S. HRG. 113–842 

THE VOTING RIGHTS AMENDMENT ACT, S. 1945: 

UPDATING THE VOTING RIGHTS ACT 

IN RESPONSE TO SHELBY COUNTY V. HOLDER 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JUNE 25, 2014 

Serial No. J–113–67 

Printed for the use of the Committee on the Judiciary 

( 
THE VOTING RIGHTS AMENDMENT ACT, S. 1945: UPDATING THE VOTING RIGHTS ACT 

IN RESPONSE TO SHELBY COUNTY V. HOLDER 
U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

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99–960 PDF 2017

S. HRG. 113–842 

THE VOTING RIGHTS AMENDMENT ACT, S. 1945: 

UPDATING THE VOTING RIGHTS ACT 

IN RESPONSE TO SHELBY COUNTY V. HOLDER 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JUNE 25, 2014 

Serial No. J–113–67 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

JUNE 25, 2014, 10:06 A.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California, 

prepared statement .......................................................................................... 155 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 152 

WITNESSES 

Witness List ............................................................................................................. 43 

Carvin, Michael A., Partner, Jones Day, Washington, DC .................................. 6 

prepared statement .......................................................................................... 89 

Garcia, Hon. Sylvia R., State Senator, Texas State Senate, District 6, 

Houston, Texas ..................................................................................................... 5 

prepared statement .......................................................................................... 44 

Ifill, Sherrilyn, President and Director-Counsel, NAACP Legal Defense and 

Educational Fund, Inc., Washington, DC .......................................................... 11 

prepared statement .......................................................................................... 127 

Johnson, Rev. Dr. Francys, State President, Georgia NAACP, Statesboro, 

Georgia .................................................................................................................. 8 

prepared statement .......................................................................................... 105 

addendum to prepared statement ................................................................... 114 

Thernstrom, Abigail, Ph.D., Adjunct Scholar, American Enterprise Institute, 

Washington, DC ................................................................................................... 10 

prepared statement .......................................................................................... 120 

addendum to prepared statement ................................................................... 125 

QUESTIONS 

Questions submitted to Michael A. Carvin by Senator Grassley ........................ 158 

Questions submitted to Sherrilyn Ifill by Senator Grassley ................................ 160 

Questions submitted to Abigail Thernstrom by Senator Grassley ...................... 159 

ANSWERS 

Responses of Michael A. Carvin to questions submitted by Senator Grassley ... 161 

Responses of Sherrilyn Ifill to questions submitted by Senator Grassley .......... 166 

Responses of Abigail Thernstrom to questions submitted by Senator Grassley .. 163 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

African American Ministers in Action (AAMIA), Reverend Timothy McDonald III, 

Chairman, Reverend Dr. Robert P. Shine, Vice-Chair, and Minister Leslie 

Watson Malachi, Director, June 25, 2014, letter ............................................... 200 

Am Kolel Jewish Renewal Community of Greater Washington et al., June 

25, 2014, letter ..................................................................................................... 268 

Ameinu et al., June 25, 2014, letter ....................................................................... 274 

American-Arab Anti-Discrimination Committee (ADC), Samer E. Khalaf, Esq., 

President, June 24, 2014, letter .......................................................................... 223 

American Association of Retired Persons (AARP), Nancy A. LeaMond, Executive Vice President, State and National Group, June 4, 2014, letter .............. 170 
Page

IV 

American Bar Association (ABA), James R. Silkenat, President, June 25, 

2014, letter ............................................................................................................ 204 

American Civil Liberties Union (ACLU), Laura W. Murphy, Director, Washington Legislative Office, and Deborah J. Vagins, Senior Legislative Counsel, Washington Legislative Office, statement ................................................... 206 

American Constitution Society (ACS), William Yeomans, Nicholas Stephanopoulos, Gabriel J. Chin, Samuel Bagenstos, and Gilda R. Daniels, May 

2014, issue brief ................................................................................................... 350 

American Federation of Labor and Congress of Industrial Organizations 

(AFL-CIO), William Samuel, Director, Government Affairs Department, 

July 2, 2014, letter ............................................................................................... 231 

American Federation of State, County and Municipal Employees (AFSCME), 

Charles M. Loveless, Director of Federal Government Affairs, statement ..... 232 

American Federation of Teachers (AFT), Randi Weingarten, President, June 

25, 2014, letter ..................................................................................................... 297 

Anti-Defamation League (ADL), Deborah M. Lauter, Director, Civil Rights, 

statement .............................................................................................................. 224 

B’nai B’rith International, Allan Jacobs, President, and Daniel S. Mariaschin, 

Executive Vice President, June 24, 2014, letter ................................................ 233 

Bend the Arc: A Jewish Partnership for Justice, Stosh Cotler, Chief Executive 

Officer, statement ................................................................................................. 323 

Brennan Center for Justice, ‘‘Shelby County: One Year Later,’’ Tomas Lopez, 

report ..................................................................................................................... 234

Brennan Center for Justice at New York University School of Law, ‘‘The 

State of Voting in 2014,’’ Wendy Weiser and Erik Opsal, executive summary ...................................................................................................................... 245 

Campaign Legal Center, The, J. Gerald Hebert, Executive Director, June 

25, 2014, letter ..................................................................................................... 252 

Common Cause, Miles Rapoport, President, statement ....................................... 263 

Communications Workers of America (CWA), Shane Larson, Legislative Director, July 2, 2014, letter ................................................................................... 332 

Jackson Lee, Hon. Sheila, a Representative in Congress from the State of 

Texas, statement .................................................................................................. 309 

Japanese American Citizens League (JACL), Priscilla Ouchida, Executive Director, June 17, 2014, letter ................................................................................ 273 

Johnson, Jr., Hon. Henry C. ‘‘Hank,’’ a Representative in Congress from 

the State of Georgia, July 17, 2014, letter ......................................................... 294 

Leadership Conference on Civil and Human Rights, The, Wade Henderson, 

President and Chief Executive Officer, and Nancy Zirkin, Executive Vice 

President, June 23, 2014, letter .......................................................................... 183 

Mexican American Legal Defense and Educational Fund (MALDEF), Thomas 

A. Saenz, President and General Counsel, statement ...................................... 276 

National Action Network (NAN), Reverend Al Sharpton, President and 

Founder, Reverend W. Franklyn Richardson, Chairman of the Board, and 

Janaye Ingram, Acting National Executive Director, statement ..................... 326 

National Asian Pacific American Bar Association (NAPABA), William J. 

Simonitsch, President, statement ....................................................................... 280 

National Association for the Advancement of Colored People (NAACP), 

Rev. Dr. William J. Barber II, President, North Carolina State Conference 

of NAACP Branches, statement .......................................................................... 172 

National Association of Latino Elected and Appointed Officials (NALEO), 

Arturo Vargas, Executive Director, statement .................................................. 278 

National Bar Association, Patricia Rosier, Esq., President, July 2, 2014, letter .......................................................................................................................... 282 

National Congress of American Indians (NCAI), Jacqueline Pata, Executive 

Director, and Native American Rights Fund (NARF), John Echohawk, Executive Director, June 25, 2014, letter and statement ......................................... 283 

National Council of Jewish Women, Cipra Nemeth, Vice President of Legislative and Community Engagement, and Maya Paley, Director of Legislative 

and Community Engagement, Los Angeles Section, California, statement .... 302 

National Council of Jewish Women, Karen Warner, Vice President of Advocacy, Greater Miami Section, Florida, statement .............................................. 303 

National Council of Jewish Women, Linda Geller-Schwartz, State Policy CoChair, Florida Vice President (Advocacy), Palm Beach Section, statement .... 304 

National Council of Jewish Women, Arlene Davidson, State Policy Co-Chair, 

Florida Vice President Public Advocacy, Southeast Atlantic Sections, statement ...................................................................................................................... 306 
Page

V 

National Council of Jewish Women, Kitty K. Kaplan, Utah State Policy Advocate, statement ..................................................................................................... 308 

National Gay and Lesbian Task Force, Washington, DC, statement .................. 322 

National Hispanic Leadership Agenda (NHLA), Hector E. Sanchez, Chair, 

and Executive Director, Labor Council for Latin American Advancement, 

June 24, 2014, letter ............................................................................................ 199 

National Urban League, New York, New York, statement .................................. 292 

People For the American Way, Marge Baker, Executive Vice President for 

Policy and Program, and Jen Herrick, Senior Policy Analyst, June 25, 

2014, letter ............................................................................................................ 202 

Project Vote, Estelle H. Rogers, Esq., Legislative Director, June 24, 2014, 

letter ...................................................................................................................... 334 

Religious Action Center of Reform Judaism, Rabbi David Saperstein, Director 

and Counsel, June 25, 2014, letter ..................................................................... 299 

Service Employees International Union (SEIU), Mary Kay Henry, International President, June 24, 2014, letter ........................................................... 300 

Sikh American Legal Defense Education Fund (SALDEF), Jasjit Singh, Executive Director, statement ..................................................................................... 185 

State of Georgia, Hon. Brian P. Kemp, Secretary of State, June 20, 2014, 

letter to Senator Leahy ........................................................................................ 271 

State of Georgia, Hon. Brian P. Kemp, Secretary of State, June 20, 2014, 

letter to Senator Grassley ................................................................................... 336 

State of Louisiana, Hon. Tom Schedler, Secretary of State, June 23, 2014, 

letter ...................................................................................................................... 338 

United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), International Union, Dennis Williams, President, statement ...... 325 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government, or other criteria determined by the Committee, list: ............................................................................. 372 

Asian Americans Advancing Justice/AAJC, July 1, 2014, letter: 

http://mobile.advancingjustice-aajc.org/sites/aajc/files/Advancing%20 

Justice-AAJC%20Testimony%20for%206.25.14%20Senate%20Judiciary 

%20 Hearing%20on%20VRAA.pdf ............................................................... 372 

Lawyers’ Committee for Civil Rights Under Law, statement: 

http://vrafortoday.org/wp-content/uploads/2014/07/Lawyers-Committee-VRAA-Senate-Judiciary-hearing.pdf ................................................ 372 

Leadership Conference on Civil and Human Rights, The, report: 

http://www.civilrights.org/press/2014/Racial-Discrimination-in-VotingWhitepaper.pdf .............................................................................................. 372 

Mexican American Legal Defense and Educational Fund (MALDEF), National 

Association of Latino Elected and Appointed Officials (NALEO), and 

National Hispanic Leadership Agenda (NHLA), ‘‘Latinos and the VRA: A 

Modern Fix for Modern-Day Discrimination,’’ report: 

http://www.maldef.org/assets/pdf/VRAlcomp.pdf .................................... 372 

(1) 

THE VOTING RIGHTS AMENDMENT 

ACT, S. 1945: UPDATING THE VOTING 

RIGHTS ACT IN RESPONSE TO 

SHELBY COUNTY V. HOLDER 

WEDNESDAY, JUNE 25, 2014, 

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:06 a.m., in 

Room SD–106, Dirksen Senate Office Building, Hon. Patrick J. 

Leahy, Chairman of the Committee, presiding. 

Present: Senators Leahy, Durbin, Whitehouse, Klobuchar, 

Franken, Coons, Blumenthal, Hirono, Grassley, Sessions, Cornyn, 

Lee, and Cruz. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning, everybody. I appreciate all the 

people who are here today, Senator Grassley and all the other Senators who are here. 

It was just a year ago today that five Justices on the Supreme 

Court disregarded extensive findings of Congress and gutted the 

Voting Rights Act. I remember the feelings I had when these five 

people turned back everything that hundreds of Members of Congress of both parties, both bodies, had worked so hard to get 

through. 

But I know that during the oral argument, Justice Scalia foreshadowed the majority’s view of the law when he asserted that 

Congress’ support of the Voting Rights Act was based on the ‘‘perpetuation of racial entitlement.’’ I could not disagree more with 

Justice Scalia, and I would suggest that he live in the real world 

and see what is happening in voting rights throughout this country. There is no right more fundamental to our existence as American citizens than the right to vote. Every eligible American is entitled to vote. No voter should have their vote denied, abridged, or 

infringed. 

In the Shelby County decision, the Justices made clear that Congress could update the Voting Rights Act based on current conditions. And I do appreciate that because whether we agree or disagree with the Supreme Court decision, I and all the rest of us will 

follow the Supreme Court decision. 

So I worked with Congressman Sensenbrenner—one of the most 

respected Republicans in the House of Representatives—as well as 
2 

Congressmen Conyers and Lewis—two other very respected Democrats in the House—to forge a bipartisan compromise to update 

and modernize the law. The bill was introduced 6 months ago on 

the eve of the weekend celebrating Dr. Martin Luther King’s holiday. Now, at the time I was hopeful that Senate Republicans would 

join me in supporting this important bill, as they had joined in supporting the original Voting Rights Act. But despite repeated efforts, 

I am troubled to report that, as of this hearing, not a single Senate 

Republican has agreed to support the effort. But I thank my fellow 

Senate Democrats on this Committee who have all joined as cosponsors, and I hope that my fellow Republicans, especially those 

who supported the original Voting Rights Act, would join us. 

Unfortunately, the House Republican leadership has shown a 

similar lack of willingness to act on this critical bill. Not only have 

they refused to vote on or mark up the bill; they refuse even to 

hold a hearing. This is unfortunate because the Voting Rights Act 

has never been a partisan issue. I remember standing there with 

President George W. Bush when he signed it, the last update, and 

he and I and Republicans and Democrats, all of us say how happy 

we were that bill had gotten through. From its inception through 

several reauthorizations, it has always been a bipartisan effort. 

And it would be a travesty if the Voting Rights Act were to become 

partisan for the very first time in this Nation’s history. 

The Voting Rights Amendment Act updates and strengthens the 

foundation of the original law to combat both current and future 

discrimination. It does so in a way that is based on current conditions. 

A year after the Shelby County decision, it is clear that voters 

need more protection from racial discrimination in voting. As we 

approach the national election, it is not hard to see the attempts 

to deny and infringe upon the right to vote are only increasing. 

Just last week, the Brennan Center for Justice released a report 

called ‘‘The State of Voting in 2014.’’ According to this report, since 

2010—4 years ago—22 States have passed new voting restrictions 

that make it more difficult to vote. Of the 11 States with the highest African American turnout in 2008, 7 of those States have new 

restrictions in place. Of the 12 States with the largest Hispanic 

growth from 2000 to 2010, 9 of the 12 have passed laws to make 

it harder to vote. 

In addition, the Leadership Conference on Civil and Human 

Rights released a report last week entitled ‘‘The Persistent Challenge of Voting Discrimination,’’ which details nearly 150 voting 

rights violations just since 2000. And each of these cases impact 

thousands and sometimes tens of thousands of voters. And without 

objection, we will place these reports in the record. 

[The reports appear as submissions for the record.] 

Chairman LEAHY. The statistics and evidence in these reports reaffirm Chief Justice Roberts’s acknowledgment that ‘‘voting discrimination still exists; no one doubts that.’’ That is what the Chief 

Justice said: ‘‘voting discrimination still exists; no one doubts that.’’ 

