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S. HRG. 113–332 

FROM SELMA TO SHELBY COUNTY: WORKING 

TOGETHER TO RESTORE THE PROTECTIONS 

OF THE VOTING RIGHTS ACT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

JULY 17, 2013 

Serial No. J–113–20 

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 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

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

prepared statement .......................................................................................... 40 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 2 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 9 

Hirono, Hon. Mazie, a U.S. Senator from the State of Hawaii, prepared 

statement .............................................................................................................. 44 

WITNESSES 

Witness List ............................................................................................................. 39 

Lewis, Hon. John, a Representative in Congress from the State of Georgia ...... 4 

prepared statement .......................................................................................... 45 

Sensenbrenner, Hon. F. James Jr., a Representative in Congress from the 

State of Wisconsin ................................................................................................ 6 

prepared statement .......................................................................................... 49 

Weinberg, Luz Urba ́ez, Commissioner, City of Aventura, Florida ...................... 11 

prepared statement .......................................................................................... 56 

Carvin, Michael A., Partner, Jones Day, Washington, D.C. ................................ 13 

prepared statement .......................................................................................... 66 

Levitt, Justin, Associate Professor of Law, Loyola Law School, Los Angeles, 

California .............................................................................................................. 15 

prepared statement .......................................................................................... 79 

QUESTIONS 

Questions submitted by Senator Franken for Michael A. Carvin ....................... 92 

Questions submitted by Senator Franken for Justin Levitt ................................ 94 

Questions submitted by Senator Grassley for Luz Urba ́ez Weinberg ................. 95 

Questions submitted by Senator Grassley for Michael A. Carvin ....................... 96 

Questions submitted by Senator Grassley for Justin Levitt ................................ 97 

QUESTIONS AND ANSWERS 

Responses of Luz Urba ́ez Weinberg to questions submitted by Senator Grassley .......................................................................................................................... 98 

Responses of Michael A. Carvin to questions submitted by Senators Franken 

and Grassley ......................................................................................................... 99 

Responses of Justin Levitt to questions submitted by Senators Franken and 

Grassley ................................................................................................................ 104 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union (ACLU), Laura W. Murphy, Director and 

Deborah J. Vagins, Senior Legislative Counsel, statement .............................. 141 

Asian Americans Advancing Justice and AALDEF, written testimony .............. 150 

Common Cause, Karen Hobert Flynn, Interim Co-CEO and Senior Vice President for Strategy and Programs, written testimony ......................................... 159 

Fair Vote—The Center for Voting and Democracy, Bob Richie, Executive 

Director and Drew Spencer, Staff Attorney, written testimony ....................... 166 

National Congress of American Indians, Jefferson Keel, President, written 

testimony .............................................................................................................. 171 

ADL, Barry Curtiss Lusher, National Chair and Abraham H. Foxman, National Director, statement ................................................................................... 175 
Page

IV 

NAACP Legal Defense and Educational Fund, Inc., Sherrilyn Ifill, President 

& Director-Counsel; Ryan P. Haygood, Director, Political Participation 

Group; Leslie M. Proll, Director, Washington Office, statement ..................... 178 

National Council on Independent Living (NCIL), Jim Dickson, Acting CoChair, statement .................................................................................................. 188 

National Urban League, statement ........................................................................ 196 

Rural Coalition, Gary R. Redding, Legal Fellow, statement ................................ 199 

U.S. Public Interest Research Group Democracy Advocate Blair Bowie, testimony ...................................................................................................................... 208 

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

statement .............................................................................................................. 209 

Constituent supporters, statement for the record, submitted by Senator Chris 

Coons ..................................................................................................................... 214 

‘‘EXPOSED: The Corporations Funding the Annual Meeting of the Powerful 

Right-Wing Front Group ALEC’’, article by Zaid Jilani, August 5, 2011, 

submitted by Senator Durbin .............................................................................. 292 
(1) 

FROM SELMA TO SHELBY COUNTY: WORKING 

TOGETHER TO RESTORE THE PROTECTIONS OF THE VOTING RIGHTS ACT 

WEDNESDAY, JULY 17, 2013 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 1:13 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Durbin, Whitehouse, 

Klobuchar, Franken, Coons, Blumenthal, Hirono, Grassley, and 

Cruz. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. I am happy to welcome back to the Senate Judiciary Committee one of my heroes, Congressman John Lewis, and 

another dear, dear friend from so many battles over the years—not 

battles with each other but battles we have joined together on— 

Jim Sensenbrenner. And I welcome everyone to this important 

hearing. It is on an issue that affects all Americans: our right to 

vote. 

The title of today’s hearing, ‘‘From Selma to Shelby County: 

Working Together to Restore the Protections of the Voting Rights 

Act,’’ speaks of the historic effort to protect our voting rights and 

expresses our determination to continue to work together to affirm 

the Voting Rights Act. 

From its inception and through several reauthorizations, the Voting Rights Act has always been a bipartisan effort, and I hope that 

is going to continue. And part of that tradition is right here with 

John Lewis and Jim Sensenbrenner, two highly respected Members 

of the House of Representatives, one a Democrat, one a Republican, 

and from different States, but both with a shared commitment to 

voting rights. So I look forward to working with both of them as 

we seek to restore the protections of the Voting Rights Act after the 

Shelby County case. 

The historic struggle for individual voting rights reached a turning point on the Edmund Pettus Bridge in Selma, Alabama, on 

March 7, 1965. I had just gotten out of law. A group of peaceful 

marchers led by John Lewis, a young John Lewis, were brutally attacked by State troopers. We call it ‘‘Bloody Sunday’’ today from 

the graphic photographs, and it became a catalyst for the passage 
2 

of the Voting Rights Act. Congressman Lewis later said that ‘‘your 

vote is precious, almost sacred. It is the most powerful, nonviolent 

tool we have to create a more perfect union.’’ 

To me, and to millions of others, he is a hero, and I thank him 

for being here today. 

In 2006, Republicans and Democrats in the Senate and in the 

House of Representatives joined together to pass a reauthorization 

of the landmark Voting Rights Act with overwhelming bipartisan 

support. One of the reasons we were able to do it is the courageous 

Chairman of the House Judiciary Committee, Congressman Sensenbrenner, a true leader of that effort. In fact, having been here 

at that time as the Ranking Member of this Committee and watching what went on, I can say that we would not have been able to 

reauthorize that without his leadership in the House Judiciary 

Committee. I was proud to work with him back then, and I thank 

him for coming here to testify today. And I think he and I and Congressman Lewis were very happy when we saw the President sign 

that in the Rose Garden—on a gorgeous day, I might add. 

In Shelby County v. Holder, five Justices of the Supreme Court 

held that the coverage formula of the Voting Rights Act was outdated. But even the five Justices who struck down the coverage formula in Section 4 have acknowledged that discrimination in voting 

continues to be a problem. As Chief Justice Roberts said, ‘‘voting 

discrimination still exists; no one doubts that.’’ And that is why we 

are here today. 

The Supreme Court has called on Congress to come together to 

update the Voting Rights Act. We have to work together—not as 

Democrats or Republicans, but as Americans. People die in other 

parts of the world trying to obtain the right to have a free country 

with a free right to vote. Americans should not be denied it by just 

the application of local laws. We need a strong Voting Rights Act. 

Dr. King proclaimed: ‘‘When the architects of our republic wrote 

the magnificent words of the Constitution and the Declaration of 

Independence, they were signing a promissory note to which every 

American was to fall heir.’’ 

We owe it to our children, and I might say in a very personal 

way our grandchildren, to restore the Voting Rights Act to fulfill 

this promise and uphold the Constitution. No one’s right to vote in 

any part of this great Nation should be suppressed or denied, yet 

we continue to see that discriminatory practice today. Every one of 

us, I do not care what our political alliances are, we should be totally opposed to suppressing votes. So let us work together on that. 

Senator Grassley, we will hear from you, and I know that Congressman Lewis has a flight, so after you finish, I am going to turn 

to him. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. 

SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. It is very right for you to hold this hearing, 

Mr. Chairman, after a significant decision by the Supreme Court 

and the extent to which Congress has a duty to do it in our checks 

and balances of Government. 

The Voting Rights Act guarantees the fundamental right to vote 

for all qualified voters, regardless of race or language. The right to 
3 

vote guarantees the protection of other rights. The law was necessary to address a shameful history. I have voted to reauthorize 

the Act. I appreciate the testimony of our congressional colleagues, 

and I welcome both of them here and point out specifically for Representative Lewis that your participation in the Bloody Sunday 

helped lead to enacting the law and creating your enduring place 

in history. Thank you for being here today. 

We should be pleased that our country has made advances in 

race relations since the Voting Rights Act was passed. The Act contributed to the progress. No doubt, though, more progress must be 

made and should be made, and a hearing such as this will help 

that dialogue to continue. 

We last voted to reauthorize in 2006. Much has changed since 

then. The voter turnout rate was higher last year among registered 

African American voters than for other classes of people. More African American and Hispanic candidates than ever are winning elections. 

Now, I say that because the Supreme Court has found these facts 

to be of constitutional significance. We are here today largely because Congress failed to heed the Supreme Court’s 2009 warning 

that the differing treatments of States in the preclearance coverage 

formula raised serious constitutional questions. Eight Justices said 

so. The ninth would have struck the law down at that time. Congress could have drafted a new coverage formula to address those 

concerns. We could have created a formula based on 21st century 

realities, not the dramatically different conditions that existed in 

the 1960s and 1970s. 

The Court then ruled as it did. Many people believe that Section 

2 is the heart of the Voting Rights Act, unlike Section 5 that prohibits voter discrimination nationwide. Unlike Section 5, Section 2 

can be used to challenge procedures before they take effect through 

injunctions. Over the years, the preclearance process has led to 

many fewer objections to proposed election law changes. Since the 

last reauthorization, only 31 objections have been made. There 

have been no objections raised to any changes in seven of the 16 

States that are covered in whole or in part and in three of the 

States that are fully covered. A total of 99.86 percent of submissions have been approved. Additionally, the racial gap in voter registration and turnout is now lower in the States that were originally covered in Section 5 than is the case nationwide. 

The Court has given Congress the opportunity to draft a new 

constitutional coverage formula. I disagree with a member of this 

Committee across the aisle who said, ‘‘As long as Republicans have 

a majority in the House and Democrats do not have 60 votes in the 

Senate, there will be no preclearance.’’ Cynicism and defeatism 

have never before characterized reauthorization of the Voting 

Rights Act. Rather than blaming Republicans for blocking a bill 

that does not exist, the majority should bring forth a proposal for 

updating the coverage formula in a constitutional way. We should 

cover the whole country. 

We could identify jurisdictions engaging in discrimination in the 

21st century and where Section 2 is inadequate. There may be 

other options. I look forward to seeing what is brought before the 

Committee. 
4 

I certainly understand why there is no proposal yet, but for any 

new bill to pass, we must respect the Constitution’s pronouncements. The Court based its ruling in part on the Tenth Amendment. Specifically, the Court said, ‘‘The Constitution provides that 

all powers not specifically granted to the Federal Government are 

reserved to the States or citizens thereof,’’ and I would point out 

the word ‘‘specifically.’’ 

This is a formulation of the Tenth Amendment I have never seen 

before. It means that Congress can only enact laws that fall within 

the powers the Constitution specifically gives it, such as the enumerated powers of Article I and the 15th Amendment, which is the 

constitutional basis for the Voting Rights Act. 

The Supreme Court’s ruling requires Congress to show greater 

respect for the limitations of its power as against State authority. 

It is language that must be kept in mind if Congress considers legislation amending the Voting Rights Act. And the Court last month 

also ruled under the Constitution’s Election Clause that Congress 

may regulate ‘‘how Federal elections are held but not who may vote 

in them.’’ Those decisions are left to the States. 

Further, any legislative fix should not threaten commonsense 

measures to ensure the integrity of voting, such as constitutional 

voter identification laws. Overwhelming majorities support these 

requirements. They know that the right to vote is denied as completely when a valid vote is canceled by the vote of someone ineligible to vote as when an eligible voter is blocked. And the Supreme 

Court has just ruled that, ‘‘It would raise serious constitutional 

doubts if a Federal statute precluded a State from obtaining the information necessary to enforce its voter qualifications.’’ 

This hearing is very important, and I commend you, Mr. Chairman, for holding it as soon as you are after the Shelby decision. I 

welcome all the witnesses. 

Thank you. 

Chairman LEAHY. Well, thank you. 

