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“VOTING RIGHTS” mentioning the U.S. Dept. of Justice was published in the Extensions of Remarks section on pages E1377-E1378 on Sept. 27, 2016.
The Department is one of the oldest in the US, focused primarily on law enforcement and the federal prison system. Downsizing the Federal Government, a project aimed at lowering taxes and boosting federal efficiency, detailed wasteful expenses such as $16 muffins at conferences and board meetings.
The publication is reproduced in full below:
VOTING RIGHTS
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speech of
HON. LUCILLE ROYBAL-ALLARD
of california
in the house of representatives
Wednesday, September 21, 2016
Ms. ROYBAL-ALLARD. Mr. Speaker, to help my constituents gain a better understanding of the negative impact of the Supreme Court decision Shelby County v. Holder, on May 20, 2016, I hosted a forum titled
``Protect Your Future: Restore the Vote.'' My co-chairs were Representative Linda Sanchez, Chair of the Congressional Hispanic Caucus; Representative Judy Chu, Chair of the Asian Pacific American Caucus; and special guest, Representative Karen Bass.
Members from our communities heard expert testimony from the Mexican American Legal Defense Fund. For that reason, I include in the Record testimony from Tom Saenz of MALDEF.
statement of thomas a. saenz
president and general counsel
maldef
regarding the effects of shelby county v. holder
Since 2009, I have had the great honor of serving as President and General Counsel of MALDEF (Mexican American Legal Defense and Educational Fund), a national legal civil rights organization whose mission is to promote the civil rights of all Latinos living in the United States. MALDEF pursues its mission through litigation, policy education and advocacy, community education, and media/communications in the areas of education, employment, immigrant rights, and voting rights. In the area of voting rights, MALDEF is one of a small handful of national non-profit organizations that have been involved in both litigation and advocacy under the federal Voting Rights Act over several decades. MALDEF currently coordinates a consortium of ten voting rights litigation organizations striving to better coordinate activities nationwide in the aftermath of the 2013 United States Supreme Court decision in Shelby County v. Holder.
Our nation and its most precious democratic values have unquestionably suffered from the Supreme Court majority's 2013 decision in Shelby County v. Holder and the subsequent refusal by congressional leadership to consider, much less vote upon and enact, well-crafted proposals to reaffirm and strengthen the Voting Rights Act of 1965 (VRA) by implementing new formulas to apply the impactful pre-clearance provisions in section 5 of the VRA.
In Shelby County, the Court voted 5-4 to strike down the pre-clearance coverage formula in section 4 of the VRA. The coverage formula had been overwhelmingly approved by bipartisan supermajorities in both houses of Congress in the latest VRA reauthorization in 2006. The coverage formula that the Court majority struck down required those jurisdictions--mainly states, with some counties and other parts of states--with histories of low electoral participation and of efforts to suppress participation by minority voters, to comply with a pre-clearance obligation as to all proposed electoral changes. The effect of the Court's decision was to completely disable the application of the pre-clearance obligation absent a rarely-issued federal court order subjecting a specific jurisdiction to pre-clearance for a limited period of time. Of course, the Congress can, at any time, subject to the requisite constitutional showing of adequate findings, enact a new coverage formula or formulas to subject other jurisdictions to the pre-clearance obligation with respect to specific or all electoral changes.
It is no exaggeration to label, as it has now often been characterized, section 5 of the VRA and its pre-clearance mechanism as one of the most effective civil rights provisions ever enacted in federal law. Before the Court decision in Shelby County, pre-clearance had, through almost half a century, blocked the implementation of numerous proposed electoral changes that were intended to suppress minority participation or to limit minority electoral power, and numerous other proposed changes that would have been retrogressive in effect, threatening to reduce acquired minority electoral power.
In addition, however, a full appreciation of the damage the Shelby County decision has wrought requires recognizing that section 5 is also one of the first enactments of an alternative dispute resolution (ADR) mechanism into federal law. ADR can be powerfully efficient and effective in resolving disputes without requiring resort to litigation in court. Ironically, the same Supreme Court majority that struck down the VRA coverage formula and disabled section 5 has strongly embraced ADR in the form of mandatory arbitration contracts, even where serious concerns have been raised about bias against employees or consumers in arbitration and about unequal power in negotiating arbitration agreements. Indeed, Section 5 actually includes the very kinds of protections that are not often seen in other ADR schemes, including the absolute right to seek court review instead of review by the Department of Justice.
With this in mind, the damage from the Shelby County decision, and the congressional inaction in response, falls into three areas. First, the nation has been deprived of advance notice with regard to electoral changes in those jurisdictions previously covered. These changes, which previously would have been developed and submitted for pre-clearance well in advance, include many changes--with significant potential effects on electoral participation, particularly among minority voters--that today are often revealed very close in time to an election. Such changes as precinct consolidations, alterations in precinct boundaries, and changes in voting locations often occur too close to an election to prevent their implementation through litigation under the still-viable section 2 of the VRA, prohibiting minority vote dilution, or other constitutional or statutory provisions. Courts are, perhaps understandably, reluctant to issue a preliminary injunction so close in time to a scheduled election. This problem is exacerbated by the lack of advance notice of such changes previously provided by the section 5 preclearance obligation.
For example, Arizona was a covered jurisdiction, so, prior to the Shelby County decision, the state and all its governmental subdivisions had to seek and obtain pre-clearance for any electoral change. Recently, in the 2016 Arizona presidential primary, there were widespread reports of very long lines and chaos at polling places. This seems to have been caused in large part by a drastic reduction in the number of polling places, a change apparently undertaken as a cost-saving measure. Whether or not this ill-considered decision had a particularly pronounced effect on minority voters in Maricopa County, such a change would have been analyzed in advance for its discriminatory potential under preclearance prior to Shelby County. Regardless of whether that analysis would have blocked or altered the plan to reduce polling locations, the requirement of pre-clearance would at least have provided notice, well in advance, of the intention to drastically reduce polling places. This might have yielded challenge and change, wholly apart from the process of pre-clearance itself.
