is it departs from decades of precedent and shift the focus away from what congress intended, an evaluation of how voting rules and direct with the effect of race discrimination. that is the purpose of the totality of circumstances test in section 2. the court shifts its focus to a set of five so-called guideposts for courts to consider moving forward. in my written testimony, i explain in detail how these guideposts will lead courts to stray from the cause of identifying nondiscrimination in voting. the short version is the direct courts to view with skepticism characteristics that are in reality be hallmarks of modern-day voter suppression. state legislatures are not hacking, but slicing away at voting rights from every angle. they shave away access to mail voting, they cut back in person voting, they trim voters from the rolls with faulty purges. one slice may be minor, but the
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end result is death by 1000 cuts. the court of appeals targeted voters of color with almost surgical position. the majority in brnovich seems willing to accept discriminatory burdens so long as they do not deny the right to vote to too many. if a state's voting laws are better than the status quo in 1982, the majority suggest it will be hard-pressed to find them discriminatory. what's worse, the majority is far too quick to accept the excuse states give for discriminatory laws given every instance, fighting fraud. the court accept at face value the lie that currently threatens to undermine our democracy. my colleagues and i make it our mission to defend the right to vote. this decision in shelby county and others leads us faced with unprecedented attacks with a
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blunted tool to fight back. what is the solution? to remedy the harm done by shelby county, congress should pass the john lewis voting rights advancement act. to truly restore our power to push back on discriminatory laws, congress must strengthen section 2. congress must ensure that the guidepost will not prevent the identification of truly criminal tory practice it--truly discriminatory practices. congress should make it explicit the central role that historical and current discrimination must play in the court's analysis of section 2 claims. congress could also elaborate. second, congress must make it clear that the true threat to our democracy is based is termination, not widespread voter fraud--is race discrimination, not widespread voter fraud.
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congress could require courts to consider the tenuous in this over the relationship. finally, it is critical that congress make explicit that there is no tolerable level of race discrimination. with these goals in mind, congress can remedy the harm done to the voting rights act. restoring the voting rights act is not enough. congress must pass the for the people act and create a new national standard for voting. this will take some common tactics of restricting voting off the table. we applaud as for doing its part on this already--we applaud the house for doing its part on this already. rep. cohen: thank you, mr. morales. we appreciate your work and your testimony. our next witness is nicholas stephanopoulos,
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i propose a standard under
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section two of the act. several justices act about my proposal. and, the court's decision cited by article. i would like to make some points about the decision. ordinary statutory interpretation. the justices in the majority reading the statute claimed they start with the text and and with the text. but, the court announced that for future cases, they are on board from the statute's language. you can steer the language from -- for as long as you want and will never find any references to the size of the voting burden or the racial disparity, let alone what policies happen to be a place back in 1982. the courts only defense for its
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extra-textual factors is the quote "totality of circumstances. " that phrase optimizes the justices to invent whatever criteria they think are appropriate. but it is not an invitation to the justices to become guardians. it is just a reference to the factors listed in the 1982 senate report. as justice kennedy once wrote "for this purpose of interpreting the totality of circumstances, the court has referred to the senate reports on the 1982 amendment" until now, the court has not relied on its own idiosyncratic judgment. my second point is that the court -- the meaning of section two will impair efforts to fight racial discrimination in voting because each of the factors is designed to make it harder for
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section two plaintiffs to win cases. each factor puts a thumb on the scale in favor of defendants. together, the factors amount to a road map showing states how to avoid liability for the racial inequities of their elections. take the factor about the state of the world in 1982. in that era, early and mail-in voting was limited. innovations like automatic voter registration and ballot drop-off boxes were unknown. so, under the course approach, cut next to those policies would likely be fine. no matter what racial disparities the cutbacks caused. fortunately, congress does not have to accept the shackles that the court attached to second two. renovate -- if congress disagrees with the decision, it can and should overwrite the court. that is the last one to want to
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make today. in particular, i recognize the insertion of two paragraphs into section two. my written testimony includes dental language for these provisions. -- potential language for these provisions. first would state they are not above the circumstances that should be considered in section two cases. the second says see approach justice kagan despite -- described as part of the totality of circumstances. under that approach, there are two critical or issues -- critical issues. first, dozen electoral process result in significant racial disparity? the second is the means to improve -- achieve important interest. something like justice kagan's death is already used under title vii and the fair housing act. justice kagan's test is also constitutional.