We will start, as I said, with John Lewis. Also, on a personal 

point, I still remember with great fondness your introduction of me 

when I received a civil rights award, the Humphrey Award. I 

thought it was one of the culminations of my career in the Senate 

to be introduced by you. And we have seen especially recently so 

many times on television some of the scenes of 50 years ago. So I 

am glad you are here. Congressman Lewis, please go ahead, sir. 

STATEMENT OF HON. JOHN LEWIS, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF GEORGIA 

Representative LEWIS. Thank you, Mr. Chairman. I want to 

thank you, Mr. Ranking Member, and members of the Committee 

for holding this important hearing and inviting me to testify today. 

Mr. Chairman, I ask unanimous consent that my full statement 

be included in the record. 

Chairman LEAHY. Without objection. 

Representative LEWIS. Since first being elected to Congress, Congressman Sensenbrenner has been a tireless champion of the Voting Rights Act. I am very proud and pleased to be with him today, 

my friend, my brother. 
5 

I have said it before and I will say it again to you today that Sections 4 and 5 are the heart and soul of the Voting Rights Act. The 

day of the Supreme Court decision broke my heart. It made me 

want to cry. I felt like saying, ‘‘Come, come, and walk in the shoes 

of people who try to register, try to vote, but did not live to see the 

passing of the Voting Rights Act.’’ 

I know that each of you knows this history, but I think it is important for the record to note what life was like before the Voting 

Rights Act of 1965. 

When I first came to Washington, D.C., in 1961, the same year 

that President Barack Obama was born, blacks and whites could 

not sit beside each other on a bus traveling through Virginia, 

through North Carolina, through Georgia, Alabama, Mississippi, 

and to New Orleans. We saw signs that read, ‘‘White Only,’’ ‘‘Colored Only.’’ 

In many parts of this country, people were denied the right to 

register to vote simply because of the color of their skin. They were 

harassed, intimidated, and fired from their jobs and forced off of 

farms and plantations. Those who tried to assist were beaten, arrested, jailed, or even murdered. Before the Voting Rights Act, people stood in unmovable lines. On occasion, a person of color would 

be asked to count the number of bubbles in a bar of soap or the 

number of jelly beans in a jar. 

In 1964, the State of Mississippi had a black voting age population of more than 450,000, but only about 16,000 were registered 

to vote. One county in my native State of Alabama, Lowndes County, was 80 percent African American, but not a single one was able 

to register to vote. Not one. Selma is located in Dallas County, Alabama. During this period only 2 percent of African Americans were 

registered to vote in this county, and you could only attempt to register on the first and third Mondays of each month. Occasionally, 

people had to pass a so-called literacy test. 

Before the Voting Rights Act, three young men I knew—James 

Chaney, Andy Goodman, and Mickey Schwerner—were working to 

register African Americans to vote in Mississippi in 1964. They 

were arrested, released from jail to members of the Klan in the 

middle of the night. Then they were beaten, shot, and killed. 

On March 7, 1965, Hosea Williams, a staff person for Dr. Martin 

Luther King, Jr., and I attempted to lead a peaceful, nonviolent 

march from Selma to Montgomery. As we marched for the right to 

vote, more than 500 men, women, and children were chased, beaten, bloodied, and trampled by State troopers, some riding horseback. That terrible day became known as ‘‘Bloody Sunday.’’ 

A little over a week later, President Lyndon Johnson came before 

a joint session of the Congress, and he spoke to the Nation. He 

said, ‘‘I speak tonight for the dignity of man and for the destiny 

of democracy.’’ And he presented the Voting Rights Act to Congress. 

After months of hard work, Congress passed the bill, and on August 6, 1965, President Lyndon Johnson signed the Voting Rights 

Act into law and gave me one of the pens he used to sign that bill. 

I remember this period and these struggles like it was just only 

yesterday. 
6 

To this day, I truly believe that we are a better country, a better 

people because of the Voting Rights Act. We have made progress. 

We have come a great distance. But the deliberate, systematic attempt to make it harder and more difficult for many people to participate in the democratic process still exists to this very day. Only 

hours after the decision was announced by the Supreme Court, before the ink was even dry, States began to put into force efforts to 

suppress people’s voting rights. 

As I said and, Mr. Chairman, as you quoted, in a democracy such 

as ours, the vote is precious; it is almost sacred. It is the most powerful nonviolent tool we have. 

It is my belief that the Voting Rights Act is needed now more 

than ever before. A bipartisan Congress and Republican President 

worked to reauthorize this law four times. The burden cannot be 

on those citizens whose rights were or will be violated. It is the 

duty and the responsibility of Congress to restore the life and soul 

of the Voting Rights Act, and we must do it, and we must do it 

now. We must act, and we must act now. We must do it on our 

watch, at this time. 

Again, thank you, Mr. Chairman, Mr. Ranking Member, and 

members of this Committee for the opportunity to testify today. 

Thank you so much. 

[The prepared statement of Representative Lewis appears as a 

submission for the record.] 

Chairman LEAHY. Well, thank you, Congressman, and you bring 

us a sense of history. I also thank you for the book that you signed 

to me, ‘‘March (Book One),’’ that you helped write and edit. It will 

be seen by all five of my grandchildren. 

I mentioned earlier that Congressman Sensenbrenner is a dear 

friend. We have been friends for years, and he is a civil rights icon 

in his own right. When he was Chairman of the House Judiciary 

Committee in 2006, he introduced the Reauthorization of the Voting Rights Act in the House of Representatives. He worked tirelessly to build a strong legislative record indicating the need for reauthorization of Section 5. I know because I watched some of those 

hearings. As he knows, I came by and we discussed it many, many 

times. But his steadfast leadership and his commitment to protecting civil rights for all Americans ensured that the bill would become law. I think as someone from the other body, I can say—and 

I was in the minority at the time. You, of course, were in the majority, your party. I can honestly say that we would not have gotten 

it through had it not been for the work you put in on it in the 

House. 

So I will continue to work with him and to keep this a bipartisan 

issue. It will be a nonpartisan effort. It is one of the few things that 

definitely should. So, Congressman Sensenbrenner, please go 

ahead, sir. 

STATEMENT OF HON. F. JAMES SENSENBRENNER, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN 

Representative SENSENBRENNER. Thank you very much, Mr. 

Chairman, Ranking Member Grassley, distinguished members of 

the Committee. Let me express my appreciation not only for your 
7 

statement and Senator Grassley’s statement, but also the statements that have been made by my colleague in the House, John 

Lewis of Georgia. 

I am not a civil rights icon. I try to be a mechanic to put together 

legislation that will work. I thought we did it in 2006. We are going 

to have to repair a few parts this year. And I am certainly on board 

to try to put something that will last for a long period of time. 

I also deeply appreciate the comments that Mr. Lewis has made 

because he is truly a civil rights icon for what he did to emphasize 

the need for voting rights and the Voting Rights Act that Congress 

successfully passed in 1965 and has reauthorized since. 

In 2006, I was proud to have served as Chairman of the House 

Judiciary Committee when the Voting Rights Act was last reauthorized, including the coverage formula of Section 5. I thank you 

for the invitation to participate in this hearing and to provide my 

perspective on the continued importance of the Voting Rights Act. 

In 1965, the Voting Rights Act was signed into law. The last was 

passed at the height of America’s civil rights movement when citizens of part of the country were fighting each other, and sometimes 

authorities, over how skin color impacts upon a person’s place in 

democracy. 

Historic in nature, the Voting Rights Act sought to end decades 

of racial discrimination that prevented minorities from fully exercising their constitutional right to vote. The law ensured that State 

and local governments do not pass laws or policies that deny American citizens the equal right to vote based on race. 

As the leading democracy in the world, the United States should 

work to keep voting free, fair, and accessible. And that is why the 

Voting Rights Act is so important. It makes sure that every citizen, 

regardless of race, has an equal opportunity to have a say and to 

participate in our great democracy. 

In 1982, I was pleased to help lead negotiations to reauthorize 

the Voting Rights Act then. The legislation cleared the House by 

a vote of 389–24, and it was signed into law by President Reagan. 

When signing the reauthorization, President Reagan stated, ‘‘There 

are differences over how to attain the equality we seek for all our 

people. And sometimes amidst all the overblown rhetoric the differences tend to seem bigger than they are. But actions speak louder than words. This legislation proves our unbending commitment 

to voting rights. It also proves that differences can be settled in a 

spirit of good will and good faith. As I have said before, the right 

to vote is the crown jewel of American liberties, and we will not 

see its luster diminished.’’ 

One of my most cherished keepsakes is one of the pens that 

President Ronald Reagan used to sign the 1982 extension. Anyone 

visiting my office will notice that this pen is proudly displayed. 

A duty to support the Constitution once again led me to shepherd 

the 2006 reauthorization of the Voting Rights Act. While I was 

Chairman of the House Judiciary Committee, we held dozens of 

hearings examining the effectiveness of the Voting Rights Act, 

whether the VRA should be extended, and if so, what the extension 

should encompass. The Committee assembled more than 12,000 

pages of testimony, documentary evidence, and appendices during 

its exhaustive consideration. In fact, the legislative record accom-
8 

panying the consideration of the Voting Rights Act extension in 

2006 is among the most extensive in congressional history. 

The Committee’s bipartisan conclusion: While we have made dramatic progress in ensuring no American is denied his or her right 

to vote based upon the color of his or her skin, the work remains 

incomplete. Again, in a bipartisan fashion, the House passed a 25- 

year extension. 

As we are here today because of the Supreme Court’s ruling in 

Shelby County v. Holder, which severely weakens the election protections that both Republicans and Democrats have fought so hard 

to maintain over the years, the Court essentially disregarded years 

and years of the extensive work of the legislative branch and substituted their own judgment. In a narrow 5–4 decision, the Justices 

voted to eliminate the law’s existing formula for selecting which 

places are allowed to make changes to their election laws or procedure without clearance from the U.S. Department of Justice. Although the Court left in place Section 5, a provision that requires 

States or parts of States to ask permission from the Federal Government before making changes to their elections, that part of the 

law has little or no effect without the formula in Section 4, which 

was struck down. 

By striking down Section 4 of the 1965 Voting Rights Act and 

thereby gutting the Act’s Section 5, Congress is now presented with 

a challenge and a historic opportunity. We are again called together to restore the critical protections of the Act by designing a 

new formula that will cover jurisdictions with recent and egregious 

voting records. Our sacred Constitution guarantees that an American citizen cannot be kept from exercising his or her God-given 

right to vote because of race or color. 

Though the Voting Rights Act has been enormously successful, 

we know our work is not yet complete and 8 years ago had 12,000 

pages of a record to prove it. Discrimination in the electoral process 

continues to exist and threatens to undermine the progress that 

has been made over the last 50 years. I am committed to working 

to pass a constitutional response to the Shelby County v. Holder decision, and I look forward to working with anybody who wants to 

approach this effort in good Faith. I believe that the Voting Rights 

Act is the most successful of all of our important civil rights acts 

that have been passed since the mid-1950s in actually eliminating 

discrimination. We cannot afford to lose it now, and it is our obligation as Senators and Representatives to continue it. 

Thank you. 

[The prepared statement of Representative Sensenbrenner appears as a submission for the record.] 

Chairman LEAHY. Gentlemen, I thank you both very, very much, 

and I wanted to hold this hearing before the August break because 

I want to be able to use the August break to work the phones a 

lot and talk to a lot of people from Vermont and people around the 

country, but be able to use that as a base to do it, and I am hoping 

that the two of you and anybody else in the House who would want 

can join with those of us here in the Senate who want when we 

come back in the fall and see what we can do. 
9 

I know you both have a tight schedule. You are welcome to stay 

if you would like, but I would be happy to have the next panel 

come up if you wanted to leave. 

Representative SENSENBRENNER. We are due for votes pretty 

soon in the House. 

Chairman LEAHY. I better let you go. It is a long way over there. 

Representative SENSENBRENNER. Sometimes the differences between the House and the Senate are the difference between here 

and the moon—hopefully not on this one. 

Chairman LEAHY. I hope not on this. In my office—I have an office that is just a couple feet from the so-called dividing line between the House and the Senate, and I like the fact that we are 

able to walk back and forth across that line often, as the three of 

us have done on many different issues. And I hope that both bodies 

will on this issue, because if you protect the right to vote for everybody, it is one of the greatest steps you can take to protect a democracy. So I thank you both very, very much for being here. 

I would note, as we are going to set up for the next panel, Senator Durbin is the Chair of the Civil Rights Subcommittee and has 

held hearings on this. Senator, before we start that, did you wish 

to say something? 

OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. 

