VOTING RIGHTS ACT AFTER THE SUPREME COURT’S DECISION IN SHELBY COUNTY HEARING BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION JULY 18, 2013 Serial No. 113–35 Printed for the use of the Committee on the Judiciary ( Available via the World Wide Web: http://judiciary.house.gov U.S. GOVERNMENT PRINTING OFFICE 81–983 PDF WASHINGTON : 2013 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 COMMITTEE ON THE JUDICIARY BOB GOODLATTE, Virginia, Chairman F. JAMES SENSENBRENNER, JR., JOHN CONYERS, JR., Michigan Wisconsin JERROLD NADLER, New York HOWARD COBLE, North Carolina ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia LAMAR SMITH, Texas MELVIN L. WATT, North Carolina STEVE CHABOT, Ohio ZOE LOFGREN, California SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas DARRELL E. ISSA, California STEVE COHEN, Tennessee J. RANDY FORBES, Virginia HENRY C. ‘‘HANK’’ JOHNSON, JR., STEVE KING, Iowa Georgia TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas JUDY CHU, California JIM JORDAN, Ohio TED DEUTCH, Florida TED POE, Texas LUIS V. GUTIERREZ, Illinois JASON CHAFFETZ, Utah KAREN BASS, California TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana TREY GOWDY, South Carolina SUZAN DelBENE, Washington MARK AMODEI, Nevada JOE GARCIA, Florida RAU´ L LABRADOR, Idaho HAKEEM JEFFRIES, New York BLAKE FARENTHOLD, Texas GEORGE HOLDING, North Carolina DOUG COLLINS, Georgia RON DeSANTIS, Florida JASON T. SMITH, Missouri SHELLEY HUSBAND, Chief of Staff & General Counsel PERRY APELBAUM, Minority Staff Director & Chief Counsel SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE TRENT FRANKS, Arizona, Chairman JIM JORDAN, Ohio, Vice-Chairman STEVE CHABOT, Ohio JERROLD NADLER, New York J. RANDY FORBES, Virginia JOHN CONYERS, JR., Michigan STEVE KING, Iowa ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia LOUIE GOHMERT, Texas STEVE COHEN, Tennessee RON DeSANTIS, Florida TED DEUTCH, Florida JASON T. SMITH, Missouri PAUL B. TAYLOR, Chief Counsel DAVID LACHMANN, Minority Staff Director (II) C O N T E N T S JULY 18, 2013 Page OPENING STATEMENTS The Honorable Trent Franks, a Representative in Congress from the State of Arizona, and Chairman, Subcommittee on the Constitution and Civil Justice ................................................................................................................... 1 The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution and Civil Justice ................................................................................................... 2 The Honorable Bob Goodlatte, a Representative in Congress from the State of Virginia, and Chairman, Committee on the Judiciary ................................. 5 The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary ......... 6 WITNESSES J. Christian Adams, Attorney Election Law Center, PLLC Oral Testimony ..................................................................................................... 8 Prepared Statement ............................................................................................. 10 Robert A. Kengle, Co-Director, Voting Rights Project, Lawyers’ Committee for Civil Rights Under Law Oral Testimony ..................................................................................................... 26 Prepared Statement ............................................................................................. 28 Hans A. von Spakovsky, Senior Legal Fellow, The Heritage Foundation Oral Testimony ..................................................................................................... 41 Prepared Statement ............................................................................................. 43 Spencer Overton, Professor of Law, The George Washington University Law School Oral Testimony ..................................................................................................... 52 Prepared Statement ............................................................................................. 54 APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD Material submitted by the Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution and Civil Justice Prepared Statement of the Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Sub- committee on the Constitution and Civil Justice ....................................... 73 Prepared Statement of the NAACP Legal Defense and Educational Fund, Inc. ................................................................................................................. 75 Prepared Statement of the National Urban League ...................................... 84 Joint Prepared Statement of Asian Americans Advancing Justice and Asian American Legal Defense and Education Fund ................................ 87 Letter from the Anti-Defamation League (ADL) ........................................... 96 Prepared Statement of the American Civil Liberties Union (ACLU) ........... 99 Prepared Statement of Gary R. Redding, Legal Fellow, on behalf of the Rural Coalition .............................................................................................. 108 (III) VOTING RIGHTS ACT AFTER THE SUPREME COURT’S DECISION IN SHELBY COUNTY THURSDAY, JULY 18, 2013 HOUSE OF REPRESENTATIVES SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE COMMITTEE ON THE JUDICIARY Washington, DC. The Subcommittee met, pursuant to call, at 11:06 a.m., in room 2141, Rayburn Office Building, the Honorable Trent Franks, (Chairman of the Subcommittee) presiding. Present: Representatives Franks, Goodlatte, Sensenbrenner, Chabot, King, Smith of Missouri, Conyers, Nadler, Scott, Watt, Jackson Lee, and Deutch. Also Present: Representative Lewis. Staff present: (Majority) Paul Taylor, Majority Counsel; Tricia White, Clerk; (Minority) David Lachmann, Subcommittee Staff Di- rector; and Veronica Eligan, Professional Staff Member. Mr. FRANKS. The Subcommittee on the Constitution and Civil Justice will come to order. Without objection, the Chair is authorized to declare recesses of the Committee at any time. I will now recognize myself for 5 minutes for an opening state- ment. In Shelby County v. Holder, the Supreme Court this term held that Section 4 of the Voting Rights Act, which sets out the formula that was used to determine which state and local governments must comply with the Voting Rights Act’s preclearance require- ments, is unconstitutional and can no longer be used. Those preclearance requirements made certain jurisdictions subject to special procedures when they changed their voting laws, such that they had to have their laws approved by the U.S. Attorney General or a three-judge panel of the U. S. District Court for the District of Columbia before those laws could go into effect. Section 4 set forth a formula for determining if a jurisdiction was covered by the preclearance requirements. That formula, based on data from 1965, applied the preclearance requirements to those states or political subdivisions that had maintained a test or device as a prerequisite to voting as of November 1st, 1964, and had less than 50 percent voter registration or turnout in the 1964 presi- dential election. (1) 2 In 1970, Congress reauthorized the Act for another 5 years and extended the coverage formula in Section 4 to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1968. In 1975, Congress reauthorized the Act for seven more years and extended its coverage to jurisdictions that had a voting test and less than 50 percent voter registration or turnout as of 1972. In 1982, Congress reauthorized the Act for 25 years, but did not alter its coverage formula. In 2006, Congress again reauthorized the Voting Rights Act for 25 years, again with- out changing its coverage formula. The Supreme Court majority in Shelby County wrote that, ‘‘the Framers of the Constitution intended the States to keep for them- selves, as provided in the 10th Amendment, the power to regulate elections,’’ and that states have ‘‘broad powers to determine the conditions under which the right of suffrage may be exercised.’’ It held that the Voting Rights Act departed from these basic prin- ciples by suspending, once again, ‘‘all changes to state election law, however innocuous, until they had been precleared by Federal au- thorities in Washington, D.C.’’ As the Court stated, ‘‘In 1966, we found these departures from the basic features of our system of government justified. At the time, the coverage formula, the means of linking the exercise of the unprecedented authority with the problem that warranted it, made sense. Nearly 50 years later, things have changed dramatically.’’ The Court noted that in the covered jurisdictions, ‘‘voter turnout and registration rates now approach parity. Blatantly discrimina- tory evasions of Federal decrees are rare, and minority candidates hold office at unprecedented levels. The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years.’’ While the Court recognized that the 15th