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tv   Asst. Atty. General Testifies on John Lewis Voting Rights Act - Part 2  CSPAN  October 10, 2021 4:08am-5:10am EDT

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>> unelected, unaccountable
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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 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
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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 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.
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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. 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
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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 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
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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. 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
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of 1957 afforded the department of justice, the department had filed 35 suits challenging either discrimination or threats against registration applications filed by black voters, as i believe you quoted in your testimony, 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
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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 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
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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 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
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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 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
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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 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
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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, 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
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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 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
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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 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.
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the department has brought litigation in texas and north carolina, and currently has pending litigation in georgia, but this case-by-case approach has not proven adequate to confront all of the voting discrimination that we are up against. moreover, that case-by-case approach is time intensive, leads to long, protracted litigation, and during the course of the litigation, the discriminatory voting measure is 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
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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, 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
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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 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
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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 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
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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 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
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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. 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
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rights issue, how people can cast their ballots, but as it pertains to the census, pivotal from a voting rights 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,
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states will conduct redistricting but without the full protections of the voting rights act. so what does -- what remaining tools does the department have 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
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involving a proposed reduction during -- redistricting plan. the department found evidence that the demographer worked 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.
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general clark, again, i want to apologize for the interruption. you are certainly always welcome before this committee and you 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
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for civil rights under the law. he oversees the organizations legal projects. 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
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experience in government. director of immigration services. active secretary of the department of homeland security. served in the virginia senate. 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.
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35 states followed suit. first item of business is the swearing in of the witnesses. witnesses who are present, 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
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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 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
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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. 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.
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discrimination has become possible to root out. states have passed voting restriction after voting restriction. the new georgia and texas laws 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
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states that only meet a high numeric threshold of violation in the past 25 years, and that review period is critical. 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
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responsibilities this body has. the house has passed the bill and now it's up to the senate to act without delay to pass the john lewis act and freedom to vote act. thank you. >> thank you. do we have attorney general roe kita? we are still waiting. mr. greenbaum, you may proceed for five minutes. >> thank you for giving me the opportunity to testify today on ways in which congress can restore and improve one of the nation's most important laws, the voting rights act. it is important congress pass the john lewis act of 2021 to remedy the damage to voting rights caused by the supreme court's decision in shelby versus holder.
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my written testimony goes into detail the revisions but i will focus on two items in the senate bill that amend section two. the first addresses the shelby decision by importing the concept from section five into section two. this will allow an aggrieved party to -- voting changes that worsen the voting opportunities of people of color. this is a necessary weapon in the fight against discriminatory voting practices and response to current needs that might be subject to geographic coverage.
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it would fill a gap because the supreme court has made clear that the retrogression analysis is analytically distinct. the current needs for law outweigh the current burdens. we have seen a proliferation of retrogressive -- retrogression is a concept the supreme court has found to be constitutional. because the law would be national, the ruling about shelby county would not come into play.
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the second thing is vote denial being restored to pre-brenna fitch time. when congress amended section two to allow discriminatory -- it did so as a scheme to eradicate discrimination voting. in 1992 congress announced section two was to capture the subtle practices but are clearly the line -- clearly and line of the latest discriminations. interacts with social and historical conditions to cause inequality in voting opportunities.
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the foundation has been used. there must be a disparate burden on the voting rights and the burden must be caused by the challenged voting practice because it interacts to social and historical conditions of racial discrimination. the supreme court decision provided guidelines for future treatment of section two that were contrary. they decision it runs contrary to congress's decision in 1982.
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the eight years since the shelby decision have left voters of color more vulnerable than they have been in decades. records demonstrate that without section five, voting discrimination increased. by creating new hurdles, the stakes are raised. congress must act. thank you for the opportunity to testify. -- >> we work every day to help
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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 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.
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it has been a long-term strategy. in 2004 in colorado, the dnc 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
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release that had been drafted and dated the day before the election. her mistake was dating it. 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?
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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 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
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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 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.
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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. 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
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that mandated states to adopt 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.
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now they plan to do the same thing, place local power into the hands of the bureaucrats in washington. 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.
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this is the same department of justice that would be given nearly unlimited power over elections. here are the top five issues i 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.
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the principles of federalism seek to give voters the vote [indiscernible] reinstate and expand outdated 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
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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. 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.
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it pressures judges to consider if a jurisdiction needs voter id requirements, directly attacking the supreme court's standard. without the floater id -- voter 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.
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it requires preclearance for election laws and all 50 states and if states enact any of these 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
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requirement was enforced by president carter. in the wake of these endorsements, states like indiana started passing voter id 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
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sense. s-4 would likely put indiana 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
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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. 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
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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 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
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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, 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
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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 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
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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 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
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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 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
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implement with giving people increased voter registration opportunities, including being able to register to vote at drivers license offices. and with respect to voting 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
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