SENATOR FROM THE STATE OF ILLINOIS 

Senator DURBIN. Mr. Chairman, I want to thank you and Senator Grassley for this hearing today, and I want to congratulate my 

friend, Congressman John Lewis, for coming over and producing 

testimony that no one else can produce because of his singular role 

in the history of civil rights in America. 

And a special thanks to Congressman Jim Sensenbrenner, who 

shows that there is true bipartisanship alive and well when it 

comes to preserving civil rights. Congressman Sensenbrenner, 

thank you for being here. 

Mr. Chairman, it was 7 years ago that 98 Senators and 390 

House members reauthorized the Voting Rights Act by an overwhelming bipartisan vote. After 21 hearings and 90 witnesses testified, a 15,000-page record was produced. Congress passed the bill, 

and President George W. Bush signed the reauthorization. We did 

so because we all recognized that, despite real progress in America, 

unlawful and unfair discrimination in voting remained. I heard 

some of those discriminatory practices firsthand in the series of 

hearings in my Constitution Subcommittee last Congress. Here on 

the Hill, I chaired the first congressional hearing to examine new 

State voting laws that limited early voting, tightened registration 

requirements, and required photo IDs. 

We then took the Subcommittee on the road. At the invitation of 

Senator Bill Nelson, we went to Tampa, Florida, and at the invitation of Senator Sherrod Brown, we went to Cleveland, Ohio. In 

those places, we invited election officials from both political parties 

to testify as to changes in State law that were being contemplated 

and implemented in those two States of Florida and Texas. 

Mr. Chairman, before there was any testimony taken at great 

length, we asked the election officials a basic question: What were 

the instances of voter fraud in your States of Florida and Ohio that 
10 

led for the States to change the laws relating to how people would 

register to vote and when they could vote and how they can vote? 

In both States, the testimony was the same from election officials 

of both political parties. There was no evidence of voter fraud. 

None. These changes took place in the context of reducing opportunity for people to vote, period. I am not going to defend one person who tries to vote illegally or fraudulently. None of us would. 

But in those two States from election officials of both parties, there 

was no basis for these new State laws. 

When the time came to challenge the laws in Federal court, what 

statute did they turn to? The Voting Rights Act. The Voting Rights 

Act asked the very basic question that goes back to the 15th 

Amendment as to whether we are keeping our promise to make 

voting racially free and free for all Americans. And that is why this 

hearing is so important and this testimony is so important. 

I am just going to give three quick examples, Mr. Chairman, and 

yield. Do we still need this? Is this something that belongs in a museum, this Voting Rights Act, in the Civil Rights Museum somewhere? We still need it. 

Listen to what we faced recently. In 2001, in the city of 

Kilmichael, Mississippi, an election was canceled because an unprecedented number of African American candidates decided to run 

for office. After the Department of Justice used the Voting Rights 

Act to require the election move forward, the town elected its first 

black mayor and its first majority black city council. In 2001, 

Kilmichael, Mississippi. 

In 2004, officials in Walker County, Texas, threatened to prosecute two black students after they announced their candidacy for 

county office. When that threat did not keep them off the ballot, 

county officials tried to limit African American turnout by reducing 

early voting but only at polling places near a historically black college with a large number of black voters. 2004, Walker County, 

Texas. 

In 2012, after the 2010 census showed that the African American 

voting population had grown significantly and the consolidated municipal government of Augusta-Richmond, Georgia, the Georgia 

Legislature passed a bill to change the date of the municipal elections but only in Augusta-Richmond County, Georgia. The bill 

would have changed the election date from November when African 

American turnout was known to be high to July, when it was substantially lower. 2012, the State of Georgia. 

Do we still need the Voting Rights Act? Yes, we do. That is why 

this hearing is so important. 

Mr. Chairman, I am glad that you brought those two opening 

witnesses, and I am glad that the panel will follow and we will 

have a chance to raise these questions. And I think you are right 

to make this issue an issue to be considered by the full Committee 

rather than just our Subcommittee, and I thank you for this opportunity. 

Chairman LEAHY. I can assure you your Subcommittee is going 

to have a great deal of work to do on this, as you already have. 

Our first witness is Ms. Luz Weinberg. Did I pronounce your first 

name correctly? Luz Urba ́ez Weinberg. I apologize. She has served 

as city commissioner of Aventura, Florida, since 2005. I understand 
11 

you are the youngest person, the first person of Hispanic descent 

to hold that office; also the vice president of the Board of Directors 

for NALEO, the National Association of Latino Elected and Appointed Officials. 

Ms. Weinberg, please go ahead. Your microphone is not on. There 

is a little button on the front there that says ‘‘Talk.’’ 

STATEMENT OF LUZ URBA ́ EZ WEINBERG, COMMISSIONER, 

CITY OF AVENTURA, FLORIDA 

Ms. WEINBERG. Thank you. Give me those 10 seconds back. 

[Laughter.] 

Ms. WEINBERG. Chairman Leahy, Ranking Member Grassley, 

and members of the Committee, thank you so much for the opportunity and the invitation to submit my testimony here on the need 

to restore the protections of the Voting Rights Act. 

Mr. Chairman, as you mentioned, I am a Republican elected to 

serve my city of Aventura as a nonpartisan in the city of Aventura, 

northeast Miami-Dade County, Florida. I am the first, indeed I am 

still the only, Hispanic to hold that office. I have taken also statewide and national leadership positions. Just recently Governor 

Rick Scott appointed me to serve on the Miami-Dade Expressway 

Authority, and I also serve as the vice president of the National Association of Latino Elected Officials. And thank you, Senator Durbin, for joining us last month. 

I am here today to share with you my firsthand account of the 

critical impact of the Voting Rights Act in guaranteeing access to 

the ballot box. As a result of the recent Supreme Court case, I urge 

this Committee to once again demonstrate your clear and principled commitment to equal voting rights for all Americans regardless of race, language spoken, and to also act swiftly to restore the 

protections. 

Whether to maintain the Voting Rights Act, it is not a partisan 

issue. It is a nonpartisan issue. It is an issue for all Americans. 

Whether Republicans or Democrats, all Americans strongly believe 

in fair and equal electoral opportunities. 

My experience serving as an elected official in South Florida has 

afforded me the privilege of being personally acquainted with how, 

absent a proactive, impartial check, election policies may disenfranchise ethnic and language minority communities. 

Ever since I moved to Florida from Puerto Rico in 1986, I have 

had a front row seat to observe how the unfortunate, repeated attempts to adopt and implement policies that continue our national 

history of putting racial, ethnic, and language minority voters at a 

disadvantage. Two main incidents come to mind: 

Number one, Osceola County in central Florida is one of many 

counties that have maintained an at-large election system for its 

commissioners. Only when its voters elected to switch to singlemember districts was the first Hispanic commissioner finally elected. 

In reviewing the county’s election law changes, the Department 

of Justice identified that the commissioners favored a return to atlarge elections, in part because they recognized that the substantial 

growth of the county’s Latino population would lead to Latino voters electing candidates of their choice. Since 2002, Osceola County 
12 

has twice more faced charges that its electoral methods would reduce or eliminate Latino voting rights. 

Second, in Florida, Latinos are more likely than average to have 

become registered to vote through third-party registers. Thirdparty registers, however, became subject to strict reporting requirements, deadlines to return registration forms, and large fines in 

2011. These requirements were later withdrawn, but the change in 

the law led to several organizations like the League of Women Voters suspending their voter registration operations in Florida, 

which, of course, then meant a drop that we saw of 39 percent registration. 

In the 1975 expansion of the VRA, five Florida counties were singled out for electoral discrimination against Latino voters and low 

participation rates that made them subject to the preclearance 

process set forth in Section 5. The VRA protects not just Latinos 

in these five counties formerly subject to preclearance, but it protected all voters statewide. For example, through the 1980s and 

1990s, preclearance was actively used in Florida to ensure that absentee balloting procedures did not put underrepresented voters at 

a disadvantage. More recently, the preclearance process forced the 

careful reconsideration of the disproportionate impact that Latino 

voters might experience because of decisions to reduce our State’s 

early voting period and to re-scrutinize the citizenship of Floridians 

already registered to vote. 

The successful application of Section 5 has occurred not only in 

Florida in the course of formal requests for preclearance. The very 

fact that these State policymakers have had to anticipate fulfilling 

preclearance requirements has influenced them to voluntarily reconsider and reshape proposed new election laws. 

For us Floridians, and particularly for Latino voters in Florida, 

the preclearance process of the Voting Rights Act has not only been 

effective but also critical in ensuring the preservation of equal electoral opportunities. 

The preclearance mechanism has no peer. It is uniquely tailored 

to prevent irreparable harm to voters and candidates by requiring 

review for discriminatory effect before a new law may be implemented. It is, by its very design and definition, still very much necessary in our 21st century America. 

On a personal note, I arrived in this country as a native-born immigrant; that is to say, I am one of millions of Puerto Ricans who 

leave the island for the mainland for a better life. I registered to 

vote as a young adult who had just a couple of years before my arrival not spoken a word of English. I have three children. I was 

very proud when my oldest son, Jonathan, now 20, registered to 

vote and voted for the first time 2 years ago. Last year, my daughter, Jessica, turned 18, just 2 weeks after the election cycle—she 

missed it—but she was filed and ready to vote. Jonathan registered 

Democrat. Jessica registered Independent. Their elected official 

mother, myself, is a Republican. So in my household, we are 

Latinos, white Latino, we are Afro-Latinos, who speak English, 

who speak Spanish, sometimes Spanglish, sometimes very badly; 

but first and foremost, we are Americans in my household. And we 

take our electoral process, exercising our right to vote, ensuring 

that the Voting Rights Act is preserved, we see it as a nonpartisan, 
13 

non-racial, and non-language-dependent priority. And I urge you to 

once again demonstrate your commitment to this priority of equal 

voting rights for all Americans and to please act swiftly to restore 

these protections so very necessary through the Voting Rights Act. 

Thank you. 

[The prepared statement of Ms. Weinberg appears as a submission for the record.] 

Chairman LEAHY. Thank you very much. 

Our next witness is Mr. Michael Carvin, a partner at the law 

firm of Jones Day here in Washington, D.C., where he focuses on 

constitutional and appellate litigation. He has testified before this 

Committee a number of times at the invitation of our Republican 

colleagues, and welcome again, Mr. Carvin. 

STATEMENT OF MICHAEL A. CARVIN, PARTNER, JONES DAY, 

WASHINGTON, DC 

Mr. CARVIN. Thank you, Mr. Chairman, Senator Grassley. Obviously the Committee is facing a very serious question, as is the entire Congress: Does Shelby County’s invalidation of Section 5 create 

some kind of gap in the civil rights laws which might expose minority voters to unconstitutional discrimination? 

The thrust of my comments today is that there is no gap because 

Section 5 is no longer needed to ensure equal opportunity for minority voters for one simple reason, which is you have Section 2 of 

the Voting Rights Act, that has always been viewed as the heart 

of the Voting Rights Act. Section 2 is a very muscular provision 

which was amended by this body in 1982 to prophylactically eliminate anything that could be characterized as purposeful discrimination because it prohibits anything with a discriminatory result for 

minority voters. It was ballyhooed then and was universally hailed 

as an extraordinarily successful piece of legislation that has done 

much, much more than Section 5, to eliminate unconstitutional voting discrimination. 

Section 5, on the other hand, was limited. It was limited in terms 

of the kinds of voting practices it got at, only changes in terms of 

the States it was addressing and in terms of time. It was always 

a temporary supplement to Section 2. 

So I think the question that the Congress has to grapple with is 

not whether discrimination persists in the jurisdictions covered by 

Section 5, but whether it is the kind of discrimination that cannot 

be effectively remedied by Section 2 of the Voting Rights Act. And 

I would submit that there is not much argument that Section 2 is 

inadequate to the task. First, a couple of logical, intuitive points. 

Preclearance requirements do not seem to be necessary for two 

reasons. One is we do not have it in most States. We do not have 

Section 5 on top of Section 2 in most States with respect to voting 

discrimination. And we do not have any kind of analogous 

preclearance requirement for any other form of discrimination. Employment, housing, educational discrimination is all dealt with 

through statutes like Section 2 that prohibit certain actions, not 

supplemented in any way by a preclearance requirement, even 

though, for example, employment discrimination is much more difficult to prove than voting discrimination because it is done in pri-
14 

vate without the kind of ready access you have in the voting context. 

With respect to what we have been calling ‘‘first-generation ballot access issues,’’ I think the finding of Congress in 2006 was that 

those problems had been addressed as well in the covered jurisdictions and in the non-covered jurisdictions so there was really no 

reason to extend Section 5 just to get at those ballot access issues. 