Recognizing that, it is time for Congress to act. 

Next week marks the 50th anniversary of the signing of the Civil 

Rights Act. Just as Congress came together five decades ago to 

enact the Civil Rights Act—and I remember that as a young law 
3 

student at Georgetown—Democrats and Republicans must work together now to renew and to strengthen the Voting Rights Act. So 

I hope all Republicans and all Democrats will work with us to 

enact the meaningful protections in the Voting Rights Amendment 

Act. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Chairman LEAHY. Senator Grassley. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you, Mr. Chairman. Today our Committee, as you know, considers whether the Voting Rights Act 

needs to be amended. For almost 50 years, this Act has made effective the commands of the 14th and 15th Amendments to protect 

the right to vote. Its enactment, as the Chairman just said, and its 

support has always been bipartisan. Its reauthorization was bipartisan on multiple occasions. The current reauthorization of the law 

will continue in effect for another 17 years. 

I am pleased to have played a role several times in reauthorizing 

the Act. In 1982, I worked extensively with Senators Kennedy and 

Dole to make sure the law was extended. 

Last year, as has been stated, the Supreme Court ruled that the 

formula for preclearance under Section 5 was unconstitutional. It 

reminds us that, since 1965, circumstances have drastically 

changed, and, of course, for the better. No one should doubt that 

voting discrimination is far less widespread than in the 1960s. For 

that we have much to be grateful, and certainly the Voting Rights 

Act has contributed to that progress. 

Now, in that Supreme Court decision, the Shelby case, all it did 

was strike down a formula almost 50 years old that determined 

which States and which political subdivisions were required to ask 

the Justice Department for prior permission to make even the most 

minor changes in voting procedures. Over the years, Justice has denied a progressively smaller percentage of these requests. The Justice Department since Shelby County has continued to bring voting 

rights cases under Section 2 and Section 3 of the current law. It 

has prevailed in a number of those cases. The current Voting 

Rights Act is strongly enforced and is protecting the rights of all 

Americans to vote. 

As the New York Times reported last week, rulings on voter registration laws ‘‘have ensured that challenges will remain a significant part of the voting landscape, perhaps for years.’’ 

The bill before us contains problems that the witnesses will go 

into shortly. For instance, the bill seems to create only a fig leaf 

of protection for legitimate voter ID laws, which are supported by 

70 percent or more of all Americans in every poll that I have seen. 

But, arguably, the bill creates a back-door mechanism that will be 

used to negate legitimate voter ID laws. 

There is little doubt that this bill goes well beyond addressing 

Shelby County and beyond the coverage formulas of the Voting 

Rights Act it is meant to replace. Given that supporters need to 

show a clear need for this legislation, especially given that the remainder of the Voting Rights Act still exists and is being success-
4 

fully enforced, at this point, Mr. Chairman, I would like to ask that 

letters from various Secretaries of State be included in the record. 

Chairman LEAHY. Without objection, they will be included. 

[The letters appear as submissions for the record.] 

Senator GRASSLEY. And I would like to take a few moments to 

say that these letters note that the bill would impose significant 

and unnecessary costs on States and localities that have taken significant steps to eradicate voter discrimination. And I welcome today’s witnesses. 

Now, two organizations present today—the NAACP and the Inc. 

Fund, as suggested by its name—are nonprofit corporations. Separate from this bill, the Judiciary Committee is now considering a 

proposed constitutional amendment that would allow Congress to 

restrict the political activities of corporations such as Inc. Fund and 

NAACP. We held a hearing on the amendment earlier this month. 

I expect the Committee to vote on it soon. 

An important case in the 1950s brought by the NAACP litigated 

by the Inc. Fund led the Supreme Court to recognize the First 

Amendment protection of freedom of association. When the Supreme Court in 1976 ruled that the First Amendment prohibits 

limits on campaign and independent expenditures, it expressly relied on that NAACP case. The constitutional amendment before the 

Committee would reverse the 1976 case and allow Congress to infringe on the ability of nonprofit corporations such as the NAACP 

to amplify the voices of their members in the political process. 

These two proposals are said to be about giving voters the ability 

to elect candidates of their choice. But one would censor corporations and the others from presenting differing views to those voters 

to help them determine what their choice actually is. Both of these 

reflect degrees of elitism. 

Proponents of these two measures do not trust voters to sift 

through the varying opinions and electoral claims giving weight to 

what makes sense and disregarding what does not. And they do not 

trust the elected officials the voters chose to make decisions without spending taxpayer money to ask Justice Department bureaucrats in Washington for advance approval. 

This is the case even when the courts are available to remedy 

discrimination. 

Now, I happen to trust voters. I do not trust the Attorney General to properly exercise the expanded powers this bill would give 

him. 

This Attorney General has repeatedly enforced the law as he 

wishes it were written, not as we wrote it. That applies to drugs, 

immigration, health care, even the Recess Appointments Clause of 

the Constitution. He has treated the exercise of important congressional oversight powers with disdain. That is why the House is currently in litigation to hold him in contempt. Inevitably, that record 

of lawlessness will be a factor in consideration of this bill. 

I am interested in exploring with our panel today how the bill 

would operate and the status of voting rights in America. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Well, thank you very much. 
5 

Our first witness is Senator Sylvia Garcia, who serves in the 

Texas State Senate, where she represents the 6th District. Is that 

correct? 

Ms. GARCIA. That is correct, Mr. Chairman. 

Chairman LEAHY. Senator Garcia, please go ahead. 

STATEMENT OF HON. SYLVIA GARCIA, STATE SENATOR, 

TEXAS STATE SENATE, DISTRICT 6, HOUSTON, TEXAS 

Ms. GARCIA. Good morning. Thank you for the opportunity to 

speak today on the critical importance of modernizing Federal voting rights protections. My name is Sylvia Garcia, and I am a State 

senator in Texas, and also vice chair of our Senate Hispanic Caucus. 

My district is 70 percent Hispanic and about 12 percent African 

American. In Texas, Latinos account for 65 percent of statewide 

population expansion, and minorities overall accounted for 89 percent of Texas growth in the past decade. 

Texas, and our Nation as a whole, is growing increasingly diverse. Unfortunately, everyone is not embracing this change. As 

Congress considers legislation that would modernize VRA protections, both Houses must acknowledge and address the fact that discrimination in voting has deep roots and continues today. 

I will discuss three examples; others can be found in my written 

testimony. 

First, in my own district, in Pasadena, the voting-eligible Latino 

population has dramatically grown in recent years, making up onethird of its potential electorate and just over half of its adult population. Not surprisingly, Latinos have been elected to fill two of the 

eight single-member seats on its city council. 

The mayor recognized that Latino candidates of choice were on 

the cusp of becoming an effective majority of the council, and to dilute Latino political power, he ramrodded a hybrid plan, reducing 

from eight to six the single-member districts and adding two atlarge districts. The proposal had been discussed before, but never 

implemented. Despite strong opposition from residents in public 

hearings and a citizens committee, the mayor pursued the change. 

In debate, he said, and I quote: ‘‘The Justice Department can no 

longer tell us what to do.’’ 

He also argued, without factual validation, that Latino candidates were not elected to municipal positions because 75 percent 

of Latinos in Pasadena were ‘‘illegal aliens.’’ 

Given racially polarizing voting in Pasadena, it is unlikely that 

the Latino community’s choice would win a race for an at-large 

seat. Considering the effect, timing, and racial element of the 

change, this is a classic case for the need for preclearance. Absent 

a full functioning VRA, this suspect change will proceed to next 

year’s election. 

Second, in August 2013, Galveston County seized upon the Shelby County decision to move a controversial change to reduce the 

number of justices of the peace in constable districts from eight to 

four. This effectively reduced the districts containing African American and Latino voter majorities. Moreover, no public hearings 

were held. Residents allege that the county went ahead with the 

change with full knowledge of discriminatory effects. 
6 

At the State level, within the hour of the Shelby County decision, 

our State moved quickly to implement changes which previously 

were found by a Federal court to be discriminatory. Our Texas Attorney General celebrated by tweeting, ‘‘Texas voter ID laws should 

go into effect immediately because SCOTUS struck down Section 4 

of VRA today.’’ 

Last, following the 2000 census, the Texas Legislature failed to 

agree on congressional maps and ultimately court-created maps 

were implemented. In 2004, the legislature enacted mid-decade redistricting plans. In striking down the congressional map, Justice 

Kennedy observed, ‘‘The State took away the Latinos’ opportunity 

because Latinos were about to exercise it. This bears the mark of 

intentional discrimination.’’ 

The Court required changes to be made to the State’s new maps 

in order to eliminate the discriminatory impact on Latino voters. 

The VRA provisions that remain in effect today are simply not 

enough. Local and State officials continue to adopt laws and impose 

challenges for minority voters and reduce the value of their votes. 

Texas continues to outpace every other State in enacting discriminatory policies and must be subject to the strongest protections we 

can devise. Between 1982 and 2005, Texas earned 107 Section 5 objections, second only to Mississippi. Without a modernized, full 

functioning VRA, we are left with only protracted and expensive 

litigation as the only method of attacking against discriminatory 

voting changes, which is more costly than the preclearance process. 

I conclude with the words of President Johnson on his 1965 VRA 

address: ‘‘Our duty must be clear to us. The Constitution says that 

no person shall be kept from voting because of his race or his color. 

We have all sworn an oath before God to support and defend that 

Constitution. We must now act in obedience to that oath.’’ 

Thank you. 

[The prepared statement of Hon. Sylvia R. Garcia appears as a 

submission for the record.] 

Chairman LEAHY. Well, thank you very much, Senator Garcia. 

Our next witness is Michael Carvin, well known to this Committee. He is a partner at Jones Day. 

STATEMENT OF MICHAEL A. CARVIN, PARTNER, 

JONES DAY, WASHINGTON, DC 

Mr. CARVIN. Thank you, Mr. Chairman, for the opportunity to 

comment on proposed legislation to revive Section 5 in the wake of 

Shelby County. 

I think the basic problem with any effort to revive Section 5 in 

2014 is that there is just no need for it given the fact that Section 

2 of the Voting Rights Act is a very effective remedy for any form 

of unconstitutional discrimination. 

More specifically, the formula in S. 1945 is not designed to identify those rare jurisdictions where Section 2 would for some reason 

be inadequate because it is not even attempting to get at people 

who effectively resist constitutional norms. So I think it exceeds 

Congress’ power to enforce under the 14th and 15th Amendments. 

To take a step back and put this in perspective, ever since Katzenbach, the Supreme Court and common sense tells you that Section 5 is an extraordinary, unprecedented burden unknown pre-
7 

viously to American law. And like all such burdens, particularly on 

sovereign states, it needs to be justified, particularly since it is selectively imposed on some States and not on others. And the justification needs to be that this extraordinary burden is needed to 

enforce the 14th and 15th Amendments’ prohibition against intentional discrimination. And the old justification, which resonated in 

the 1960s and 1970s, was that Section 2’s case-by-case approach, 

particularly when Section 2 only prohibited purposeful discrimination, was inadequate to get at the intransigent Southern jurisdictions. So we needed those extraordinary Section 5 burdens. 

But I do not think that justification holds true anymore in 2014, 

and I think the important point for this Committee to recognize is 

that the question is not whether or not voting discrimination continues to exist. It clearly does. The question is whether or not Section 2 is an effective tool to remedy that discrimination or whether 

it needs to be supplemented with Section 5. 

If somebody proposed to the Senate tomorrow we want every 

public employer to preclear with the Justice Department all employment or civil service requirements, you would ask yourself: 

Why do we need this extraordinary remedy? Isn’t Title VII’s effects 

test enough? You would not ask yourself: Does public employment 

discrimination exist? And that, again, is the question that is confronting this Committee. 

Now, ever since Section 5 has been challenged, the civil rights 

groups have reversed their historical view, which was that Section 

2 is an extraordinarily effective voting rights remedy that had done 

much to eliminate at-large election systems and all the other kinds 

of second-generation voting discrimination in the South and 

throughout the entire country. But now they have changed their 

tune and say Section 2 is somehow inadequate. But I would just 

like to make two basic points on that. 

One is this Congress, the one that is proposing S. 1945, thinks 

that Section 2 is a perfectly adequate remedy in the vast majority 

of the United States. As I understand it, only four States would be 

covered by this coverage formula, which means that this Congress 

has made a quite correct determination that in 46 States Section 

2 is more than adequate to remedy voting discrimination. So it 

needs to answer the question: Why are the four selected States so 

different, so much more intransigently racist than the other 46 that 

we need this extraordinary Section 5 remedy? 

The other point I would make is that Section 2 has all of the attributes of every civil rights law we have got in employment, housing, and education; it is no different. So if Section 2 is inadequate 

to remedy discrimination in voting, that means Title VII, Title VI, 

and Title VIII are inadequate to remedy discrimination in the 

areas they cover. 

In terms of the formula, the key point to understand is it does 

not look at people who have violated the Constitution. It looks at 

people who have violated Section 2. Well, I do not think it is logical 

to say that Section 2 is an inadequate remedy in circumstances 

where Section 2 lawsuits have already been successful. I do not 

think it is logical to say that these jurisdictions have engaged in 

unconstitutional discrimination based on the fact that they have 

violated the results test under Section 2 or the effects test under 
8 

Section 5, meaning this formula does not even try and look at jurisdictions that have violated the Constitution. A State and political 

subdivision could be swept under Section 5 even if it is stipulated 

that they have never violated the Constitution. I think the judicial 

preclearance provision is even more unconstitutional because it 

only requires one violation of any Federal voting rights law. 

And my final point is Section 5 is not a guarantee against racial 

discrimination or against racial gerrymanders. Particularly in the 

arms of this Justice Department, it has become a very powerful vehicle for racial preferences and racial gerrymanders, and been used 

to even invalidate things that make it more difficult to elect white 

Democrats, such as in the Texas redistricting case. 

With that, I thank you. 

[The prepared statement of Michael A. Carvin appears as a submission for the record.] 

Chairman LEAHY. Thank you very much. 

Our next witness is Dr. Francys Johnson. He is the State president of the Georgia NAACP. Reverend Johnson, go ahead, please. 

STATEMENT OF REV. DR. FRANCYS JOHNSON, STATE 

PRESIDENT, GEORGIA NAACP, STATESBORO, GEORGIA 

Reverend JOHNSON. Good morning. My name is Francys Johnson. 

I am president of the Georgia NAACP. Thank you, Senators Leahy 

and Grassley and Members of this Committee for holding this hearing and for your efforts to ensure the right to vote, the cornerstone 

of our democracy, is protected. 

Fifty-one years ago, another Georgia preacher, much more articulate, came to this United States capital, in the shadow of Lincoln’s 

Memorial, and shared that our Nation’s suffering could be redemptive. He said, ‘‘We have come to this Nation’s capital to cash a 

check, a demand for payment on a promissory note that had been 

signed in the blood and the fortune and sacred honor of our Founding Fathers.’’ 