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most importantly, justice kagan's test is effective. many electoral rules cause unnecessary racial disparities. such rules are currently being debated around the country. all of these policies would be cut -- caught by justice kagan's test. therefore, congress ought to embrace that test and move us closer to a world where our elections are finally free of racial inequities. thank you. i look forward to questions.
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recognized for five minutes. >> in my opinion, the brunt of its decision rely heavily on section two. the court analyzed the text holistic a in the light of -- in the context of, the additional phrase that equally open meant
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in the members of a group have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. the court's decision was not unexpected. it was precedented by a majority of circuit courts to consider the issue. . there has been a long unresolved legal problem as to how to apply section two of the voting rights act. numerous courts over the years have commented on how the criteria are uncomfortable for vote denial cases. that guidance was something the court provided. i wanted to note that we have discussed already the five guideposts that the court identified. it is important to realize that the court called them nonexhaustive.
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looking at the totality of the circumstances, bear in mind, that the original seven factors we all know was a nonexhaustive list. i am quoting now from the 1982 report. from which the senate factors where they were first enumerated. the report says that typical factors include "edit list the nine factors, and that it says while these enumerated factors will often be the most relevant ones, in some cases, other factors will be indicative of a legendary lesions. that raises another -- dilutions. that raises another point. the language in section two came from white versus register in 1973. that was a multimember district case. jingles was a multimember district case. from the beginning, section two has been targeted for at large
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district kinds of cases. as i said, courts have routinely commented on how there is no guidance as to how to treat a time place and manner restriction. because it was unresolved, there has been a brass of -- a rash of lawsuits that i would say should not have been brought. in my written testimony i discuss the ohio democratic party versus houston from 2016. the alleged in section two violation that the trial court found to have occurred was that ohio cut its early voting days from 35 days to 29 days. bear in mind as well that as we sit here, connecticut and delaware have no early voting. so, it is not that you are going to get sued for whether or not you have early voting. you are going to get sued if you have it and then repeal it.
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that makes no sense. i would add that some very famous politicians, including the president of the united states, have invoked jim crow. that is in my view and outrageous, outrageous thing to say. at its worst, jim crow involved state government officials colluding with domestic terrorists to murder american citizens. even if you look at the voting angle of jim crow, it involved literacy test that were six pages long and no one on this committee could pass them. it involved all white primaries to determine the winner. it was shocking in its extent, but it has nothing to do with 35 days or 25 days of early voting. it has nothing to do with no out of precinct voting in arizona. it has nothing to do with saying that mail-in ballots after covid have to be connected by a family member or household member or
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caregiver. we need some perspective in this debate. we need to understand what is happening. i could go on at length, although, not according to the clock. i could talk about the texas and georgia legislation as well. both texas and georgia, unlike connecticut and delaware, have early voting. thank you, mr. chairman. rep.cohen: our final witness is ezra rosenberg. he practiced at a major national firm where he was involved in pro bono representation successfully challenging texas is -- texas boss -- texas's voting law.