Section 2 was more than adequate in Oklahoma and Arkansas to 

eliminate that kind of voting discrimination, and no one in Congress in 2006 found that what was okay in Arkansas was inadequate in Brooklyn or Manhattan or Mississippi, in part because 

Congress found that Mississippi actually had the highest participation of black voters of any State, but nonetheless remained a covered jurisdiction. 

In terms of second-generation issues—and that was the principal 

focus of the Congress in 2006—they said, look, the covered jurisdictions have done a terrific job, indeed a better job than the non-covered jurisdictions in fostering minority participation and turnout, 

but they are diluting the vote through these at-large electoral systems and racial gerrymandering. And I would like to make two 

points about that. 

Section 2 is actually more effective at dealing with second-generation vote dilution issues than is Section 5. For one thing, Section 5 cannot attack at-large voting systems because it only is triggered if there is a voting change. So if an at-large election system 

is in place, it cannot be got at by Section 5, but it can be got at 

by Section 2. 

There has been an argument made which, in my view is completely false and counterfactual, which is somehow Section 2 challenges to racial gerrymandering are too slow or not effective 

enough. That is completely untrue. In every State outside of Section 5, people do not sit around before they bring their Section 2 

lawsuits and say, ‘‘Let us have two or three elections and see how 

things go.’’ They do exactly what they do in the Section 5 jurisdictions. They go to court before the new redistricting plan is entered 

and seek an injunction. The highly publicized case in Texas makes 

this point extraordinarily well. The Section 2 court has done its 

vote dilution work in November 2011, well before the elections in 

2012, while the Section 5 court never issued a decision until late 

August in 2012. 

So the point is that Section 2 courts can act and do act just as 

speedily and just as effectively in dealing with these redistricting 

issues. The only thing that the demise of Section 5 will help eliminate is the compelled racial gerrymandering that the Justice Department imposed on a number of jurisdictions to create these districts that were struck down as unconstitutional in Shaw and as 

the protection, as we saw in Texas, of white Democrats even 

though there was not cognizable or large minority population in 

those districts, and, frankly, to end the partisan uses by the Republicans of the Voting Rights Act. Some of the strongest supporters 

of the Voting Rights Act have always been Republicans because it 

is politically advantageous for Republicans to have these majority 

minority districts because the adjacent districts present political 

opportunities. 
15 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Carvin appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

And our next witness is Justin Levitt, associate professor of law 

at Loyola Law School in Los Angeles, a national expert in constitutional law and voting rights. Before he joined the faculty of Loyola, 

he was counsel at the Brennan Center for Justice at New York 

University School of Law. He worked on cases promoting equal access to voting, and, again, I should note that all of your statement 

or any addition to it will be put in the record. Professor Levitt, I 

do not want you to think it is because of anything you have said 

or are about to say that I leave and turn the gavel over to Senator 

Whitehouse, but I am also required back on the floor. But please 

go ahead, sir. 

STATEMENT JUSTIN LEVITT, ASSOCIATE PROFESSOR OF LAW, 

LOYOLA LAW SCHOOL, LOS ANGELES, CALIFORNIA 

Mr. LEVITT. Not at all, Mr. Chairman, and thank you very much. 

Mr. Chairman, distinguished members of the Committee, thank 

you for the invitation to testify here as well. 

Our Constitution expressly gives Congress the specific enumerated power and the obligation to ensure that there is no electoral 

discrimination anywhere in the country based on race or ethnicity. 

Congress has repeatedly attempted to step up to that responsibility, not perfectly perhaps but pragmatically. 

Shelby County ripped a sizable hole in Congress’ work. That decision has left Americans today less sure that discrimination will not 

taint their elections. We have to correct that damage. 

Sweeping national statistics hide the fact that, unfortunately, 

there are still public officials who try to limit electoral opportunity 

based on race or ethnicity, sometimes because of contempt, sometimes because of perceived political advantage. It is disgusting and 

it is illegal. And even with armies of lawyers, it is very hard to fix 

using existing tools like Section 2. 

Normally we in the legal system depend on responsive lawsuits, 

the sort of tools that Mr. Carvin was talking about. If there is a 

legal problem, you sue, you prove harm, and it gets fixed. That is 

the way that the employment system, the housing system, the education system works. Exactly as Mr. Carvin said. Voting and election laws are different. 

These normal lawsuits attack one practice at a time. Officials 

looking to limit political power based on race just switch tactics. 

Rule X draws a lawsuit? Okay, shift to Y. That draws a suit? Okay, 

shift to Z. 

And important here, the official does not bear the costs of this 

whack-a-mole game. The taxpayers do. And if taxpayers get sick of 

it, it is hard for them to toss them out of office because the tactics 

he is changing affect the very structure of how the elections work. 

Election laws are different. 

Normal lawsuits are also a little bit like ocean liners. They are 

complicated, they are very expensive, they are slow to get going. 

They can take years, and, frankly, I am not sure which Texas case 

Mr. Carvin is talking about. The court in Texas still has not deliv-
16 

ered a decision on the merits, years after the original districts were 

put in place. There is still no decision based on these normal lawsuits. 

In the meantime, when normal lawsuits are taking all of this 

time to get up and going, elections infected with discrimination are 

taking place. We know that elections have consequences. Well, discriminatory elections have consequences, too. Even when the contest is unjust, the winners still become incumbents, and they end 

up making policy in the meantime. While we are waiting to get the 

election structure right, it does not fix the policy that has already 

been passed. Election laws are different. 

These are not just theories. The 2006 Congress collected 15,000 

pages of examples. I have got plenty more from not just before 

2006, but 2006, 2008, 2010, 2011, ongoing. They include some 

prominent statewide problems, but I am even more concerned 

about local jurisdictions where those most at risk have the least resources to fight back. 

These examples also just are not old news. In 2009, 2 months 

after the President’s Inauguration, Chief Justice Roberts, Justice 

Kennedy, and Justice Alito said, and I quote, ‘‘Racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and 

traditions.’’ 

Congress has understood that much remains to be done. Repeatedly it has recognized that the existing toolkit of tools like Section 

2 are powerful, but for the most pernicious electoral discrimination, 

they are also, and here I quote again, ‘‘inadequate.’’ 

In 2006, Congress stepped up to meet the continuing need, which 

brings us to Shelby County. The Supreme Court’s ruling had an 

enormous impact, but it also leaves Congress with plenty to do. 

The Court said that the formula Congress used in 2006 to cover 

some States and not others for preclearance purposes was not sufficiently tied to current conditions. It did not rule out a different formula. It did not rule out the idea of preclearance at all. It did not 

rule out safeguards other than preclearance, above and beyond the 

normal responsive litigation toolkit that exists today. It did not say 

we fixed the problem of discrimination in voting. And it did not 

change the basic truth that, quoting Chief Justice Roberts, ‘‘the 

15th Amendment empowers Congress, not the Court, to determine 

in the first instance what legislation is needed to enforce it.’’ 

So now it is up to Congress once again. Polls show that the 

American people understand that this extraordinary right still 

needs more than just ordinary protection, whatever that may look 

like. In the last 50 years, Republicans and Democrats in overwhelming bipartisan majorities, including every member of this 

Committee who was able to cast a congressional vote in 2006, have 

stepped up to offer on a bipartisan basis that extra protection these 

very special rights demand. And I am delighted to offer whatever 

assistance I can as both Houses of Congress resume their bipartisan task. 

Thank you very much. 

[The prepared statement of Mr. Levitt appears as a submission 

for the record.] 
17 

Senator WHITEHOUSE [presiding]. Thank you very much, Professor Levitt. 

We will begin the questioning with Senator Durbin. 

Senator DURBIN. Thanks. Professor Levitt, when I read this decision, Shelby County, and noted the logic and argument used by the 

Chief Justice, it seemed to suggest that, absent Congress showing 

brand-new evidence on a regular basis, we are dealing with some 

old problem in America that has virtually gone away. That seems 

to be the majority argument in the case. 

I think back to the last election cycle. There was an organization 

known as the American Legislative Exchange Council that was financed by major corporations and major political players that went 

State by State to change the electoral laws to restrict the right to 

vote. I visited two of those States. Ms. Weinberg, I was in your 

State of Florida and, as I mentioned, had electoral officials from 

both parties who could not point to a single instance of voter fraud 

that led to these changes. It clearly had some other design. 

Now, many of these changes in State law were challenged under 

the Voting Rights Act under Section 5, for example, voter ID, as 

to whether or not it was discriminatory toward minority populations, the disabled, or elderly and the like. 

So I would just ask you if you are familiar with this background 

and believe it is evidence that the Voting Rights Act and its protection of that basic right to vote still is a vibrant and timely issue. 

Mr. LEVITT. Thank you, Senator. I am, and I have had the opportunity to speak with you on your Committee about exactly these 

issues that you have been highlighting. They are of concern, and 

they are very much present, and they exist not only at the statewide level, but at the county level, at the city level, at the municipal level. All the way down at all levels of government there are 

still profound challenges. 

The existing tools that we have now help, but I do not believe 

that they are in any way sufficient. I believe that election laws are 

special and demand more. 

Senator DURBIN. I might, Mr. Chairman, ask for unanimous consent or permission to enter into the record an exhibit which demonstrates the financial supporters of the American Legislative Exchange Council. Many corporations, once they learned what the 

agenda was of this council, have withdrawn their membership and 

financial support, but many have continued it, and I would like to 

put this in the record. 

Senator WHITEHOUSE. Without objection. 

[The information referred to appears as a submission for the 

record.] 

Senator DURBIN. Let me add quickly, it is their right under our 

Constitution, their right of speech, their right of assembly, whatever they want to exercise, to spend their money for this purpose 

to try to change laws. I think it is legal and constitutional. But I 

think everyone should see whether the companies that they are 

doing business with are, in fact, using their profits to restrict the 

right to vote through the American Legislative Exchange Council. 

Mr. Carvin, Professor Carvin, you talked about Section 2 and the 

fact that it is there as the last bulwark of protection, we should not 

be so distressed about the Court’s decision as it related to Section 
18 

4. Your argument was considered by Justice Ginsburg in this Shelby County decision, and she noted on page 14, ‘‘Congress produced 

evidence that litigation under Section 2 of the VRA was an inadequate substitute for preclearance.’’ In other words, we addressed 

that directly when we reauthorized the Voting Rights Act. She 

went on to give two specific areas: ‘‘Litigation occurs under Section 

2 only after the fact when the illegal voting scheme has already 

been put in place and individuals have been elected pursuant to it, 

thereby gaining the advantages of incumbency. An illegal scheme 

might be in place or several election cycles before a Section 2 plaintiff can gather sufficient evidence to change it.’’ 

Then she goes on to say, ‘‘And litigation under Section 2 places 

a heavy financial burden on minority voters. Congress already also 

received evidence that preclearance lessened the litigation burden 

on covered jurisdictions as well, because preclearance process is far 

less costly than defending against a Section 2 claim.’’ 

So your argument that Section 2 is a good alternative seems to 

have been addressed directly by Justice Ginsburg. Would you like 

to respond? 

Mr. CARVIN. Sure. It is quite factually inaccurate, the assertion 

that you wait in Section 2 cases until elections have already occurred to challenge it. Your State is actually a good example of 

this. There has never been a congressional redistricting in Illinois, 

which is not a covered jurisdiction, that has not been adjudicated 

prior to the first election, and some have been struck down on Section 2 grounds. 

In the Texas case I was referring to, they entered an interim remedial order a year in advance of the elections. Section 5 and Section 2 litigation on redistricting is indistinguishable. You bring in 

a bunch of experts. You look at prior electoral returns, and you 

make projections going forward for the next—— 

Senator DURBIN. Mr. Carvin, it is dramatically different in my 

State, because when we put a redistricting or reapportionment map 

together, we know it is going to be challenged. The Democrats and 

Republicans do that for a living every 10 years. It is not a question 

of gathering poor, minority, dispossessed plaintiffs and trying to 

get the money together as well as the evidence. We are prepared 

for this. It is a regular ritual in my State and most others. 

Mr. CARVIN. And most others. Redistricting is not an 

underlawyered operation here. The notion that these plans are 

somehow sneaking through in the dark of night—Justice Ginsburg 

says you have to wait for four electoral cycles—— 

Senator DURBIN. But that is a lot different, a lot different than 

some remote rural jurisdiction that might be faced with this same 

allegation of discrimination and have to bring together the lawyers, 

the money, and the evidence to challenge under Section 2. 