It promised in principle that all men were created equal, would 

have an inalienable right to life, liberty, and the pursuit of happiness. Of course, it would take a Civil War and a Reconstruction 

under extraordinary Federal protection, a civil rights movement, 

and a Second Reconstruction to certainly make that principle practice. 

In 1982, when President Ronald Reagan signed the reauthorization of the Voting Rights Act, he said, ‘‘actions speak louder than 

words. The Voting Rights Act proves our unbending commitment to 

voting rights.’’ President Reagan also said that ‘‘the right to vote 

is the crown jewel of American liberties, and we will not see its luster diminished.’’ 

While I am here on behalf of the NAACP, I am also here on behalf of my three sons—Thurgood, Langston, and Frederick Douglas—to ensure that their right to vote is protected regardless of 

their gender, the language they speak, or the color of their skin. 

The history of voting rights in Georgia can best be characterized 

as promises made, promises broken, promises remade, promises 

broken, promises made, and now promises only partially realized. 

I have come to this August Committee with a view from rural communities like Sylvania, Statesboro, and Sylvester and cities like 
9 

Augusta, Albany, and Atlanta. And it is clear to me I am the great 

beneficiary of the progress that we have made, the great strides we 

have made as a country. But there is still much to be done. 

In my written testimony, I have described a history of voting discrimination in Georgia and the positive impact the Voting Rights 

Act of 1965 has had. I have outlined promises made and promises 

broken. For the sake of time, I will not go into that here. I would 

rather refer you to my written submissions. 

We all know 1 year ago today the United States issued the decision in Shelby v. Holder. In Georgia, the Shelby decision makes it 

much more harder for the NAACP to prevent eligible voters from 

being disenfranchised. And it makes it very difficult to win our battles against discrimination. 

Prior to the Shelby decision, Section 5 prevented blatant discriminatory attempts to alter time, place, and manner of elections. 

One example would be that of the Board of Registrars in rural 

Randolph County, Georgia, which tried to reassign an Education 

Chair’s who happened to be African American from his voter registration district which was 70 percent African American to a voting district that was 70 percent white. In a unanimous vote, the 

all-white members of that Board of Registrars voted for that district change. They voted to run that African American out of office, 

and there are literally hundreds of examples just like this. 

Post-Shelby, in Athens, Georgia, home to the University of Georgia, the city considered eliminating half of its polling places, replacing them with only two early voting centers, both of which have 

been located in police stations. Let this Committee know that the 

police in Georgia for many, many Georgians, even of my generation, do not represent an effort to protect and serve. They represent 

an effort to intimidate. The argument was that it would save 

money. 

Another money-saving proposal we saw was to shorten early voting days from 21 to 6 days. The argument was that we would save 

$3,400 on average per city. Given the fact we spent $45,000 a week 

keeping soldiers abroad to fight for democracy, I think $3,400 is a 

small investment to pay. 

African Americans are 26 times more likely to vote in early voting, and I think those who proposed that bill knew it. The Supreme 

Court gutted the preclearance formula. It did so in areas that have 

a history of racial discrimination, and it gave them the freedom to 

go back to disenfranchising voters. 

Senator Leahy, race still matters in America, and it certainly 

matters in Georgia. And to that point, Chief Justice Roberts and 

other witnesses will concede ‘‘voting discrimination continues to 

exist; no one doubts that.’’ As a Nation, we have been here before. 

Our Nation is replete with a track record on race that is two steps 

forward and one step back. 

Today we are here to test the metes and bounds of our Nation’s 

commitment to expand the ‘‘we’’ in ‘‘we the people.’’ Thus, I respectfully urge and request that you do all you can to strengthen and 

modernize the 1965 Voting Rights Act. We need a robust VRA to 

tackle head on the numerous attempts silence us in a democratic 

system. It requires all voices to participate in the search for the 

common good. 
10 

America must keep her promises regarding the right to vote. It 

is the cornerstone of our democracy. We should be reminded that 

the world is watching, and I welcome your questions. 

[The prepared statement of Rev. Dr. Francys Johnson appears as 

a submission for the record.] 

Chairman LEAHY. Thank you very much, Dr. Johnson. 

And our next witness is Dr. Abigail Thernstrom. She is an adjunct scholar at the American Enterprise Institute. 

Please go ahead. 

STATEMENT OF ABIGAIL THERNSTROM, PH.D., ADJUNCT 

SCHOLAR, AMERICAN ENTERPRISE INSTITUTE, WASHINGTON, DC 

Ms. THERNSTROM. Thank you. Thank you, Mr. Chairman and 

Members of the Committee, for the opportunity to testify today. 

The decision in Shelby County was absolutely right, in my view; 

The Act had become a period piece. Moreover, the statute today 

needs no updating. Its permanent provisions provide ample protection against electoral discrimination. 

I develop these points at length in my written testimony, and 

Mike Carvin has already made this point powerfully. 

But given my very limited time, I decided to concentrate on one 

point that I suspect other critics of the bill will not make. My focus 

is on the section that discusses ‘‘persistent, extremely low minority 

turnout’’ as an element in the new formula for Section 4 establishing Section 5 coverage. 

It is hard to believe that anyone familiar with basic demography 

ever reviewed this section. It assumes simplistically that if minority participation is low, it must be the fault of the local jurisdiction, 

its political process must be discriminatory. This simplistic assumption flies in the face of an abundance of social science knowledge about voting behavior. 

For instance, racial and ethnic groups differ in their average age. 

Older people are far more likely to vote than young ones. Since the 

Hispanic population today tends to be disproportionately young, 

the group will have lower turnout rates than non-Hispanics. 

The bill assumes the lower turnout rates are evidence of public 

officials doing something to suppress the minority vote. The point, 

frankly, is absurd. 

We see these same disparities when we control for education. 

The highly educated vote more, and both blacks and Latinos have 

less schooling on the average than non-Hispanic whites. 

Two other closely related drivers of voting behavior are family income and homeownership. Residential turnover is also pertinent. 

Newcomers to a community are much less likely to turn out at the 

polls than long-settled residents. 

In sum, forces far beyond the control of any local jurisdiction result in glaring disparities in rates of electoral participation. The 

framers of the bill’s entire low minority turnout section seem to 

have been oblivious to what every social scientist knows. 

The amended statute would extend Federal control over a great 

many jurisdictions that have made every possible effort to provide 

equal opportunity to elect candidates of their choice to all of the 

citizens. 
11 

This section in the proposed legislation also casually disregards 

the problem of how the evidence about turnout at the local level 

is to be gathered. The bill blithely states that ‘‘in each odd-numbered calendar year’’ the Attorney General will provide the required ‘‘figures . . . using scientifically accepted statistical methodologies.’’ But the only official figures on current turnout rates are 

those derived from the American Community Survey, and those 

rates are available only for whole States. We have no information 

about group differences in voter turnout in the vast majority of 

local jurisdictions. 

For the Nation’s smaller political subdivisions, accurate numbers 

would require a complete and very expensive canvass of the population. There are no ‘‘scientifically accepted statistical methodologies’’ to obviate the need for such a canvass. 

Now, all jurisdictions could be required to include a question 

about race and ethnicity as part of the voter registration process. 

Voter lists would then be color-coded, just as they were in the days 

of Jim Crow. But that would provide no information about eligible 

voters who did not register. 

It is stunning that the drafters of this bill had little interest in 

the abundant literature on demography and voter turnout and gave 

little thought to the problem of assembling the data that would be 

demanded by the amended statute. 

A final note. Placing each registrant in a racial box will be offensive to many who consider election day to be a civic ritual celebrating the fact that we are one people. If it is so vital to have information color-coded, why don’t we go all the way and list the race 

of each candidate on the ballot, which would make the gathering 

of information pertinent to much voting rights litigation easier. 

Thank you very much. 

[The prepared statement of Abigail Thernstrom appears as a submission for the record.] 

Chairman LEAHY. Thank you very much. 

And our next witness is Sherrilyn Ifill. She is the president and 

director-counsel of the NAACP Legal Defense and Educational 

Fund. Welcome, and please give us your testimony. 

STATEMENT OF SHERRILYN IFILL, PRESIDENT AND DIRECTOR-COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., WASHINGTON, DC 

Ms. IFILL. Thank you, Chairman Leahy and Members of the 

Committee. Thank you for the opportunity to testify today and for 

holding this important hearing. 

You are being asked by some, including two of today’s witnesses, 

to turn a blind eye to the urgent need to amend the Voting Rights 

Act. Professor Thernstrom contends that voting discrimination is a 

thing of the past. Mr. Carvin concedes that racial discrimination in 

voting has not ended, but says that other provisions of the Act are 

sufficient. 

So the questions you face are: Do we need an amendment to the 

Act? And if so, what should it contain? 

Mr. Johnson and Senator Garcia have already responded to the 

first question, and my written testimony outlines scores of discrimi-
12 

natory voting changes, both immediately before and after the Shelby decision. 

I would note that because we no longer have the notice provisions of Section 5, the post-Shelby changes that we identify are 

only those we have been able to learn about. 

You likely have not heard about many of these developments. 

Certainly you have heard about redistricting, about voter ID, about 

efforts to restrict early voting at the statewide level. But political 

power, authority over the lives of minority voters and communities 

all over this country, is exercised most powerfully at the local level, 

at the town council, the school board, the county commission, the 

water district. And this is where the greatest mischief has occurred 

and where preclearance makes all the difference. 

You have heard about Galveston County where the seats held by 

African Americans and Latinos for justice of the peace and constable districts were eliminated. You have heard about polling 

place closures in the city of Athens, Georgia. You may not have 

heard about the fact that in Morgan County, Georgia, a third of the 

polling places were closed, or that Baker County considered closing 

four of its five polling places, requiring voters to travel up to 25 

miles to vote. 

The Jacksonville, Florida, Board of Elections closed and relocated 

a polling place that served large numbers of African Americans. In 

fact, in 2012, more than 90 percent of those who voted early at that 

precinct were African American, and the new polling place is not 

accessible by public transportation. 

These are just a few examples from a long list of discriminatory 

voting changes demonstrating the urgent need to close the hole in 

the safety net caused by the Shelby decision. 

Now to turn to what we need. It is worth remind us that the Voting Rights Act emanates from the authority given solely to this 

Congress by the Framers of the 14th and 15th Amendments to protect against discrimination in voting. As Congress recognized when 

it first enacted and on four occasions reauthorized the Act, neither 

Section 2 nor Section 3 are sufficient to fulfill that obligation. 

First, voters need notice. This allows voters to learn in a timely 

fashion about electoral changes that may be discriminatory. Section 

4 of this proposed bill provides notice, transparency, and information for all voters. 

Second, voters need a way to stop discrimination before it happens. Litigation after a polling place has been eliminated and 

scores of voters are left without a place to vote can only ever partially remedy the harm. You can put a worker back in a job. You 

can put a tenant back in an apartment. But you cannot place a 

candidate into office even after voter discrimination has been proven. Section 3 and Section 6 address this reality. 

And litigation is costly to both the parties and the courts. In fact, 

this Congress made the judgment in the Voting Rights Act to protect minority voting in a way that does not always require litigation, just as Congress did in passing other civil rights laws such 

as Title VII and the Fair Housing Act. 

Third, the burden of proving that a proposed voting change does 

not discriminate should be returned to jurisdictions rather than 
13 

placed on the voter. Preclearance does that. The current provisions 

of Sections 2 and 3 do not. 

We take no pleasure in what has unfolded since the Shelby 

County decision. The Legal Defense Fund, like many others, is prepared to fight on behalf of voters facing these challenges. But even 

we cannot keep up with the pace of voting changes taking place. 

This means that voters are left on their own to protect their most 

sacred right as citizens. 

More importantly, we reject the notion that the right to vote 

should be premised on a voter’s ability to find a lawyer and file a 

lawsuit. This is America, and we can and must do better. Our clients, the plaintiffs in the Shelby County, Alabama case, are here 

in this room today precisely because of their strong and unwavering belief in the democratic principles of this country. This bill is 

a measured effort to address voting discrimination based on current data and reflects current needs as the Court in Shelby advised. And I urge this Committee and Congress to promptly pass 

this voting rights amendment. 

Thank you. 

[The prepared statement of Sherrilyn Ifill appears as a submission for the record.] 

Chairman LEAHY. Well, thank you very much. I find this testimony interesting, especially coming from a State that works very 

hard at making early voting available, making voting accessible 

and easy for everybody in all sections of our State. The idea of closing voting booths and moving them 25 miles is something that I 

just—well, we would not understand it in our State. Perhaps it is 

understandable in others. 

Reverend Johnson, in Shelby County, the Supreme Court elevated the novel concept of equal sovereignty of the States over the 

rights of American to vote free from racial discrimination. Do you 

believe that that principle of equal sovereignty trumps the principle that every American is entitled to exercise their right to vote 

free from racial discrimination? 

Reverend JOHNSON. I believe that the right to vote in this country is the cornerstone of our democracy. It is the well from which 

we search for the common good, that we sort in the public marketplace for that which we want for our communities. And I believe 

that we have litigated this through war and through Reconstruction and through a civil rights movement, and we are engaged in 

rethinking about this now. And there is serious, compelling interest 

for continued Federal protection through the Voting Rights Act and 

through the extraordinary remedies it provides as well as the prophylactic measures that prevent discriminatory impacts from taking place in the first place. 

Chairman LEAHY. How do you respond to those who say it is unfair to the State of Georgia for its voting changes to be subject to 

greater Federal scrutiny? 

Reverend JOHNSON. Well, I respond like this: Between 2000 and 

2013, there were 148 Section 5 objections, violations that were recorded not just in Georgia and Texas but in 29 States. But Georgia 

and Texas lead the pack with the worst record. 

I want to be clear that this is a problem not with just racism and 

sexism and xenophobism and all the other ‘‘isms.’’ They are con-
14 

structed legally. They are socially maintained. There are economic 

benefits, and it is politically expedient. But this is not a Southern 

problem. This is not a Southern problem. 

Now, Vermont and Iowa certainly did not have any violations 

during that period. But this is a problem of power. Racism is not 

about hate. That is a byproduct of it. Racism is about power, who 

gets what, when, where and how. And in many of these places, like 

Randolph County, Georgia, Section 2 would have been ineffective. 

We would have never known about that change. It was in a closeddoor meeting, and it was a unanimous vote of that Board of Elections, and Section 2 would have done nothing about that at all. 

Chairman LEAHY. Let me go to Senator Garcia for a moment. In 

LULAC v. Perry, Justice Kennedy described the Texas Legislature’s 

treatment of Latino voters in the post-2000 census redistricting by 

observing, and I am quoting Justice Kennedy now: ‘‘The State took 

away the Latinos’ electoral opportunity because Latinos were about 

to exercise it. This bears the mark of intentional discrimination 

that could give rise to an equal protection violation.’’ 