The second area of damage from the Shelby County decision lies in the inability to review electoral changes for their potential discriminatory elements before the changes are implemented. As noted above, courts are often reluctant to issue preliminary injunctions with respect to elections matters. Indeed, a preliminary injunction is extraordinary court relief in any circumstance, but there is a particular reticence with respect to elections because of the potential disruption of the plans and efforts of so many voters and candidates. However, elections are also particularly resistant to remedy after the fact. Once an election has occurred under a particular electoral change, it is nearly impossible to ``unring the bell'' and discount an election or its results once reported, even if only unofficially by media engaged in exit polling. Thus, the inability to bar implementation of an electoral change by requiring pre-clearance prior to implementation results in severely limited or no remedy at all to what may be actions with significant discriminatory effects. When this occurs, this does palpable and lasting harm to voters' respect for democracy and can deter participation by understandably distrustful minority voters in many future elections.
Soon after the Shelby County decision, the mayor of Pasadena, Texas announced his intent to pursue a change to the city's elections that he would not have pursued when the city was subject to preclearance as a sub-jurisdiction in the covered state of Texas. He sought to change the eight-member council from one comprised of candidates elected in eight single-member districts to one comprised of representatives from six single-member districts and two members elected at large by the entire city. Based on participation differentials between groups, this change would have the effect of reducing the growing Latino community's chances to elect a majority of the council. The change was adopted and has now been implemented, while MALDEF pursues an ongoing legal challenge to the change and its effects on the Latino vote. It is unclear how many elections will occur under the flawed changes before the court case is finally resolved.
The third area of Shelby County harm lies in requiring the resolution of disputes regarding potentially discriminatory electoral changes through inefficient and costly litigation under section 2 of the VRA. The Supreme Court's adopted test for resolving section 2 claims is ``totality of the circumstances.'' The phrase alone illustrates the scope of such litigation, ordinarily involving multiple experts on both sides of a case, numerous percipient lay witnesses, and voluminous sets of documentary exhibits. The presentation of all of this testimony and other evidence consumes many months in preparatory depositions, discovery, and resolution of evidentiary disputes. Trial, even if streamlined in multiple ways by the court, usually involves weeks or months of presentation to a judge. The court itself then faces the arduous task of evaluating the evidence and making findings of fact and drawing conclusions of law to support a decision under the ``totality of the circumstances.'' The costs in both time and money associated with this arduous court journey are significant, and most often imposed on and borne entirely by a challenged jurisdiction that loses a filed section 2 case. The same jurisdiction could get to the same result, at a fraction of the cost through pre-clearance.
MALDEF has long been a leader in pursuing section 2 litigation in the formerly covered state of Texas. The dispute over Texas statewide redistricting in 2011 ended up being challenged under section 2 at the same time that it was subject to consideration for pre-clearance under section 5 by a three-judge district court in Washington, D.C. The Washington, D.C. court rejected the original Texas redistricting plan even before the Shelby County decision, but the Court's ruling wiped that conclusion from the books. The section 2 case had to be tried over several months in 2014. The trial was concluded and fully briefed as of December 2014. More than 16 months later, we are still awaiting a district court decision on the section 2 case. This ongoing wait epitomizes that third area of harm from the Shelby County decision.
Some might assume that the ongoing harms from the Shelby County decision and the congressional failure to respond with appropriate legislation are limited to the areas, and their residents, that were previously subject to pre-clearance under the coverage formula that the Court struck down. In fact, the entire nation suffers the damage inflicted by the decision and its aftermath. The pre-clearance process--the submission and analysis of electoral changes for discrimination--provided a nationwide indication of the potential effects of specific changes and specific categories of changes. An adverse pre-clearance decision stood as a warning to non-covered jurisdictions that might be considering, or already have in place, similar electoral procedures as those rejected in a covered jurisdiction.
In this way, pre-clearance provided election administrators and policymakers interested in minimizing discrimination in voting with guidance as to where they might look in current practice to eliminate discriminatory effects and as to what changes they should avoid to prevent further discrimination. Conversely, adverse pre-clearance decisions stood as a warning and deterrent to administrators and policymakers interested in adopting changes despite or even because of discriminatory effects. Pre-clearance outcomes stood as an indication of possible or likely successful legal challenge to such changes. In effect, just as pre-clearance was a more efficient mechanism to resolve disputes about a specific electoral practice in a specific jurisdiction, it was also a more efficient means to provide persuasive precedent for other jurisdictions, both those covered and those not covered.
Thus, in a state like California, which had only three covered counties at the time the Supreme Court decision came down, everyone still benefitted from the ready and available information provided by the pre-clearance process. In addition, although the state was only partially covered, statewide electoral changes were subject to pre-clearance because of the effects in the covered counties. This meant that statewide elections procedures saw all the benefits of advanced awareness, pre-implementation analysis, and efficient dispute resolution described above.
The experience of three years, including one mid-term election, demonstrate that the absence of the efficient pre-clearance process has deleterious effects on deterring, preventing, and eliminating electoral practices with significant discriminatory effects. MALDEF urges congressional action to reintroduce a coverage formula or formulas--that are responsive to current demographics and dynamics with respect to minority communities--into the VRA. The nation as a whole will benefit from the positive repercussions of an effective pre-clearance process for voting discrimination.
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