We dont have a gavel. Committee on constitution, civil rights and Civil Liberties is called to order. Authorize to declare a recess of this subcommittee at any time. Welcome, everyone, to todays hearing. Field hearing on evidence. Not a field hearing. On evidence of current and ongoing voting discrimination. I recognize myself for an opening statement. Todays hearing of on current and ongoing voting discrimination is part of the house judiciary subcommittee on constitution, civil rights and Civil Liberties over the course of this year to assess the current need for a reinvigoration of the requirement of section 5 of Voting Rights act. To consider other ways to strengthen that civil rights statue. Im not sure why we say reinvigoration. That seems to be one of the words we toss around. Section 4 was cut out so we need to have a section 4 to activate section 5. Section 5 has been made dormant by the Supreme Court saying section 4 wasnt adequate so we need to find a new test to awaken the dormant power of section 5. Voting rights act of 65 is widely considered the most effective civil rights statute ever enacted by congress to protect the fundamental right to vote. One of its central enforcement provisions was section 5. Provision required certain jurisdictions with a history of voting discrimination against racial minority groups predominantly those that tended to be in the deep south to obtain approval of any changes to the voting laws or procedures from the department of justice or u. S. District court for the district of columbia before those changes could take effect. Purpose of the requirement was to ensure the jurisdictions, as shown by finding of congress, would bear the burden of proving that any changes to voting laws were not discriminatory before such changes could take effect and therefore not discriminate against people that they shouldnt be taking that action against. We passed the Voting Rights act in 65. There was a list of jurisdictions. It was renewed. And then in 2013, our Supreme Court said what we did in the past, chairman of the committee and what the house did by a vote of 390something to 33 and the senate by 980 was not adequate. That a finding by the congress of legislative action was not sufficient, that the court, which is generally kind of says it bears deference to congress was going to jump in and put its opinion above congress. What it did was prevented potentially a discriminatory voting practice. In this way it proved to be a significant means of protection of the rights of minority voters. Congress had repeatedly authorized. Most recently in 2006. It was 39033 in the house and the senate was 980. Supreme court effectively gutted section 5 in 2013. Shelby county versus holder. Struck down the coverage formula. Section 4. Determined which jurisdictions would be subject to the requirement. As a result, the provision remains dormant unless and until congress adopts this new formula. Weve got to show the court weve taken information and our findings are based on fact. Most recently in memphis, tennessee. Well further learn at todays hearings. Weve seen formally cover voting measures. North carolina for example, passed a sweeping voting suppression law that a federal Appeals Court ultimately held to be unconstitutional, finding that it intentionally targeted African Americans with almost surgical precision. Of course by doing it after they put it into effect, they had their desired effect, which was to limit African American voting. The courts could have stopped them from doing it before they did. As mel brooks would say the voodoo they do so well. We also hear about measures that make it difficult or impossible for minority voters to exercise their rights to vote. Polling place closures, purging of voting rolls that disproportionately target minority voters. All of which are designed to make it harder for African Americans and other racial and ethnic minorities to vote. Last week in memphis we learned about tennessees third Party Registration law that would item made it a criminal effort for people to do so. Back in may, we learned about a similar law in texas and about many other examples of voting discrimination in that state. Weve seen states engage in racial gerrymandering designed to allude the strength of minority voters. In the absence of an executive preclarence formula, theres almost certainty these discriminatory measures will undermine the Voting Rights of racial and language minority voters. While section 2 of the Voting Rights act remains in effect, it is by itself less effective so definitely more cumbersome and often expensive to enforce the Voting Rights act. Most importantly, plaintiffs cannot invoke section 2 until after alleged harm has taken place, requiring discrimination victims to rely solely on such a remedy. The acts most important enforcement mechanism. I thank our witnesses, members for being here today. Look forward to a fruitful discussion. Id now like to recognize the Ranking Member, mr. Johnson, for his opening statement. Thank you, mr. Chairman. Appreciate you all for being here as the Minority Party on this committee. I think theres a couple things that we just want to say at the outset as we begin the hearing. First of all, lets be clear about this. We all agree discriminatory treatment and voting based on race or sex is abhorrent. Its prohibited by the constitution as it should be and prohibited by federal statute as it should be. Too often complaints of discrimination and voting have nothing to do