Statements Given At ``Restore the Vote: A Congressional Forum on the Current State of Voting Rights in America''

Floor Speech

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Ms. SEWELL of Alabama. Mr. Speaker, the statements found below were given during an event titled--Restore the Vote: A Congressional Forum on the Current State of Voting Rights in America. The forum was held on Saturday, March 5, 2016 in the Birmingham City Council Chambers located at Birmingham City Hall. The forum provided elected officials, community leaders, scholars, and the general public the opportunity to examine modern-day voting rights as well as discuss the current challenges and barriers facing equal access to the ballot box. Discussions also focused on how community leaders and average American citizens can galvanize support around ensuring every American is able to exercise their constitutionally protected right to vote.

The forum was hosted by Congresswoman Terri A. Sewell, and included special guests Rep. John Lewis, Rep. Jim Clyburn, Rep. G.K. Butterfield, Rep. Sheila Jackson Lee, Rep. Barbara Lee, Rep. Hank Johnson, Rep. Karen Bass, Rep. Marc Veasey, and Rep. Stacey Plaskett, Birmingham Mayor William Bell, and Birmingham City Council President Johnathan Austin. The panelists included Jefferson County Clerk of Court Anne Marie Adams, President of Southern Poverty Law Center Richard Cohen, Metro Birmingham Branch NAACP President Hezekiah Jackson the IV, Calera, Alabama City Councilman Ernest Montgomery, and President of the Joint Center for Political and Economic Studies Spencer Overton. statement of Councilman Ernest Montgomery, The City of Calera's 2008 Municipal Election

My name is Ernest Montgomery and I am a City Councilman, representing District 2 in the City of Calera Alabama. Our City is a beautiful small city, strategically located in the south-central part of Shelby County. We had a population of 11,800 residents according to the 2010 census, but I believe thousands more today. Between the 2000 to 2010 census, our city was title as being the fastest growing city (percentage wise), in the State of Alabama.

This rapid growth is what led our City Leaders to have our district lines redrawn. The results of these new lines eliminated the sole minority-majority district in the city. Changing it's minority voting percentages from about 69 percent down to about 28 percent.

After submitting these changes to the Department Of Justice for pre-clearance, they were rejected because the DOJ said it clearly disadvantage the African American Community. The City was in an election year and was order not to hold it election with these new changes by the DOJ. Yet the City Mayor chose to continue on with the municipal election.

In this election I lost my seat in my district, but learned two days later that the Department of Justice had filed a lawsuit against the city. Outrage was mounting because the African American Community said they had no chance of electing a candidate of their choice.

Changes were made to the city's plans after meeting in Washington, DC with the DOJ and pre-clearance were granted. A new municipal election was held in 2009, resulting in me winning my seat again. I know without a doubt this would not have happened if the VRA, (especially the pre-clearance section), didn't protect the most vulnerable. Statement of J. Richard Cohen, President, Southern Poverty Law Center

Good afternoon. The fact that we must be here talking about voting rights 51 years after Congress passed the Voting Rights Act is a national disgrace, one that dishonors the many who fought for the precious right to vote and the millions who were disenfranchised for decades in our country because of their race. It particularly dishonors the brave Americans who sacrificed their lives so that everyone, regardless of race, creed or color, could have a voice in our democracy--people like Jimmie Lee Jackson, Viola Liuzzo, James Chaney, Andrew Goodman and Michael Schwerner.

A year ago at this time, we were celebrating the 50th anniversary of Bloody Sunday. And, of course, we will observe the 51 anniversary in two days. We all know that the events of that fateful day and the subsequent completion of the march to Montgomery led to passage of the Voting Rights Act of 1965, perhaps the crowning achievement of the civil rights movement--one that drove the final nail into the coffin of Jim Crow.

Forty-one years later, in 2006, when it reauthorized Section 4, Congress remarked on the tremendous progress that had been made under the Act to address first-generation barriers to voting--like literacy tests and poll taxes--that kept many minority voters from casting ballots.

At the same time, Congress noted that vestiges of discrimination continued in the states covered by the original Act in the form of second-generation barriers that diluted the voting strength of African Americans and other minorities. These included such practices as gerrymandering, at-large voting and the use of multimember legislative districts.

Today, 10 years later, we still have those second- generation barriers. For example, the Alabama legislature in 2012 passed a redistricting plan that packed black voters into legislative districts, thereby reducing their influence in other districts. In 2015, the United States Supreme Court ruled that there was strong evidence the lawmakers had engaged in racial gerrymandering and that the state had used the wrong legal standard to draw the districts. The case is pending before the district court.