Now, is that kind of voting discrimination which the Supreme 

Court condemned as recently as 2006 still prevalent in your State 

of Texas? And if so, do we need the Voting Rights Act Amendment 

to protect against it? 

Ms. GARCIA. Mr. Chairman, as I said in my remarks, I mean, the 

classic case is the Galveston—I mean the city of Pasadena case. 

This is a case where the mayor appointed the committee. The committee said no to a charter change. The public hearings said no. 

But he proceeded, and he proceeded simply because he saw that 

four of the districts had majority Latino populations. He has seen 

that two veterans, Latinos, come home and decide that they wanted to fully engage in the political process, run for office, and get 

elected. This was historic for this city. When he saw the political 

power was changing, he then wanted to make the change and develop the hybrid system that he ramrodded and changed two districts—two elections by district to two at-large. This is exactly the 

classic case that Justice Kennedy is talking about. When the official sees that the power is coming, they want to do something to 

stop it. 

Chairman LEAHY. Thank you. 

Ms. GARCIA. And you cannot stop that later. You need to do it 

before, so that the harm cannot occur. 

Chairman LEAHY. That was going to be my next question. Thank 

you. 

Ms. Ifill, can you tell me whether Section 2 is an adequate remedy for contemporary voting discrimination? 

Ms. IFILL. Section 2 is one piece of the safety net that was created by the Voting Rights Act. It is not in and of itself sufficient 

any more than Section 5 alone was sufficient, any more than the 

ability to appoint election observers is sufficient. All of the pieces 

work together to provide a safety net. 

In many ways, the perfect example is the Galveston case that 

Senator Garcia just talked about. In fact, it was me 20 or so years 

ago that litigated the Section 2 case that created the district that 

for the first time allowed African Americans and Latinos to serve 

as justices of the peace and constables in Galveston County. And 
15 

as a result of that case, we had people in office for the first time 

from those communities. 

But now, since the Shelby case, Galveston County has decided to 

eliminate those very seats that we litigated and won under Section 

2 20 years ago. So this to me is the perfect example of why Section 

2 is not sufficient. 

Chairman LEAHY. Thank you. My time has expired. I would yield 

to Senator Sessions. 

Senator SESSIONS. Thank you, Mr. Chairman. This is an important hearing. The right to vote, as you say, Dr. Johnson, is the cornerstone of the Republic. Every citizen is entitled to vote and 

should be entitled to vote if they meet the basic qualifications of 

the franchise. 

I grew up in an area in the State of Alabama where there was 

systematic discrimination. I remember as a teenager a march occurred in my small town, and the signs were held by young children that said, ‘‘Let our fathers and mothers vote.’’ I still remember 

that very vividly. Richard Valeriani, CBS News, was there. I remember seeing him on that occasion. And it is the kind of thing 

that we all feel badly about, and that is why the Voting Rights Act 

was passed. It had universal provisions. It had extraordinary provisions. The extraordinary provision was that there would be a law 

that required that before any change whatsoever could occur in any 

voting procedure, it had to be preapproved, precleared by the U.S. 

Department of Justice. And that was based on the fact of the established proof of the systematic discrimination at that time. 

It was always perceived to be an extraordinary remedy that 

would not be continued indefinitely, and the goal and the hope was 

it would reach a state where that would not continue and that provision would not have to be utilized. 

I voted for the Voting Rights Act extension 8 years ago in this 

Congress, but I knew then that Section 5 was problematic, and it 

was difficult for me to—I wrestled with that because I felt that the 

South had made extraordinary progress. The Secretary of State in 

Georgia wrote a letter, just said, ‘‘The Voting Rights Act is still intact, and it is my duty to enforce it. I have full faith that the State 

of Georgia will continue to abide by it. The proposed legislation ignores the tremendous progress that Georgia and the rest of the Nation has made in the past 50 years and seeks to reinstate an outdated and obsolete formula.’’ And this is basically what the Supreme Court held. 

Now, will there arise disputes that impact in some way the right 

of an individual, particularly minority individual, to vote? Yes, 

there will. Some of these are deliberate, and others may be inadvertent. But, regardless, it has that impact. 

Now, Mr. Carvin, you have studied this. You have heard Senator 

Garcia explain a case or two. We have heard, I believe, Mr. Johnson talk about a school board situation where a district was altered 

to eliminate the possibility of an African American being elected. 

Do we need the extraordinary remedy of Section 5? Or could those 

circumstances be handled effectively under Section 2 as the normal 

law of America would intend and has done normally throughout 

the history of the Republic? 

Mr. CARVIN. Yes, thank you, Senator. I actually think—— 
16 

Senator SESSIONS. Is your speakerphone on there? 

Mr. CARVIN. I think the examples that have been offered up actually confirm the effectiveness of Section 2. We were told about a 

situation in Pasadena involving at-large elections. If anyone remembers the 1982 debates about amending Section 2, the principal 

purpose was to eliminate these at-large sections throughout the 

South, and it was incredibly effective in doing so. 

Section 5, on the other hand, had basically nothing to do with 

eliminating these at-large systems for two reasons. 

One is Section 5 only gets at changes. So if you had an at-large 

system, you were not going to change. You needed something to attack, and that was Section 2, and also a complicated issue involving retrogression. 

The other example that has been offered up is Galveston, involving justices of the peace, but as Ms. Ifill pointed out, the reason 

we have a justice of the peace has nothing to do with Section 5. 

It is her Section 2 lawsuit. And nobody can tell me that a lawsuit 

that was perfectly viable when it was brought is no longer for some 

reason viable in 2014. 

So, yes, that is the basic point. Section 2 works. It addresses all 

of these problems we have heard about. No one has seen any diminution in minority turnout or participation in the wake of various 

challenges to Section 5. 

And the final point I will make, with no insult to your native 

State, when we were in Shelby County, Alabama was held up as 

the worst example, and obviously it has a very unfortunate history 

in terms of race relations, but Alabama would not be covered under 

the formula proposed by S. 1945. So what they need to explain to 

the four States that are covered is that they are so materially different from States like Alabama with their unfortunate history 

that, while Alabama can be trusted to be regulated under Section 

2 alone, for some reason these four States cannot be. 

Chairman LEAHY. Thank you—— 

Senator SESSIONS. Well, Mr. Chairman, just to say Alabama has 

more—at least a few years ago, more African American elected officials than any other State in America. And we have made tremendous progress. We will not accept racial discrimination and voting 

discrimination in our State, and the Federal Government is also 

there and prepared to step in. 

Chairman LEAHY. You actually have more African American 

elected officials in your State than we do in the State of Vermont, 

but there may be different reasons. 

[Laughter.] 

Chairman LEAHY. We are going to try to stay on—sorry. We are 

going to try to stay on time, and I am going to yield now to Senator 

Klobuchar, and she will take the gavel at this point. 

Senator KLOBUCHAR [presiding]. Thank you very much. Thank 

you, all of you, for being here for this important decision. I am 

troubled by the Supreme Court’s Shelby County decision. As many 

of our witnesses testified today, there are, sadly, too many instances where voters face intentional discrimination at the ballot 

box. 

Part of this is I come from a State where we pride ourselves in 

one of the highest voter turnouts in every single election with our 
17 

same-day registration. We also are very proud of the fact that we 

have some of the biggest refugee populations for Somali and 

Hmong immigrants who have come to our State and have been able 

to get involved in the political process very easily and are now 

serving in the city councils and at the State legislature. So I have 

seen how this can work, and I have seen what happens when people are encouraged to vote and how this is good for a political system. 

My questions, of course, are focused on how we can get the data 

that we need to update this law, and I think one of the most important reasons that we need to update the Voting Rights Act for the 

21st century is that Section 2 truly cannot do all of the work. You 

can still try to prove voting discrimination in court, but that often 

happens, as has been pointed out, after the fact. After an election 

is already over, that does not do any good for the people who have 

already been unfairly denied the right to vote. 

Ms. Ifill, I guess I would start with you. Why do you think it is 

important that we update our standards for preclearance of 

changes that impact voting rights? And what are the benefits of 

updating both Section 3 and Section 4? 

Ms. IFILL. Well, the Supreme Court in the Shelby case made very 

clear that it expected this Congress to rely on current data and to 

respond to current needs. And what this bill does is precisely that. 

In fact, I would take issue with the contention that there are certain States that are covered or not covered. This bill is not a geographic bill. It does not cover any one State. It sets out a provision 

that says that in a 15-year period a State or a jurisdiction will be 

covered if they have a certain number of violations. 

Senator KLOBUCHAR. Right. And it is five, right? 

Ms. IFILL. Five in a State and—— 

Senator KLOBUCHAR. And I think for anyone watching this at 

home on C-SPAN, it is an opportunity to explain this. It does 

not—— 

Ms. IFILL. Yes, so it is five violations over a 15-year period for 

a State. 

Senator KLOBUCHAR. And for a city? 

Ms. IFILL. And for a local jurisdiction, three violations. And so essentially it is a rolling formula which continues over time and continues to update itself. So a jurisdiction is not covered unless, in 

fact, they have those violations over the prior 15-year period. And 

what that means is that it is not geographically set in stone. A jurisdiction is only covered if they have violated the Voting Rights 

Act, violated the Constitution in some way. 

And so this updated formula actually is nationwide. It is not targeted at the South or at any particular jurisdiction. But, of course, 

we cannot wipe clean the reality of what a jurisdiction has done 

over the past 15 years. And so there may be States that fall into 

the formula as currently stated, but that is different than saying 

that the bill is targeted at particular States or jurisdictions. 

Senator KLOBUCHAR. All right. 

Ms. IFILL. Now, Section 2 is insufficient simply because Section 

2, as you said, requires you to litigate over the course of years, the 

election goes forward. That is very different from a formula that 

before the discrimination happens, stops the discrimination from 
18 

happening, requires that close look, and requires preclearance from 

the Federal authority. 

Senator KLOBUCHAR. Exactly. And why don’t we talk maybe with 

you, Ms. Garcia. Thank you for being here. I am really concerned 

that a number of States have moved to restrict access to voting 

since the Shelby case. In some of the cases like in Texas and Florida, officials have tried to move forward with changes that courts 

actually previously found to be discriminatory. 

It seems to me that trying to enact changes that courts have 

found to be discriminatory clearly goes against the spirit of our democracy. We should be protecting people’s rights and making it 

easier to vote. Why do you think these changes have been put in 

place in Texas? 

Ms. GARCIA. Well, I think that the Attorney General acted very 

quickly, as I said in my opening remarks. I think, quite frankly, 

it is—you know, congratulations. I mean, you may be number one 

in voter participation, but Texas, regrettably, is 42nd in voter registration and 51st in voter turnout. So I would submit that part of 

the problem is because of some of the barriers and some of the impediments that we do have. And I think that is why we need this 

modernization of the Voting Rights Act to make sure that we can 

truly address today’s challenges. 

Senator KLOBUCHAR. All right. And why are people doing this? 

Do you think they just think it is to their election advantage if they 

do not let everyone vote? I am trying to understand it. 

Ms. GARCIA. Well, I think, you know, the examples that I have 

given, it is really just a shifting of the demographics, a shifting of 

the power, and it goes back to what one of the other witnesses said. 

It is really about power. And when you have a mayor that can see 

that two Latinos have been elected and maybe the next time it will 

be four and there will be a majority, then they want to make the 

change. So I think it is about the balance of power, and it is about 

not embracing the demographic changes, not only in the State of 

Texas, but in the country as a whole. 

Senator KLOBUCHAR. Thank you very much. 

I believe Senator Grassley is going next. 

Senator GRASSLEY. Thank you, Senator Klobuchar. 

I am going to ask my first question of Mr. Carvin. We have heard 

testimony that ‘‘Section 2 litigation occurs only after the fact when 

the beneficiaries of an illegal voting scheme have been elected with 

the advantages of incumbency.’’ 

We have also heard that Section 5 preclearance is more efficient 

and less burdensome than Section 2 litigation and that Section 2 

does not capture discrimination that is not identified and blocked 

by Section 5. 

So to you, are these statements accurate? 

Mr. CARVIN. No, Senator, they are not at all. The notion that 

Section 2 cannot deal with problems prior to an election is just a 

complete myth. The NAACP and a number of groups have been involved in multiple litigation where you have tried to either stop a 

redistricting plan or a voting change prior to the election. I think 

Texas, Senator Garcia’s native State, might be the best example. 

There, the Section 2 court actually entered a remedy and resolved 
19 

the redistricting issue 8 months before the Section 5 court in D.C. 

even got around to it. 

So that is just one example of where Section 5 is actually lagging 

well behind Section 2. But, no, you do exactly the same thing under 

Section 2 that you do under Section 5. You say, ‘‘Will moving the 

polling place make it more difficult to be accessed by minority voters? Will the redistricting plan dilute minority votes?’’ It is all 

based on prospective statistical projections, and no one can produce 

examples of where courts have just sat around and said, ‘‘Okay, let 

us let two or three elections go before we act on this.’’ There is not 

a redistricting dispute in this country that was not resolved, if 

timely brought, prior to the upcoming elections. 

Senator GRASSLEY. Another question for you. It has been reported that the bill would not affect State requirements that voters 

produce voter ID in order to vote. Is this a correct reading of the 

bill? 

Mr. CARVIN. Oh, no. That is entirely incorrect. I mean, obviously 

one of the principal motivations for bringing people back underneath the Section 5 regime is to have the Justice Department, as 

we have heard today, preclear these things. Attorney General Holder has made it clear that he equates voter ID requirements with 

discriminatory poll taxes, and the Justice Department has taken 

the firm position that any kind of ballot integrity effort along those 

lines is somehow violative of the law. 

So, no, bringing people back into the Section 5 regime will make 

voter ID very much on the table, and the Justice Department will 

vigorously oppose it. 

Also, of course, Section 2 will be available to the Justice Department and private litigants who are currently litigating voter ID 

cases throughout the country from North Carolina to Washington. 

And Section 5 is particularly difficult for submitting jurisdictions 

just because of the time that is involved. They either have to go 

to the Attorney General, who is unalterably opposed to voter ID, 

or they have to go to court. I believe the State of South Carolina 

spent $3 million to have their voter ID law blessed by the threejudge court in D.C. So whichever way you look at it, there will be 

severe burdens on any State that thinks that voter ID is an important effort to ensure ballot integrity and exclude unqualified voters. 

Senator GRASSLEY. Dr. Thernstrom, I would like to ask you about 

The Washington Post recently editorializing that political polarization and partisan conflict is now so deep that radical changes to redistricting might need to be considered. One of their suggested 

changes is a return to at-large or multi-member congressional districts, but they noted that the Voting Rights Act presents an obstacle to that plan. 

Do you think that the Voting Rights Act deepens political polarization through its redistricting requirements? And if so, what 

should we do about that? 

Ms. THERNSTROM. Thank you, and can I just say before answering your question that Ms. Ifill suggested that I thought all voting 

discrimination was a thing of the past. I did not say that. I simply 

said the permanent provisions provide ample protection against 

electoral discrimination. And that statement acknowledges the fact 

that there is still electoral discrimination. 
20 

Now, as to The Washington Post editorial, which I may or may 

not have read—I am not sure—look—I am sorry. Can you restate 

the question? 

