HANS A. von SPAKOVSKY
Senior Legal Fellow and
Manager, Election Law Reform Initiative
Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation
U.S COMMISSION ON CIVIL RIGHTS
February 2, 2018
U.S. Commission on Civil Rights
Raleigh Marriott Crabtree Valley Hotel
Raleigh, North Carolina
Thank you for the invitation to testify before the U.S. Commission on Civil Rights on the U.S. Department of Justice’s federal voting rights enforcement efforts after the 2006 reauthorization of the temporary provisions of the Voting Rights Act (Section 5) and the impact of the Shelby County v. Holder decision on the Department’s enforcement strategies and priorities.
I am Hans A. von Spakovsky, a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation (www.heritage.org). I was a Commissioner on the Federal Election Commission for two years and am a former career Counsel to the Assistant Attorney General for Civil Rights at the U.S. Department of Justice, where I coordinated enforcement of federal voting rights laws including the Voting Rights Act of 1965 (VRA).
I am also a former member of the Presidential Advisory Commission on Election Integrity; the Board of Advisors of the U.S. Election Assistance Commission; the Registration and Election Board of Fulton County, Georgia; the Electoral Board of Fairfax County, Virginia; and the Virginia Advisory Board to the U.S. Commission on Civil Rights. I have published extensively and have testified before both congressional and state legislative committees on voting and election issues.
All of the views and opinions I express in my testimony are my own and should not be construed as representing any official position of The Heritage Foundation or any other organization.
The Jan. 17 letter inviting me to testify before the Commission asked for my opinion on a series of questions. Here are my responses:
Has the Shelby County decision affected the DOJ’s voting rights enforcement and priorities? Has the decision impacted the volume and nature of Section 2 cases brought? How has DOJ enforced Sections 203 and 208 of the VRA since the 2006 reauthorization?
No, it does not seem to have affected enforcement priorities. A review of the litigation record of the Voting Section during the administrations of George W. Bush and Barack Obama shows a sharp, overall downward trend in the number of enforcement actions filed by the Justice Department under the various provisions of the VRA from 2001 to 2016, including after 2013, the year Shelby County was decided. The official Justice Department list of cases and settlement agreements under the VRA is attached as Exhibit A to this testimony and is available on the webpage of the Voting Section of the Civil Rights Division.
Section 2: The litigation list shows that the Bush administration filed 15 cases to enforce Section 2 of the VRA in the eight years of the administration.  Three of those cases were in jurisdictions covered by Section 5: South Carolina, Georgia, and Mississippi.
The Obama administration filed only five cases to enforce Section 2 in the eight years of the administration, four of which were filed after the Shelby County decision. Three of those cases were in jurisdictions covered by Section 5: Texas (covered in whole) and North Carolina (only part of the state was covered).”
These numbers illustrate that there was no upsurge in Section 2 cases after the 2013 Shelby County decision; in fact, the Obama administration filed far fewer Section 2 enforcement actions than the prior administration. The number of Section 2 cases filed in Section 5 jurisdictions by the Bush administration prior to Shelby County and the number of Section 2 cases filed in former Section 5 jurisdictions by the Obama administration after Shelby County was exactly the same – three.
Section 11(B). The Obama administration filed no cases to enforce the provision of the VRA that prohibits coercion, intimidation and voter suppression. Two such cases were filed by the Bush administration, both before the 2013 Shelby County decision.
Language minority provisions. The VRA has two different provisions designed to protect language minorities, Section 4(f)(4) and Section 203. The Obama administration filed eight lawsuits to enforce these provisions and entered into settlement agreements in two other matters, for a total of ten enforcement actions. Only one of those matters occurred after 2013, a settlement agreement with Napa County, California, a jurisdiction that was not covered under Section 5.
By contrast, the Bush administration filed a record 27 lawsuits to enforce the language minority provisions and entered into one settlement agreement, for a total of 28 enforcement actions. Thus, the Obama administration filed only about a third of the number of cases filed by the Bush administration, almost all of which occurred prior to the Shelby County decision.
