A House hearing on election laws included references to a constitutional amendment, institutional racism, and sumo wrestling Thursday as Democrats pushed a narrative of widespread voter suppression and discrimination.
A subcommittee of the House Judiciary Committee titled the hearing “A Continuing Record of Discrimination” and used it to promote Democrats’ legislation to give the Justice Department veto power over state election laws on matters such as voter ID requirements and redistricting.
Here are six big points from the hearing.
1. ‘Not Enough’
Sponsors say the legislation, known as HR 4 or the John Lewis Voting Rights Advancement Act, is intended to address a 2013 ruling by the Supreme Court.
The high court’s 5-4 decision in Shelby County v. Holder struck down a portion of the 1965 Voting Rights Act mandating nine states with a proven record of voter discrimination to get Justice Department approval, or “preclearance,” for any new election laws.
The nine states covered by Section 5 of the Voting Rights Act were Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia.
The ruling affected Section 5 but not Section 2, which prohibits discriminatory voter laws.
Democrats’ new proposal would go beyond subjecting states with previous racist election laws to Justice Department preclearance, which is why Rep. Cori Bush, D-Mo., said she backs it.
“The preclearance formula, a key element of the Voting Rights Act, which requires states to give approval to change their voting laws, is not enough,” Bush, who is black, said during the hearing held by the Judiciary subcommittee on the Constitution, civil rights, and civil liberties.
“Several states, like my own state of Missouri, have not previously been covered by the preclearance formula,” Bush said. “Our Republican-controlled state government has made clear in recent years that it is committed to surgically suppressing the votes of nonwhite Missourians.”
The only example Bush offered, however, was Missouri’s voter ID law, which applies to all state residents.
Section 2 protections under the Voting Rights Act are not enough, she complained.
“We cannot solely rely on the protections of Section 2 of the VRA, which prohibits discriminatory voting laws. Section 2 is reactionary,” said Bush, elected to the House in November. “It can only be used after states implement their racist voting laws.”
But Rep. Michelle Fischbach, R-Minn., pushed back against Democrats’ repeated characterizations of voter ID laws as voter suppression tools.
“Laws designed to increase election security and integrity are not the same thing as voter suppression or voter discrimination,” Fischbach said. “After a very controversial election, many states should indeed reexamine their election laws.”
2. Minority Turnout Among States
Rep. Deborah Ross, D-N.C., who took office in January, chaired the hearing.
“Since the Supreme Court’s effective gutting of the preclearance provision of the Voting Rights Act in Shelby County v. Holder,” Ross said, “states have introduced and in some cases enacted into law new voting restrictions.”
In a perhaps charitable characterization, Fischbach, who also joined the House in January, said Democrats seem to have a “misunderstanding.”
“Georgia, recently in the news for tightening election security after a very controversial election cycle, has higher rates of African American voter registration and participation, according to Census Bureau data, than the Democratic-controlled states of Illinois, New York, and California,” Fischbach said. “Similarly, Arizona—another state under scrutiny for its election laws—has higher voter turnout among minority groups than neighboring California.”
Data available since the Supreme Court’s Shelby County ruling does not indicate voter suppression, testified T. Russell Nobile, a lawyer who worked in the voting section of the Justice Department’s Civil Rights Division during both the Bush and Obama administrations.
Nobile, now a senior attorney with Judicial Watch, referred to Texas, Florida, North Carolina, Louisiana, and Mississippi—all previously covered (in whole or part) by Section 5 of the Voting Rights Act and so requiring Justice Department approval for legal changes.
He said voter registration disparities between blacks and whites in the nine states originally at issue are lower than the disparities in California, New York, Connecticut, the District of Columbia, Delaware, and Virginia.
Moreover, Nobile said, black voter registration in Mississippi is 4.3% higher than white registration.
The four states with the largest voter registration disparities between white and black residents are Massachusetts, Wisconsin, Oregon, and Colorado, he said.
3. ‘No Wave of Voter Suppression’
Fischbach repeatedly had audio and video problems in the hearing, which was conducted almost entirely remotely without lawmakers and witnesses in the same room. But she managed to make several points and raise questions about the need for the Democrats’ proposal.
Fischbach noted that after the high court’s 2013 ruling, then-Attorney General Eric Holder announced that the Justice Department would “shift resources to the enforcement of Voting Rights Act provisions that were not affected by the Supreme Court’s ruling, including Section 2.”
Again, Section 2 of the Voting Rights Act banned discriminatory voting laws and allowed the federal government to take action against any state that enacted such a law.
“But there was no wave of enforcement, because there was no wave of voter suppression,” Fischbach said. “The Obama administration filed 75% fewer Section 2 cases than the Bush administration, and similarly made little use of other voting rights authority. Therefore, there is no record that merits reinstating the Section 4 coverage formula and Section 5 preclearance regime, as previous legislation sought to do.”
No noticeable increase in new Section 2 cases has occurred since the high court’s ruling eight years ago, Nobile said. The former Justice Department lawyer also said that agency has brought only five Section 2 cases since the Shelby County decision.
