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Chairman Nadler Statement for Subcommittee Hearing on "The Implications of Brnovich v. Democratic National Committee and Potential Legislative Responses"

Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a Subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing on "The Implications of Brnovich v. Democratic National Committee and Potential Legislative Responses:"

"Mr. Chairman, I appreciate your holding today’s hearing to consider what action Congress should take in response to the Supreme Court’s recent decision in Brnovich v. Democratic National Committee, which significantly narrowed the scope of Section 2 of the Voting Rights Act of 1965.

"Section 2 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in certain language minority groups.

"While the extent of the fallout remains to be seen, the Brnovich decision appears to have significantly undermined Section 2’s voting rights protections. 

"Specifically, it will likely make it harder for plaintiffs to prove vote denial claims under the 'results test,' which Congress adopted in 1982 as a guide for courts to determine whether the plaintiff has established that a challenged voting practice violates Section 2’s prohibition on discrimination when the challenged practice, while facially neutral, has a discriminatory effect.

"One silver lining to this decision, however, is that it leaves Congress with the ability to undo any potential damage the Court has inflicted on Section 2.

"That is because the majority’s opinion in Brnovich is based solely on its tortured interpretation of Section 2, which is unsupported by the statute’s text and is contrary to its purpose, and which Congress can correct through legislation. 

"Congress included Section 2 in the VRA with the important purpose of protecting minority citizens from racial discrimination in voting in those areas of the country that were not subject to preclearance under Section 5 of the VRA.

"In 1980, in the case of City of Mobile v. Bolden, the Supreme Court interpreted Section 2 to prohibit only those voting measures that were motivated by a discriminatory purpose, narrowing what had been the then-understood scope of Section 2.

"In response, in 1982, Congress amended Section 2’s language expressly to broaden its scope.  Congress was concerned that state and local policymakers were implementing facially neutral voting practices—like those affecting the time, place, or manner of elections—that could interact with underlying social conditions created by historical discrimination to 'result in' the denial of minorities’ right to vote.  

"Congress was intent on stopping this more subtle form of discrimination.

"Yet in what can only be described as a usurpation of Congress’s constitutionally-assigned legislative role, the Court in Brnovich announced several new 'guideposts'—seemingly from whole cloth—that lower courts are to consider in evaluating vote denial claims under Section 2’s results test.  When evaluating claims under these new factors, lower courts could narrow plaintiffs’ ability to challenge discriminatory, yet facially neutral, voting practices—the very practices that Congress broadened the scope of Section 2 to confront.

"None of these new guideposts have a basis in the text or legislative history of Section 2.  Instead, they appear to reflect what the Brnovich majority thinks the scope of Section 2 ought to be, not what Congress actually intended the scope to be when it amended the statute in 1982. 

"As I have already noted, Congress passed the current version of Section 2 in response to an earlier Supreme Court decision that narrowed Section 2’s scope. Today, 40 years later, Congress again finds itself in the position of having to consider how to clarify the scope of Section 2 to ensure that broad voting rights protections remain in place.  The circumstances Congress faces today, however, appear far more dire. 

"The Brnovich decision has come in the midst of a new wave of racially discriminatory voting rights laws across the country, which itself is a result of the Court’s disastrous 2013 decision in Shelby County v. Holder, which gutted the VRA’s Section 5 preclearance regime.  

"As many of you know, dozens of Texas lawmakers are in Washington now in a brave attempt to prevent the Texas legislature from jamming through a harsh new voter suppression law.  Similar efforts to restrict voting are underway in state legislatures throughout the country.

"Congress must ensure that federal protections are in place to block such discriminatory laws.

"In her dissent to the Brnovich opinion, Justice Kagan properly raised the alarm.  She wrote: 'The Voting Rights Act of 1965 is an extraordinary law. Rarely has a statute required so much sacrifice to ensure its passage. Never has a statute done more to advance the Nation’s highest ideals. And few laws are more vital in the current moment. Yet in the last decade, this Court has treated no statute worse.'  I could not agree more.  Congress must act where the Court has failed voters across the country.

"I thank Chairman Cohen for holding today’s hearing and I look forward to the testimony of our witnesses.  I yield back the balance of my time."
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