Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement during a Subcommittee on Constitution, Civil Rights, and Civil Liberties hearing on "Legislative Proposals to Strengthen the Voting Rights Act:"
"Over the past several months, this Subcommittee, under Chairman Cohen, has held a series of hearings examining the state of voting rights in America. These hearings have documented a disturbing set of challenges, particularly in light of the Supreme Court’s decision in Shelby County v. Holder, which effectively gutted the Voting Rights Act’s Section 5 preclearance requirement by striking down the formula for determining which jurisdictions were subject to preclearance.
"Today, we turn our attention to legislative proposals that would reinvigorate Section 5, including H.R. 4, the "Voting Rights Advancement Act," introduced by Representative Terri Sewell, and H.R. 1799, the "Voting Rights Amendment Act," introduced by Representative James Sensenbrenner.
"While these bills differ in their particulars, both propose new coverage formulas that, if enacted, would once again give effect to Section 5 and would add other enhancements to the Act. I applaud both Members for their longtime leadership on bipartisan congressional efforts on this issue. I also especially thank Mr. Sensenbrenner for his leadership in shepherding the 2006 reauthorization of the Voting Rights Act, including its Section 5 preclearance requirement, to enactment with overwhelming bipartisan support when he served as Chairman of the Full Committee.
"When Congress passed the Voting Rights Act in 1965, it aimed to deliver on what had long been an empty promise to African Americans and other people of color: the right to participate in our democracy as equal citizens. The Act not only prohibited states from denying the right to vote on the basis of race, but also required certain states and other local jurisdictions that had practiced the most severe forms of discrimination to get approval from the Justice Department, or from a court, before making any changes to their voting laws.
"Congress enacted this "preclearance" requirement to address what the Supreme Court called an "unremitting and ingenious defiance of the Constitution" by states determined to suppress the vote. States would enact laws designed to disenfranchise black voters, like literacy tests; and when those laws were struck down by the courts after years of litigation the states would simply switch to some other method of voter suppression, like poll taxes.
"This meant that black voters could be shut out of the polling place even if they succeeded in every lawsuit against a discriminatory voting law or practice because a new one would already be in place to keep them from the ballot box. Preclearance helped to curtail sharply this relentless game of “whack-a-mole” and helped ensure full and equal voting rights for all Americans.
"Six years ago, however, the Supreme Court effectively gutted the Section 5 preclearance provision in its disastrous decision in Shelby County v. Holder. Despite the fact that this Subcommittee—of which I was the Ranking Member at the time—heard from dozens of witnesses and assembled thousands of pages of evidence of ongoing discrimination when it last reauthorized the Act, the Supreme Court decided to substitute its own judgment for that of Congress.
"By a 5-to-4 vote, the Court essentially held that the law was a victim of its own success: in the Court’s view, because things had improved in the jurisdictions subject to preclearance, Congress could no longer justify imposing preclearance on those jurisdictions.
"Justice Ruth Bader Ginsburg put it this way in her dissent: "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." She was right.
"The Shelby County decision unleashed a deluge of voter suppression laws across the nation, including in many states and other jurisdictions that had been subject to preclearance before Shelby County. Within 24 hours, Texas and North Carolina moved to reinstitute draconian voter ID laws, both of which were later held in federal courts to be intentionally racially discriminatory. We have heard substantial evidence about these and other ongoing voter suppression laws in six hearings before this Subcommittee so far this year.
"Another troubling aspect of the Court’s reasoning in Shelby County was its emphasis on the supposed "equal sovereignty" of the states and on states’ authorities to administer elections—even when they have abused that authority by denying the right to vote. The Court’s reasoning barely acknowledged that the Constitutional Amendments enacted after the Civil War, during Reconstruction, were intended fundamentally to re-order Congress’s relationship to the states and to give Congress the power to supersede state sovereignty when needed to enforce the mandates of those Amendments.
"The Fourteenth Amendment guarantees equal protection under the law, and the Fifteenth Amendment prohibits any state from denying the right to vote on the basis of race. Crucially, both Amendments give Congress the power to enforce these rights "by appropriate legislation." The Supreme Court has held that this authority under the Fifteenth Amendment means Congress “may use any rational means” to make laws against racial discrimination in voting. Notwithstanding the Shelby County decision, the Court has thus far left this highly deferential rationality test in place.
"In short, Congress has the power—and indeed the obligation—to reverse this tide of voter suppression laws. The Fourteenth and Fifteenth Amendments expressly empower us to enact laws protecting the right to vote and guaranteeing the equal protection of all citizens. And although the Supreme Court’s decision in Shelby County did great damage, the Court made clear that it was not striking down preclearance altogether. In fact, the Court expressly said that Congress could "draft another formula based on current conditions."
"So that is what we have set out to do. We have already held a series of hearings this year documenting an ongoing and pervasive threat to voting rights in various parts of the country. If we can target a coverage formula to those jurisdictions that have been the worst offenders in recent years, as well as towards those voting practices that are known to have a history of being used in a racially discriminatory manner—including racial gerrymandering, annexations to dilute minority voting power, shifts from single-member to at-large or multi-member districts, imposition of strict voter ID laws, and the removal of polling places from minority voting areas—then there is every reason to believe that, under current law, Congress has the full authority to act.
"We can no longer afford to wait. The right to vote lies at the very core of our democracy and is foundational to the rule of law. I look forward to hearing from today’s witnesses and to forging a path ahead to protect the sacred right to vote for all Americans."