Senator GRASSLEY. Yes. Do you think the Voting Rights Act 

deepens political polarization through its redistricting requirements? And if so, what should we do about that? And they suggested that we ought to—that a possible solution would be multimember districts. 

Ms. THERNSTROM. Right. You know, once upon a time, in the progressive era in this country, at-large voting and multi-member districts were considered a progressive reform, good government reform. They are legitimate ways of conducting elections. Are they 

disadvantageous to minority voters who, if they have safe majority 

minority districts, can be sure of electing the candidate of their 

choice? Yes. And those districts, those designer districts that reserve legislative seats for minority candidates, yes, they have 

worked to elect black and Latino candidates. So they worked as designed. And the at-large district candidates do not have a safe constituency, and so, sure, the at-large districts, which have barely 

survived the enforcement of the Voting Rights Act, are disadvantageous to minority voters if you think that these race-based districts 

are a good thing simply because they do assure the election of minority candidates. And you ignore the downside of those districts 

which really make those black candidates—throw them to the sidelines of American politics because they do not have to put together 

biracial coalitions which would enable them—which would enable 

minority office holders in those districts to move up the political 

ladder and run, for instance, statewide. 

So, you know, this is a complicated issue. That is my bottom line. 

But I do not happen to like those racially gerrymandered districts 

in part because I think they do a disservice to black voters and 

black candidates. And that race-based districting in itself does polarize American politics. 

Senator KLOBUCHAR. Thank you. Thank you, Senator Grassley. 

I know you want to respond, Dr. Johnson, and I will ask you in 

the second round to respond. All right? 

Reverend JOHNSON. Sure. 

Senator KLOBUCHAR. And I wanted to acknowledge two Members 

of the House that are over here visiting, and we really appreciate 

their leadership on this issue, Congressman Bobby Scott and Congresswoman Sheila Jackson Lee, and we thank you for being here. 

Senator Franken. 

Senator FRANKEN. Thank you, Madam Chair. 

I believe that the Voting Rights Act is one of the greatest 

achievements of the civil rights movement. It passed with incredible effort. And we must make sure that we fulfill Congress’ longstanding bipartisan commitment to provide equal access to the ballot, and I share Chairman Leahy’s conviction that it is time for 

Congress to act to strengthen and update the original Voting 

Rights Act. And I am a proud cosponsor of the Voting Rights 

Amendment Act, and I am optimistic that on this first anniversary 

of the Shelby County decision that we can come together to ensure 

that the promise of the 15th Amendment is made real for all Americans. 
21 

Ms. Ifill, in your testimony you discuss the preclearance framework. In 1965, Congress enacted this requirement because relying 

on litigation to enforce the right to vote just was not working. Litigation takes a long time, and it often begins only after a discriminatory voting practice has already been initiated. Congress can certainly continue to believe that the preclearance system was important because it reauthorized the Voting Rights Act four times with 

broad bipartisan support with Section 5. 

Mr. Carvin states in his testimony, and I am going to quote: 

‘‘This is not to say that racial discrimination in voting has ended, 

any more than it has ceased in employment, higher education, or 

housing. It is to say that Section 2, particularly given its extremely 

expansive ‘results’ prohibition, is more than adequate to address 

any unconstitutional discrimination. Just as Title VII’s prohibition 

against discriminatory ‘effects’ in employment and Title VI’s prohibition against higher education discrimination and Title VIII’s prohibition against housing discrimination do not need to be supplemented by Section 5 . . .’’ 

It seems to me that, yes, in some cases Section 2 has worked. 

There is no question about that. But my question, Ms. Ifill, is: Has 

there not been a redistricting case that was not resolved before the 

election? And isn’t that kind of the point here? 

Ms. IFILL. Well, Senator Franken, thank you. There have been 

many. I am not sure where Mr. Carvin has been litigating Section 

2 cases, but where I have been litigating Section 2 cases—and 

these cases take an incredible amount of time and resources to litigate and to put together. And, in fact, very often the litigation 

takes years—years—to resolve. And without a preliminary injunction, holding the status quo, which very rarely is granted, in fact, 

elections do go forward during the course of Section 2 litigation. 

It is interesting because, in fact, even jurisdictions in many ways 

would rather avoid the cost of litigation than the minimal de minimis course of amount of preclearance—that preclearance requires. 

This past year, the city of Evergreen in Alabama was required 

by a Federal district judge to be bailed into preclearance, meaning 

that for changes related to mayoral and municipal elections, they 

will have to get approval for those changes as a result of the findings of the district court. And the city of Evergreen actually welcomed that order. They said they welcomed the opportunity to engage in preclearance rather than have the expense of litigation on 

the back end. And Congress made that decision, just as they have 

made in Title VII, which also has an administrative regime, just 

as they have under the Fair Housing Act, which also has an administrative regime, to create an administrative regime under the 

Voting Rights Act so that all claims do not have to be litigated, all 

claims do not have to be subjected to the expense and the time and 

the contentiousness of litigation, and can be resolved through the 

preclearance process. 

Senator FRANKEN. Thank you, and that seems to be the point 

here. And the implication that we have heard is that you do not 

need Section 5 here, that Section 2 just takes care of this. And that 

is just not the reality. And there seems to be some acknowledgment 

that there still is some discrimination left in voting rights, but that 
22 

it is not as bad as it used to be. But what seems to be the implication is it would be okay if it was a little worse. 

I think we need Section 5. Thank you, Madam Chair. 

Senator KLOBUCHAR. Thank you very much, Senator Franken. 

Senator Cornyn. 

Senator CORNYN. I would say to my colleague from Minnesota, 

if he thinks this provision is a good one, it should apply to Minnesota, it should apply to Vermont, it should apply to the entire 

country, because it only applies to four States under the current 

formula, and—— 

Senator FRANKEN. May I ask—— 

Senator CORNYN. You may not. You may not. 

Senator FRANKEN. Would you yield for a question? 

Senator CORNYN. And—— 

Senator FRANKEN. Okay. 

Senator CORNYN [continuing]. it imposes a presumption of guilt 

that is not borne out certainly by the evidence. And I would say 

that the statement that support for the Voting Rights Act has been 

bipartisan is absolutely true. It was signed into law by a Texan, 

Lyndon Johnson, and it has enjoyed bipartisan support through its 

history. But I would say that bipartisanship or lack of partisanship 

is at risk in the way that this legislation has been framed. 

Mr. Carvin, it is still true that an act repugnant to the Constitution is void. The Supreme Court has been pretty clear about that. 

Mr. CARVIN. Yes, that is a truism. 

Senator CORNYN. And do you believe that this proposal, this bill 

that we are discussing today is unconstitutional? 

Mr. CARVIN. Yes, I do, for essentially the same reasons that the 

Court in Shelby County struck down the 2006 effort to expand Section 5. 

Senator CORNYN. And I believe you said that this legislation is 

not designed just to overturn legislatively the Shelby County decision; it goes much farther. Could you explain what you mean by 

that? 

Mr. CARVIN. Yes. Well, there are two key provisions. One is it 

does not just adjust the coverage formula, as you note. The most, 

I think, clearly unconstitutional provision is revising the judicial 

preclearance Section 3(c), and under that provision, if a State or 

political subdivision has violated any Federal law that has a nondiscrimination component in it—the National Voter Registration 

Act, for example—even if the violation has absolutely nothing to do 

with discrimination, a Federal court can keep them in preclearance 

essentially as long as it wants. 

So, for example, I was involved in this case in Florida where, 

amazingly, the Eleventh Circuit found that the NVRA prohibits 

States from excluding non-citizens from the voting rolls, even 

though they were using the Department of Homeland Security’s 

data base, even though the accuracy of excluding these people was 

uncontested. Many of them had admitted that they were non-citizens. They, nonetheless, found that the NVRA prohibited keeping 

them off the voting rolls even though the NVRA makes it a felony 

for a non-citizen to register or to vote. 

So one absurd decision like that involving a statute having nothing to do, really, with racial and ethnic discrimination enables the 
23 

Court to subject an entire State to preclearance for the foreseeable 

future. 

Senator CORNYN. Do you know whether the Department of Justice requires a photo identification before you are admitted into 

that building? 

Mr. CARVIN. Yes. You cannot get into a court or the Justice Department absent photo ID. 

Senator CORNYN. And yet this Attorney General and this Justice 

Department takes the position that even a free identification issued 

by the State of Texas somehow is discriminatory. Isn’t that their 

position? 

Mr. CARVIN. Yes, and that has been their consistent position. It 

is their consistent position which they are now seeking to advocate 

under Section 2. 

Just contrary to this myth that I think has been bandied about 

during this hearing, Section 5 courts take evidence, Section 5 

courts require witnesses, and it is just as voluminous as Section 2. 

What you may get is what they had in Texas, for example, where 

the burdens shift, where everybody sort of threw up their hands 

and said, ‘‘Well, we do not really know if this affects minorities.’’ 

The State would lose in those circumstances, where they would not 

lose in Section 2. 

Senator CORNYN. Well, essentially this bill imposes a presumption of guilt, and the jurisdiction affected would have to come into 

court and disprove this presumption. But I would just say that in 

1964 the voting rate for non-whites in the South was 20 to 35 percentage points lower than it was in the rest of the country, thus 

the need for the Civil Rights Act of 1964. Yet in 2012, blacks voted 

at a higher rate in the South than for the rest of the country. 

Now, in Texas, contrary to what my friend Senator Garcia has 

suggested, the black voter turnout rate is substantially higher than 

for people that look like me. Indeed, blacks registered and voted at 

higher rates than whites in Texas in every Federal election from 

1996 to 2004. 

So, you know, rather than suggesting that the States that have 

come so far, thankfully, in remedying past discrimination when it 

comes to voting rights, the suggestion made in this legislation is we 

need to presume that four States that would be covered by the formula are guilty until they can prove their innocence, in spite of the 

fact that this law proposed is clearly unconstitutional under the 

Supreme Court’s precedents. 

So I hope we will stay with our previous commitment to nonpartisanship when it comes to vindicating voting rights, that we 

will actually take a moment to celebrate the great advances that 

have been made in this country, not to suggest, as Dr. Johnson 

said, that discrimination does not still exist. When it does, there 

are tools available, and we are all committed on a bipartisan basis 

to use those tools whenever and wherever we can to vindicate the 

right of each and every American citizen to cast a ballot for their 

chosen candidate. 

Senator KLOBUCHAR. Thank you very much, Senator Cornyn. 

Senator Franken, you wanted half a minute. And then we go to 

Senator Coons. 
24 

Senator FRANKEN. Yes, I will make this as short as I can. My 

good friend Senator Cornyn—and he is a friend—said would I be 

voting for this if Minnesota were covered by this. Every State is 

covered by this. In this formula—— 

Senator CORNYN. Madam Chairman, that is false. 

Senator FRANKEN [continuing]. It would apply to any State that 

has had five violations in the last 15 years. If you violate the law— 

any State—if you violate the law five times, you will be subject 

under this for preclearance, no matter which State you are. So I 

am voting for a law that Minnesota would be subject to, that Utah 

would be subject to, that Illinois, Rhode Island, Delaware, Connecticut, and Hawaii would be subject to. 

Senator CORNYN. Madam Chairman? 

Senator KLOBUCHAR. Senator Cornyn. 

Senator CORNYN. That is demonstrably false. The formula would 

not apply to any—to 46 States. And so Section 2 is clearly okay for 

those 46 States, while 4 States are presumed to be guilty and 

would have to go to court or go before the Attorney General and 

disprove any intent to discriminate. And so I certainly disagree 

with my colleague—— 

Senator KLOBUCHAR. You know what? I think, Senator Cornyn, 

you two are having a dispute, and I would like to resolve this with 

our experts, and I think Senator Coons is next, and maybe he can 

shed some light on this in his questions. Thank you. 

Senator COONS. Thank you. Thank you very much. 

Ms. Ifill, I would be grateful if you would help shed some light 

on this. My view is that as a cosponsor of the Voting Rights 

Amendment Act, it does have a nationwide impact, and it does take 

up the challenge of Shelby County in crafting an appropriately 

modernized formula. Preclearance is still necessary. I think this 

conclusion is demonstrated by the city of Evergreen, Alabama, 

which was recently bailed into preclearance under Section 3(c) of 

the VRA for just the sort of discrimination that the Shelby County 

majority concluded the Nation is largely free from today, I think 

incorrectly. 

Why isn’t Section 3(c) bail-in sufficient to identify jurisdictions 

for which preclearance is appropriate? And what is the scope and 

reach of the formula proposed in the Voting Rights Amendment 

Act? 

Ms. IFILL. Well, let me return again to the nationwide application of this law. This is becoming something of a bait-and-switch. 

The Supreme Court’s decision in the Shelby case was very much focused on the idea that you could not mark certain States based on 

data that the Court thought was too old, and the Court said that 

we needed current data based on current needs and invited Congress to draft a new formula. 

There is now a new formula. That formula requires the focus on 

current data and current needs by creating a rolling formula that 

looks at the prior 15 years. It does not look at the prior 15 years 

for any particular one State or another. It covers from New York 

to Florida. Every State and every local jurisdiction is covered by 

the same formula. 

As I said earlier, we simply cannot wipe out the past. If a State 

in the past 15 years has violated the law, then those violations 
25 

count toward that 15-year requirement. And if Texas happens to be 

one of those States, that is because Texas violated the law, not because the U.S. Congress is targeting Texas. 

The second thing I would say about preclearance—and you raised 

the city of Evergreen, which I spoke about I think before you came 

in—the current bail-in law occurs after litigation, so it is the same 

issue of having to find the case, find the resources, litigate the 

case, and then bail-in is a remedy that a court can order. Bail-in 

is always limited to the particular kind of challenge and the findings that the district court made in that case and limited in time 

as well. 

I find it disturbing, and I think that all of us should as Americans, if we are premising the idea that the protection of the right 

to vote should be based on the ability to find a lawyer and file a 

lawsuit. This Congress was given the sacred obligation under the 

14th and 15th Amendments to the Constitution to protect against 

voting discrimination. And Congress in the Voting Rights Act has 

created a network of ways in which that protection can happen. 

One way is Section 2, which, when it occurs, can be quite effective. But another way is Section 5, which is preclearance, designed 

to avoid the difficulties of litigation and to get at discrimination before it happens. 

Senator COONS. Ms. Ifill, if I might on one other point, it has 

been suggested by some today that this bill does not reflect compromise, that it is frankly a liberal wish list that includes everybody possible remedy that the left might be seeking, and that it is 

not the result of compromise. I do not see that as accurate, but 

could you help fill in some of those details? 

Ms. IFILL. Well, in fact, that is true. There was reference earlier 

to voter ID laws. This bill, frankly, assiduously walks around voter 

ID laws. It does not count denials of preclearance of voter ID laws. 