But second-generation barriers are not the only problem today. Tragically, we're once again fighting the battle to remove first-generation barriers that suppress the votes of minorities--a battle that was fought 50 years ago.

Many have been implemented since the U.S. Supreme Court gutted the preclearance requirement of the Voting Rights Act in its Shelby decision. The passage of the laws restricting voting rights has, in fact, accelerated since Shelby.

Here in Alabama, the legislature passed a law in 2011 that requires voters to produce one of seven kinds of photo IDs. But, even though preclearance by the Justice Department was still required under the Voting Rights Act at the time, the state did not submit it for review. Instead, it waited two years.

Then, on June 26, 2013, the very next day after the Supreme Court relieved Alabama and other states of their preclearance obligations, the state announced it would begin to enforce the law. The Alabama Secretary of State's office has estimated that at least 280,000 registered voters-- disproportionately minority voters--lack the type of photo IDs required to vote.

It's questionable whether Alabama's photo ID law would have been precleared by the Justice Department under the Voting Rights Act. It can, of course, still be challenged in federal court--and, indeed, it is being challenged. But blocking the law is much more difficult in a lawsuit, because the burden of proof is on the plaintiffs to show discriminatory intent or effect. Prior to Shelby, the burden of proof was on states like Alabama--which have long histories of discrimination against African Americans--to show that any new law would not have a retrogressive or racially discriminatory impact.

To add insult to injury, Alabama Gov. Robert Bentley last year reduced the operating hours of the state offices in 27 largely poor, rural counties where residents can obtain the IDs they need to meet the requirements of the photo ID law. African Americans make up a larger share of the population in those counties than in other parts of the state, where the office hours were not curtailed.

Rather than move toward same-day registration, the Alabama Legislature has moved further from it since Shelby. Despite the fact that for many years voters were allowed to register 10 days in advance of an election--and despite technological advances--in 2014 the legislature extended the period to 14 days. Since then, there have been legislative attempts to extend it even further--to 30 days.

Alabama, of course, is not alone in enacting racially discriminatory voting laws. According to the National Conference of State Legislatures, 33 states now have some form of voter ID law in effect. And, according to the Brennan Center for Justice, 21 states have enacted new restrictions since the 2010 mid-term elections. Sixteen have new voting restrictions in place for the first time in a presidential election. In addition, 27 states have attempted to purge their voting rolls since Shelby, leading to numerous lawsuits claiming these purges targeted minority voters.

Also, some states are now pushing to make voters prove their citizenship when registering. A recent decision by the federal Election Assistance Commission has allowed Alabama, Georgia and Kansas to require documentation of citizenship for anyone registering to vote. This creates an undue burden for many--particularly minorities, young people, the elderly and the poor--who may lack easy access to their birth certificate, passport, naturalization certificate or other proof.

At the center of these efforts is Kansas Secretary of State Kris Kobach, who doubles as counsel for a nativist extremist organization called the Federation for American Immigration Reform. Kobach was the architect of the notorious anti- immigrant law in Arizona known as SB 1070--a discriminatory law that was struck down by the U.S. Supreme Court. Kobach was also behind an even more draconian, anti-immigrant law in Alabama, HB 57, which was also dismantled by the courts.

The cumulative impact of all of these efforts to suppress the vote is that millions of Americans--minorities, the elderly, the disabled and others--will be disenfranchised, their voices silenced.

And that is, of course, the goal of these laws. The movement to restrict the vote, as we all know, has nothing to do with combating ``voter fraud,'' which is, essentially, nonexistent in our country.

Here in Alabama, our secretary of state, John Merrill, has characterized voting as a ``privilege.'' And I think that statement, in some ways, reveals a certain mindset that we are facing. We would never call our First Amendment freedoms of speech and religion privileges. We would never call our right to bear arms a privilege. We would certainly never call it a privilege to be free from unreasonable searches and seizures. Privileges are something to be earned or granted. They can be taken away. The rights guaranteed under our Constitution cannot. We firmly support Congressional efforts to restore the federal preclearance requirement that was stripped from the Voting Rights Act in Shelby. But we know that restoring the Voting Rights Act will not resolve all of the problems. Our country's needs broader reform. We need a new vision for voting to bring the system into the 21st century.

The election process in the United States is a relic of the 18th and 19th centuries--an era when only white male property owners were allowed to vote and when Congress was more concerned about the time it took to travel to polling stations on horse than two-hour lines at the polls. The current system makes sense in the context of the 1850s, but it ignores the technology and the complexities of life and work in today's world. The reason we vote on Tuesday illustrates the point.