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mr. rosenberg received from the nyu school of law. you are recognized for five minutes. mr. rosenberg: thank you. thank you for giving me the opportunity to testify today on these important issues. racial discrimination in voting diminishes our democracy. the voting rights act of 1965, particularly sections two and five, has been indispensable in the fight against such discrimination. with the them is a ration of such -- with the evisceration of section five, section two is needed more than ever. for decades, section two has been working. the courts have designed standards to meet the intent of congress to stop not only explicit discrimination but also facially neutral voting laws
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through subtle methods have a significant impact on minority citizen's right to vote. a seemingly innocuous practice can interact with social conditions to result in pernicious discrimination in voting. those standards were judicially manageable. there has been no questionable section two voting rights cases. brnovich marked the first time since the 1982 amendments that the supreme court reviewed a pure vote denial claim. in brnovich , writing for the majority, justice alito provided guidelines for future vote denial cases that were not only knew, but also contrary, or at least in lieu of, decades long accepted standards. brnovich unnecessary and
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unreasonably make that much more difficult for civil rights plaintiffs to win these cases, particularly results cases, when they were already difficult to win. it does so in a way that flies in the face of congressional intent, raises too many ambiguities and -- in too many important areas to leave it to the courts to fill in the blanks. i have litigated voting rights cases on behalf of voters of color. the north committee at the national civil rights organization created at the bequest of president kennedy in 1963 to confront issues of racial discrimination pro bono. i first became associated with the lawyers committee in 2011 when i volunteered to take on the voting rights case pro bono. that case was a challenge to
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texas's photo id law. after the fifth circuit ruled that texas's law discriminated against black and latino texas'd against black and latino burgers -- voters, the case was hard-fought. it took six years. there are two approaches congress can take to the assault on the voting rights act. the first is to pass legislation like the john lewis voting rights act that addresses goal in the voting rights act. the second is to deal with the expected consequences of brnovich . common sense and history is structured so that those who want to target voters of color
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willwill feel emboldened by the decision making it more difficult for plaintiffs to prove a section two violation. thank you. rep.cohen: thank you professor
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rosenberg. i will now recognize myself under the five minute rule. professor stephanopoulos, the brnovich majority is, in my opinion, activists and not textural. would you agree with describing your opinion as an activist position? professor stephanopoulos: i would agree with that. there is an irony in the current courts conservative self-description as moderate, restrained, textualism went every line of brnovich , you can read the insertion of the court's own conservative ideology. the five factors we discussed are plucked out of thin air. they are not in the actual language of section two. they reflect the courts hostility to the mission of the voting rights act, ending racial inequities in american
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elections. rep.cohen: i think of it as analogous to plessy v ferguson. plessy with the hayes tilden agreement that was a pox on both parties, the court said separate but equal. it is like that question that if this -- is it like this? professor stephanopoulos: that is an inflammatory analogy. i would not say that the current measures are really the equivalent of jim crow. i think they are more fairly described as the intent and the
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racial disparities of the jim crow area -- era are not present here but we have nominally neutral restrictions of voting that end up causing predictable and substantial racial disparities. these are not the huge racial disparities of the late 19th century. which is why i do not think that jim crow 2.0. use the upper left election -- you do see a proliferation of measures that disproportionately make it harder for minority citizens to vote. rep.cohen: do you agree with professor rosenberg that this is a canary in a coal mine? professor stephanopoulos: it was not a canary in a coal mine. it is the call by itself on fire. this is not a portent of things
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-- bad things in the future. this is a bad thing now. rep.cohen: there are already problems we can foresee coming. congress acts to amend the court rules. you have suggestions? professor stephanopoulos: following what justice kagan laid out in her dissent, which is that two factors are critical in vote denial cases. number one, does some regulation of voting because they statistically -- statistically -- because tasted -- because they statistically significant racial disparity? two, is the process really necessary? not all neutral regulations would fail under this test. but, somewhat. those that are producing large -- but, somewhat.
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those -- some wood. -- some would. rep.cohen: you think congress intended in 1982, was at the time the there would be no improvement, no changes, no more progress? this basically 1982? mr. rosenberg, i'm not a professor, as much as i would like to be. justice alito in his opinion where he set 1982 as a benchmark against which to compare present-day discrimination just
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does not make sense. justice alito never explained why in response to justice kagan's dissent, she simply said, well, it is useful. it is useful because it is useful. that tautology does not do the job. as justice kagan said, section two was intended to eradicate discrimination, not to scented and amber. -- to set it in amber. that is what using a 1982 benchmark does. those who want to discriminate on the basis of race in voting change with the times. at one time, only white people were allowed to vote. after that, it was unconstitutional in the 15th amendment. different means were used by people. they change with times. paul taxes, literacy tests.