Going back to the beginning of the Obama administration, Nobile said, the Justice Department has filed a total of 10 Section 2 enforcement cases.
That total indicates a strong need doesn’t exist to give the U.S. attorney general more power to bring 14th and 15th Amendment lawsuits against states—as HR 4 would allow.
The 14th Amendment to the Constitution provides equal protection under the law to all citizens. The 15th Amendment prohibits restricting someone’s right based on his or her race.
Attempting to give Democrats reason for pause on granting approval power to the Justice Department, Nobile said that if their bill had been in place during the 2020 election, President Donald Trump’s Justice Department could have intervened where states enacted late-breaking changes to their laws to expand mail-in voting.
Pennsylvania, Arizona, Wisconsin, North Carolina, Georgia, and Michigan are among states that made such changes, he said, adding:
HR 4 grants 14th Amendment standing to the attorney general of the United States, which is a sea change in the administration and the prosecution of constitutional laws in the United States. … Virtually none of the voting rights litigation preceding [the Shelby County ruling] ever had anything to do with granting the attorney general 14th Amendment standing to bring due process and equal protection claims. I worry and caution the committee about the significant impact that will have on both the [Justice] Department and the relationship between the United States and her states.
But laws are needed at this time to stop passage of any state law that could infringe on voting rights, argued Janai Nelson, associate director-counsel for the NAACP Legal Defense and Educational Fund.
“Voting rights litigation can be slow and expensive,” Nelson said, adding:
In the years during a case’s pendency, thousands and, in some cases, millions of voters are effectively disenfranchised. For these reasons, the need for prophylactic legislation is both urgent and acute. Litigation is a blunt instrument. The beauty and innovative genius of Section 5 preclearance review [by the Justice Department] was that it allowed federal authorities to stop voting discrimination before it inevitably harmed voters in a variety of federal, state, or local elections.
4. ‘Permeates the Soil of America’
Rep. Hank Johnson, D-Ga., seemed to lump voter ID laws in with slavery and with European settlers’ treatment of Native Americans as the new incarnation of white supremacy.
“When the Europeans landed in Jamestown, Virginia, in 1607, they came with the idea that they were a superior race and the Native Americans, known as Indians or even ‘Injuns,’ were subhuman,” Johnson, who is black, said. “This idea of white supremacy was further evidenced with start of the trans-Atlantic slave trade just 12 years later in 1619, 401 years ago.”
The Georgia Democrat continued:
Racism has been foundational and permeates the soil of America. It has manifested itself in the area of voting rights for nonwhite people in America. Because racism still exists in America, the racist knife of voter disenfranchisement is alive and well. The lie of voter fraud in American elections is just the latest iteration.
5. Amending the Constitution
Although Democrats championed the bill known as HR 4, Rep. Jamie Raskin, D-Md., expressed dim confidence that the legislation would withstand a court challenge.
“What is going to save us from the Supreme Court just again finding another reason to strike it down the way they did in Shelby County v. Holder?” Raskin said.
The Maryland Democrat went on to ask: “Do we need a constitutional amendment guaranteeing the right to vote so we aren’t constantly playing whack-a-mole or hide the ball with people who fundamentally don’t want to allow huge populations of Americans to vote?”
Wendy R. Weiser, vice president for democracy at the Brennan Center for Justice, told Raskin that amending the Constitution likely would not be necessary.
“I don’t think it is necessary because properly interpreted under current doctrine, the Constitution does protect the right to vote not only through multiple amendments, but also through the First and 14th Amendments,” Weiser said.
6. ‘Sumo Wrestling or the Kentucky Derby’
Georgia’s new election law continued to be a target, as Jon M. Greenbaum, chief counsel for the Lawyers’ Committee for Civil Rights Under Law, said the Supreme Court’s Shelby decision enabled the Georgia statute, known as Senate Bill 202, as well as other laws.
“But for the Shelby County decision, SB 202 would not have been allowed to take effect until there was an opportunity to determine its impact on voters of color,” Greenbaum said, using the bill number for Georgia’s revised election law.
“Indeed, but for the Shelby County decision, there would be no SB 202, at least not in its current form, because at least some aspects of SB 202 appear to be clearly retrogressive and probably would not have been proposed in the first place,” he said.
But history and human nature say it is appropriate for the law to include measures to try to ensure the legitimacy of the vote, Judicial Watch’s Nobile later noted.
“Politics and elections are a form of human competition and for at least 2,500 years, over the history of democracy, people have been using whatever they need to do to get a competitive advantage in the election,” Nobile said. “People cheat. Humans cheat in a variety of contexts, whether it’s cheerleading competitions, sumo wrestling, or the Kentucky Derby recently.”
One example of ensuring the integrity of elections was the Voting Rights Act of 1965, he said.
“The Voting Rights Act was a voter integrity measure to some extent because the legitimacy of the elections was suspect in the ’60s and before then because large swaths of the American South were not allowed to participate in the American electoral process,” Nobile said. “So it’s tough to evaluate human or popular opinion without having people vote.”
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