It does not count findings under Section 2, a Section 2 violation of 

voter ID laws as a violation that can count toward the five or the 

three for preclearance. 

What that means is that only findings that a voter ID law was 

created with the intention of discriminating against minority voters 

can count toward a jurisdiction’s violation, and I would hope that 

everyone in this room and in this country would be deeply concerned about a finding by a Federal court that a voter ID law had 

been created with the intention of discriminating against minority 

voters. 

Senator COONS. A last question, if might, to Reverend Dr. Johnson. We are meeting today in a Senate building named for Everett 

Dirksen, a Senator of Illinois. I think anyone who knows their history knows that he played an absolutely central role in the enactment of the 1964 Civil Rights Act. In fact, I think one of the things 

of which the Republican Party has long justifiably been proud is 

the central role that Republican legislators played in the enactment 

of landmark civil rights legislation in the last century. Yet today 

we seem to see a partisan divide on this Voting Rights Amendment 

Act when previous VRAs had been broadly bipartisan in their support. 

Why do you think that this has become a partisan issue? 
26 

Reverend JOHNSON. Very good question, especially considering 

the fact that every reauthorization of this important Act has been 

by a Republican President. This should not be a partisan issue, the 

right to vote, and it is sacred, as Ms. Ifill suggested. It was paid 

for with the blood, sweat, and tears of so many. But there is a larger historical point that needs to be made. If the Voting Rights Act 

is not modernized, then you are effectively ending the Second Reconstruction of this United States. And there is a reason in Georgia 

why we have to put an asterisk beside the names of elected Representatives. We say they are ‘‘since Reconstruction.’’ We have been 

here before. After Reconstruction, across the South over 625 persons were elected to Congress, including Jefferson Long from 

Macon, who was the first African American to speak in this Congress as a Representative. 

And so how do you get from 625 after the Civil War during that 

period of Reconstruction? You get there through Federal protection. 

When that Federal protection was withdrawn, then those elected 

Representatives disappeared because of the persistent nature of 

race as a problem in this country. 

And so we are seeing extraordinary success under the Voting 

Rights Act. I am here today to say let us not take away what has 

worked so well. Let us keep it in place so that we do not repeat 

the mistakes of history and go down a pathway that I think is 

quite dangerous. 

Senator COONS. Well, thank you. The day that we announced the 

introduction of this bill, I was proud to be joined by Republicans 

from the House. I continue to hope and pray that we will be joined 

by Republicans in the Senate in what I think is the result of compromise, responsible and reasonable, but absolutely essential response to this difficult case of the decision in Shelby County. And 

I think modernizing, strengthening, implementing, and updating 

the Voting Rights Act is absolutely essential for our Nation. Thank 

you for your testimony. 

Thank you, Madam Chair. 

Senator KLOBUCHAR. Thank you very much, Senator Coons. 

Senator Lee. 

Senator LEE. Thank you, Madam Chair. 

Mr. Carvin, I would like to start with you, if that is okay. In your 

written testimony, you explained, citing the Supreme Court’s opinion in Shelby County, that an updated formula like the one in Senate bill 1945 is only ‘‘an initial prerequisite to a determination that 

exceptional conditions still exist justifying’’ such a formula, an ‘‘extraordinary departure from the traditional course of relations between the States and the Federal Government.’’ 

Can you help us understand, help explain why it is the case that 

the proposed coverage formula alone is insufficient to determine 

that exceptional circumstances still exist? 

Mr. CARVIN. The exceptional circumstances, Senator, obviously 

being the need for Section 5 preclearance on top of Section 2. We 

have had a lot of debate this morning about whether Section 2 is 

adequate, but the precise question the Supreme Court was asking 

was: Well, if Section 2 is adequate in all these other States, why 

does it somehow become inadequate here? Has Congress identified 
27 

the kind of intransigent resistance to Section 2 that justifies Section 5 in these jurisdictions? 

Now, when you look at the coverage formula in S. 1945, it does 

not even attempt to do that. In other words, it bases its triggering 

formula on whether or not you have been found guilty of a Section 

2 violation. Well, if you have been found guilty of a Section 2 violation five times in 15 years, then it is a little hard to say Section 

2 is not working in your State. 

They also throw in Section 5. Both Section 5 and Section 2 do 

not relate to constitutional discrimination, which is intentional discrimination. They have a much more demanding standard. You 

cannot do anything with the statistical discriminatory effect or result. So you are not even looking at places where there has been 

any constitutional violations. 

As I said in my testimony, it is quite possible that a State or a 

political subdivision that has never been found guilty of violating 

the Constitution would nonetheless be designated as a flagrant constitutional violator, which does not make sense. 

Moreover, of course, they count the Attorney General objections. 

Well, the Attorney General, particularly in recent years, has had 

an unblemished track record of objecting to every change, regardless of whether or not it in any way was seriously discriminatory. 

I would not view that as a reliable guide to people who are seeking 

to disenfranchise minority voters. I think that it much more reflects the fact that Section 5 has this demanding effect standard 

which has been exploited by this Justice Department to eliminate 

very sensible ballot integrity measures, or at least that is sufficiently debatable that you could not designate somebody who Attorney General Holder disagrees with as somehow a constitutional violator. 

Senator LEE. So when you use the word ‘‘exploited’’ here, I assume you are referring to the fact that the more power we put in 

the hands of the few, perhaps, of the Attorney General of the 

United States or a small handful of officials at the U.S. Department of Justice, especially as you are giving them broader standards to apply, there is a greater risk of manipulation, a greater risk 

that one person might just decide I think this is—I do not like this, 

I am going to stop this, and that could impermissibly intrude on 

the State’s authority to do something, even when the State is not 

actually doing something in violation of the Constitution. 

Mr. CARVIN. The proponents here have been arguing that Section 

5 is fast, faster than Section 2. Well, it is only fast if the Attorney 

General decides something without the basic due process safeguards that every State presumably is entitled to, an ability to 

present some evidence to a neutral magistrate. It is the classic Star 

Chamber proceeding. So while you do capture efficiency, you also, 

as you point out, Senator, invest this extraordinary power in a single unelected official to invalidate State laws without any opportunity for judicial review. 

Senator LEE. By the way, why would it ever be appropriate for 

Federal officials to suggest to State or local government officials 

that they could not exclude from the voting rolls those who are not 

citizens? 
28 

Mr. CARVIN. There is no Federal law that requires that. There 

was a decision by two judges appointed by President Obama that 

rewrote the National Voting Registration Act to produce that genuinely absurd result. 

Senator LEE. Okay. Finally, since you testified earlier—after you 

testified earlier as to the adequacy of Section 2 remedies, there are 

those who have suggested in their testimony and in response to 

questions by Members of this Committee that those are, in fact, inadequate, that they are not enough. Would you care to respond to 

that? 

Mr. CARVIN. Yes. I have given the specific examples of why Section 2 is entirely adequate for those, and then I think there are two 

points that the proponents of this Act need to answer, which is 

why, if preclearance is required in the four States currently covered, or whatever States subsequently get sucked into it, why 

aren’t they required in the other 46 States? And the next question 

is: If Section 2 even with this extraordinarily broad results standard is somehow inadequate to protect against voting discrimination, then why isn’t every civil rights law passed by this body also 

inadequate to prevent discrimination in employment and housing 

and education, which are certainly very important aspects of American life, but we are nonetheless content to have the Title VII’s of 

the world exist without being supplemented with a Section 5-type 

preclearance standard? Why does it work in all of these other areas 

and not work in voting? 

Senator LEE. I see my time has expired. Thank you, Mr. Carvin. 

Thank you, Madam Chair. 

Senator KLOBUCHAR. Thank you very much, Senator Lee. 

Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Madam Chairman. 

Mr. Carvin, I appreciate your very thoughtful testimony here, 

and we disagree. I happen to support the legislation. But you make 

the point that if the remedy under Section 2 is inadequate for voting rights, then all of these other remedies in vindicating other 

rights, whether employment, housing, et cetera, would be inadequate as well. 

Can’t Congress decide that, for whatever reason, if it is a constitutional reason, that voting rights is a right that has to be vindicated more promptly, that the litigation process that might be satisfactory to vindicate those other rights takes more time and expense for voting rights, and decide that Section 5 ought to be 

adopted for that reason? 

Mr. CARVIN. I am not saying that the Senate or the House could 

not make distinctions among different kinds of problems and fine 

tune it. For the reasons I will not repeat, I do not think any such 

record has been compiled in the voting context. 

I would also point out that while voting is obviously a very important right that helps all other participation in democracy, I 

would be loathe if the Congress was to rank order particular areas 

of American life and say voting is more important, for example, 

than employment or housing. While at a certain level that is true, 

I suppose somebody who is unemployed or homeless would not 

agree that discrimination in housing and employment is less important than discrimination in voting. 
29 

Senator BLUMENTHAL. And I am not suggesting that the Congress would be ranking in importance those rights, but simply the 

method to vindicate them might be unsatisfactory for voting rights 

as compared to those other rights. 

Mr. CARVIN. And, again, Senator, yes, that is the kind of empirically based justification the Senate could come out with. I have not 

seen in any of the commentary either surround this or the 2006 

amendments which suggests that voting discrimination is uniquely 

difficult to prove. And if you think about it from a commonsense 

perspective, particularly in private employment, private housing, 

private education, all of the discriminatory policies and decisions 

are made in private, confidential sessions. But in voting they are 

made public. They have to be made public because you need to tell 

people where to vote and how you will count their vote. So actually 

it is the most transparent of all of these various areas we have 

been discussing and, therefore, the easiest to get at. 

Senator BLUMENTHAL. Well, I think there is some empirical data 

to contradict that argument. As you probably know, in 2013, the 

Brennan Center for Justice found that between 1999 and 2005 

States initiated 262 potentially discriminatory policy changes that 

were withdrawn or suspended by altered submissions in response 

to the Department of Justice’s request for more information, the 

first step in the preclearance procedures. It is hard to believe, hard 

for me to believe anyway, that if the Department of Justice had to 

go to court to challenge every one of those 262 policy changes, they 

would have been successful in preventing—and I stress and underscore the word ‘‘preventing’’—discriminatory voting practices as 

they have been using Section 5 procedures. So I think there is 

something about those challenges, including the request for information, as an enforcement mechanism that has a very profoundly 

important effect. 

Again, comparing rights here, I have no desire or intention to 

rank one as against the other. But as a matter of resources, in extraordinarily complex and massively challenging, resource-intensive cases as voting rights cases often are, couldn’t you see a compelling argument for the preclearance procedure? 

Mr. CARVIN. There is no question if you strip the States of their 

due process rights and presume them guilty that that empowers 

the Justice Department to be much more effective and efficient at 

getting at things that the Justice Department wants to accomplish. 

But as I indicated to Senator Lee, the question is not what does 

the Justice Department want to accomplish; it is whether or not 

these States have engaged in unconstitutional discrimination. Since 

the Nation’s founding, we have presumed the legitimacy of State 

enactments. We would presume under this legislation the legitimacy of State enactments in 46 States. So the question then becomes: Why is it necessary to presumptively suspend all of these 

laws in these designated areas and not afford them the traditional 

justifications that are afforded to all other defendants in civil litigation? 

Senator BLUMENTHAL. My time has expired, but I thank you for 

those thoughtful answers. I have no intention or desire to suspend 

the rights—as sovereigns, the rights of States to contest or in any 

way protect their rights. And I happen to believe that this law is 
30 

one of general applicability, just as criminal laws are. And to suggest otherwise is to say that criminal laws do not apply to all 

Americans simply because all Americans do not break the criminal 

laws. They apply where the law is broken, and I think they are 

laws of general applicability. But I very much appreciate your very 

helpful and forthright responses. Thank you. 

Mr. CARVIN. Thank you. 

Senator KLOBUCHAR. Thank you, Senator Blumenthal. 

Senator Hirono. 

Senator HIRONO. Thank you, Madam Chair. 

All the members of the panel agree that voting discrimination 

still exists, and we do disagree on how to address the problem. And 

the Supreme Court invited Congress to address the problem by updating the coverage formula, and the Supreme Court, I note, maintained the principle of preclearance. They did not strike that down. 

They struck down the coverage formula and invited Congress to 

change the coverage formula, which is what this bill does. And to 

say that the formula in this bill is unconstitutional I would say is 

definitely premature. 

We do have Members of the House of Representatives who are 

here, and I note that the companion bill in the House is supported 

in a bipartisan way, and I am hopeful that as we proceed with this 

discussion on this bill that we will be able to come up with a compromise, a version or a bill that will do what we need to do to 

maintain our Voting Rights Act and get bipartisan support in that 

regard. 

And I also want to note—and thank you, Ms. Ifill, for being very 

clear that this bill does not punish States for historic discrimination in any kind of, you know, we are going to designate a particular State for this treatment, because no county or State is singled out. And, in fact, the requirement that is in this bill that requires five violations or three violations of Section 2, that seems to 

me a pretty high standard before the preclearance requirements 

kick in. Would you agree with that, Ms. Ifill? 

Ms. IFILL. Indeed I would. I would think that a jurisdiction that 

is able to meet that number actually is on the high side in terms 

of egregious conduct. I think actually this Congress has been quite 

conservative in trying to create a formula that frankly leaves quite 

a bit of leeway there for States and for local jurisdictions. In fact, 

you know, one of those five for a State has to be a statewide violation. So there are lots of ways in which I think the drafters of this 

bill have tried to be as deferential to Congress as possible, but I 

would also point out again that, with regard to the sovereignty of 

the States, it is the Constitution of the United States and the 14th 

and 15th Amendments that gives this Congress the authority and 

the obligation to protect against voting discrimination. And those 

two amendments are specifically targeted at the States. They are 

telling this Congress what to do to protect and, frankly, historically, to protect against voting discrimination that happens in the 

States. 

Senator HIRONO. Well, I note in your testimony, Ms. Ifill, that 

Section 5 blocked dozens of discriminatory voting changes over the 

decades that this law has been in place. Can you just describe to 

us what some of these discriminatory voting changes were that 
31 

were struck down under Section 5, and whether, in fact, post-Shelby the same kinds of voting changes are being put in place 

throughout our country in many States? 

Ms. IFILL. Well, you have heard some of them this morning, Senator. You have heard about polling place changes. You have heard 

about shifting elections and reducing election—reducing the seats, 

the districts in particular elections. You have heard about redistricting, of course, taking populations and annexing populations 

from adjoining jurisdictions to try and create majority white district. 

Senator HIRONO. Are these—excuse me. Are these the same 

kinds of restrictions that were struck down pre-Shelby? 

Ms. IFILL. I think that is what we find most disappointing, Senator, that a lot of what we are seeing is precisely the kinds of electoral changes that Section 5 protected against and that the Voting 

Rights Act was meant to protect against. We are seeing jurisdictions return to the same kinds of tactics that were used in the past 

to hold on to, as Mr. Johnson says, power, political power. 