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after those were rendered unconstitutional, they changed, closing polling locations, complicated registration systems, voter id laws that they knew would effect black and latino voters much more severely than it would affect white voters. history teaches us that those who would discriminate against people of color in emerging well change -- will change as voters of color change the way they vote. so, now we have voters of color using up in the -- using absentee ballots in places like georgia at a greater rate than white voters. the georgia legislature decides it will start adding unnecessary and burdensome restrictions on absentee ballots. states cannot be led to believe that they can get a way with voter suppression legislation by pointing to what happened four years ago. rep.cohen: thank you.
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that concludes my time. >> i would ask that drinking made per johnson has joined us. -- ranking member johnson has joined us. i would defer to him. representative johnson, i apologize for being late -- representative johnson: i apologize for being late. i have questions for mr. popper. one of the laws in question in the brnovich case requires voters to vote in their own present. how widespread is this requirement? is it only limited to states with republican majority legislators? mr. popper: i am sorry for your loss. it is not.
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i wanted to talk about something that mr. rosenberg touched on. when you have a voting rule that has a disparate impact, even by a tiny fraction, you can construct a case on that. prior to brnovich , at least, you say you will take that tiny difference, and you will call that a disparate impact, and we will look at historical conditions that have nothing to do with voting in many cases, and we will see -- say there is a section two violation. that was the old rubric, that is how you get to sue over ordinary regulations. what that the report identified was the trick being played. how precinct voting -- out of precinct voting is used by 1% of my nobody -- minority voters.
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99% vote in the right precinct. out of precinct voting is used by 99.5% of nonminority voters in arizona. in other words, 99% already, -- in other words, minority voters vote out of precinct at twice the rate of nonminority voters. it is technically true. but the difference between 99% and 99.5% is not something people should take notice of. it is part of totality in circumstances. that difference is not appreciable enough. every court paid lip service to the idea. in many cases, it was just service. -- lip service. they said that disparate impact is not enough.
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you need more. you need evidence. it has always been in clear what you needed for vote denial. while saying that, arizona is a pure disparate impact case when it comes to out of precinct voting. the difference between 99.5% and 99% was enough to get to a violation. that was reversed by the supreme court. in many other ordinary seeming restrictions, for example, straight ticket voting, that is only allowed in six states, six states. so, a state can be sued for trying to restrict straight ticket voting. now, procedures and provisions that have a vast majority usage throughout the united states are subject to a section to claim, particularly, if they have been passed and then there is an attempt to repeal them.
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congressman, before you joined us, i had pointed out that texas and georgia have early voting and connecticut and delaware do not. now, a perverse incentive of the pre-brnovich jurisprudence is that it would behoove connecticut and delaware never to pass early voting, because if they do, it will always be subject to a section two claim if they try to repeal it. rep. johnson: at least 25 states do not count ballots cast in the wrong precinct. that includes connecticut, vermont, delaware, nyu. it is not just republican jurisdictions. this is widespread. let me ask you, would you agree that the brnovich effectively began to put a stop to partisans using courts to throw out policy decisions a summary disagreed with? mr. proper: it certainly does.
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-- mr. proper: it certain that mr. popper: it certainly does. it was as this minority decision that was allowing these outrageous claims to proceed against what our very ordinary rules based on the tiniest discrepancy. rep. johnson: one more question. rep.cohen: your time is expired. rep. johnson: i yield back. rep.cohen: you are legislating while driving. rep. now learn -- nadler: one
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strong and entirely legitimate state interest is preventing fraud. we are now entering the age of the big lie. there is no evidence that widespread voting fraud is a significant problem that affects the outcome of elections, meanwhile, state after state is enacting discriminatory voting practices in the name of election protection. are you concerned that this opens the door to a lower court uploading a facially neutral but discriminatory voting practice without requiring evidence to show widespread voting fraud? >> yes, i am.
