Was a covered jurisdiction. Shelby county had been kind of a modal of Voting Rights, to be honest with you, for a decent time. There had been cities and towns that had problems but Shelby County itself was pretty good. So we signed them on. They decided to file a complaint. And so we did that. One of the thing that is we decided to do from the outset though was to bring two claims, which ended up being important, i think. The first was a challenge to section 4 b itself which was the coverage formula. The second was to bring a challenge to section 5. So because of some thing that is the court had said in northwest austin about coverage being outdated we thought breaking it down that way would crystalize the issue for the courts. That is the way we proceeded and ultimately the way that the court ruled. It ruled on the section 4 b issue finding that the coverage formula was outdated and did not respond to Current Conditions. Did not rule on the section 5 issue. So basically the base line that we have today is if congress creates a new coverage formula section 5 will be back in place. But as of right now its not because theres no valid overage formula. Let me just start by thanking i fmp es for bringing us all here today, for inviting me and to thank all of you for being here. It is a great honor to be among such a group of people from around the world who care about emocracy as much as we do. The foundation of democracy any democracy is the right to vote. This right has long been recognized as fundamental by our Supreme Court even though our constitution does not explicitly protect Voting Rights as such. Our courts since the 19th century, however, has said that the right to vote is fundamental because it is pre servetive of all rights. None of our interests, be they in education, employment, health care, whatever it might be, are safe unless we are able to vote around participate as equals in democracy. I say this by way of introduction because although this principle has long been proclaimed in the united ates, it has not always been respected. And even today in the United States there are practices which diminish, dilute, or impair Voting Rights by some of our citizens. So let me in my brief remarks start by providing some context, both on the United States unusual electoral system, and on history, before moving to the question of what the preclearance provisions of the Voting Rights act were and werent doing at the time that the Shelby County case, which brendan discussed, was decided last year. So, first some context on the u. S. Election system. We are very unusual in two major respects here in the United States. The first is the profound decentralization of our system. Elections are not run at the National Level in the united tates. We have no entity with general responsibility for managing the elections here as is the case in most other countries. Rather, elections are run for the most part under the laws of the 50 states and they are actually administered at the local level. Literally by thoups of counties thousands of counties and municipalities each of which has authority for actually running the daytoday operations of our Voting System at the local level. So we have not just one Voting System, nor even 50 in the United States but literally thousands. The other distinctive characteristic some would say pathology of the u. S. Election ystem is partisanship. What i mean by that is that in most states the chief election official is someone whose ther elected or appointed by their party and runs for office as the candidate for their party or is appointed by someone who is elected as a candidate of their party. That is to say, the chief election official in most states is in that sense a partisan. This creates an inherent conflict of interest between the chief Election Officials responsibility to serve the i want rests of all voters to create a level playing field, and that officials interests in serving his or her party and advancing through the ranks of his or her party. It is a party that is, by the way, well recognized i among other democratic countries, which is why the chief Election Authority in most countries enjoys some degree of insulation from partisan politics. This, however, is unfortunately a lesson that we in the United States have yet to learn. Next, let me give a little bit of historical context. For most of this countrys history, racial minorities most notably African Americans have been systemically denied the vote in much of this country. That was still the reality 50 the ago in 1965 when Voting Rights act was adopted. There is no question, as brendan pointing oud, that things have changed considerably in the intervening period. At the time of the Voting Rights act, blacks were systemically kept from voting or even registering throughout the southern states, which are still for the most part the states that were covered at least as of 2013 when the court ecided the Shelby County case. So what was the Voting Rights act doing and what wasnt it doing . There has been in recent years a lot of discussion in the United States of vote suppression practices that allegedly make it more difficult for eligible citizens, especially racial minorities and poor people to vote. Voter id, which you will be hearing about in the next hours panel, is the most prominent subject of criticism by those who complain of vote suppression, but there are other practices such as registration rules, limits on absentee voting and early