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Chairman Nadler Statement for the Subcommittee Hearing on Continuing Challenges to the Voting Rights Act Since Shelby County v. Holder

Washington, June 25, 2019

Washington, D.C. –Today, House Judiciary Chairman Jerrold Nadler (D-NY) delivered the following opening statement at a Subcommittee on Constitution, Civil Rights, and Civil Liberties hearing with Stacey Abrams, Founder and Chair of Fair Fight Action and former Democratic candidate for Governor of Georgia, on "Continuing Challenges to the Voting Rights Act SinceShelby County v. Holder”:

"The Voting Rights Act of 1965 is one of the most effective civil rights statutes that has ever been enacted into law. Six years ago today, however, the Supreme Court issued its disastrous decision in Shelby County v. Holder and thereby effectively gutted one of the Act’s central enforcement provisions—known as the "preclearance requirement"—when it struck down as unconstitutional the Act’s coverage formula, which determined which jurisdictions would be subject to the preclearance requirement.

"Section 5 of the VRA contains the preclearance provision and it requires certain jurisdictions with a history of discrimination to submit any changes to their voting laws or practices to the Department of Justice for prior approval to ensure that they are not discriminatory.

"To understand why the preclearance requirement was so central to enforcing the VRA, it is worth remembering why it was enacted in the first place. Before the VRA, states and localities passed voter suppression laws, secure in the knowledge that it could take many years before the laws could be successfully challenged in court, if at all. As soon as one law was overturned, another would be enacted, essentially setting up a discriminatory game of whac-a-mole. Section 5’s preclearance provision broke this legal logjam and helped to stop this discriminatory practice.

"Indeed, the success of the VRA, with its effective preclearance requirement, was apparent almost immediately after the law went into effect. For instance, registration of African American voters more than doubled in the South within just 4 years of enactment. Similarly, African American voter turnout rose from only 6% to 59% in just 4 years in Mississippi, and it soared to 92% in Tennessee, 77% in Arkansas, and 73% in Texas in that same period.

"The VRA’s success can also be measured in terms of the number of African Americans holding elected office, jumping from barely 100 prior to the VRA’s enactment to more than 7,200 today, with 4,800 holding elected office in the South alone. Moreover, the number of African Americans in Congress doubled almost immediately after the VRA was enacted, and today there are 56 African American Members of Congress. And, of course, in 2008, the country elected its first African American president.

"In short, the VRA was an unqualified success, and much of that success can be attributed to the ability to enforce it vigorously. Central to the ability to vigorously enforce the Act was its preclearance provision.

"By striking down the formula for determining which states and localities are subject to the preclearance requirement, the Shelby County decision effectively suspended the operation of the preclearance requirement itself. And, in its absence, the game of whac-a-mole has returned with a vengeance.

"Within 24 hours of the Shelby County decision, for example, Texas’s Attorney General and North Carolina’s General Assembly announced that they would reinstitute draconian voter ID laws. Both of these states’ laws were later held in federal courts to be intentionally racially discriminatory, but, during the years between their enactment and the court’s final decision, many elections were conducted while the discriminatory laws remained in place. At least 21 other states have also enacted newly restrictive statewide voter laws since the Shelby County decision.

"Restoring the vitality of the Voting Rights Act is of critical importance. In 2006, when I was the Ranking Member of this Subcommittee, we undertook an exhaustive process to build a record that demonstrated unequivocally the need to reauthorize the Voting Rights Act, provisions of which, like the preclearance requirement and the coverage formula that undergirded it, were expiring.

"At the time, the Committee found that a majority of Southern states were still engaged in ongoing discrimination. For instance, these states and their subdivisions engaged in racially discriminatory practices such as relocating polling places for African American voters and, in the case of localities, annexing certain wards simply to satisfy white suburban voters who sought to circumvent the ability of African Americans to have a fair chance for elective office in their cities.

"Since the Shelby County decision, we have also seen the emergence of other voter suppression measures, like burdensome proof of citizenship laws, significant scale-backs to early voting periods, restrictions on absentee ballots, and laws that make it difficult to restore the voting rights of formerly-incarcerated individuals. These kinds of voting practices have a disproportionate negative impact on minority voters.

"In the most recent elections in November 2018, voters across the country encountered barriers to voting from state and local laws and circumstances that made it hard or even impossible to vote. For example, as our witness, Stacey Abrams, can attest to, in Georgia, 53,000 voter registrants—70 percent of whom were African American—were placed in "pending" status by the secretary of state—who was also Ms. Abrams’s election opponent—because of minor misspellings on their registration forms. A federal court ultimately put a stop to this practice on November 2, 2018—four days before the election—because of the "differential treatment inflicted on a group of individuals who are predominantly minorities."

"While it is true that those seeking to enforce the VRA can still pursue after-the-fact legal remedies even without preclearance, time and experience have proven that such an approach takes far longer, and is far more expensive, than having an effective preclearance regime. And once a vote has been denied, it cannot be recast. The damage to our democracy is permanent.

"That is why I hope that Members on both sides of the aisle, and in both chambers of Congress, will come together and pass legislation to restore the VRA to its full vitality. Today’s hearing will provide an important opportunity to renew our understanding of the importance of the VRA and its preclearance provision, and to support our efforts to craft a legislative solution.

"I thank our witnesses and look forward to their testimony."

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