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the fact is the seven factors and the test that have been applied for years under section two already took out-of-state interest. courts can look at whether the policy in question was tenuous or not. if it were tenuous, a court might look more skeptically at the policy in question. courts have always taken state interest into account. what is troubling about the majority opinion is how quickly court is to accept the idea that these policies are actually rooting out fraud to do so when actually, we have states, including arizona, that are incredibly effective at stopping fraud already. that is why we do not see widespread voter fraud. the federal cyber and infrastructure security agency said the 2020 election was the most secure election in american history. this is not a problem that needs fixing, so, courts should be
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optical. -- skeptical. rep. nadler: justice kagan's dissent recognizes that estate -- baystate this -- can you recognize what this is problematic? mr. moore alice: -- mr.morales: the idea that baystate needs more restrictive rules is not true. justice kagan would say that if you say you are preventing fraud, there is a way to do it that does not stop people of color from voting. that is not put a disparate burden on people of color. you should go that route. that route is, in many cases, leave things as they are. you can say fraud, and
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unfortunately, they are giving courts a lot of room to run with that excuse about burdens to persist. rep. nadler: are there any legislative districts that support the guidepost in section two? mr. morales-boyle: nothing in history suggests that the courts should be so deferential to state interest that they allow claims of fighting fraud to trump the goal of rooting out discrimination. the point is to eradicate racial discrimination in voting. rep. nadler: mr. rosenberg, in 19 -- 1982 congress amended section two.
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a previous version of section two prohibited only intentionally discriminatory voting rules. how was the brnovich decision in a previous departure from the court understanding of history? mr. rosenberg: in every way, chairman nadler. the focus of the post 1982 amendment was on effects irrespective state -- of state justification. that is what the 1982 amendment was all about. what the brnovich does is not only veer from there, but, interviewers from the totality of the search -- it veers from the totality of circumstances put into the statute. the focus as the court in jingles interpreted, was applied consistently on the interaction between the challenged conduct and historical social and
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economic discrimination. that does not even mentioned by justice alito when he goes through his various guideposts. he does not talk about the factor of the interaction between the challenged conduct and the effects of historical discrimination. rep. nadler: i yield back. rep.cohen: now comes one of those moments when the chairman have to make a great decision. should he recognize mr. jordan, who is next in line, or go back to ms. fischbach? mr. jordan -- rep. jordan: go to ms. fischbach. rep. fischbach: i appreciate that. i have a question for mr. popper. justice alito identified a
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nonexhaustive list of circumstances for courts to consider. you touched on it a little bit in your testimony. one of those circumstances is the start of the burden that the size of the burden imposed by the voting rule. justice alito noted that mere inconvenience is insufficient. can you expand a little bit on what that means? mr. proper: -- mr. popper:. yes. in many ways, thank you for your question, i am sorry i was organizing something else. in many ways, it is an application of what we call the anderson burden test where you have an administrative burden to a civil right, you assess the
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importance of the state interest and how much of an inconvenience it is. if it is a severe inconvenience, that is one thing. if it is not, at another point the court mentions, if there are other ways to get done what you need to get done as a voter, you have to take that into account. you have to be practical about this. i think that in a way, or perhaps directly, what the court was doing was combating the proliferation of lawsuits of little merit that had sprung up, a cottage industry of challenging any restriction of early voting, any restriction of registration or same-day registration, any restriction of voting in precinct. particularly if you want to pass a law one way and are looking to -- if you once passed a law one way and are looking to put it back the other way. i would infer to the atmosphere in texas. in texas, consider the law they
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are trying to avoid passing that provides a free voter id to anyone who does not already have one. what you have to do in order to identify your absentee ballot is put the number of the voters drivers license, or, the number of their free id, or, the last four of their social, or, certify that you do not have any number. in texas, you also -- they also provided opportunity for voters using absentee ballots who did it wrong to go back and corrected effect defect in their ballot. you do not see that covered in the newspaper. but, it is in the statute. they require someone who gives assistance to give their name. in california, it can be anyone knocking on your door. they do not have to say where they are from. they do not have the -- to give their first name, their last name, their real name.
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they do not have to register. this merely asks a person to put down their name. what is so shameful about that? that is the atmosphere in texas. in georgia, the atmosphere is you get three weeks of early voting. you still get no excuses absentee ballot. you still get that. for any reason, you can have such a balance. voters -- such a balance. voters have to submit a state id number. mail ballots have long been considered problematic. it was just hard to tell a bunch of untrained pulled workers how to make -- pull -- pull --poll workers how to make that assessment. voting is easy in most of the country.
