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Chairman Nadler Statement for Subcommittee Hearing on "The Need to Enhance the Voting Rights Act: Practice-Based Coverage"

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 Need to Enhance the Voting Rights Act: Practice-Based Coverage:"

"Mr. Chairman, over the last few years the Subcommittee has focused much of its consideration of voting rights on the critical question of how Congress can revitalize the Voting Rights Act’s Section 5 geographic-based preclearance regime—and this remains the central challenge before us.  Today’s hearing gives us the opportunity to consider how requiring practice-based preclearance could serve as an additional means of achieving this end.

"The Supreme Court’s decision 8 years ago in Shelby County v. Holder gutted the Act’s geographic coverage formula, which determined which jurisdictions would be subject to preclearance.  In striking it down, the Court effectively rendered the preclearance provision inoperative.

"As has been documented by several of the witnesses that have previously appeared before the Subcommittee, there remains a current need to remedy ongoing and widespread discrimination against minority citizens in voting.  Voter discrimination did not simply disappear with the enactment of the VRA. 

"Instead, discriminatory voting practices evolved in response to the VRA—a process that has only accelerated over the past 8 years since the Shelby County decision.

"Thanks to the VRA, overtly discriminatory devices—like the literacy tests or poll taxes of the Jim Crow Era—are now gone.

"In their place, jurisdictions have sought to enact less overtly discriminatory voting practices that nonetheless target minority voters with surgical precision.

"These seemingly neutral voting practices in fact suppress minority voters, resulting in the denial of their right to an equal opportunity to participate in the electoral process and to elect the candidate of their choice.

"The currently defunct Section 5 preclearance coverage formula is geography-based—that is, it applies to jurisdictions with a history of voter discrimination.

"An updated geographic coverage formula that applies to jurisdictions with a documented history of voting rights violations would likely subject to preclearance many of the jurisdictions responsible for this new wave of voter suppression laws.  

"But as we will hear from our witnesses today, this may not be enough to remedy the discrimination endemic to this new age of voter suppression brought on by the Shelby County decision.

"As our witnesses will describe, many jurisdictions with significant emerging minority populations do not have a documented history of voting rights violations.

"Yet these jurisdictions engage in certain specific practices with a proven historical association with discrimination—such as changing their electoral systems from single member districts to at-large elections—to limit the growing political influence of minority voters.

"One drawback of a history-based geographic coverage formula is that it would not subject jurisdictions like these to preclearance, even though these specific practices result in discrimination against minority voters.

"A practice-based preclearance regime could address this gap in coverage by subjecting any jurisdiction that engages in these specific practices to preclearance nationwide.

"Indeed, I would note that H.R. 4, the aptly named John R. Lewis Voting Rights Act, which passed the House last Congress, contains both geography-based and practices-based coverage formulas.

"I would also point out that such a practice-based preclearance regime would be in keeping with the Supreme Court’s reasoning in Shelby County, which struck down the current coverage formula partly because, in the Court’s view, the old coverage formula did not sufficiently justify the VRA’s unequal treatment of the States.

"A practice-based coverage regime would avoid that constitutional concern by treating every jurisdiction equally nationwide.

"Moreover, as our witnesses today will testify, even under the Court’s decision in Shelby County, Congress still retains broad authority under the Fourteenth and Fifteenth Amendments, as well as the often- overlooked Elections Clause, to pass a preclearance regime that reflects current conditions.

"As we consider ways to reinvigorate the Voting Rights Act, it is important to remember that the VRA reflects Congress’s recognition that voting discrimination presents a unique harm that requires a powerful remedy. 

"Decades of history since the Reconstruction Era has taught us that, despite our nation’s progress, threats to minority voting rights remain ever-present.  The VRA’s purpose has always been to thwart these constantly evolving threats to the right to vote, and Congress has amended the VRA on several occasions in the decades since its enactment to further adapt it to that purpose. 

"The current attack on voting rights demands that Congress again take action to ensure that the VRA continues to protect every American’s right to vote.  I thank Chairman Cohen for holding today’s hearing as it is another step toward that important goal.  I look forward to the testimony from our witnesses and I yield back the balance of my time."

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