with discriminatory treatment. Instead, rules entirely neutral on their face sometimes claimed to be discriminatory simply because they have a disparate impact on one group or another. Disparate impact claims are a form of identity politics and they contradict, for example, dr. Martin luther kings admonition to focus on consciouses rather than racial group. Dr. King said famously, quote, when the they were signed a promissory note to which every american was to fall heir. This note was a promise that all men, black men as well as white men, would be guaranteed the unalienable rights to the pursuit of life, liberty, and happiness. That promissory note promised life, liberty, and the pursuit of happiness. We just believe genuinely that they pervert the language of our founding documents and fail to understand the import of dr. Kings words. Disparate impacts are not proof of discrimination. Indeed, they are statistically inevitable. As thomas has explained, if several criteria need to be met for any given outcome, and this can apply to voting requirements as well, small variations in any groups odds of meeting any of those criteria will produce different outcomes for the group generally. The problem with disparate Impact Theory and voting right context is disparate impact, there are thousands of reasonable reasons and neutral voting rule might have a disparate impact. Reasons that have nothing whatsoever to do with discrimination. The department of justices letter to preclear South Carolinas voter i. D. Law under the Voting Rights act in 2011. The department claimed in the letter that, quote, minority registered voters were nearly 20 more likely to be effectively disenfranchised by the law because they lacked a drivers license. The difference between white and African American holders of a drivers license was 1. 6 . The Justice Department used the 20 figure because while the states data showed 8. 4 of white registered voters lacked any form of dmv issued i. D. , as compared to 10 of nonwhite registered voters, the number 10 is 20 larger than the number 8. 4 . Its true 20 is larger but the Justice Department rounded up but it clearly distorts the reported difference in drivers license rates and it was used to falsely declare the South Carolina law as objectionable. Lets give another example. Data Shows Younger people across racial groups tend to be the least likely to have drivers licenses. Consequently, if African Americans have proportionately more young people in their demographic group, there will be a disproportionate number without drivers licenses, however, slight, as is indeed the case. As the facts follow, this is due to demographics and not discrimination. The disparate impact approach to civil rights and the assumption that different outcomes are a result of prejudice is fundamentally unsound for the same reason social scientists are trained that correlation does not imply causation. In other words there could be all sorts of correlations between one event and another and that doesnt answer the question as to why the correlation exists. My point is not that voting discrimination as disappeared forever. We know it hasnt. My point is disparate impacts cant be meaningful used to prove voting discrimination. Regarding voting based on race, section 3 of the Voting Rights act, permanent and federal statutory law remains in place and full effect. Just a couple years ago, for example, u. S. District court judge rosenthal issued an opinion in a redistricting case that required the city of pasadena, texas to be monitored by the Justice Department because it had intentionally changed its City Council Districts to decrease hispanic influence. The city, which the court ruled, quote, has a long history of discrimination against minorities, unquote, was required to have their future voting rules changes precleared by the department of justice for the next six years during which time the federal judge retains jurisdiction to review enforcement any change to the election map or plan in effect in pasadena. A change to the citys election plan can be enforced without review by the judge only if it has been submitted to the u. S. Attorney general and the department of justice has not objected in 60 days. I look forward to hearing from all of our witnesses here today. Thank you, mr. Johnson. I now recognize the chairman of the full judiciary committee, gentleman from much of new york, manhattan, east side. West side. Thank you, mr. Chairman. Since the Supreme Courts disastrous 2013 decision, Shelby County versus holder, which effectively gutted the most critical enforcement provision of the Voting Rights act of 1965, weve seen a troubling trend. States and localities, in particular those who were formulaally subject to the requirement have enacted or engaged in various Voter Suppression tactics such as burdensome proof of citizenship laws, significant scale backs to early Voting Periods, restrictions on absentee ballots, laws to make it difficult to restore the Voting Rights of formerly incarcerated individuals. These have a disproportionate negative impact on minority voters. In contrary to what we just heard, disparate impact is very, very much a very useful evidentiary tool. In most recent elections in november 2018, voters across the country experienced various barriers to voting because of state and local laws and circumstances that made it hard or impossible to vote. For example, we heard last week during our field hearing in memphis that in georgia, under that states