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i think i may have strayed from your question. rep. fischbach: i would like to follow up. what is a usual burden? they use that term. mr. popper: you have to get into your car and go vote. it is not an unusual burden to get in your car and drive for three hours. it is a usual burden to have to show up in person. covid style elections to one side, you cannot say that imposes a terrible burden. what was appropriate for covid may no longer be appropriate. repealing the covid related absentee rules is not discrimination. rep. fischbach: i am out of time. i yield back. rep.cohen: i appreciate it.
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the next person will be congressman rathbun. rep: rathbun -- rep. rathbun. : mr. popper refer to the history of jim crow. we all know about grandfather taxes and poll taxes and character tests and so on. do you agree with ms. fischbach's suggestion that the discrimination against people who voted ended at some point? or did that continue until today? mr. rosenberg, i think it
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continues. -- mr. rosenberg: -- professor stephanopoulos: i think it continues. rep raskin: is it not out of racial animosity but because of their prediction that they will disproportionately support the other party? is that discrimination within the voting rights act? professor stephanopoulos: whether or not it is a discriminatory intent, it is a disk -- disproportionate racial impact. it is complicated when the true motivation is part of it and whether one can able that has
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racial intent. rep. raskin: mr. rosenberg, let me come to you. this ranking thing to me today is that voter fraud is the slogan of people trying to commit voter fraud. donald trump's famous hour long phone call with the republican secretary of state of georgia in which he twisted his arm, he needled him, he begged him and try to coerce them into finding 11,780 votes. all of this was done publicly in the name of preventing voter fraud against him. he was claiming in his big lie that the election was being stolen from him while he was trying, openly, to commit voter fraud by getting election officials to manufacture and concoct votes that did not exist. what is the public supposed to do when people who are trying to commit voter fraud are invoking voter fraud as the reason for
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their voter suppression schemes? mr. rosenberg: invoking fraud prevention has been used historically to justify discriminatory practices for well over a century. it was used to justify poll taxes. it was used to justify literacy tests. it was used to justify early poll closings. then, it was transmogrified into the public demanding action because they have concerns about election integrity. but, what happened is the people that are purveying this myth of voter fraud are fabricating the justification, the results of a survey, because they are the ones out there telling the people that there is fraud when they -- when there is not fraud and then they serve a people who say they have concerns because there is voter fraud.
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-- two then they survey people who say they have concerns because there is voter fraud. then they use as a results to justify suppressive legislation. rep. raskin: professor stephanopoulos, you pointed out that the brnovich decision is a question of statutory interpretation. you are saying that congress could override these five guideposts pulled out of a hat by justice alito, which we definitely could. as congress had success before in reversing reactionary decisions by the supreme court given erroneous interpretations of civil rights statutes by rewriting those statute? or, does the court keep moving the football? professor stephanopoulos: yes.
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1982 is a great example of congress stepping in to reverse a court decision. congress admitted the civil rights act of title vii to reverse eight is pre--- a supreme court decision that narrowed district impact under title vii. rep.cohen: thank you, mr. raskin. we will now yield to mr. jordan for five minutes. rep. jordan: mr. popper, in your opening statements you said there were other states you wanted to highlight and did not have the time. so, i am going to give you a chance. one of the state you mentioned was texas. i forget the other. i will give you a few minutes to talk about those states and what is happening there and how it relates to our subject. mr. popper: i think i did speak about them. i managed to sneak them in somewhere.