Mr. CARVIN. Your argument, then, Senator Durbin, with respect, 

is not that you have to wait for elections to go by. It is that you 

have to go find a lawyer. We can both agree that Justice Ginsburg 

was flat wrong in suggesting you have to wait for elections to go 

by. As your experience in Illinois shows, the lawyers get together 

right after the map is passed and run to court. So that is not true. 

Does it happen less frequently in rural counties? That may be true. 

But that is the way we enforce every civil rights law, from Title 
19 

VII to Title VIII. And in all of them, if you have a meritorious 

claim, all of your expenses are paid for by the other side under the 

fee-shifting provision. We have political parties that are directly involved in redistricting. There is not a civil rights group in the country that does not have a voting system—— 

Senator DURBIN. I think you have made—— 

Mr. CARVIN [continuing]. And, of course, we have now got a lot 

of lawyers—— 

Senator DURBIN. You have made your point on redistricting, and 

I have responded. 

Professor Levitt, I will close by allowing you a chance to respond. 

Mr. LEVITT. It is odd to hear Mr. Carvin, who is a practitioner, 

step into the realm that I normally find myself in, which is pure 

theory. And I will say that I have also been an election practitioner, and I can tell you that the facts on the ground look different. Ask Charleston County, ask the voters of Charleston County, South Carolina, whether a case was brought that they were able 

to get relief for before the election happened, and they will tell you 

no. The case was brought in 2001. Plaintiffs asked for preliminary 

relief. They were denied. Elections happened. Elections happened 

again. It was not until 2004 that the court was able to actually provide relief. 

The existing responsive litigation system that we have is not only 

slow, it is expensive. And I am delighted that Mr. Carvin is going 

to front the money for civil rights lawsuits all over the country. 

There are lawsuits that I would love to bring now, but I am not 

independently wealthy and cannot wait the 4 years to collect fees. 

There are in my home jurisdiction places that desperately need 

Section 2 lawsuits brought where they are not being brought, in 

part because the data is hard to get, because the experts are hard 

to find and expensive to gather, and because particularly, as you 

mentioned, in the most rural jurisdictions there are not armies of 

lawyers waiting to sweep in. I wish it were true. It would be wonderful if it were true. But the fact of the matter is that there are 

lots of jurisdictions that need this extra protection, something other 

than the ability to file a responsive lawsuit after a law goes into 

effect in order to fight it. 

Senator WHITEHOUSE. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Thank you, all of you. I care a lot about this, having been a prosecutor for 8 years and actually enforced our election laws in the 

State of Minnesota. We are incredibly proud of our State. We have 

the number one turnout in the country. We have same-day registration, which I want to get to in a minute, and we also have people enforcing the laws and finding that when something does go 

wrong, we have an enforcement mechanism in place, which I think 

you all know is incredibly important. 

I also was able to go with Congressman Lewis to Selma, as many 

people have done, just this last year, and something happened this 

year which was incredible, and that is that 48 years after that 

march across the bridge in Selma, the white police chief in Montgomery took his badge off and handed it to Congressman Lewis 

and apologized to Congressman Lewis that the police had not protected them on that bridge that day. And it made me think a lot 
20 

about how progress can take a long time. And I think we know 

that, and that is the acknowledgment that is made in the need to 

reauthorize this Act and how incredibly important it is to do that. 

So I just want to go to those practical questions here with you, 

Mr. Levitt. I think we have seen recently some new barriers to voting. We have certainly seen that since the decision with some of 

the States, things like very strict voter ID requirements, things 

like shortening time periods where people can register to vote or 

can vote early. Could you talk about that and how here and now, 

not just 50 years ago, we are starting to see some major problems? 

Mr. LEVITT. So that is absolutely right. There are new threats to 

the ability for every eligible American to vote and have that vote 

counted and have it counted meaningfully in a way that leads to 

meaningful representation. And there is no doubt about that. 

There is an awful lot that Congress can and perhaps should do 

in order to remedy that, and I would say that in particular addressing these new laws, these new practices, and even the local 

versions thereof that discriminate on the basis of race and ethnicity 

is a special point of urgency for Congress. It is—— 

Senator KLOBUCHAR. Could you elaborate on that? 

Mr. LEVITT. Sure. So some of the practices that have gotten the 

most attention are not necessarily the ones that are causing the 

most damage based on race or ethnicity in local jurisdictions. 

Changing the lines for a county commissioner or for a justice of the 

peace election, changing the language access materials that are 

sent out in a particular election, moving an election date to a date, 

as Senator Durbin mentioned, that you know is going to have less 

turnout, and moving that date as soon as the voting age population 

of African Americans hits 50 percent in a relevant jurisdiction, that 

is, changing the rules in response to a new perceived threat from 

minority citizens when really the minority citizens are exercising 

their rights as Americans, that is a particularly pernicious problem. It is the reason that there are constitutional amendments devoted entirely to the subject, and I think it is particularly important for Congress to focus on those issues here and now in response 

to Shelby County. 

Senator KLOBUCHAR. Okay. Ms. Weinberg, as a Republican local 

official, I really appreciate you coming because we really want to 

focus on this as bipartisan solutions here. What do you think of 

what Professor Levitt just said? And do you see things that can be 

helpful on that local level, it is not just these national elections? 

Ms. WEINBERG. Thank you for the opportunity because I did 

want to touch on that from an actual, practical, on-the-ground perspective of Section 2 versus Section 5 and what stays and what remains. 

Absent Section 5, what transpired in the State of Florida last 

year with the citizenship clerk would have not been—would have 

continued, would have proceeded, and we would have stood to lose 

over 100,000 votes, a large number of that having been from 

Miami-Dade County. Section 2 alone is not sufficient. Section 5 has 

no peer. Section 2 alone is not sufficient. And I cannot stress that 

enough. It is an after-the-fact policy. And it is a cost-prohibitive, 

after-the-fact policy. And it is an evidence-exhaustive, after-the-fact 

policy, not to mention the fact that preclearance has—well, those 
21 

Section 2 cases, and I noted only two in my written testimony, but 

I can bore you with a whole lot of different cases, as I am sure Mr. 

Levitt is very familiar with, that have failed. Section 2 alone is not 

sufficient, and if this hearing could end up with a slogan, with my 

communications background, it would be that without preclearance, 

without Section 5, and only Section 2, it is hunting season for discriminatory voting practices. 

Senator KLOBUCHAR. Okay. That is a good line. 

Ms. WEINBERG. Thank you. 

Senator KLOBUCHAR. The last thing I wanted to ask about was 

just this idea of same-day registration. They do not have it in Florida. I know that. But a number of States have it, including a number of States with Republican Governors, and one of the things I 

noticed, as I think—one of the goals here is to just make it easier 

for people to vote. And, in fact, five of the six top States for voting 

percentages have same-day registration. There are States like 

Iowa, there are States like New Hampshire, there are States that 

clearly—Maine, and I do not see this as a partisan issue. I see how 

do we make it easier to vote. Representative Ellison in the House 

and I in the Senate, along with Senator Tester, have a bill to have 

same-day registration across the country. Could you talk about how 

that could help, Professor Levitt? 

Mr. LEVITT. Sure. And you are absolutely right that Minnesota 

has been a leader in election administration in the means that it 

takes in order to make sure that eligible Americans are able to participate. It has leapt to a national leadership level. 

Same-day registration is one of the very important tools for this. 

This actually affects all Americans, not just those who are unregistered but those who have moved and would need to update their 

registration, not just those who are unregistered but those who find 

there is a problem with their registration somewhere, that somebody has put a typo into a system and they cannot be found on the 

records. Not just those who are unregistered but those who find 

when they get to the polls that for whatever reason something has 

gone wrong, election day registration provides a fail-safe mechanism to make sure that those who are truly eligible can participate 

on the same terms as everyone else. 

It is an immensely important safety net, and it has been used, 

as you say, in States—both Republican and Democratic administrators, both Republican and Democratic voters have consistently restored election day registration where there have been threats to 

it in States that have had it. The voters really like it, and it is obvious why. 

Senator KLOBUCHAR. Thank you. And I would also add to that, 

then move on to my colleagues, that the bottom States with the 

voter turnout, none of the 18 States with the lowest voter turnout 

have same-day registration. Does that surprise you at all? 

Mr. LEVITT. It does not. It is a great safety net, and it makes 

sure that those who want to and are eligible to vote can and do so 

securely. 

Senator KLOBUCHAR. Thank you. 

Senator WHITEHOUSE. Senator Franken. 

Senator FRANKEN. Thank you. Thank you all. 
22 

I was disappointed with the Supreme Court’s decision in the 

Shelby County case, and I was particularly troubled by the suggestion at oral argument that Congress passed the Voting Rights Act 

only because it has a nice name and not because of the mountains 

of evidence before Congress or because of this body’s longstanding 

bipartisan commitment to the promise of the 15th Amendment. 

The Voting Rights Act is one of the greatest and most consequential achievements of the civil rights movement, as Representative 

Sensenbrenner said. It has improved our democratic process tremendously, and I believe that the law remains necessary today. 

The Shelby County decision was a setback. Justice Ginsburg put it 

well in her dissent when she wrote, and I am quoting, ‘‘Throwing 

out preclearance when it has worked and is continuing to work to 

stop discriminatory changes is like throwing away your umbrella in 

a rainstorm because you are not getting wet.’’ 

So I was disappointed with the decision, but I am also optimistic 

that we can fix this, because nobody really disputes that the Voting 

Rights Act is still needed. 

Writing for the majority in Shelby County, Justice Roberts credited the Voting Rights Act with ‘‘great strides’’ that we have taken 

as a Nation, while also saying, ‘‘Voting discrimination still exists. 

No one doubts that.’’ 

So it seems to me that the question here is not whether we need 

the Voting Rights Act at all. The question is: What form should the 

law take? I am looking forward to working with all my colleagues 

on the Judiciary Committee to address that question in the months 

ahead. We have enacted a reauthorized Voting Rights Act on a 

truly bipartisan basis on five occasions in the past. I am hopeful 

that we can do it again in 2013. 

Professor Levitt, we have touched on this already, preclearance, 

but I just want to get your response to this quote. This is from the 

House Judiciary Committee’s report for the 1965 Act regarding 

preclearance. ‘‘The burden is too heavy, the wrong to our citizens 

is too serious, the damage to our national conscience is too great 

not to adopt more effective measures than exist today.’’ 

Do you believe that statement is still true? 

Mr. LEVITT. I do. I think it was right then. And I think although 

unquestionably matters have improved all over the country, I think 

there are still problems that existing tools do not adequately address. And for those problems, the burden is still too heavy for the 

existing tools to do the work that they need to do to make sure that 

there is no discrimination on the basis of race or ethnicity in the 

right to vote or have that meaningful participation counted anywhere in the country. Justice should never be too expensive. Justice should never be too slow. Justice should never depend on an 

army of lawyers sweeping in to help. And that is the situation that 

we have now, is we are dependent on the ability to find help whenever we can. 

Congress has in the past always recognized that that, for our 

most fundamental right, is not enough, and I take it that Congress 

is here today, this Committee is here today in order to start the 

process of another bipartisan effort to restore the recognition that 

waiting for help is not enough. 

Senator FRANKEN. That is exactly why we are here. 
23 

Professor, from a constitutional law standpoint, I think that one 

of the most important points made in Justice Ginsburg’s dissent is 

that the majority departed from established precedent with respect 

to the standard of review under the 15th Amendment. In Katzenbach, the Court said that, ‘‘Congress may use any rational means 

to effectuate the constitutional prohibition of racial discrimination 

in voting.’’ In other words, to overturn a statute enacted under 

Congress’ 15th Amendment powers, the Court must find that the 

statute is irrational. That seems like a really deferential standard, 

and I agree with Justice Ginsburg that the Court did not apply it 

in Shelby County. What are your thoughts on this? And, in particular, what standard of review should we expect the Court to use when it analyzes 

potential amendments to the Voting Rights Act? 

Mr. LEVITT. You are right, it is difficult to know what standard 

the Court used in Shelby County, if only because it did not tell us. 

The prevailing standard had been very deferential to Congress, and 

the Court tossed out more or less with the back of its hand all of 

the work that Congress had done, the 15,000 pages of record. The 

prevailing standard had been a recognition that Congress is the 

body empowered in the first instance to enforce the 15th Amendment, and that the legislation they passed should be viewed rationally, and any rational basis would suffice. And the Court seemed 

not to apply that standard, seemed to depart from Katzenbach. They did not tell us what standard they were applying. What 

they did say was that any step that Congress takes has to reflect 

current conditions, and although I think the old standard met that 

test, they did not. I think that Congress has the ability to compile 

a record of current conditions that would more than authorize steps 

to supplant—steps to supplement the very important protections 

that exist today with more protections designed to ensure that 

there is no discrimination on the basis of race or ethnicity. I think 

Congress has plenty of latitude to establish a record supporting 

whatever steps Congress takes to provide the protection that we 

still desperately need. 