Senator HIRONO. Reverend Johnson, we have heard testimony 

that this current Attorney General is particularly diligent in enforcing the Voting Rights Act. Now, in the decades that this law 

has been in place, hasn’t Section 5 been used by both Democratic 

and Republican Attorneys General to enforce the Voting Rights 

Act? 

Reverend JOHNSON. Absolutely. In 2006, the Congressional 

Record overwhelmingly demonstrated the need for continued Federal protections: 750 Section 5 objections by the Justice Department over that time period of this law being in effect; 800 potentially discriminatory voting changes; 105 successful actions to require covered jurisdictions to comply with Section 5; 25 denials of 

Section 5 preclearance by Federal courts; high degrees of racial polarization in these jurisdictions—all mandated that the Attorney 

General of whatever party, of whatever President was elected, to 

enforce this law. 

Senator HIRONO. Thank you. My time is up. 

Senator KLOBUCHAR. Thank you very much, Senator Hirono. 

Senator Dick Durbin. 

Senator DURBIN. Thank you very much, Madam Chair. 

Madam Chair, Mr. Carvin challenged us: ‘‘Why just four States?’’ 

he says. Because in the past 15 years, those four States—Georgia, 

Texas, Mississippi, and Louisiana—have had five or more violations in the last 15 years. Could it be 14 States within the next 

15 years? Possibly. 

The way this is written is that, as we, I think made adequately 

clear, I hope adequately clear to most, it could apply to my State, 

yours, or any other. And that to me is a fair standard. It is not singling out States because of past conduct. It is looking prospectively 

at preserving the right to vote. 

Which goes to your second question. If preclearance is such a 

good idea, why don’t you use it in employment discrimination, 

housing discrimination, education discrimination? That was your 

question. And the answer is I think one you already know. This is 

about the right to vote. And the Supreme Court has said and the 

Chief Justice in the course of his hearing before this Committee 
32 

said that is the right that is preservative of all rights. It really goes 

way beyond—way beyond—important rights related to employment, housing, and education. The preclearance has had a profound impact on this country in terms of minority registration, and 

five different times with overwhelming bipartisan votes, Congress 

has reauthorized preclearance for voting. We think it is that important. 

Now we are challenged by the Supreme Court to update it, and 

I would like to note that I think we need to be vigilant, every generation needs to be vigilant to protect this right to vote. 

There was a Republican primary yesterday in Mississippi, and 

the word got out a week or so ago that incumbent Senator Thad 

Cochran was going to appeal to African American voters who did 

not historically vote in Republican primary to come vote with him. 

And his opponent announced he was sending poll watchers into 

those minority precincts. I think there is a message there, isn’t 

there, that goes beyond voting, that goes beyond I think the obvious? And that is, there are still some questions that need to be 

asked and raised about whether people are being treated fairly in 

the polling place. 

I have a Subcommittee, the Subcommittee on the Constitution, 

Human Rights, and Civil Rights, and we decided to hold some 

hearings after a group know as ALEC, the American Legislative— 

Exchange Council? Whatever. They are a big group, some 300 corporations fund them. And they are writing laws all over America, 

model laws all over America. And many of their laws are aimed at 

voter suppression, as I see it, reducing the number of voters. That 

is their goal. Voter IDs, limiting early voting, they just want fewer 

people to turn up and vote. 

So I went to two States where they have been successful. I went 

to Florida and I went to Ohio, and I brought in voting officials from 

both parties, Republicans and Democrats. I put them under oath, 

and I asked them all the same question: What was it that happened in Ohio and Florida that led you to believe that you needed 

to change the voting laws when it came to voter IDs and such? 

How many cases of voter fraud were prosecuted in your State? 

None. 

Oh, well, then how many instances of voter fraud were there that 

may not have been prosecuted but reported? Almost none. 

If that is the case, if these laws are not being written to militate 

against voter fraud, they are clearly being written for another purpose. They are being written for voter suppression—and, sadly, 

voter suppression among minority voters in America. That is the 

reality of the 21st century in America. I wish to God we were beyond the reach of racism, but we still deal with discrimination and 

racism on a regular basis. 

Ms. Ifill, I want to get down to one particular point because, as 

enraged as I am over the ALEC agenda and what it is doing, what 

you have said clearly is we have to prove intent, not effect. Expound on that for a second and put it in the context of the voter 

ID laws. 

Ms. IFILL. Well, in order to for, Senator Durbin, a voter ID violation to count as a violation that would count toward preclearance 

of either a State or local jurisdiction, that voter ID law must have 
33 

been proven to be intentionally discriminatory. In other words, it 

could not have been the subject even of a finding under Section 2 

that it violates Section 2. It could not have been the subject of a 

denial of preclearance by the Attorney General. It is held to the 

standard of having violated the Constitution based on intent. And 

it seems to me that is a pretty egregious violation. 

Senator DURBIN. And it is a high standard. 

Ms. IFILL. A very high standard. 

Senator DURBIN. Beyond effect, we go to actually proof of intent. 

Ms. IFILL. Yes. 

Senator DURBIN. So this insidious ALEC agenda of voter suppression, which has no basis in fact other than to reduce certain 

turnouts in certain populations, really may not even qualify under 

the standard of this law if you cannot prove intent, a very, very difficult standard. Is that correct? 

Ms. IFILL. Absolutely. As you know, Senator Durbin, to prove intentional discrimination in 2014 is very difficult, not because it 

does not exist but because one of the successes, frankly, of the civil 

rights movement is that racism is no longer socially acceptable. 

People do not say in most instances the things that they said before and know that they should not reveal their discriminatory animus. And so to prove intentional discrimination is incredibly difficult, and we prove it by circumstantial evidence. But it is an incredibly high standard. 

Senator DURBIN. I just want to close with one point. I am in the 

midst of reading a book entitled, ‘‘An Idea Whose Time Has Come,’’ 

by Todd Purdum. I recommend it. It is the story of the 1964 Civil 

Rights Act. And if there is one thing, one political fact that needs 

to be stated on the record over and over again, the critical role 

played by Republicans in Congress in the passage of the Civil 

Rights Act and the Voting Rights Act. This was truly a bipartisan 

effort, and much of the resistance to those laws came from my 

party, certain Members of my own party. And I want to be very 

open about that. I want to commend Congressman Sensenbrenner 

for making this a bipartisan issue with Senator Leahy. I hope it 

is bipartisan all the way until we enact this new law to deal with 

the Shelby County decision. 

Thank you. 

Ms. IFILL. Thank you. 

Senator KLOBUCHAR. Thank you very much, Senator Durbin. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. I just wanted to 

close this hearing with a point. We are here because of the Shelby 

County v. Holder decision of the U.S. Supreme Court, which was 

a 5–4 decision on partisan lines, driven by the Republican judges 

that, in the view of many, opened the door to voter suppression efforts in States that had a legacy of discriminatory voter suppression efforts. And I think that was a very unfortunate decision, but 

I have to point out that it stands in the context of an array of similar decisions which have that—a couple of common elements. One 

is that they are decided 5–4 along partisan lines. The Republican 

judges do not wait to try to find consensus. They line up the five 

of them, and they shove what they want through. So Shelby County 

was one example. 
34 

Another example was Citizens United, again, 5–4, again, I think 

an unwise and unfair decision in that case, opening up our elections to unlimited spending on pretty flagrantly factually wrong, 

so-called findings of fact, which the Supreme Court is not supposed 

to do anyway, let alone get them so badly wrong. 

And then there was a few years previously Vieth v. Jubelirer, 

which was a Supreme Court decision again 5–4—it was a 4–1–5 because it was a concurrence, but it was again driven by the Republican judges, that basically said that partisan gerrymander was 

okay, that there was nothing the Supreme Court was going to do 

about it, and they gave license to unlimited partisan gerrymander, 

believe it or not on the grounds that it was too difficult to come 

up with a standard for when partisan gerrymanders had gone too 

far. 

The result is we have a House of Representatives that is dominated by the Republican Party after an election in which the Democratic Party got 1.4 million congressional votes more than the Republicans. And if you look at individual States, you see that Pennsylvania went for Bob Casey and President Obama in the 2012 

elections and sent a 13–5 Republican delegation to Congress. Wisconsin went for President Obama and Senator Baldwin in 2012 and 

sent a 5–3 Republican delegation to Congress. Ohio went for 

Obama and Senator Brown, and yet sent a 12–4 delegation to Congress. 

So what I see is a pattern of 5–4 decisions where the Court intrudes itself into political matters, and in each case, three for 

three, the practical political effect of what they have done is to advantage the Republican Party. They have advantaged the Republican Party and its use of partisan gerrymander in Vieth v. 

Jubelirer. They have advantaged the Republican Party by opening 

up the floodgates to these special interest dollars that have flowed 

in, and you can measure that in the early years particularly, Republicans outspent Democrats through these super PACs and 

through dark money by spectacular amounts. And now in Shelby 

County I think it is hard to deny that the Court’s decision has had 

the practical effect, even if it was not the Court’s intent, of 

advantaging the Republican Party. 

So I think that the reason that we are here is a signal of a cause 

for concern at the Court, and it is not something that I am alone 

in describing. Jeffrey Toobin has described the politicization of the 

Court. Norm Ornstein has described the politicization of the Court. 

And just recently, Linda Greenhouse, who has spent a lot of time 

looking at the Court and who has held back and held back and 

held back at making the conclusion that they have become politicized, has written recently an article that, more in sorrow than in 

anger, says that the Court has basically lent itself to the Republican agenda. And I think that is very unfortunate, but I think it 

would be a shame if we closed this hearing without putting it in 

that larger context, because we are here because of one of those decisions, which is Shelby County v. Holder. And I see the one elected 

official on the panel, Senator Garcia, nodding energetically. 

My time has expired, and I am sorry to spend it all on talking 

and not on questioning, but I did not want to have that topic be 
35 

missed when it is the elephant in the room behind what is going 

on here. 

Senator KLOBUCHAR. Thank you very much, Senator Whitehouse. 

Senator Cruz. 

Senator CRUZ. Thank you, Madam Chairman. 

Thank you to each of the distinguished members of the panel for 

being here today. 

I want to start, Dr. Thernstrom, with asking you a question, 

which is am I correct that the Voting Rights Act and, in particular, 

Section 2, remains on the books as strong protection against discrimination in voting. 

Ms. THERNSTROM. Of course you are right, absolutely. I mean, 

the counter-argument is close to incomprehensible to me. 

Senator CRUZ. Well, I want to make sure that everyone observing 

this hearing understands what the focus is. The focus is one particular portion of the Voting Rights Act, Section 5, which subjected 

a handful of States to unique scrutiny. 

I would like to ask, Mr. Carvin, a question of you. Under Section 

5, elected state legislatures in the states that were singled out, before they could enact any laws concerning voting, had to receive the 

prior approval of unelected Federal bureaucrats in Washington. 

The Supreme Court has called that system extraordinary. 

But my question is, is there any other area of law where elected 

officials in states have to come to the Federal Government to ask 

an unelected bureaucrats their permission before carrying out their 

duties in the legislature? 

Mr. CARVIN. No, there is not, and the Court in 1965 in Katzenbach and all the other cases has recognized that this is not only 

a reversal of the traditional Anglo-American jurisprudence presumption of innocence, but you are literally suspending the states’ 

rights to legislate in a particular area. 

The Federal sovereign is telling them, no, you cannot do it until 

you come on bended knee and an unelected official says, okay, we 

will allow you to do it. There has been a lot of conversation today 

about the bipartisan support and the importance of the Voting 

Rights Act, and yet the basic premise of Section 5 pre-clearance is 

that elected representatives are incompetent minors who are literally incapable of arranging electoral systems even though, as you 

know, the Constitution left the question of voter qualifications and 

most important aspects of running elections to the states quite consciously. 

So it is not only unprecedented, it certainly pushes the outermost 

boundaries of our Federalist system and was only justified in the 

1960s as an acknowledged temporary exception to the normal rules 

because of the extraordinary situation that existed in the Jim Crow 

south. 

Senator CRUZ. I would note, Mr. Carvin, you and I have a long 

history together, we practiced law together, and indeed we both 

were involved in litigating the last prior redistricting case in the 

State of Texas, where I was representing the State and you were 

litigating, as well, that went to the Supreme Court and ultimately 

prevailed in the Supreme Court. 
36 

I want to understand and I want people here to understand how 

those unelected bureaucrats in the Department of Justice have 

used this authority. 

Is it not the case that the Department of Justice has taken the 

position that Section 5 and indeed Section 2, as well, protects the 

ability to elect Democrats? And, indeed, in Texas they took the position that Henry Bonilla, a Hispanic who was elected, was not protected; however, Lloyd Doggett, an Anglo Democrat, was protected, 

and the difference between the two was that one was a Republican 

and, therefore, that Hispanic elected official was not in the ambit, 

but the other, a Democrat, was. Is that correct? 

Mr. CARVIN. Yes. That is exactly what happened in Texas. And 

I think it is important to focus on the fact that under the new ability to elect standard enacted for the first time in 2006 to overrule 

Georgia v. Ashcroft, the Justice Department and certain courts 

have taken the position that any effort to diminish minorities’ ability to elect white Democrats is nonetheless violative of Section 5. 

So you literally have a Federal law that says you cannot hurt the 

ability to elect white Democrats no matter how compelling the demographic or other justifications are. 

Senator CRUZ. Thank you. Thank you, Mr. Carvin. 

I would like to ask a final question of Senator Garcia. I find it 

interesting you and I are both at this hearing. We are both elected 

officials in the State of Texas. We are both Hispanic. And, indeed, 

Texas has a record of electing substantially more Hispanics and African-Americans statewide than almost any other state. 

Yet, what this bill would do—and it is interesting to see a number of Democratic politicians, many from the northeast, suggesting 

that Texas needs some sort of special scrutiny, although the record 

in Texas of minorities being elected is better than most other states 

and, indeed, the turnout numbers in both the African-American 

community and the Hispanic community is better than many other 

states. 

In your experience as an elected official in Texas serving in the 

legislature, do you believe that elected officials in Texas are somehow substantially more deficient than elected officials in other 

states across the country? 

Ms. GARCIA. Well, I do not think—we in Texas think that we are 

the best no matter what it is. 

Senator CRUZ. I agree with you in that regard. 

Ms. GARCIA. Thank you. The Senate Hispanic Caucus has wrestled with some of these issues and I can tell you that for us it is 

just distressing, and I will repeat the numbers. In 2010, we were 

42nd in registration as a state. We were 51st in voter turnout. 

Those numbers are just not anything to brag about, although we 

would like to brag about many things. 

If you look historically at our record, we have had 107 Section 

5 violations between 1982 and 2005. Again, that is nothing to brag 

about. 

So you look at the immediate history and then if you just—my 

written testimony goes through all the history dating back to the 

1800s. There has been historic discrimination in the State of Texas. 

Regrettably, it is still there. 
37 

Senator CRUZ. But, Senator Garcia, if I may briefly, and my time 

has expired, so if I just may briefly ask one final question. 