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i was making the point that in texas, the atmosphere is so loaded in favor of getting people to the polls. it is in georgia too. these two bills, i find almost universally that the people who are the angriest about them, and i do not include anyone on this committee, i am thinking about other conversations, it is people who have not read the legislation. rep. jordan: my understanding is that in both states there was already amazing access for people to vote. easy to vote, hard to cheat. that was already to case. but these two pieces of legislation actually make it easier for all residents in georgia and in texas to get to the polls. is that accurate? mr. popper: i would say it is. when you're talking about being able to certify that you do not have the necessary numbers, will
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provide them. if you have an id number, a social security number. who does not have a social security number? you just have to certify you don't have one. who is this going to scare off? i would like to say word about voting fraud. if i could. voting fraud is hard to detect by its nature. it is not heavily penalized. my favorite example of this, no doubt, and i almost regret the day they repealed this because i lost the talking point. but in vermont, double voting is a $200 penalty, no jail time. selling maple syrup without a license is $5,000 and a year in jail. why would you invest any state resources in ferreting out double voting in those circumstances? there are states that admit they do not even track these.
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what i hate, what i do not like, is when you say that it is rare because you take the total number of votes and divided by the instances of fraud. if that how you measure security fraud? there are only a couple security fraud cases per year. how many millions or billions of security transactions? but everyone knows that just because the nature of the enterprise, you need rules. kitchens should be clean. voting should be clean. security should be clean. i am mystified as to why people are aware that people will cheat at baseball. i read a book about people changing -- cheating on sumo wrestling. i have cheated a solitaire. that's at solitaire. -- at solitaire. rep. jordan. thank you. i yield back. rep.cohen: who won those
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solitaire games? mr. popper: i did. >> thank you mr. chairman for having this important hearing so close after the prima court decision. we have a lot to do on voting -- the supreme court decision. we have a lot to do on voting rights. it's important we understand the law and do the right thing. i want to talk about north carolina. as a former civil rights attorney in the state legislature in north carolina, i have seen up close the hidden ways in which states and localities can restrict citizen rights to vote. i have fought against them. i want to talk briefly about thornburgh versus jingles, a seminal supreme court case referred to that upheld the ruling from a federal district court in north carolina in 1986. it solidified the 1982 amendments to the voting rights
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act and utilized several of the factors enumerated in the 1982 sent his report. for how to consider -- senate report for how to consider potentially discriminatory laws. the supreme court affirmed what the district court had found, that the essence of this section to claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause inequality in voting opportunities. in brnovich , the court turned away from this interpretation, narrowed the scope of section two, and subverted congress's efforts to kyler five -- to clarify the act. i fear this vision will enable state legislators to enact more restrictive voting laws. this is exactly the effect that shelby county had on north carolina's sled -- state
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legislator, which enacted a restrictive voter id law and repealed other laws that had expanded the franchise and disproportionately target african-americans with surgical precision. this monster voter suppression law was later struck down after years of litigation. congress must act to protect the bedrock of our american democracy and i am grateful from suggestions from witnesses on how we can do that. i look forward to voting on several of these suggestions. my first question goes more to the specifics of this affects test. it is for all of the witnesses. i would like mr. stephanopoulos to begin. justice kagan cited the senate report we have talked about, which was amendments to the vra, which incidentally, was signed into law by president reagan. she wrote "congress meant to eliminate all discriminatory
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election systems or practices which operate decidedly or otherwise to minimize or counsel out -- cancel out the political strength of minority groups. that is manifest in the provision brought text." do you agree? professor stephanopoulos: i do. in section two, congress aims to eliminate all unnecessary racial describe -- disparities in our elections. the court in brnovich pulled in the other direction. mr. rosenberg: we said in our written testimony that a basic construction is remedial
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statutes must be construed broadly. justice alito and the majority in brnovich did the opposite. rep. ross: my second question goes to the attempt to freeze in time what elections were in 1982 by d supreme court. i find that -- the supreme court. i find that particularly upsetting because we have made so much progress on election laws. congress has expanded ways to enhance the franchise, particularly with the help america vote act. do you think there is any justification for saying congress has not indicated that we want to move forward with helping america vote that the supreme court could hang its hat on? for any of the members. yes, mr. morales-doyle. mr.
