Oversight of the Voting Rights Act: Potential Legislative Reforms

Testimony Election Integrity

Oversight of the Voting Rights Act: Potential Legislative Reforms

August 23, 2021 16 min read
HansvonSpakovsky
Election Law Reform Initiative and Senior Legal Fellow
Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.
Existing federal voting laws, including the Voting Rights Act and other statutes such as the National Voter Registration Act and the Help America Vote Act, are more than sufficient to protect voters and ensure that they can easily and securely practice their franchise without discrimination, fear, or intimidation. Americans today have an easier time registering and voting securely than at any time in our nation’s history. Voter registration and turnout data, as well as the enforcement record of the U.S. Justice Department, show that there is no widespread, systematic discrimination by state or local election officials to prevent citizens from registering and voting. The permanent, nationwide provisions of the VRA such as Section 2 and Section 3 that apply across the country – not just to formerly covered jurisdiction under Section 5 – are powerful tools and are more than adequate to protect voting rights in those increasingly rare instances where discrimination does occur. There is simply no need to resuscitate the outdated and obsolete preclearance provisions of Section 5 of the VRA and certainly no need to implement a new, vastly expanded Section 5, which in addition to bringing back preclearance for covered jurisdictions, would add a “practice-based” preclearance requirement that applies to every city, county, and state in the country. It is not 1965 and there is no longer any justification for giving the federal government the ability to veto the election laws and regulations that citizens and their elected representatives choose to implement in their respective states.

 

Testimony before the Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
United States House of Representatives

August 16, 2021

Hans A. von Spakovsky
Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation

Introduction

My name is Hans A. von Spakovsky.REF I appreciate the invitation to be here today.

I am a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Center for Legal and Judicial Studies at The Heritage Foundation. Prior to joining The Heritage Foundation, I was a Commissioner on the U.S. Federal Election Commission for two years. Before that I spent four years at the U.S. Department of Justice as a career civil service lawyer in the Civil Rights Division, where I received three Meritorious Service Awards (2003, 2004, and 2005). I began my tenure at the Justice Department as a trial attorney in 2001 and was promoted to be Counsel to the Assistant Attorney General for Civil Rights (2002-2005), where I helped coordinate the enforcement of federal voting rights laws, including the Voting Rights Act, the National Voter Registration Act, the Help America Vote Act, and the Uniformed and Overseas Citizens Absentee Voting Act.REF

There Is No Need for Legislative Reforms

The answer to the question of whether there is a need for legislative reforms to the Voting Rights Act of 1965 (“VRA”) is a straightforward “no.” The VRA is one of the most important – and most successful – statutes ever passed by Congress to guarantee the right to vote free of discrimination. After the U.S. Supreme Court’s correct decision in Shelby County v. Holder,REF the VRA through its various provisions, including Section 2, remains a powerful statute whose remedies are more than sufficient to protect all Americans.

With the latest guidance by the U.S. Supreme Court on the proper application of Section 2 to discriminatory practices in Brnovich v. DNC,REF both the U.S. Justice Department and private parties have the legal means at their disposal to stop those increasingly rare instances of voting discrimination when they occur.

There Is No Wave of “Voter Suppression” Occurring

The claim that there is a wave of voter suppression going on across the country that requires expansion of the VRA is simply false. Efforts to enhance the integrity of the election process through reforms such as voter identification requirements and improvements in the accuracy of statewide voter registration lists are not voter suppression. This is evidenced by steady increases in registration and turnout in states that have implemented such reforms, as well as the enforcement record of the Justice Department, which has seen a steady decrease in the number of enforcement cases due to a decreasing number of violations of federal law, even after the 2013 Shelby County decision.

I explained this in greater detail in a recent law review article, “The Myth of Voter Suppression and the Enforcement Record of the Obama Administration,” which is attached to, and incorporated into, this testimony.REF For example, during the entire eight years of the Obama administration, the Civil Rights Division of the Justice Department filed only four cases to enforce Section 2 of the VRA. The Trump Administration filed two Section 2 enforcement actions.

Thus, there was no upsurge in Section 2 cases after the Shelby County decision; in fact, the Obama Administration filed far fewer Section 2 enforcement actions than the Bush Administration, which filed 16 such cases. That record over the past two decades, and particularly in the last ten years, provides no evidence to support the claim that there are widespread, unlawful, voter suppression actions being taken against minority voters by state and local jurisdictions, as has been falsely claimed since at least 2013.

The Census Bureau’s recent release of its 2020 election survey of voter turnout also clearly demonstrates that there is no wave of "voter suppression" keeping American voters from registering and voting or that requires amending the VRA and expanding the power of the Justice Department.REF

Instead, the Census Bureau reports that the turnout in last year’s election was 66.8 percent – just short of the record turnout of 67.7 percent of voting-age citizens for the 1992 election. This was higher than the turnout in President Barack Obama’s first election, which was reported as 63.6 percent by the Census Bureau.

The Census survey shows that there was higher turnout among all races in 2020 when compared to the 2016 election. Black Americans turned out at 63 percent, compared to only 60 percent in 2016.  Fifty-nine percent of Asian Americans voted in 2020, a 10-percentage point increase from 2016 when 49 percent turned out to vote.