Senator FRANKEN. Thank you. And I am sorry I went over time, 

but maybe we can get 16,000 pages if we go a little longer this 

time. Thank you. I yield. 

Senator WHITEHOUSE. Senator Cruz. 

Senator CRUZ. Thank you, Mr. Chairman. I would like to thank 

all three witnesses for being here and testifying today. I want to 

ask a couple of questions of Mr. Carvin, and let me say at the outset, you and I have known each other a long, long time. Indeed, my 

first job as a practicing lawyer was working for you in a very small 

law firm, and so I commit two things: number one, to tell no tales 

from those days; and, number two, to hold you harmless for any 

mistakes I may make, in this Committee or elsewhere in the Senate. 

I would like to ask your legal judgment on what is required in 

response to the Shelby County decision, and the Supreme Court in 

Shelby County noted that Congress had before it in 2006 thousands 

of pages of records, as the last exchange just highlighted. And the 

Court went on to say, regardless of how to look at the record, however, no one can fairly say that it shows anything approaching the 
24 

pervasive, flagrant, widespread, and rampant discrimination that 

faced Congress in 1965 and that clearly distinguished the covered 

jurisdictions from the rest of the Nation at that time. 

The question I want to start off with is: What record would Congress need to create in order to come up with a new coverage formula that would be constitutional? 

Mr. CARVIN. I think the Congress made two basic mistakes in 

2006, and I do not know if they are remediable in terms of real empirical evidence. The first was they gathered 15,000 pages of evidence about which jurisdictions are bad, but they did not use any 

of that evidence to designate the jurisdictions that are covered by 

Section 5. They relied on electoral information from 1968 and 1972, 

which would be akin to the 1965 Congress looking back at the Calvin Coolidge election to figure out who should be covered in 1965. 

So the first thing you need to do is look at whatever current information you have and get rid of this outdated formula. 

The second finding they never made—and this was the thrust of 

my basic commentary—is identifying a problem that is Section 5 

curing that Section 2 is not a completely prophylactic and effective 

remedy for. I doubt seriously you can make that argument. The one 

argument that has been made today that, again, is demonstrably 

untrue, as you actually know from private practice, this theory that 

Section 2 litigation has to wait three or four electoral cycles before 

anybody brings a lawsuit when we all know that those lawsuits are 

brought before the first election, as your home State of Texas vividly illustrates. In fact, Professor Levitt’s example makes my point 

about how—he is talking about a challenge to an at-large system. 

The first point that the Committee needs to understand is Section 5 cannot get at at-large systems because it only deals with voting changes. So it had nothing to do with getting rid of the principal vote dilution technique that was employed in the Deep South. 

The second is this was a challenge to the city of Charleston that 

they could have brought at any time. They brought the case in January 2001, and they did not even move for preliminary injunction 

until April 2002. They waited 15 months. 

So it is not as if Section 2 does not give the opportunity to get 

preliminary relief. It is just sometimes that plaintiffs, for whatever 

reason, do not take advantage of it. 

So what Congress would have to do and what, frankly, I do not 

think they can show is that there is such a cognizable difference 

between the jurisdictions that are being covered that they need 

Justice Department oversight 24/7 and the districts that are not 

being covered. There may be a handful of districts out there that 

need that kind of extra supplement for Section 2, but Congress has 

not come close to identifying what those would be, particularly 

since the covered jurisdictions are actually doing better today in 

terms of minority vote participation than the non-covered jurisdictions. 

Senator CRUZ. Thank you. Let me ask a follow up on that. You 

rightly noted that Section 2 of the Voting Rights Act remains in 

full force, and its protections are entirely in place. Section 5—what 

I would like to ask you is your practical experience. You have litigated a number of voting rights cases. You have worked with, 

alongside, and after the fact elected officials dealing with Section 
25 

5. And what I wanted to ask is: While Section 5 was in place, while 

the Department of Justice had the authority to preclear or not 

preclear the decisions of elected officials in States, to what extent 

did Section 5 effectively require elected officials to make decisions 

based upon race? 

Mr. CARVIN. There was no question, it has been well documented 

in the 1990s, that the Justice Department had what they quite candidly labeled a ‘‘black max’’ policy, which was you had to maximize 

the number of black and Hispanic majority districts regardless of 

traditional districting principles, which is why you had those districts in North Carolina that ran down I–95 and were struck down 

by the Court as unconstitutional racial gerrymanders. 

So the first thing that Section 5 was used for was these politically motivated racial gerrymanders, which I hasten to add I was 

involved with in the 1990s and greatly aided the Republican Party. 

There are no bones about that. So everything I am telling you 

today is actually contrary to the Republican Party’s partisan interests. 

In the latest round of redistricting—Texas is yet another good example—they have injected even more politics into the discussion 

because they now say that this new ability-to-elect standard that 

was enacted by Congress in 2006 protects white Democrats like 

Lloyd Doggett in 9-percent black districts. In other words, you cannot diminish any Democrat’s ability to get reelected if they are the 

party that is predominantly supported by minorities. 

So what Section 5 has done is taken a guarantee of equal racial 

opportunities and converted it into a partisan preference scheme. 

So one of the beneficial results of Shelby County is that you will 

be decreasing the amount of politically motivated racial gerrymanders, and you will be decreasing the amount that race has to 

be considered. Now, in every district, from districts where there is 

a 9-percent minority population to those with a 60-percent minority 

population, race has clearly driven redistricting over the last 30 

years. 

Senator CRUZ. Thank you, Mr. Carvin. 

Senator WHITEHOUSE. Senator Blumenthal. 

Senator BLUMENTHAL. Thank you. Thank you, Mr. Chairman. 

I want to sort of follow Senator Cruz’s questions, which I think 

really elicited something that I found very telling about the Supreme Court’s opinion. When I heard you describing what would be 

irremediable, I was struck by the observation about Congress making a mistake here. And it is pretty much the reason that the Chief 

Justice gave for striking down the formula, and I am quoting: 

‘‘Congress did not use the record it compiled to shape a coverage 

formula grounded in current conditions.’’ 

Isn’t that a legislative judgment, how to use a record, whether 

it is 15,000 pages or 30,000 pages? We are not talking about the 

absence of a record. We are talking about the evidence from which 

Congress could draw a conclusion, and perhaps draw a conclusion, 

as Justice Ginsburg said, that maybe things have improved, but 

one of the purposes of Congress is to prevent or, I will quote her, 

‘‘guard against backsliding.’’ 

My view is the Court was legislating in the most inappropriate 

and worst way. Put aside whether you agree or disagree with the 
26 

result. Don’t you agree, Professor Carvin—I know you have thought 

and written a lot about this issue. Don’t you think it was legislating? 

Mr. CARVIN. I respectfully disagree, Senator, for this reason: If 

they had re-weighted the kind of evidence that Congress had 

looked at and said, no, it should not be this State and that State, 

then I agree with you they would be engaging in—— 

Senator BLUMENTHAL. But here the Chief Justice said they did 

not use the evidence, so—— 

Mr. CARVIN. And that was—— 

Senator BLUMENTHAL [continuing]. How can he reach that conclusion? They had evidence. If you were to say about a jury coming 

out with a verdict, well, they had evidence but they did not use it, 

courts do not do that. They say, ‘‘There was not evidence at all 

about this element of the crime, so no jury could have concluded 

reasonably.’’ 

Mr. CARVIN. No, but he said that the coverage formula was not 

based on that evidence, so he was saying you need to have some 

reasonable grounds for distinguishing between the States you are 

covering and the States you are not. You cannot just pass a law 

that says everybody east of the Mississippi is a covered jurisdiction. 

And when the coverage formula was criticized as not reflecting current realities, the answer was, well, we looked at 15,000 pages of 

testimony. Justice Roberts, I think using purely legal analysis, said 

we will defer like crazy if you were relying on that evidence for the 

coverage formula at issue. But since you did not rely on that, there 

is literally nothing to defer to, so, Senator—— 

Senator BLUMENTHAL. And for a judge to usurp a jury or Congress and say you did not rely on it without having some voir dire, 

some inquiry into what was going on in the juror’s mind, was there 

some improper influence here? Don’t we open the door to courts 

saying, well, for all of your fact finding, Mr. Congress, I am going 

to look at that evidence, I do not see enough of it to sustain this 

element of the law or this part of your decision, and, therefore, we 

are going to strike it down? 

Mr. CARVIN. We defer every day, courts do, to administrative 

agencies, and you are arguing that similar deference should be 

done here. Now, let us assume the EPA looked at CO2 when it 

should have been looking at H2O. It would not do them any good 

to say we based the formula on CO2. We could have had a different 

formula based on H2O. The Court would say there is nothing—— 

Senator BLUMENTHAL. But it could say the absence of H2O and 

the presence of CO2 is what justifies this decision. I know we could 

go back and forth for some time. I am limited in terms of time, and 

I want to ask the two other witnesses, beginning with Professor 

Levitt, if I may, and perhaps we will be limited to you unless the 

Chairman gives you additional time. How do we fix this formula? 

The Court did not strike down the preclearance procedure. It simply struck down the formula, which may be, in fact, irremediable 

if we cannot get a bipartisan coalition together, which perhaps the 

Court counted on Congress failing to do, striking down only that 

part of the law and upholding the preclearance procedure. But really the task ahead of this Committee and the Senate is to try to arrive at a bipartisan substitute. 
27 

Mr. LEVITT. And I think there are lots of paths ahead, and it is 

part of why I am so very excited that this Committee is convening 

this hearing now in order to start down that path. And there are 

lots of different potential things that will help. The basic premise 

is the existing tools do not do the job. But there are lots of ways 

to modify the existing tools or return the tools that did exist in 

ways that will do the job, or at least further the job. The vigilance 

has to continue. 

Some of that involves different ways to get information about 

where discrimination is actually occurring, the sorts of things that 

you do not get with having to go out into the world to file a lawsuit, but you did get from the preclearance process. Some of what 

I am sure will be discussed are different ways to identify where 

there is the most risk, whether that is based on current violations, 

whether that is based on political polarization, whether that is 

based on other danger signs, you will have to look to where the 

most risk currently is. 

Other things will be done in order to make the available Section 

2 process less cumbersome, less burdensome, less expensive. All of 

that will help. It may well be that some combination of all of the 

above is what Congress will need, and other creative ideas that 

have not even been put forth yet, in order to make sure that Congress is able to effectively stop the problem. That is really the task 

that Congress has. It is the task that the Constitution gives to Congress. And I really look forward to the months ahead when there 

will be lots of different ideas, most of which, maybe in combination, 

will be sufficient to the task. 

Senator BLUMENTHAL. Thank you very much. I want to thank 

you, Mr. Chairman, and thank all of our witnesses for bringing to 

us the very important insights and intelligence that you have 

given. And I apologize, Mr. Carvin, for cutting you off a little bit 

there. 

Mr. CARVIN. No, no, no. 

Senator BLUMENTHAL. And I would welcome, I think other members of the Committee would as well, any answers, more specific 

answers you may have to that question I asked about the formula. 

Thank you. 

Senator WHITEHOUSE. I am interested in the question of deference as well. Here you had a bill—let us just stick with the Senate side that I am familiar with. Here you had a bill that passed 

the Senate 98–0. You were dealing with Congress at the height of 

its powers under the steelyard cases. You are dealing with a very, 

very extensive legislative record. We all can see that the record 

was abundant. The Supreme Court made the decision that within 

the halls of Congress, Congress had not looked at that record in the 

right way. And that is a point that one could argue and debate. 

It strikes me that the people who actually get elected around 

here knew and demonstrated by their vote that this bill was necessary, including the Senators from all of the States that were subject to the preclearance procedure. 

Do you think it should not be relevant to the Court, even if you 

are looking at kind of an admission against interest theory, as long 

as you are trying to—you know, once the Court starts secondguessing how Congress makes decisions, it opens a whole arena of 
28 

new areas. But you would think that one might be that you could 

follow kind of an admission against interest theory and say, look, 

if both Senators from every State that are subject to this have 

voted for this, they must know something about elections in their 

States. These are not stupid people. These are not people who are 

not familiar with the elective process in their State, and they have 

by their vote suggested that this is necessary. Why would that vote 

by those home State Senators not be something entitled to discussion or weight by the Court? 