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morales-doyle: the north carolina legislator was targeting african-american voters with surgical decision. that involved a number of laws rolling back early voting, getting rid of same-day registration that did not exist in 1982. and yet, the court of appeals held that states can intentionally go after voters of color after the court finding that that was discriminatory, and yet, using 1982 as a benchmark, would send you down the wrong path. that is why guideposts are misguided. rep. ross: i yield back. rep.cohen: thank you. is sister mcclintock with us? is mr. lloyd with us? is mr. ellis with us? is mr. mccarthy with us?
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well, how about ms. cheney? she does not count. i think ms. garcia is next. his mirth -- is ms. garcia with us? sheila jackson lee? rep. jackson lee: i am here. thank you. as has been said earlier, for you holding this important hearing, i wish i could transpose myself to the united states senate. but, before i start, let me indicate that i have heard so many people offer the name of john lewis on the other site, including republicans. we happen to be this weekend
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naming a navy vessel after john lewis. i hope most of the witnesses on this panel would agree with me that the greatest tribute to john lewis is to protect the fundamental right to vote and reinforce the basis of the 1965 civil rights act the 15th amendment. so, my inquiries will go along those lines. let me also indicate that because of the inertia and inaction of the senate, state leaders and black women gathered yesterday along with the democratic texas delegation who contrary to governor abbott is working very hard, to be able to insist that there must be action in the senate. to the extent that our chairwoman of the congressional black caucus was arrested, some of us will intend to do such in the coming weeks because john lewis did believe in nonviolent civil disobedience and we must
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act. i am very glad the house is acting and chairman cohhen is acting as we move on this important legislation. i also want to follow-up and pose a question. mr. popper, i want to make a comment. i would like mr. rosenberg and mr. baratta's --mmo rales-dole to focus on -- doyle to focus on these questions. section two focuses on partisan challenges as -- and is in essence a contributor to fraud. would you respond to the value of section two and that you have not seen section to be used and manipulated by individuals who are trying to be partisan?
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what's the voter id legislation partisan -- was the voter id legislation partisan in texas? would you go first, mr. rosenberg. mr. rosenberg, -- mr. rosenberg:. thank you, congresswoman lee. i will say two things quickly. number one, you cannot use discrimination against people of color in order to achieve partisan goals. that is unlawful. it is unconstitutional,period. the texas photo id law i litigated, we proved it was done with discriminatory intent, and, discriminatory result. i will turn it over to mr. morales-doyle. rep. lee: would you take up the point that mr. proper said that
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section two has -- mr. proper -- mr. popper said that section two has been used for partisan legislation? rep -- mr.morales-doyle: our goal is not to accomplish a partisan outcome. in 1982, we passed a bipartisan agreement in both houses of the legislator. the amendments were signed into agreement by president reagan. there was an amicus brief filed in the supreme court by staffers on both sides of the all in 1982 talking about their intent and how it was being subverted by many arguments made with the supreme court. this is not a partisan goal. the goal is to protect voting
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rights. i think sometimes folks are too suggesting that they are acting only with partisan intent. we are talking about race discrimination. this law would act against race discrimination. representative it was unfortunately obliterated by the arizona case. let me raise the point of the big lie and continuous misrepresentation from my colleague on the others of the island the 2020 election, where 150 million people voted. let me ask another question of mr. rosenberg and mr. doyle, and the other member whose name i don't have right now because of where i am. can you give me a yes or no question, is the filibuster part of the constitution, yes or no? >> it is not part of the constitution. mr. morales-doyle: no, it is
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not. representative: jackson lee: mr. proper? mr. proper: no, it does not. representative jackson lee: and the person who does not appear on my screen? >> of course, the filibuster does not appear in the constitution. [indiscernible] >> your time has expired. representative jackson lee: can i ask one for the record? >> sure. representative jackson lee: the fundamental right to vote is pursuant to the 15th amendment. i would like an answer as to whether the filibuster, which is a rule, be superior to that right, therefore blocking fundamental voting rights legislation from going forward in the u.s. senate? i want to put that on the record and hope i will be able to get
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answers from these distinguished witnesses. thank you. chair: ms. garcia is not with us, we have expired our time. we thank the witnesses for their thorough testimony and help. we appreciate your appearing. all memories have five legislative days to submit additional written questions. ms. jackson
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