Section 208. The Obama administration filed only one case to enforce the provision of the VRA that allows any voter to request assistance due to a disability, blindness, or inability to read or write. That case was filed in 2009, four years before Shelby County – no enforcement action was filed after that decision.
In comparison, the Bush administration filed ten cases to enforce Section 208. Only two of those cases were filed in a jurisdiction covered by Section 5, both in Texas.
National Voter Registration Act. Although this hearing is specifically about the priorities of DOJ over enforcement of the VRA, it should be noted that there was also a sharp downturn in the number of enforcement actions filed under the National Voter Registration Act (NVRA). The Obama administration filed only four cases to enforce the NVRA and entered into three settlement agreements, for a total of seven enforcement matters.
The Bush administration filed ten lawsuits to enforce the NVRA and entered into two settlement agreements, for a total of 12 enforcement actions, almost twice as many as the subsequent administration.
Conclusion: This overall litigation record does not show any indication that the Shelby County decision radically changed the enforcement policy of the Justice Department; the permanent provisions of the VRA have continued to be enforced.
However, there had been a sharp downturn in the number of enforcement actions filed by the Obama administration under the VRA that began prior to Shelby County. The Bush administration filed/settled 37 enforcement actions in comparison to only 16 by the Obama administration.
That was not due to a lack of personnel, since the lawyers and staff who worked fulltime on Section 5 matters were retained by DOJ after the 2013 Shelby County decision. That provided more resources for enforcement of the other provisions of the VRA. Appropriations for the Civil Rights Division also steadily increased from $136 million in FY 2013, the year Shelby County was decided, to $175 million in 2016.
The downturn in enforcement actions seems to reflect a reduction in discriminatory actions that would justify a DOJ lawsuit, given that no one questions the willingness of the Obama administration to enforce provisions of the VRA, such as Section 2.
In the Shelby County decision, the dissent cited an article, which argued that there is a greater likelihood of successful Section 2 lawsuits in covered jurisdictions. What do you make of this discussion, and is it relevant to the DOJ’s enforcement of the Voting Rights Act post-Shelby?
I have not reviewed the methodology of this article, so I cannot comment on its credibility. However, the litigation record of the Justice Department shows no upswing in Section 2 litigation against jurisdictions formerly covered by Section 5. Furthermore, the question of whether a federal statute is needed to ensure protection against violations of rights should not be judged by how “easy” it may be to win a lawsuit, but whether there is evidence of recurring, harmful conduct that justifies the federal statute.
The Supreme Court concluded in 2013 that the evidence needed to justify the continuance of Section 5 was not present. As the Supreme Court said in its decision, “history did not end in 1965.” Section 5 was originally passed as a temporary, emergency provision set to expire after 5 years. It was instead renewed four times, including in 2006 for an additional 25 years.
Section 5 was an unprecedented, extraordinary intrusion into state sovereignty since it required covered states to get the approval of the federal government for voting changes made by state and local officials – either the Department of Justice or a three-judge court in the District of Columbia. No other federal law presumes that states cannot govern themselves as their legislatures decide and must have the federal government’s consent before they act. As the Supreme Court said, Section 5 “employed extraordinary measures to address an extraordinary problem.”
Section 5 was necessary in 1965 because of the widespread, official discrimination that prevented black Americans from registering and voting as well as the constant attempts by local jurisdictions to evade federal court decrees. The disfranchisement rate was so bad that only 27.4 percent of blacks were registered in Georgia in 1964 and only 6.7 percent in Mississippi, compared to white registration of 62.6 percent and 69.9 percent, respectively. That disparity between black and white registration (and turnout) was a direct result of the horrendous discrimination suffered by black residents of those states.
The coverage formula of Section 4 was based on that disparity and Congress specifically designed it to capture those states that were engaging in such blatant discrimination. Thus, coverage under Section 4 was based on a jurisdiction maintaining a test or device as a prerequisite to voting as of Nov. 1, 1964, and registration or turnout of less than 50 percent in the 1964 election. Registration or turnout of less than 50 percent in the 1968 and 1972 elections was added in successive renewals of the law. That was the last time the coverage formula was revised, and Section 4 did not employ more current information on registration and turnout when Section 5 was last renewed in 2006.