Mr. CARVIN. I fully agree with you that it is up to Congress to 

be the ones weighing conflicting evidence. I do not think the Court 

has ever suggested that strong bipartisan support affects the constitutional calculus. For example, when they struck down the Defense of Marriage Act, it was not because Senator Biden had spoken in support of it, it had been signed by President Clinton. We 

are going to infer—— 

Senator WHITEHOUSE. But that was different. That was different. 

Mr. CARVIN. Was it? 

Senator WHITEHOUSE. That was different. That was different because the challenge was more or less on the face of the law. Here 

you had a congressional record, and the Court’s decision was that 

Congress, in reviewing its record, did not review it in the right 

way. They are actually not looking at the statute here. They are 

looking at the behavior of Congress, and that is what is a little bit 

different. And if you are going to look at the behavior of Congress, 

why not look at the behavior of Congress in the form of the actual 

votes by the actual Senators from the actual States who all conceded that this bill was necessary. 

Mr. CARVIN. Fair enough. If they had second-guessed the evidence that Congress was looking at, they would have exceeded the 

judicial role. But they knew what Congress was looking at because 

Congress told them it was looking at 1968 and 1972 elections. That 

is what was determining whether or not a jurisdiction is subject to 

this extraordinary preclearance requirement or not. And no one, I 

do not think anyone pretended that the situation that existed in 

1968 in Mississippi was reflective of the situation that existed in 

all the covered jurisdictions. So—— 

Senator WHITEHOUSE. Except that one could argue—— 

Mr. CARVIN [continuing]. They deferred to that judgment. They 

just thought that the judgment—— 

Senator WHITEHOUSE. Except that one could argue that the Senators from those actual States who actually are involved in elections and who presumably know more about elections in those 

States than a Supreme Court judge who has never been elected to 

anything, particularly not in that State, does, they appeared to 

agree. 

Mr. CARVIN. But, again, I thought we had agreed, Senator, that 

psychoanalyzing senatorial motives in a vote for DOMA or for anything else is not how courts analyze congressional enactments. 

They look at the evidence. 

Senator WHITEHOUSE. Yes, well, I suggest that that is exactly 

what the Court did in this case. They tried to sort of psychoanalyze 

Congress as a body, and I think they failed dramatically. 
29 

The other point that I would make I would ask Ms. Weinberg to 

respond to. When we in Congress hear about elections concerns, 

one that we hear an enormous amount about is voter fraud. And 

we have had voter ID laws and all sorts of discussions about the 

problem of voter fraud. You are the one elected official on this 

panel. My experience of voter fraud is that it is a problem that is 

so de minimis as to be virtually imaginary. It almost never comes 

up. It requires somebody to not vote and then to have somebody 

come in and pretend to be them and then vote in their place. And 

clearly there is some harm in the very, very infinitesimally rare 

cases in which that happens. But for that tiny, tiny little rare occasion, we have had this enormous effort across the country, this 

enormous voter ID effort, and an enormous amount of hue and cry 

politically. 

Here, on the other hand, you have people who show up to vote. 

They want to. And they are told, sorry, wrong day, because they 

changed the day. Devices are used that actually prevent people 

who want to vote from having that opportunity. And when you 

weigh the two of them side by side, it strikes me that the level of 

concern relative to the rarity of somebody actually having their 

vote taken away from a fraudulent person coming in and trying to 

pretend to be them compared to the kind of wholesale discriminatory election practices that disenfranchise perhaps dozens, hundreds, thousands of people and the Court did not seem to be as concerned about that aspect of it. 

In your electoral experience, how would you balance the risk to 

the electoral process of voter fraud versus disenfran—disenfranchisement through laws designed to manipulate and deter voting? 

Ms. WEINBERG. I have trouble saying ‘‘disenfranchisement’’ too, 

so I was happy to see that you do, too. 

Senator WHITEHOUSE. Thank you for bailing me out on that one. 

Ms. WEINBERG. And, actually, you are correct. And to echo Senator Durbin’s earlier comments regarding voter fraud, how very little is often found in that, and that is certainly the case. What we 

have experienced just as early as last year in Florida with the citizenship checks and all these voter ID issues, and I love to hear the 

fact that people recognize that there are those who love to come out 

to vote and do not get to. Voter fraud, it is not as significant an 

issue as the larger picture, and here is the deal with the decision 

having been passed, it is already a done deal. Congress now has 

an incredible opportunity to review what the coverage formula 

should be, and I have given you examples briefly in my testimony 

and many others in my written testimony of how we are personally 

on the ground, as local electeds, dealing with our voters in our cities. 

I am very scared as an elected official for my constituents and 

the millions of folks in Florida and the millions of residents in the 

United States, and I will tell you why. The discriminatory practices 

of the 1960s which gave birth to the Voting Rights Act have gotten 

what I call my three S’s: they have gotten extremely sneaky, extremely sophisticated, and extremely smarter. So it really behooves 

Congress at this time to take all that into consideration, all the histories of not only my five counties in Florida that are under 

preclearance coverage, the non-covered counties that have tried to 
30 

change some election laws that are of question, and I am sure my 

State of Florida is not alone with the other 49 States trying to 

come up with these sneaky, smarter, sophisticated discriminatory 

practices. 

So I think it is a great time for Congress and for the decision to 

have come down as it did, for Congress to revisit, because we might 

not end up with what we had in the preclearance formula. I hope 

that there will be a whole lot of better legal protections for voters 

all across the State and all across the country for those specific instances where people have been sneaky about it. 

Senator WHITEHOUSE. Thank you. 

While Senator Grassley is settling in, let me ask one more question. Senator Cruz asked Mr. Carvin the question about what lesson Congress should take from the Court’s discussion of the role of 

Congress in all of this and how we should improve our record on 

a going-forward basis. We have another scholar here who is interested and expert in this particular field of law. Professor Levitt, let 

me ask you to provide an answer to that same question. What lessons should we take from the Shelby County decision? And how, 

when we go about this, can we meet the test that the Court has 

imposed upon us? 

Mr. LEVITT. The only real clarity that the Court has offered is 

that what Congress does has to be justified by current conditions. 

I think there is ample evidence that was before Congress, I think 

there is ample evidence that Congress can now compile about current conditions requiring more than the tools that presently exist, 

the fact that the existing responsive, reactive, expensive, cumbersome tools are powerful but not good enough, and that there is 

ample room for Congress to legislate to respond to the fact that the 

existing tools, while powerful, are not good enough. To have 

proactive and far more nimble protections to make sure that the 

most discriminatory laws are stopped before they ever go into effect, I think that is what Congress is going to have to focus on in 

the hearings to come. And there are many ways to achieve that, 

but that is the primary task that Congress has before it now. 

And I will add that this has always been a task that Congress 

has embraced on a bipartisan basis in the past, and I think there 

is great hope that Congress will do so again in the future. Every 

single reauthorization of the Voting Rights Act came with the recognition that Section 2 on its own is not enough, and every single 

time substantial majorities of both Republicans and Democrats 

voted to confirm that. And I look forward to Congress creating that 

record once again now. 

Senator WHITEHOUSE. Let me recognize our distinguished Ranking Member, Senator Grassley, but before he begins his question, 

let me ask unanimous consent that testimony provided by a variety 

of groups be added to the record. Without objection. 

[The information referred to appears as a submission for the 

record.] 

Senator GRASSLEY. The reason I was not here when you, except 

for the first witness, testified is because I had to be over on the 

floor. I apologize. 

Commissioner Weinberg and Professor Levitt, other than the abstract concepts that the professor mentioned in his testimony, what 
31 

specific ideas do you have on how Congress should fix the statute? 

I will start with Commissioner Weinberg. 

Ms. WEINBERG. Specific ideas on how Congress should fix the 

statute now—and ‘‘fix’’ is a good word—actually, there have been 

a few different national organizations that have been having conversations on what should be, and here is what I think Congress 

needs to consider very carefully, which I just made in my previous 

comments before you walked in, Ranking Member Grassley. It is 

the fact that these certain areas that, first of all, are covered counties, but also the non-covered counties, there have been instances 

and situations in States and counties where there have been certain practices that have been attempted to be put in place. So Congress needs to look at that overall picture on what those events 

have transpired. That would be my first recommendation. 

And, second, I wanted to take the opportunity actually to thank 

the members of the Committee for their recent work on the comprehensive immigration reform because that ultimately, of course, 

leads to voters and Voting Rights Act needs. 

But that is really the only concern from my perspective that I 

can see for what Congress needs to do going forward. But we are 

more than happy at NALEO and all of the other partnership organizations that we work with to work with Congress bipartisanly, 

nonpartisanly, to help come up with the best coverage formula. 

Senator GRASSLEY. Professor Levitt. 

Mr. LEVITT. Thank you, Ranking Member Grassley. I think there 

are a number of things that Congress can and should look at, including some of those mentioned by Commissioner Urba ́ez 

Weinberg, some of which I have also spoken about here, some of 

which are in my written remarks. 

In addition to the sort of big, shiny statewide actions that Mr. 

Carvin has been focusing on that will, in fact, draw lawyers, I 

would urge the Committee to consider very carefully how it may 

best prevent and remedy discrimination in smaller jurisdictions 

where the ability to attract talent of Mr. Carvin’s level is not quite 

so great. 

Some of what Congress should consider will be informational, 

getting better information out on the impacts of new practices and 

what they may tell us about discrimination ongoing. Some of what 

Congress should consider may be about easing the costs and burdens of the very same responsive litigation that Mr. Carvin has 

been mentioning. Some of what Congress should consider I would 

think would be focusing on, in the jurisdictions where we have the 

most concern, stopping discrimination before it takes effect and 

that is perhaps the most important and the most directly targeted 

by the Shelby County decision itself. 

I think all of those probably in some combination will be more 

adequate to fulfill Congress’ 15th Amendment both opportunity and 

obligation to ensure that discrimination based on race or ethnicity 

is not found in America. Sadly, we have made a lot of progress, but 

we are not there yet, and I do not think that the existing tools will 

help us get there adequately. I think that there is an awful lot that 

Congress can do to further that goal. 

Senator GRASSLEY. Mr. Carvin, apart from maximizing racial 

gerrymandering, are there other ways that the Justice Department 
32 

has applied preclearance requirements that should inform our decision of whether or how we might legislate? 

Mr. CARVIN. Yes, I think the Justice Department has a very regrettable track record of not seeking to enforce non-discrimination 

or equal opportunity but, as I mentioned, partisan preference. You 

referred to the partisan gerrymandering, which we have already 

discussed. As I say, in the Texas case, they successfully took a very 

aggressive approach that would protect white Democrats even in 

areas where no minority Democrat could be elected. 

Ms. Weinberg referenced the whole question of whether efforts to 

identify citizens is prohibited by Section 5. I represented the State 

of Florida which was using a Federal database to identify people 

who would be committing a Federal felony by voting, i.e., non-citizens. But they were nonetheless on the voter rolls, and the Justice 

Department in my mind incredibly came in and said it would violate Section 5 to deprive people of the ability to commit a felony 

by being a non-citizen that was voting. 

So in many ways, it dilutes voting power because every time you 

elect—every time you allow a fraudulent vote by a non-citizen or 

a person who is traveling under false ID, you, of course, negate the 

votes of others. 

The case I brought to challenge the constitutionality of Section 

5 is yet another example. It was a majority black jurisdiction that 

had made the eminently sensible decision that in local elections 

they wanted to switch from partisan to nonpartisan elections. The 

Justice Department came in and said for some reason that the 

black community in that area did not know what was good for 

black voters and struck it down under Section 5 on the theory, 

again, that it would hurt the election of Democrats. 

So it has been a very poor track record of distorting the equal 

opportunity mandate of Section 5 into one of preferences, particularly preferences with a partisan result. 

Senator GRASSLEY. Professor Levitt, page 10 of your testimony 

cites objections that the Department of Justice raised in the 

preclearance process from 1982 to 2006. You also cited objections 

since 2000 which occurred at a lower rate. And you did not cite any 

figures of objections since we last reauthorized the law. This year 

the Supreme Court ruled that the kinds of selective intrusions on 

State power that Section 5 represents can only be justified by current conditions and must connect the coverage formula to a problem it targets. 

So my question: In citing data from 1982, which is more than 30 

years old, and no specific post-2006 data, how does your testimony 

provide contemporary evidence of discrimination in particular jurisdictions that the Supreme Court has determined is necessary for 

a constitutional coverage formula? 