voting, that have also been criticized as instances with vote suppression. The perception is that the preclearance provisions of the Voting Rights act were an effective tool against these vote suppression practices. The reality, however, is that they were quite rarely used to top those practices. Where the preclearance provisions of the Voting Rights act were most often used was with respect to what we call delusion at the local dill lution at the local level. For example, new lines were drawn for City Council Elections in the United States state and local legislative bodies generally have responsibility for not only running elections but for drawing the district lines from which people are elected to office. And allegations are sometimes made that those lines dilute the strength of minority votes. So the preclearance provisions that brendan discussed were mostly used and in my view were most effective with respect to e local practicing practiceslocal levels redistricting and so on. That was what was really lost in the Supreme Courts decision in Shelby County. Im not interested in relit gating that decision here. I disagree. I tend to think that the places that had problems 50 years ago are still the places with the worst problems of race discrimination today. That said, these issues that ive discussed and i presume well discuss further in this panel making it more difficult to vote and have ones vote counted, these are really national issues. And at some point i would like to see the United StatesCongress Take action to establish a baseline of uniform rules for registration identification and early voting so that the many people who move across state lines in the United States know what the rules will be for voting when they move. As it stands now, if you move across state lines you may face entirely different rules regarding registration, identification, when you can vote, and so on. We have in my opinion a lot to learn from the rest of the world when it comes to the way we run elections including the protection of Voting Rights in the United States. I think adding to that list of federal issues ought to be the way the interaction people have with voting. Whats the machine or type of voting that takes place . So its consistent. Because some machines are more accurate than others. Also, a huge issue in the United States is absentee voting. A lot of issues come up with absentee voting and that is different for each jurisdiction. But i think now we can turn to what happened after Shelby County and what has happened since then. Brendan. Sure. So, you know, basically the there was a call almost immediately to update the coverage formula which was what was struck down in the Supreme Courts decision in Shelby County. It took a little bit for a draft bill to come out but eventually one did. And so i was asked to kind of think a little bit about what are the options for updating it if there was a desire to do so, and kind of whats the situation if they dont do that. I think i will start with that latter question, first, which is section 5 was, as i mentioned at the beginning, only one provision of the Voting Rights act. Section 2 applies nationwide and does address a lot of the dilutive principles and practices that the professor was speaking about. In fact, its mainly used for those purposes. The trouble not trouble with. The unique feature of section 5 was that it stopped things in its tracks before a practice took place where section 2 was after the fact. That was actually lost as opposed to the ability to target these practices generally. So there is still a judicial meckysm for targeting these practices in section 2. Theres also section 3 which is called bailed in which creates a situation where if a jurisdiction is found to have violate it had United States constitution in terms of Voting Rights, then a jurs that jurisdiction can be brought into the type of preclearance process section 5 used to have kind of as a default rule in certain areas of the country. So that is directly responsive to ongoing constitutional violations and is can respond to Current Conditions in jurisdictions. So and then of course theres the constitution itself. Theres a cause of action to bring an action against the state, a local or a local jurisdiction based on a violation of folks constitutional rights. So all of these things still exist. The one thing that does not exist is the prior restraint the things that stop the practices before they can start. So to my mind, whats going to need to happen is folks are going to have to think lopping and hard about is that prior restraint something that has to come back . Or are the claims and causes of action that currently exist on the books sufficient to deal with the types of voting discrimination that everybody agrees still exist today . Because there are things that go on across the country and nobody will deny it, i think, that violate the United States constitution. And so thats the question in my mind, is whether thats going to be necessary. To my mind, the draft bill that was released i dont think appropriately addressed that particular concern. I think it was more of a move to do something quickly as opposed to trying to strike the right balance. And so in that respect there was going to be a modification of that section 3 bailin that would have responded to not constitutional violations but other types of violations. In my mind, in reading the Supreme Courts decision and this is just as an outside observer, i