Section 5 was needed in 1965. But as the Court recognized, time has not stood still and “[n]early 50 years later, things have changed dramatically.” The systematic, widespread discrimination against black voters has long since disappeared. As the Court recognized in the Northwest Austin case in 2009: “Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”
As an example, in Georgia and Mississippi, which had such high disenfranchisement rates in 1964, the percentage of black voters registered actually exceeded the white registration percentage in the 2004 election, just two years before Congress was considering the renewal of Section 5. Black registration exceeded white registration by 0.7 percentage points in Georgia and by 3.8 percentages points in Mississippi. The Census Bureau’s May 2013 report on the 2012 election showed that blacks voted at a higher rate than whites nationally (66.2 percent vs. 64.1 percent).
That same report shows that black voting rates exceeded that of whites in Virginia, South Carolina, Georgia, Alabama, and Mississippi, which were covered in whole by Section 5, and in North Carolina, and Florida, portions of which were covered by Section 5. Louisiana and Texas, which were also covered by Section 5, showed no statistically significant disparity between black and white turnout. Minority registration and turnout are consistently higher in the formerly covered jurisdictions than in the rest of the nation.
No one can rationally claim that there is still widespread, official discrimination in any of the covered states, or that there are any marked differences between states such as Georgia, which was covered, and states such as Massachusetts, which was not covered (except that Massachusetts has a lower turnout of its minority citizens). As the Supreme Court approvingly noted and as Judge Stephen F. Williams pointed out in his dissent in the District of Columbia Court of Appeals, jurisdictions covered under Section 4 have “higher black registration and turnout” than noncovered jurisdictions. Covered jurisdictions also “have far more black officeholders as a proportion of the black population than do uncovered ones.” In a study that looked at lawsuits filed under Section 2 of the VRA, Judge Williams found that the “five worst uncovered jurisdictions…have worse records than eight of the covered jurisdictions.”
Arizona and Alaska, which were covered under Section 5, had not had a successful Section 2 lawsuit ever filed against them in the 24 years reviewed by the study. The increased number of current black officeholders is additional assurance that official, systemic discriminatory actions are highly unlikely to recur.
Without evidence of widespread voting disparities among the states, continuing the coverage formula unchanged in 2006 was irrational. As the Court said in the Shelby County decision, Congress “did not use the record it compiled to shape a coverage formula grounded in current conditions.” Instead, it reenacted Section 4 “based on 40-year-old facts having no logical relation to the present day.” It was no different than if Congress in 1965 had based the coverage formula not on what had happened in the prior year’s election in 1964, but had instead opted to base coverage on registration and turnout from the Hoover era in 1928 or the Roosevelt election in 1932.
Is the federal preclearance process a system that should be reinstated? If so, what formula would you propose? If not, what other models should be used to protect minority voting rights?
Today, five years after Shelby County, there is still no evidence of widespread, systemic, official discrimination by any of the formerly covered jurisdictions or any other state that would justify reimposing the onerous Section 5 preclearance requirement. There is also no evidence that, in jurisdictions where a Section 2 violation has been found by a court, that those political bodies have evaded the remedies imposed to implement more discriminatory practices.
That is a key point because the fundamental reason that Section 5 was implemented in 1965 in addition to the protections of Section 2 was to stop efforts by local jurisdictions to evade court remedies. As the Supreme Court said in Katzenbach when it upheld Section 5, the preclearance requirement was tailored to stop such “obstructionist tactics.” The Supreme Court noted in Shelby County its earlier observation in the Northwest Austin case that “blatantly discriminatory evasion of federal decrees are rare.”
Moreover, it would be fundamentally unfair to impose preclearance requirements on states or other political jurisdictions because of discriminatory actions – if they occur – that are committed by political subdivisions over which they have no control.
Shelby County is a good example of that. The county government there had never had an objection filed by the Justice Department in the preclearance process during the entire history of Section 5. Yet it was under the preclearance requirement of Section 5 because the entire state of Alabama was covered. And it could not bail out because of an objection that had been filed years earlier to an annexation by the town of Calera, which is located in Shelby County, but over which the county government has no control.