The Census Bureau reports that voter registration in 2020 reached 72.7 percent, which is higher than the 70.3 percent who registered in 2016 after eight years of the Obama-Biden administration. Not only that, but voter registration in 2020 was higher than in the 2000, 2004, 2008 and 2012 elections.

Fifty-four percent of Hispanics reported turning out to vote in 2020 according to the Census Bureau, compared to only 50 percent of Hispanics who voted in 2008 when Barack Obama was elected. Hispanics made up 11 percent of the total turnout in the 2020 election, up from only nine percent in 2016.  The Hispanic share of the vote was just behind that of Black Americans, who had 12 percent of the total vote in 2020 – the same percentage of the total vote by Black Americans in the 2016 election at the end of the Obama-Biden administration.

The bottom line of the Census Bureau’s survey is that Americans are easily registering – when they want to – and they are turning out to vote when they are interested in the candidates who are running for office.  In fact, in an election year in which we were dealing with an unprecedented shutdown of the country due to a pandemic, we had, according to the Census Bureau, "the highest voter turnout of the 21st century."

The Proposed Amendments to the VRA Are Unnecessary and Unconstitutional

The amendments to the VRA that have been proposed in prior sessions are contained in H.R. 4, The John Lewis Voting Rights Advancement Act. I explain the problems with this bill in-depth in a recent Heritage Foundation analysis, “Enabling Partisan Federal Bureaucrats to Control State Election Laws: The Unnecessary and Unconstitutional John Lewis Voting Rights Advancement Act. (H.R. 4),” which is also attached to, and incorporated into, this testimony.REF

There is no need for new legislation reimposing and actually expanding the onerous preclearance requirements of Section 5 of the VRA, and no evidence that the permanent provisions of the VRA such as Section 2 are not adequate to protect voters’ rights. The proposed amendments are also almost certainly unconstitutional because they do not satisfy what is required by the Supreme Court’s Shelby County decision to justify continuing, much less expanding, the preclearance requirement. As the Court made clear in that decision, the 1965 standards were obsolete, and any requirement that states obtain federal pre-approval of any proposed election changes before they can be implemented could be imposed only if Congress found “blatantly discriminatory evasions of federal decrees;” lack of minority office holding; voting tests and devices; “voting discrimination ‘on a pervasive scale;’” or “flagrant” or “rampant” voting discrimination. These conditions are nowhere to be found in any state in 2021.

Additionally, Section 3 of the VRA already allows a federal court to impose a preclearance requirement in a particular jurisdiction for as long as necessary where the court determines that there is intentional misconduct and preclearance is required to ensure compliance with the voting guarantees of the Fourteenth and Fifteenth Amendments.”REF With the availability of the customized preclearance requirement of Section 3 that can be imposed on a recalcitrant jurisdiction based on the specific evidence of wrongdoing uncovered in a specific enforcement action, there is no need for a broad, general, and expanded preclearance requirement as proposed in H.R. 4.

If H.R. 4 is enacted, the lawyers inside the Voting Section of the Civil Rights Division would be given veto authority over state election laws and regulations; when it comes to exercising that powerful discretion and initiating unbiased enforcement actions, the attorneys in that section have a very checkered record. This was perhaps best captured in 1994 in Johnson v. Miller, where a federal court issued a scathing opinion in a preclearance case charging that “the considerable influence of ACLU advocacy on the voting rights decisions of the United States attorney general is an embarrassment” and that the “dynamics” between the DOJ and American Civil Liberties Union lawyers “were that of peers working together, not of an advocate submitting proposals to higher authorities.” The judge was “surprised” that DOJ “was so blind to this impropriety, especially in a role as sensitive as that of preserving the fundamental right to vote.”REF The judge also found the “professed amnesia” of the DOJ lawyers about their relationship with ACLU attorneys “less than credible.”

In another case involving preclearance, a federal court ruled against DOJ, holding that it “had arrogated the power to use Section 5 preclearance as a sword to implement forcibly its own redistricting policies.”REF In fact, using its power under the VRA, DOJ “impermissibly encouraged – nay, mandated – racial gerrymandering.”REF The public was forced to pay the state of Louisiana over $1.1 million in attorneys’ fees and costs due to DOJ’s wrongdoing in that case.

As the Judiciary Committee should be aware from a letter sent to it in 2006 by the Justice Department, these were just two of 11 cases involving the Civil Rights Division from 1993 to 2000 in which courts admonished the Division for its misbehavior and awarded over $4.1 million in attorneys’ fees and costs to defendants abusively targeted by the Division.REF

In 2013, the Inspector General of the Justice Department issued a critical report on the operations of the Voting Section of the Civil Rights Division that cited numerous examples of inappropriate and biased behavior by its staff.REF No one who reads that report could possibly think that giving the partisans who work in the Voting Section the regal power to decide what the election rules are for each state could possibly be a good idea.