well, i wasnt an outside observer. Reading the Supreme Courts decision in which i have no particular insight any more than anyone else, i dont think that type of bailin would be constitutionally sufficient. And then i think a coverage formula of the type that is not going to respond to constitutional violations but is going to respond to some other types of violations, statutory violations, is probably not going to pass muster either. So those are things theyre probably going to have to think about. Im just exind of observing this from the outside but to my mind if congress was going to go that route it would probably be subject to challenge again and would have a reasonable chance of succeeding. So those are my views of kind of the landscape of where section 5 stands after the Shelby County decision. I dont know if we have any discussions about specific states. Whats happened. Sure. Let me actually talk about two things. First, the legislative picture at the federal level which brendan addressed. And secondly, whats gone on in the courts. The bottom line in terms of what our congress is likely to do is nothing. We have enormous Party Polarization and stalemates. There has been a bill proposed th mostly democratic support which, as brendan mentioned, would create a new coverage formula and would require disclosure of the impact of voting changes. There are some features of this bill i really like, others about which im less enthusiastic. But the bottom line is that in its ery divided congress not going anywhere. Nor is any Voting Rights bill going to go anywhere. As i mentioned earlier, i would love to see a bill that imposed greater standards at the federal level over all these issues and might resolve some of the contentious debates that weve had in recent years, really since 2000, over voting. But thats not likely to happen any time soon. So, as is frequently the case, where these controversies wind up being ultimately resolved is in the courts. We have seen significant increase in litigation over voting rules in recent years really since the 2000 election which first brought these atters into courts, and some of the restrictions that i mentioned earlier voter identification, limits on where and how you can register to vote, restrictions on absentee and early voting, rules regarding the counting of provisional ballots, voting technology, all of these practices have been challenged in court. In fact, in my state alone every single one of the practices that i just mentioned has been challenged. Right . This is to be expected. When you have partisan legislative bodies making the rules for elections, when you have partisan elected officials for the most part running elections, questions about this conflict of interest that i mentioned earlier are inevitably going to arise. And in our system the institution that is most insulated from partisan politics is the courts. So in my view its quite appropriate that the courts be the arbiters of these disputes regarding the fairness of election rules and whether or not there really is a level playing field, as chad earlier mentioned. And weve seen litigation very recently over election rules or cases four cases are especially notable. In ohio regarding relickses on elir voting as well as same day registration, a case in North Carolina involving a law enacted right after Shelby County that imposed a variety of restrictions on voting including on early voting, same day registration imposing a voter id requirement, and then lawsuits in two more states wisconsin and texasboth involving voter identification rules. The lower courts have not come out the same way on all these cases as we lawyers say theyre still percolating through the lower court system. And it remains to be seen exactly what the Supreme Court will do. The Supreme Court actually issued or got involved in three of these cases just this past year but did not issue an opinion on the merits in any of those cases. I tend to think that its involvement had more to do with its concerns about court orders issued very close to the election than it did about what exactly the court thinks on the merits of these cases. But at some point i suspect these issues are likely to come back before the United StatesSupreme Court possibly very oon. Just in particularly in the context of section 5 since thats what were here to talk about, i think its important to point out that of the states that were just mentioned, North Carolina was partially covered by the Voting Rights act. There were roughly 40 counties, i believe, 40 of the hundred counties in North Carolina were covered. The state of North Carolina was not and the state of wisconsin is also not. Particularly in right of the fact that the Supreme Court ruled on the coverage formula, i think this is an actually good illustration of some of the issues with the coverage formula as it existed at the time when at the time of reauthorization in 2006 and at the time it was struck down. Were seeing a lot of these hot button fundamental Voting Rights cases coming out of the country like ohio and like wisconsin that and i think theyre anybody could agree that theyre just as likely to come out of those areas of the country as they are anywhere else. We could debate whether coverage should properly have covered a lot of the original areas today as well. But i think everybody would agree the state of ohio in the last three to five years has been as likely a place as anywhere else to have a big decision com