If you look at the data, for example, for the 2012 election, in 

2012, African-American voter turnout in Texas was 10 percentage 

points higher than white turnout in Texas. 

In fact, if you look at the states in 2012, where turnout was 

worse, where there was a greater differential, the following states 

have substantially worse numbers than Texas. Texas has among 

the best numbers in the country. But you have Washington State, 

Colorado, Kansas, Arizona, Minnesota, Massachusetts, Delaware, 

Arkansas, Minnesota, Florida, Kentucky, Connecticut, Virginia, 

those are all the states where white turnout was higher than African-American turnout. 

In Washington State, it was 18.5 percent higher. Now, Washington State is not covered. Texas, on the other hand, AfricanAmerican turnout not only was not lower than white turnout, it 

was 10 points higher and with that record—and I would note, 

among Hispanics, the Hispanic record is also markedly better than 

many other states across the country. 

What justifies singling out Texas and a couple of other states for 

some sort of special treatment when the record is markedly better 

in Texas than in many other states? 

Ms. GARCIA. Again, I think it is because of the history and it is 

about some of the things that have been going on in our state. I 

think when you look—I will give you a perfect example. I filed the 

bill so that when anybody turns in the voter application, if it gets 

rejected by the voter registrar, that the person be simply told by 

letter your application was rejected because you forgot to put your 

date of birth or you forgot to put your full address. 

That was rejected. So once it is rejected in terms of a bill which 

we cannot put in place to protect the voter so they will know why 

they were rejected so they get registered to vote and make sure 

they gain access to that ballot, that is just not good for us. 

We need to be doing everything we can to improve access to the 

ballots and make it convenient and to make it easy so that we can 

have full participation. If we have increased, that is great, but I 

know our state is great. We can even do better. 

Senator CRUZ. Thank you very much. 

Ms. GARCIA. Thank you. 

Senator KLOBUCHAR. Thank you very much, Senator Cruz. 

Let us start here with you, Ms. Ifill, to get at some of the arguments that Senator Cruz was making. He talked about the fact 

that certain states in the past have had to come before the Nation, 

before Federal Government to get signed off on their voting systems. 

Could you explain why that has happened? What is the constitutional and legal reason that that has happened? 

Ms. IFILL. Yes, Senator Klobuchar. When I hear this argument, 

I think that the quarrel is more with the Constitution than with 

the attorney general. It is the Constitution that gives Congress this 

authority under the 14th and 15th Amendments to protect against 

voting discrimination, and Congress then creates a scheme, as it 

did under the Voting Rights Act and has reauthorized it over four 
38 

times, to deal with voting discrimination and they have provided 

various means. 

One means is Section 2, which allows individuals to litigate. 

There is the possibility of Federal observers at elections. There is 

the Section 5 regime. 

What I have heard today, this discussion about the attorney general and pre-clearance, I have heard it described as a star chamber, 

this is almost kind of an astonishing description of a process that 

has been utilized by Republicans and Democrats in the Administration and that is well recognized across party lines as a procedure 

that is efficient, that is not costly, that provides input, allows for 

input not only from community groups and voters, but allows input 

from the jurisdiction. 

It is an ongoing conversation, not a star chamber, a conversation 

between the attorney general and between the jurisdiction about 

the likely effect of a voting change. 

Senator KLOBUCHAR. Senator Cruz also focused on the fact that 

this is somehow to protect Democrats. And could you give us a little more sense of that history about how Republican attorney generals have enforced this law, about how traditionally with, of 

course, even currently with Representative Sensenbrenner, a Republican sponsoring this law in the House, but how in the past this 

has been a bipartisan effort? 

Ms. IFILL. Always. The Voting Rights Act from its initial enactment and every reauthorization has been overwhelming bipartisan 

and signed into law by Republican Presidents. 

The Voting Rights Act is focused on the protection of minority 

voters. It is not focused on the protection of one party’s voters 

versus another party’s voters. 

I did want to say something about the turnout issue that Senator 

Cruz raised. 

Senator KLOBUCHAR. This is about the Texas numbers. 

Ms. IFILL. Yes. I want to point out that actually the figures that 

he cited should inspire this Congress to pass this bill, because what 

those turnout figures show is the determination of minority voters 

to come out and participate in the political process despite the obstacles, despite the discriminatory redistricting, despite the polling 

place changes. 

We all saw in this country in 2012 minority voters standing on 

lines in places like Florida for 6 hours to vote. We should credit 

their determination to participate in the political process, not use 

the fact that they were so determined and cast their ballots as evidence that this Voting Rights Act is not needed. 

Senator KLOBUCHAR. Very well said. Thank you. 

Ms. Garcia, one of our jobs here, Senator Garcia, is to get evidence, because if and when we do pass this bill, I somehow believe 

it might be challenged as it has in the past and then the Supreme 

Court is going to look at what the evidence is. 

You have all submitted thorough testimony on this, but perhaps, 

Senator Garcia, you could give to me what you think will be shown 

as some examples of discrimination coming out of the lawsuit in 

Texas. 

Ms. GARCIA. Well, I think the examples that I have already given 

with regard to, first, Pasadena, where we see the shifting of the de-
39 

mographics and the growing Latino population. In Galveston it was 

the minority population. It seems to me that we will just be seeing 

more and more because the Latino population has grown. 

I think someone earlier said that it was a young population. 

Well, it is young, but it is already beginning to be at the age of registering to vote and getting very active. 

The two council members in Pasadena that got elected are probably all of 30 and 32. They are young veterans. They went to Iraq, 

they went to Afghanistan, they came home, they believe in what 

they fought for and they wanted to participate. 

So I think we are getting a younger population that is voting. We 

are getting a younger group of leaders in the Latino community. 

I know in my role as the immediate past president of NALEO, 

which is the National Association of Latino Elected Officials, it was 

just really heartwarming to me to travel across the country and 

just see the new crop of young Latino leaders who are truly committed to public service, committed to making sure that people 

have the right to vote, and committed to making sure that we can 

make change in our communities, and, frankly, that is really what 

it is all about. 

It is making sure that we protect the right to vote, that we make 

it as accessible as possible, as easy as possible so that people can 

be part of the fabric of our country. 

Senator KLOBUCHAR. Dr. Johnson, I know way early on in this 

hearing you had wanted to respond to something that Dr. 

Thernstrom had said. You could do that, if you would like, but also 

to give me some examples from Georgia of what you have seen. 

Then, also, Ms. Ifill answered in terms of the constitutional and 

legal reasons which are key here for why we have the Voting 

Rights Act, if you could also give us a sense of the moral reasons 

from your perspective. 

So three questions really. One, if you want to reply to Dr. 

Thernstrom; two, the discriminatory examples that you see in 

Georgia; and then, three, if you want to give us the moral basis for 

doing this. 

Reverend JOHNSON. Professor Thernstrom and I have been engaged in a side discussion. 

Senator KLOBUCHAR. I have noticed this and I was very interested. I was thinking I would love to hear it. 

Reverend JOHNSON. Right. But I think what Senator Cruz spoke 

to earlier underscores why there is a moral imperative to modernize the Voting Rights Act. 

His attempt to go to an old southern strategy play of pitting the 

south versus the north, of pitting blacks against Hispanics, as we 

have seen in Texas, whites against—this is not about that issue 

and I think we need to look at higher ground here. 

The reason why I am asking that Georgia be covered is because 

after the Federal protections ended after reconstruction before, 

Georgia quickly disenfranchised its citizens who look like me. They 

passed laws, like Jim Crow laws, they passed literacy tests, poll 

taxes, moral character tests, grandfather clauses, all in an attempt 

to do what they felt they had a right to do as state legislators. 

The Federal Government said no, that the rights of citizens of 

these United States shall not be abridged or denied and that is 
40 

why we have the Voting Rights Act and that is why we continue 

to need it, because this legislature in Georgia sitting quickly moved 

to do the same thing, to roll back early voting days from 21 to 6 

days, to introduce all kinds of laws to disenfranchise African-Americans, Hispanics, Asians, others, to discourage them, to confuse 

them. 

At one point, there were going to be three different standards for 

voting if you were in a city, town or consolidated government, and 

that is simply wrong in America. And so I would say this finally. 

When you look at the issue of race in this country, we are not there 

yet. It is not lost to me that I am probably the only member of this 

panel born after the passage of this act. This is a different America, but we are not there yet. 

My baby boy that I referenced earlier is twice as likely as a 

white to die during his first year of life, three times as likely as 

a white baby to be born of a mother who had no prenatal care. His 

father is still twice as likely to be unemployed. And even with a 

good education and a good foundation for opportunity this country 

has provided for me, I can only expect to make 72 percent of what 

white similarly situated folks in my shoes will make. 

That is because we are not there yet. In Georgia the median income for a white similarly situated family is $51,000. The median 

income for a black family is $31,000. That has nothing to do with 

the pigment of my skin. That has to do with discrimination. It has 

to do with the fact that it still exists. 

So the moral imperative is there for my generation and for 

Langston’s generation. If we are going to make this a more perfect 

Union, keep what is working in place. You referenced, Professor 

Thernstrom, in conclusion, in your written remarks, that America 

sort of needed a jumpstart, but no one, after getting a dead battery 

back to working, allows the jumper cables to be attached. Well, you 

do not throw them away either. You generally take prophylactic 

measures to keep your battery in good health and then you put a 

set of jumper cables in your trunk. And I say let us move America 

forward. 

Ms. THERNSTROM. The jumpstart, of course, in my written testimony referred to my agreement that these racially driven districts, 

racially carefully designed districts to be safe for black candidates 

and Latino candidates were necessary to give a jumpstart to greater black political involvement. 

So I am distancing myself from conservatives who say that those 

districts never did any good, in fact, they did nothing but harm. I 

think they worked as they were intended to in helping elected—in 

helping to elect the many black Members of Congress. 

Reverend JOHNSON. And white Members of Congress, too. John 

Barrow—— 

Ms. THERNSTROM. And white Members. 

Senator KLOBUCHAR. I am glad we are seeing the side discussion. 

Reverend JOHNSON. Absolutely. We will continue that. 

Senator KLOBUCHAR. So you guys should have lunch and continue that discussion. 

Ms. THERNSTROM. Well, I had a lot more to say, but that is all 

right. 
41 

Senator KLOBUCHAR. I know you did and I think this has been 

a very good hearing, and, of course, you will have that opportunity 

with the record and I am sure many of the Senators will have questions for the record. 

I was thinking of what you said, Dr. Johnson, and it reminded 

me a little bit of Justice Ginsberg’s dissent about when she talked 

about getting rid of Section 4 of the Voting Rights Act was, quote, 

‘‘like throwing away your umbrella in a rain storm because you are 

not getting wet.’’ 

So I think that is a sentiment of many people up here and I 

know there are going to be discussions about how to do this the 

best way. I think the simplistic description, which I really appreciated, that Ms. Ifill gave in terms of this new formula and how 

it works I think was a good one and I hope everyone thinks about 

it in terms of what this means going forward and how it would 

apply to all states. 

I would just end with this. I had the privilege last year to go to 

Alabama with Congressman John Lewis, which many people up 

here have done. He, as you know, is one of the 13 original Freedom 

Riders and on March 17, he and 600 peaceful marchers were brutally attacked on the Edmund Pettus Bridge in Selma. We got to 

walk over that bridge again and learn a lot, but it was that weekend 48 years later when the Montgomery police chief, a white police chief, took off his badge and handed it to Congressman Lewis 

and 48 years later apologized for not protecting them on that 

bridge. 

Well, we have our job now and that is to protect the rights of the 

people who want to go to that voting booth. And I have appreciated 

the civil nature of this discussion, including of my colleagues. I 

hope that guides us going forward on this important issue. 

I want to thank all of you for what you have done and that you 

have come forward and testified. I think this was a good example 

of how democracy can work, from my perspective. I now want to 

get this bill through. 

Thank you. The hearing will remain open for a week. I have a 

statement from Senator Feinstein that I am going to include in the 

record. 

[The prepared statement of Senator Feinstein appears as a submission for the record.] 

Senator KLOBUCHAR. Thank you and have a good day. The hearing is adjourned. 

[Whereupon, at 12:26 p.m., the hearing was concluded.] 

[Additional material submitted for the record follows.] 

(43) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF HON. SYLVIA R. GARCIA
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PREPARED STATEMENT OF MICHAEL A. CARVIN
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PREPARED STATEMENT OF REV. DR. FRANCYS JOHNSON
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ADDENDUM TO PREPARED STATEMENT OF REV. DR. FRANCYS JOHNSON
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PREPARED STATEMENT OF ABIGAIL THERNSTROM
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ADDENDUM TO PREPARED STATEMENT OF ABIGAIL THERNSTROM
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PREPARED STATEMENT OF SHERRILYN IFILL
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PREPARED STATEMENT OF CHAIRMAN PATRICK J. LEAHY
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PREPARED STATEMENT OF SENATOR DIANNE FEINSTEIN
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QUESTIONS SUBMITTED TO MICHAEL A. CARVIN BY SENATOR GRASSLEY
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QUESTIONS SUBMITTED TO ABIGAIL THERNSTROM BY SENATOR GRASSLEY
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QUESTIONS SUBMITTED TO SHERRILYN IFILL BY SENATOR GRASSLEY
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RESPONSES OF MICHAEL A. CARVIN TO QUESTIONS SUBMITTED

BY SENATOR GRASSLEY
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RESPONSES OF ABIGAIL THERNSTROM TO QUESTIONS SUBMITTED

BY SENATOR GRASSLEY
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RESPONSES OF SHERRILYN IFILL TO QUESTIONS SUBMITTED

BY SENATOR GRASSLEY
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ADDITIONAL SUBMISSIONS FOR THE RECORD

A list of material and links can be found below for Submissions for the Record not 

printed due to voluminous nature, previously printed by an agency of the Federal 

Government, or other criteria determined by the Committee: 

Asian Americans Advancing Justice/AAJC, July 1, 2014, letter: 

http://mobile.advancingjustice-aajc.org/sites/aajc/files/Advancing%20 

Justice- AAJC%20Testimony%20for%206.25.14%20Senate%20 Judiciary%20 

Hearing%20on%20VRAA.pdf. 

Lawyers’ Committee for Civil Rights Under Law, statement: 

http://vrafortoday.org/wp-content/uploads/2014/07/Lawyers-CommitteeVRAA- Senate-Judiciary-hearing.pdf. 

Leadership Conference on Civil and Human Rights, The, report: 

http://www.civilrights.org/press/2014/Racial-Discrimination-in-VotingWhitepaper.pdf. 

Mexican American Legal Defense and Educational Fund (MALDEF), National 

Association of Latino Elected and Appointed Officials (NALEO), and National 

Hispanic Leadership Agenda (NHLA), ‘‘Latinos and the VRA: A Modern Fix for 

Modern-Day Discrimination,’’ report: 

http://www.maldef.org/assets/pdf/VRAlcomp.pdf. 

Æ