Mr. LEVITT. To be clear, Senator Grassley, the written testimony, 

including the parts that you mentioned, included objections after 

2000, not merely limited to 2000 to 2006, but at any point after 

2000—that is, within the last 13 years, this millennium, this century, not in any way ancient history. 

I do not think that the current state of objections alone is the full 

state of the record, that there is still a significant problem that 

Section 2 cannot alone address. That is, we have had 73 objections 
33 

since 2000. In addition to that, there have been changes that were 

submitted that were then withdrawn after the Department of Justice asked for more information. Those are not always but often an 

indication that they were going to draw an objection, and so those 

requests as well added to the record. 

Beyond that—and here we have a problem relying on Section 5 

alone, and that is that one of the largest impacts of the Voting 

Rights Act has actually concerned changes deterred specifically because the preclearance regime exists. Ms. Urba ́ez Weinberg mentioned this in her testimony before, that the very fact that it was 

in place stopped some jurisdictions from making changes they otherwise would have put in place. 

Now, despite that, I think you have ample signs that the existing 

problems in recent history, not ancient history, are not solvable by 

the tools that we have today, that there are problems with the existing tools that Congress will need to fix, and that requires a 

record not only of objections since 2000 but also of discriminatory 

behaviors, some of which were in briefs submitted to the Supreme 

Court and in argument before the Supreme Court. We have seen 

some truly—‘‘regrettable’’ is not a sufficiently strong word, but I do 

not think I am allowed to use the strong words that I would like— 

to describe some behaviors not in ancient history but as recently 

as 2011. You had members of a State legislature referring to African Americans as ‘‘aborigines.’’ That is the environment that we 

are in. And that is the environment that still needs amply robust 

tools beyond the tools that currently exist to help combat the discrimination that inevitably results. 

I think there are lots of examples that I could give you. I would 

be happy to supply further examples, but I do not know that I have 

the time at the moment, in counties and local jurisdictions all over 

the place that have practices that would not be cured by today’s 

laws, that we desperately need Congress to supply us tools to combat. 

Senator GRASSLEY. Thank you. I have gone way beyond my time. 

Senator WHITEHOUSE. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Mr. Chairman. 

Thank you. 

One thing we have not focused on much is the wait time issue, 

the waiting in line, you know, the 102-year-old woman who was at 

the State of the Union who had waited for hours to vote. And it 

is not just anecdotes. A recent study showed that in the 2012 election, 22 percent of African Americans and 24 percent of Hispanics 

had to wait more than 30 minutes or longer to vote, but only 9 percent of white voters had to wait 30 minutes or longer. 

I will start with you, Commissioner. What do you see as the 

cause of this disparity? And what can be done to remedy it? 

Ms. WEINBERG. Thank you for the question. For us personally 

down in Miami-Dade County—and I am not smiling because it was 

funny. I am smiling because it is just incredibly embarrassing, 

what happened in Miami-Dade County. A half-hour, I think it is 

a gross understatement. I personally waited over 2 hours. Had it 

not been for my firm commitment to continue to vote every election, I would have probably walked away, as many did, I should 

note. 
34 

At least for us in Miami-Dade County—— 

Senator KLOBUCHAR. I assume you would have still won. Okay. 

Good. All right. 

Ms. WEINBERG. As for us specifically in Miami-Dade County, I 

can tell you there were several factors, and the statistics that you 

quote are true and unfortunate, and I will tell you why they are. 

These districts that are predominantly minorities, that are predominantly African American and Latino communities, are either 

not properly staffed, many of them—and we had to deal with our 

early voting hours execution last year in Miami-Dade County, and 

an extremely long ballot on issues that had been held off that could 

have been voted on earlier. So you put together an extremely long 

ballot, improperly staffed, improperly trained personnel to assist 

those language-proficient needs of those communities, then you 

have got yourself a formula for hours and hours of wait. 

Senator KLOBUCHAR. And so if someone, say, has an hour-long 

lunch break and they show up and they see that line, they can be 

likely to—— 

Ms. WEINBERG. Extremely often, and I will tell you why that is 

so bad in these communities. These are communities who work 

hourly wages jobs. These are communities that do their 7 to 3. If 

you eliminate early voting, then there are no real days for these 

communities to go to. An hour lunch is very generous. Most of 

these communities have a half-hour lunch if you are lucky. So if 

you have a half-hour lunch and you have to wait 3 hours in line, 

what are you going to do? Are you going to go back to work to 

make sure you have a full paycheck to feed your family that week? 

Or are you going to just forgo your vote? 

Senator KLOBUCHAR. Okay. Thank you. 

Professor Levitt, is this the kind of evidence you are talking 

about? 

Mr. LEVITT. Yes, and I completely agree with Ms. Urba ́ez 

Weinberg. The 30-minute average is only an average, and the tail 

of that swing goes way, way, way, way up, 8 hours in 2004, 11 

hours in 2008, 7 hours in 2012. That is a system that does not accommodate its own citizens choosing their own representatives, and 

that system is a system that is broken. 

In some ways, lines are like fevers. They are caused by a lot of 

different factors, and the factors vary from place to place. Ms. 

Urba ́ez Weinberg is absolutely right that those were the factors 

that were primarily at issue in Florida. I will add to that a reduction in the opportunities to vote early in Florida contributed to the 

damage. I know that is something that members of this Committee 

have investigated before. 

These are not unsolvable problems. So Starbucks has figured out 

how not to make you wait 7 hours in line to get a cup of coffee. 

The hours may be—it may be a long wait, but it is not 7 hours. 

And that is because they have paid a lot of attention—I am going 

to speak actually on Saturday to the National Association of State 

Election Directors about exactly this issue. They have paid a lot of 

attention to what is known in the academic literature as queuing 

theory, how many people are arriving, how many points of service 

you have to serve all of them, and how long each one takes. And 
35 

all of those are things that laws or practices can help alleviate the 

burdens of actual citizens waiting in line to cast their ballot. 

If I had one silver bullet to try and get at much of this problem, 

it would be a massive reform to the registration system that we 

have. Registration problems are at the root of a lot of this fever, 

and you find that in various ways, whether it is people arriving at 

the wrong place or people not finding themselves on the rolls when 

they do arrive, whether it is staff who have to deal with registration problems on the ground and do not know how to combat it, 

whether you have problems over provisional ballots. A lot of the 

different things that lead to lines have their root in the registration 

system. 

There are other problems besides, and lots of things that can be 

done, but if I had one change that I could make in order to relieve 

some of that fever, it would be changes to the registration system. 

Senator KLOBUCHAR. We have already talked about how the 

same-day registration and other things have actually helped in a 

number of States. 

It looks like you want to respond, Mr. Carvin. 

Mr. CARVIN. Just to make the point that long lines are bad, but 

they do not have anything to do with racial discrimination or Section 5. Dade County, for example, where all those long line were, 

is not a covered jurisdiction. So the absence or presence of Section 

5—— 

Senator KLOBUCHAR. But as we look at potentially the reauthorization and we are looking at new problems that have been created 

over the years or have gotten worse over the years, this is certainly 

something we could look at. We do not just have to be stuck in the 

old ways, which clearly there are many of us that like to see the 

preclearance and do some more work with that. But we also could 

look at other things that we could do, and it seems like these long 

lines are something that actually brought Mitt Romney’s and 

Barack Obama’s counsel together to form a commission to look at 

what we can do, and we could incorporate that work into this. 

Mr. CARVIN. Fair enough, and I would suggest that you may 

want to look at Romney and Obama counsel’s recommendations because this is much less of a civil rights issue than a voting administration issue. I note that, for example, the lines were the longest 

in areas which were run by predominantly minority cities, and so 

to turn this into a civil rights issue is sort of backward, plus which 

in 2012 with all these—— 

Senator KLOBUCHAR. I actually was looking at how we could get 

more people to vote, and you can call it whatever you want, but I 

think when people are waiting in these lines, we have problems. 

And so we are trying to come up with practical solutions after the 

Court decisions to solve some of these problems. 

Mr. CARVIN. Fair enough, and I certainly did not mean to disagree. It is just the topic of this hearing is Section 5 and the damage done by Shelby County. Congress should always be looking at 

long lines, whether it has anything to do with Shelby County or 

Section 5. I just wanted to make the point that any such good government regulation of that sort would have nothing to do with any 

problem caused by Shelby County or resurrecting Section 5. 
36 

Senator KLOBUCHAR. Just the last thing I wanted to focus on is, 

I think, both Professor Levitt and Commissioner Weinberg, I liked 

some of the reasons you put forth for why Section 2 was not 

enough and why we need to look deeper in that, because one of the 

main things I see as an issue here is deterrence, and that is that 

if people think it is going to take 4 years to litigate a case or hundreds of thousands of dollars to hire a law firm, that is not really 

deterrence. So could you talk a little bit about that, Professor? 

Mr. LEVITT. Sure. And you are right, there are jurisdictions, as 

I mentioned before, that have discriminatory laws in place right 

now that are not being challenged under Section 2 because the people in those jurisdictions cannot gather the data sufficiently, cannot 

get the money together to hire a lawyer sufficiently, do not have 

the resources or the time to do what is necessary. 

There are other jurisdictions that are locked in current litigation 

that have not seen a resolution to their problems as time passes 

and as the individuals elected under those unjust systems continue 

to make policy. 

Mr. Carvin talked before about the opportunity for swarms of 

lawyers to descend and to try and get preliminary injunctive relief. 

And I wish it were as simple and straightforward and easy as he 

describes. Sometimes it works, and that is great. Sometimes it does 

not, and in part that is because the Supreme Court has told courts 

in 2006, do not jump to conclusions, we do not want you offering 

preliminary relief, particularly right before an election, if the facts 

are still disputed. And often in these cases, as you can imagine, the 

facts are quite disputed, which is why preliminary relief like Mr. 

Carvin is talking about is not actually offered that often. I believe 

at the Supreme Court Solicitor General Verrilli mentioned that 

fewer than a quarter of cases end up in a preliminary injunction. 

I believe other attorneys at the Department of Justice have said 

that figure is closer to 5 percent or less. All of this means that 

when discriminatory laws are passed, jurisdictions are not deterred 

from passing those laws by the potential prospect maybe of a cumbersome, burdensome lawsuit that they are not paying for coming 

down the line. 

Senator KLOBUCHAR. Last question. Commissioner, just as a Republican local elected official, you can see we have strong support 

here from Republican Congressman Sensenbrenner moving forward. You want to move forward on reauthorizing this. How would 

you suggest we build this coalition given some of the pushback we 

have seen? What arguments do you think are going to work with 

some of our Republican colleagues to move forward? 

Ms. WEINBERG. I think the focus needs to remain on the fact that 

this is an American issue. I think it is the moment that we start 

cutting it down into the prevalent facts in some areas and a lot of 

parts of this country it is a racial issue, unfortunately. But we need 

to keep in mind that it is an all-American issue. I think if we reach 

out to the members of my party from that perspective, in an ideal 

world that should be sufficient, looking at the overall picture of 

why are we doing this, not for whom are we doing this. 

Senator KLOBUCHAR. Very well put. Thank you. 

Senator WHITEHOUSE. The note of an ideal world being a good 

one to end this particular hearing on, perhaps even an ironic note. 
37 

We will adjourn. The record of the hearing will stay open for one 

additional week if anybody wishes to add any material. I thank the 

witnesses, and I thank the Senators who participated in the hearing. 

[Whereupon, at 3:15 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

(39) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF HON. PATRICK LEAHY
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PREPARED STATEMENT OF SENATOR HIRONO
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PREPARED STATEMENT OF CONGRESSMAN JOHN LEWIS
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PREPARED STATEMENT OF HON. F. JAMES SENSENBRENNER, JR. 
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PREPARED STATEMENT OF LUZ URBA ́ EZ WEINBERG, COMMISSIONER, CITY OF

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PREPARED STATEMENT OF MICHAEL A. CARVIN, PARTNER, JONES DAY, WASHINGTON, 

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PREPARED STATEMENT OF JUSTIN LEVITT, ASSOCIATE PROFESSOR OF LAW, LOYOLA

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QUESTIONS SUBMITTED BY SENATOR GRASSLEY FOR LUZ URBA ́ EZ WEINBERG
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QUESTIONS SUBMITTED BY SENATOR GRASSLEY FOR MICHAEL A. CARVIN
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RESPONSES OF LUZ URBA ́ EZ WEINBERG TO QUESTIONS SUBMITTED BY SENATOR

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RESPONSES OF MICHAEL A. CARVIN TO QUESTIONS SUBMITTED BY SENATORS FRANKEN

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Æ