law, 53,000 voter registrants, 70 of whom were African American were placed in pending status and at risk of not being counted by the secretary of state, also the republican nominee for governor in the same election, because of minor misspellings on their Registration Forms. The court put a stop to the practice. Enacted just four days before the election, only after a prolonged period of confusion. Section 5 of the Voting Rights act, vra, contains the requirement which requires certain jurisdictions with a history of discrimination to submit any proposed changes to their voting laws and practices to the department of justice for prior approval to ensure theyre not discriminatory. To understand why the requirement was so central to enforcing the vra, its worth remembering why it was enacted in the first place. Before the vra, many states and localities passed Voter Suppression laws. It could take many years before the laws could be successfully challenged in court, if at all. As soon as one law is overturned, another would be enacted. Section 5s provision helped stop this discriminatory practice. Indeed the success of the Voting Rights act with its effective requirement was apparent almost immediately after the law went into effect. Registration of African American voters and the number of African AmericansHolding Elected Office both rose dramatically in the few years after enactment of section 5. These successes could not have happened without vigorous enforcement of the Voting Rights act and particularly of its preclearance provision. It determined which jurisdictions would be subject effectively suspending the operation of the preclearance requirement. Not surprisingly, within 24 hours of the Shelby County decision, it announced it would reinstitute draconian laws. During the years between their enactment and the courts decisions, many elections over the discriminatory laws remained in place and many people were denied their rightful right to vote. In short, before the Racial Discrimination could be stopped, the damage had already been done. At least 21 other states have also enacted newly restrictive statewide voter laws. Restoring the vitality of the Voting Rights act is of critical importance. In 2006 when i was the Ranking Member of the subcommittee, we undertook an exhaustive process to build a record that demonstrated unequivocally the need to reauthorize the Voting Rights act. At the time we found that many covered jurisdictions were still facilitating ongoing discrimination. The states and subdivisions continue to engage in racially selective practices such as relocating polling places for African American voters and in the case of localities, in facting certain awards to satisfy white suburban voters to run for elected office in their cities. While its true those seeking to enforce the vra can still pursue after the fact legal remedies, even without preclearance, time and experience have proven such an approach takes longer and is far more expensive than having an effective preclearance regime. Once the vote has been denied, it cannot be recast. The damage to our democracy is permanent. Thats why i hope the members of both sides of the aisle and both chambers of congress to come together and pass legislation to restore the vra to its full vitality. Todays hearing will provide additional opportunity to renew our understanding of the importance of the Voting Rights act and in particular of its preclearance provisions and to support our efforts to craft the legislation solution. I look forward to hearing from our distinguished witnesses to hear about their findings of ongoing voting discrimination by states and localities. Thank you, mr. Chairman. Mr. Collins, Ranking Member has a statement for the record. We welcome our witnesses and thank them for participating in todays hearing. Your written statements will be entered into the record for entirety. Theres a timing light on your table. Light switches from green to yellow. It means youve got one minute left. If it turns red, trouble. Five minutes expired. Remind every witness that your statements made to the subcommittee are subject to penalties and perjury which could result in a fine or prison of five years or both. That will not likely happen. Our first witness is ms. Gupta. Previously she served as Principal Deputy assistant attorney general and as acting assistant attorney general in the head of the Civil Rights Division at the u. S. Department of justice during the obama administration. Ms. Gupta received her law degree from the New York School of law. And received her under graduate degree magna laude. Chairman nadler, Ranking Member johnson, members of the subcommittee, thank you for the opportunity. Thank you, chairman cohen, for your leadership and callings of hearing to restore the Voting Rights act. The vra is considered one of the most successful pieces of civil rights legislation in our history. Not along ago, just in 2006, this very body reauthorized the vra with sweeping bipartisan support. In 2013, five justs of the Supreme Court gutted the vras most powerful provision. Section 5 enabled the federal government to block proposed discriminatory voting restrictions in places with the most pervasive histories of discrimination. It also insured that changes to voting rules were public, transparent, and evaluated to protect voters against discrimination based on race and language. When i served in the Justice Department, we relied on section 2 of the vra to help mitigate the damage done by t