In 1845, Congress determined that Tuesday was the best day to hold elections because Saturday was a workday for farmers, Sunday the Sabbath, and Wednesday was a market day. Tuesday gave voters a full day to travel by horse to the county polling station.

Not only are Tuesdays now a workday for most Americans, but having only a 12-hour window to vote completely ignores today's work schedules, childcare needs, and other features of modern life. This system particularly disadvantages lower- income people who are more likely to work for hourly wages, who often cannot afford to miss work, or who may not be allowed to leave their job.

For a country that prides itself on our democracy--a country that has sacrificed thousands of our brave young men and women in the fields of war in defense of our democratic values--this is simply not acceptable. We can and must do better.

For starters, we must restore the preclearance requirement that was shredded in Shelby. The political machinations of the last few years have laid bare the unfortunate reality that certain powerful forces will use whatever means are at their disposal--however anti-democratic--to retain power.

We also must roll back the many new state laws that silence the voices of millions of eligible voters. And, we must modernize our antiquated elections system in ways that make sense for the world we live in today--in ways that will bring many more people, not fewer, to the ballot box and result in government that is truly of the people, by the people and for the people.

As the Declaration of Independence says, governments derive their just powers from the consent of the governed. It does not say ``some'' of the governed. We must ensure that everyone has a voice. The future of our great democracy depends on it. Statement of Spencer Overton, President, Joint Center for Political and Economic Studies, Professor of Law, The George Washington University Law School

I am President of the Joint Center for Political and Economic Studies, an organization that was created due to the events of Bloody Sunday and the Voting Rights Act that followed. The Voting Rights Act of 1965 enfranchised hundreds of thousands of black voters, these black voters elected hundreds of new black elected officials, and in 1970 the Joint Center was founded to support these black elected officials. Today, the Joint Center focuses on providing innovative research, ideas, and support to leading elected officials of color nationwide. I am also a tenured Professor of Law at The George Washington University Law School. I regularly teach a voting law course, and in previous years I have taught courses on civil rights and the law of democracy generally. I. Background: Shelby County and Congressional Efforts To Update the Act A. Shelby County v. Holder

In Shelby County, the Court held unconstitutional the Section 4(b) coverage formula that determined which jurisdictions must comply with the preclearance requirements of Section 5 of the Voting Rights Act. Section 5 requires federal preclearance of changes affecting voting in ``covered'' jurisdictions before the changes are implemented. Section 4(b) as originally adopted and updated provided formulas that identified as ``covered'' jurisdictions with a voting test or device and less than 50 percent voter registration or turnout in the 1964, 1968, or 1972 general Presidential elections.

In Shelby County, the Court stated ``a departure from the fundamental principle of equal sovereignty requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets,'' and that ``current burdens . . . must be justified by current needs.'' The Court believed that in the past the 4(b) coverage formula based on tests and low turnout from 1964, 1968, and 1972 elections was ``sufficiently related to the problem,''--that it was ``rational in both practice and theory,'' ``reflected those jurisdictions uniquely characterized by voting discrimination,'' and ``link[ed] coverage to the devices used to effectuate discrimination.'' The Court observed that ``[t]he formula looked to cause (discriminatory tests) and effect (low voter registration and turnout), and tailored the remedy (preclearance) to those jurisdictions exhibiting both.''

In contrast, the Court believed that the coverage formula based on 1964, 1968, and 1972 turnout and tests was not tailored to address discrimination today. The Court noted that Congress altered the coverage formula in 1970 (adding counties in California, New Hampshire, and New York), and 1975 (adding the States of Alaska, Arizona, and Texas, and several counties in six other states), but not in 1982 or 2006. Specifically, the Court stated:

``Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since.''

The Court did not believe that the record Congress amassed in 2006 establishing vote dilution and other discriminatory practices was tied to text of a coverage formula based on turnout, registration rates, and tests from the 1960s and 1970s.

The Court explicitly limited its holding to the 4(b) coverage formula based on election data from the 1960s and 70s, and stated that ``Congress may draft another formula based on current conditions.'' While the Court observed that states generally regulate state and local elections and that federal preclearance is ``extraordinary,'' the Court did not find the Section 5 preclearance process unconstitutional. Instead, it explicitly recognized that ``voting discrimination still exists,'' that ``any racial discrimination in voting is too much,'' and that Congress has the power to enforce the Fifteenth Amendment to prevent voting discrimination. B. 2014 and 2015 Congressional Efforts To Update the Voting Rights Act

Since Shelby County, legislation has been submitted to update the Voting Rights Act--the Voting Rights Amendment Act of 2014 and the Voting Rights Advancement Act of 2015. Both bills: 1) tie preclearance to recent instances of discrimination; 2) allow judges to order ``bail in'' preclearance coverage as a remedy for a voting rights violation even in the absence of intentional discrimination; 3) attempt to deter bad activity by requiring that jurisdictions nationwide provide notice of certain election changes; and 4) make it easier for plaintiffs to obtain a preliminary injunction to block potentially discriminatory election rules before they are used in an election and harm voters.