In order to meet the requirements of the Constitution, to justify federal supervision, a new Section 5 would have to identify those jurisdictions for which Section 2, because of systemic racial discrimination, would not be effective. That will not be possible because there is no evidence of systemic racial discrimination in voting in the states formerly covered under Section 4.
The lack of Section 5 enforcement does not mean jurisdictions can never be overseen by federal authorities through a preclearance requirement. Another provision of the VRA, Section 3, can be used to supervise any jurisdictions that have a pattern of racial discrimination in voting. While the Supreme Court struck down the coverage formula of Section 4, Section 3 was not an issue in Shelby County. Section 3 has rarely been used, but it allows for both federal examiners and prior approval of voting changes.
If a jurisdiction has engaged in repeated discrimination and a court finds it is necessary to prevent future discrimination, Section 3 provides that the court can essentially place the jurisdiction into the equivalent of Section 5 coverage. Under a Section 3 finding, “no voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless” the court or the Attorney General has precleared the change and found that it “does not have the purpose and will not have the effect of denying or abridging the right to vote.”
This preclearance provision thus becomes a tool to remedy discrimination that has been proven in court, rather than Section 5’s blanket burden on all jurisdictions, regardless of their actual history and actions.
The point here is that the Supreme Court in Shelby County found that the general conditions in covered states today do not justify their continued exception from general constitutional principles and strictures. However, a court can still appoint federal examiners and place a particular jurisdiction into the equivalent of Section 5 preclearance if it finds sufficient evidence of current, repeated discrimination and a recalcitrant defendant under Section 3’s requirements.
Section 5 was also unprecedented in the way it violated fundamental American principles of due process: it shifted the burden of proof of wrongdoing from the government to the covered jurisdiction. Unlike all other federal statutes that require the government to prove a violation of federal law, covered jurisdictions were put in the position of having to prove a negative – that a voting change was not intentionally discriminatory or did not have a discriminatory effect. While such a reversal of basic due process may have been constitutional given the extraordinary circumstances present in 1965, it cannot be justified today.
Section 3 does not present this constitutional due process problem because it does not shift the burden of proof for preclearance to covered jurisdictions until the government or a private plaintiff has proven that the jurisdiction has engaged in discrimination. Thus, it remains a valuable, case-specific tool for those jurisdictions that a court finds should have a preclearance requirement.
There is no need for a new Section 5.
 Shelby County v. Holder, 133 S.Ct. 2612 (2013).
 https://www.justice.gov/crt/voting-section-litigation. The settlement agreements listed are in enforcement matters that were settled without suit being filed.
 52 U.S.C. §10301.
 52 U.S.C. §10307.
 52 U.S.C. §10303(f)(4) and §10503.
 52 U.S.C. §10508.
 FY 2016 Budget and Performance Summary, General Legal Activities, Civil Rights Division, U.S. Dept. of Justice, https://www.justice.gov/sites/default/files/jmd/pages/attachments/2015/01/30/16_bs_section_ii_chapter_-_crt.pdf.
 Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 202 (2009).
 The Diversifying Electorate – Voting Rates by Race and Hispanic Origin in 2012 (and Other Recent Elections, United States Census Bureau, P20-568 (May 2013).
 Figure 5, Non-Hispanic White Voting Rates Compared to Black Voting Rates: 2012.
 Shelby County v. Holder, 679 F.3d 848, 891 (D.C. Cir. 2012).
 679 F.3d at 892.
 679 F.3d at 897.
 Shelby County, 133 S.Ct. at 2629.
 Shelby County, 133 S.Ct. at 2629.
 Katzenbach v. South Carolina, 383 U.S. 301, 328 (1966).
 Shelby County, 133 S.Ct at 2625, citing Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. 193, 202 (2009).
 52 U.S.C. §10302.
 See Allen v. City of Evergreen, 2014 WL 12607819 (S.D. AL 2014) and Patino v. City of Pasadena, 230 F.Supp. 3d 667 (S.D. TX 2017). These are the only two cases I am aware of in which a federal court has found evidence sufficient to warrant imposition of the preclearance regime of Section 3 since Shelby County. This is another indication of how rare the circumstances are that would warrant preclearance.