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Chairman Nadler Statement for Subcommittee Hearing on “Oversight of the Voting Rights Act: Potential Legislative Reforms”

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 "Oversight of the Voting Rights Act: Potential Legislative Reforms:"

“Mr. Chairman, I thank you for convening this important hearing at a critical moment in the life of our nation, when our democracy itself is under greater threat than it has been in decades because of a sustained assault on the right to vote in states and localities across the country.

“The Voting Rights Act of 1965 is rightly regarded by many as among the most sacred texts of our nation’s civic religion.  It was, in many ways, among Congress’s crowning achievements.  But the Act was really the result of the sacrifices made by many Americans, including our late beloved colleague John Lewis, who shed their blood, or even died, to guarantee all citizens the right to vote. 

“The institutions of government, including this one in which we have the honor of serving, are more truly representative of our country because of the vigorous enforcement of the Voting Rights Act.

“Over the course of this year, and during the last Congress, this subcommittee has held a series of hearings documenting in exhaustive detail the myriad ways that the right to vote—the most fundamental right in a democracy—remains under threat for too many Americans.  We have also examined the consequences of the Supreme Court’s 2013 Shelby County v. Holder decision, as well as last month’s decision in Brnovich v. Democratic National Committee, both of which dealt serious blows to the enforcement of the Voting Rights Act.

“I appreciate this opportunity to continue our consideration of how we can restore the Voting Rights Act to its full vitality and protect this most precious right.

“Prior to Shelby County, the Voting Rights Act had been an unqualified success.  It helped to reduce discriminatory barriers to voting and it expanded electoral opportunities for people of color to federal, state, and local offices, thereby opening the political process to every American. 

“Despite decades of evidence of the Act’s success, however, the Supreme Court in Shelby County substituted its own judgment for that of Congress in rejecting Congress’s conclusion that a substantial record of continued discrimination in voting supported the Act’s reauthorization.

“This decision effectively gutted the Voting Rights Act’s most important enforcement mechanism—its Section 5 preclearance provision.  Specifically, it struck down the formula for determining which states and localities should be subject to preclearance, effectively rendering the preclearance provision inoperative, as there is no longer a basis for subjecting jurisdictions to its requirements.

“Before the Voting Rights Act, states and localities implemented a host of voter suppression laws, secure in the knowledge that it could take many years before the Justice Department could successfully challenge them in court, if at all.

“As soon as one law was overturned, another would be enacted, setting up a discriminatory game of “whack-a-mole.”  Section 5 broke this legal logjam by requiring states and localities with a history of discrimination against racial and ethnic minority voters to submit changes to their voting laws to the Justice Department for approval, or seek a declaratory judgment in court, prior to taking effect.

“In the absence of preclearance, predictably, the game of whack-a-mole has returned with a vengeance.  Within 24 hours of the Shelby County decision, both 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 laws remained in place. 

“Since the Shelby County decision—and, indeed, just since the 2020 election—we have seen a dramatic rise in the number of voter suppression measures being proposed or enacted.  Unnecessarily strict voter ID laws, significant scale-backs to early voting periods, sharp restrictions on absentee ballots, and laws that make it harder to restore the voting rights of formerly incarcerated individuals are just a small sample of recent voting changes that have a disproportionate impact on minority voters.

“According to a July 22, 2021 Brennan Center for Justice report, as of July 14, 18 states have enacted 30 laws that restrict the right to vote since the beginning of this year.  As of August 9, the non-partisan organization Voting Rights Lab is tracking 473 anti-voter bills in the states. 

“Of the states that have already enacted new restrictive voting laws, one particularly egregious example that stands out is Georgia’s SB 202.  This law imposes numerous new burdens on voting, including onerous identification requirements for absentee voting, restrictions on early voting, and, most notoriously, it even imposes criminal penalties for offering food or water to voters waiting in line to vote.

“An effort to pass a similarly sweeping and egregious bill is currently underway in Texas.  While some Texas state legislators, through their ingenuity and courage, have managed to temporarily halt that effort, the ultimate responsibility lies with us in Congress to fix the Voting Rights Act to ensure that such bills never become law.

“In the absence of preclearance, victims of voting discrimination have been forced to turn to litigation under Section 2, which applies nationwide, and which prohibits a voting process or requirement that results in the denial or abridgement of the right to vote. 

“Yet the Supreme Court, in the Brnovich decision, has now seriously eroded Section 2 as well, at least as it applies to vote denial claims.  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.

“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.

“Legislation to revitalize the Voting Rights Act must include a new, dynamic coverage formula that is broad enough to accurately capture the extent of ongoing voting discrimination and the current need for preclearance while being tailored enough to address the Court’s stated federalism concerns as expressed in Shelby County. 

“Such legislation must also restore a broad understanding of Section 2, as applied to vote denial claims, and consider other reforms to the Act, such as provisions to expand judicial authority to bail-in jurisdictions into preclearance, provide greater notice and transparency, enhance the ability to assign federal election observers, and facilitate plaintiffs’ ability to obtain preliminary injunctions.

“I thank Chairman Cohen for holding this important hearing to help us examine these critical issues, I look forward to hearing from our esteemed witnesses—including Assistant Attorney General for Civil Rights Kristen Clarke—and I yield back the balance of my time.”
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