There are, however, significant differences. Generally, the 2014 Amendment Act basis preclearance coverage on jurisdictions with significant voting rights violations over the prior 15 years, while the 2015 Amendment Act focuses on violations over the prior 25 years. Thus, while the 2014 Amendment Act subjected only Georgia, Louisiana, Mississippi, and Texas to preclearance when introduced, the 2015 Advancement Act applied preclearance to those states plus Alabama, Arkansas, Arizona, California, Florida, New York, North Carolina, South Carolina, and Virginia. The 2014 Amendment Act exempts voter identification from violations that justify the expansion of preclearance, whereas the 2015 Advancement Act provides no such voter identification exemptions.

The 2015 Advancement Act also contains provisions that do not appear in the 2014 Amendment Act. For example, the 2015 Advancement Act requires preclearance nationwide for ``known practices'' historically used to discriminate against voters of color, such as: 1) voter qualifications that make it more difficult to register or vote (e.g., ID or proof of citizenship documentation); 2) redistricting, annexations, polling place changes, and other changes to methods of elections (e.g., moving to at-large elections) in areas that are racially, ethnically, or linguistically diverse; and 3) reductions in language assistance. The 2015 Advancement Act also includes Native American and Alaska Native voting protections that ensure ballot translation, registration opportunities on and off Indian reservations, and annual consultation with the Department of Justice. II. The Need To Update the Voting Rights Act

A. Litigation Inadequate Substitute for Loss of Preclearance

While the holding in Shelby County was limited to invalidating the coverage formula, the decision has a significant impact. It effectively suspends Section 5 preclearance in all jurisdictions other than the handful currently subject to a Section 3(c) ``bail in'' court order,

Litigation Not Comprehensive: Preclearance was comprehensive--it deterred jurisdictions from adopting many unfair election rules because officials knew every decision would be reviewed. In contrast, litigation requires that plaintiffs have the information and resources to bring a claim, and therefore litigation misses a lot of under-the- radar manipulation.

Litigation More Expensive: Preclearance also put the burden to show a change was fair on jurisdictions--which enhanced efficiencies because jurisdictions generally have better access to information about the purpose and effect of their proposed election law changes. Litigation shifts the burden to affected citizens--who must employ experts and lawyers who fish for information during drawn-out discovery processes.

Significant Voting Discrimination Persists: Too many political operatives in previously covered jurisdictions continue to maintain power by unfairly manipulating voting rules based on how voters look or speak. Congress determined as much during the last reauthorization, and such discrimination has occurred since that time in various jurisdictions like Nueces County, Texas, While the Court in Shelby County invalidated the coverage formula because it was based on data from the 1960s and 1970s, the Court acknowledged that ``voting discrimination still exists'' and that ``any racial discrimination in voting is too much.''

B. Joint Center Report: 50 Years of the Voting Rights Act

In 2015, the Joint Center for Political and Economic Studies published 50 Years of the Voting Rights Act:

The State of Race in Politics. The 46-page report established that while the Voting Rights Act increased turnout by voters of color, citizen voting age population turnout rates among Latinos and Asian Americans trail African-American turnout by 10-15 percentage points and white turnout by 15-20 points. The report also found that racially polarized voting persists, and in some contexts is growing. Race is the most significant factor in urban local elections, and more decisive than income, education, religion, sexual orientation, age, gender, and political ideology. The 38 point racial gap exceeds even the 33 point gap between Democratic and Republican voters. III. Conclusion

In the last 51 years the United States has made significant progress on voting rights. Unfortunately, after Shelby County v. Holder political operatives have more opportunity to unfairly manipulate election rules based on race. The Court in Shelby County stated that the purpose of the Fifteenth Amendment is ``to ensure a better future,'' but the future will be worse if Congress fails to act.

Fortunately, Congress has the power to prevent discrimination and update the Voting Rights Act. An updated Voting Rights Act will help not just voters of color, but our nation as a whole. Protecting voting rights provides legitimacy to our nation's efforts to promote democracy and prevent corruption around the world. We all agree that racial discrimination in voting is wrong, and Congress should update the Voting Rights Act to ensure voting is free, fair, and accessible for all Americans.

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