Chairman Nadler Statement for Subcommittee Hearing on "The Need to Enhance the Voting Rights Act: Preliminary Injunctions, Bail-in Coverage, Election Observers, and Notice"
Washington, June 29, 2021
Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a Subcommittee on the Constitution, Civil Rights, and Civil Liberties hearing on "The Need to Enhance the Voting Rights Act: Preliminary Injunctions, Bail-in Coverage, Election Observers, and Notice":
"Mr. Chairman, I appreciate your holding today’s hearing to consider whether and how Congress might strengthen provisions of the Voting Rights Act other than its Section 5 preclearance provision.
"This Subcommittee has rightfully spent much of its time since last Congress devoted to voting rights—specifically, examining the proliferation of racially discriminatory voting barriers following the Supreme Court’s decision in Shelby County v. Holder. During these hearings, we have heard significant testimony urging Congress to restore to full effectiveness the VRA’s preclearance provision, which was rendered effectively void after Shelby County.
"Yet while Section 5 preclearance is perhaps the VRA’s most important enforcement tool—and revitalizing this provision is the most effective remedy to the ongoing widespread and persistent voter discrimination throughout the country—in the eight years since preclearance was effectively gutted, we have seen the critical role that other VRA provisions also play in remedying the plague of voter discrimination.
"Our experience since Shelby County has also taught us, however, that each of these provisions has shortcomings that can be improved upon.
"First among these is litigation under Section 2 of the Act, which prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in certain language minority groups. While an important pillar of the VRA, Section 2 litigation is not a substitute for a working preclearance regime.
"One weakness of Section 2 is the difficulty plaintiffs face in obtaining preliminary injunctive relief to prevent a challenged voting law or procedure from going into effect while litigation is pending. We will hear from our witnesses today that this often results in the effective disenfranchisement of minority voters because a challenged law that ultimately is found to be discriminatory remains in effect for the duration of lengthy litigation.
"There are other provisions that Congress should also consider revisiting. To begin with, we should look at Section 3(c), the VRA’s 'bail-in' provision. Congress understood that the VRA’s Section 5 preclearance provision could be underinclusive and, therefore, it included Section 3(c) to address situations in which preclearance may be justified, but a jurisdiction might not meet the requirements for Section 5 preclearance coverage.
"In such cases, Section 3(c) allows courts to retain the authority to supervise further voting changes in jurisdictions where the court has found that the jurisdiction in question violated the Fourteenth or Fifteenth Amendments.
"If a jurisdiction is 'bailed in' to preclearance, it must submit any changes to its voting procedures for approval either to the court or to DOJ, with the court determining both the scope and duration of such a preclearance requirement.
"Despite its availability, however, courts have rarely invoked Section 3(c) as a remedy. This is because plaintiffs face a high burden in proving a constitutional violation, which requires a showing of intentional discrimination. Even where there is evidence that officials acted with discriminatory intent, courts have shown reluctance to find that such officials engaged in purposeful discrimination.
"Moreover, since the Shelby County decision, some courts have suggested that not all violations of the Fourteenth and Fifteenth Amendments support Section 3(c) bail-in coverage.
"Bail-in coverage can be an important enforcement tool, but given how reluctant federal courts are to invoke Section 3(c), Congress should consider whether the violations for which this relief is available are simply too limited to carry out this provision’s purpose effectively.
"Another area that we should examine is the appointment of federal election observers. Section 8 of the VRA permits the Attorney General to assign federal observers to jurisdictions covered by Section 5 preclearance. Likewise, Section 3(a) allows federal courts to assign federal observers in appropriate circumstances.
"Federal observers can report voting irregularities, which can lead the Justice Department to negotiate with a jurisdiction to improve voting practices without resort to legal action. Observers also help gather evidence if legal action is required, and their mere presence can help deter voter discrimination.
"An oft overlooked side effect of the Shelby County decision, however, is that it significantly reduced the number of federal observer appointments. DOJ officials have interpreted Shelby County as prohibiting it from certifying jurisdictions for federal observer coverage because the formula used to identify such potential jurisdictions was declared unconstitutional. As a result, the number of federal observers assigned since Shelby County has dropped precipitously.
"To compensate for the lack of full-fledged observers, DOJ has relied on so-called 'monitors' to ensure that jurisdictions with a history of discrimination conduct the election process in a fair manner.
"Unfortunately, these monitors do not possess the same authority as a federal election observer, and as such, jurisdictions are not required to provide them the same level of access to the voting process as observers, limiting their effectiveness. As we consider revitalizing the VRA, Congress should consider how to strengthen the ability of the Justice Department and federal courts to send election observers whenever and wherever justified.
"In the eight years since Shelby County we have seen how indispensable the Voting Rights Act is in ensuring that all Americans enjoy the right to vote, free from discrimination.
"Section 5 preclearance remains the most potent remedy for widespread and persistent voter discrimination. And no matter how much Congress strengthens other enforcement provisions of the VRA, even these enhanced provisions alone can never be a complete substitute for Section 5 preclearance.
"Yet Congress should not pass up the opportunity to consider revitalizing and improving the VRA’s other provisions, which operate in support of, or to cover any gaps left by, Section 5."I thank Chairman Cohen for holding today’s hearing and I look forward to the testimony of our witnesses. I yield back the balance of my time."