The VRA is race-neutral – it protects all voters from discrimination. But that is decidedly not the view of the Voting Section staff. The Inspector General found “relevant evidence” demonstrating the staff “disfavored” cases where victims of discrimination were white.REF This resulted in their ignoring discrimination against white voters even in the most egregious of circumstances.

For example, the Voting Section failed to take action against a Guam law that used a blood ancestry test – the same kind used in the South during the Jim Crow era to exclude blacks – to prevent white and Asian residents of Guam from being able to register and take part in a plebiscite. It took an expensive private lawsuit to end Guam’s bigoted treatment of its residents, which the Ninth Circuit U.S. Court of Appeals found violated the Fifteenth Amendment in Davis v. Guam in 2019.REF

In 2006, according to the Inspector General, staff members assigned to file a lawsuit under the VRA against black officials in Noxubee County, Mississippi, for discriminating against white voters were subjected to written and verbal abuse from peers. The team leader was called a “Klansman” in official email correspondence. A black intern who requested to join the team was repeatedly taunted as a “token” and when the intern’s mother paid a visit to the office, career employees complained that her son was acting as a racial “turncoat.”REF

A federal court in 2007 found that the defendants in Noxubee County had engaged in “blatant” racial discrimination in a case that the majority of career staff not only did not want to bring, but in which they attempted to intimidate and harass those involved in working on the case.REF

The Inspector General also found that career employees, identifying themselves as DOJ employees, published “highly offensive and potentially threatening statements” about colleagues on prominent liberal-leaning news websites, including posting comments about one person’s “Yellow Fever” – a demeaning reference to that person’s presumed sexual attraction to a person who “look[s] Asian.”REF

Another staff employee confessed to being the organizer of a three-person “cyber-gang” that published comments falsely asserting that a supervisor was a racist after hanging a noose in the supervisor’s office (p. 128-129). This employee, who adopted an online avatar of a black literary character who becomes a killer, made further online comments, including stating his desire to “choke” colleagues with whom he disagreed (p. 130).

The Inspector General found other conduct by staff in the Voting Section to be “disturbing,” including posting messages on liberal news sites disparaging administration officials and Section managers, and using extremely bigoted, racial language towards anyone they believed did not share their liberal views. When confronted with the Internet postings about conservative co-workers, one member of the “cyber bullying” group initially lied under oath to the Inspector General’s staff about her participation.REF

Lying to an Inspector General employee conducting an investigation is a federal crime, just as it is to lie to an FBI agent. Yet no adverse actions of any kind were taken against this Section staffer. In fact, a source inside the Voting Section told me she was treated as a “hero” by other employees.

Relevant to the finding by a federal court in the Miller case, the Inspector General also criticized Voting Section management for specifically reaching out only to progressive organizations, such as the ACLU, the Mexican American Legal Defense and Education Fund, the NAACP Legal Defense and Education Fund, and the Lawyers’ Committee for Civil Rights under Law, to fill job openings, while ignoring the resumes of other qualified professionals.REF As a result, only applicants whose views were slanted dramatically to the left on the ideological spectrum, many of whom endorsed questionable views of the law, were given serious consideration.REF

One can already see this bias and abuse of authority in some of the latest actions taken by the Civil Rights Division. DOJ threatened Arizona over the forensic post-election audit it is conducting in a May 5 letter and issued “guidance” on July 28 purporting to outline “Federal Law Constraints on Post-Election Audits.”REF

This “guidance” wrongly exaggerates the reach of 52 U.S.C. §§ 20701-20706. The purpose of these federal statutes, which require the preservation of federal election records, is investigatory in nature. They exist to help the Attorney General in determining the advisability of commencing possible investigations of federal election offenses. But if there is no underlying potential voting rights violation, any exercise of this power is not authorized and is a brazen abuse of power.

Contrary to the assertions made by DOJ, conducting an audit of a past election does not violate the VRA or any other federal election law. In fact, the Justice Department has never – in the entire history of the existence of the Civil Rights Division – interfered with or investigated an election audit, because its past leadership has understood it has no legal authority to do so. There is also no basis for DOJ to assert, as it does in the guidance, a possible violation of Section 11b of the VRA, which prohibits the direct intimidation, threat or coercion of individuals “for the purpose of interfering“ with the ability to vote given that Arizona voters have already voted! The Justice Department’ assertion that an audit could violate Section 11b is a highly implausible, if not outright absurd, interpretation of the law.

The same is true of the Justice Department’s July 28 “Guidance Concerning Federal Statutes Affecting Methods of Voting.”REF In this “guidance,” DOJ says that it does not “consider a jurisdiction’s re-adoption of prior voting laws or procedures to be presumptively lawful,” and instead will review the changes “for compliance with” federal law. In other word, DOJ will use the emergency procedures as the new baseline for reviewing a state’s election laws under the VRA.

Not only is such a standard not contemplated by the text and legislative history of Section 2 of the VRA, which defines the Department’s authority to assert violations of the law, it certainly is not in accord with the clear guidance provided by the U.S. Supreme Court on the application of Section 2 in the Brnovich v. Democratic National Committee decision. It is another example of the Division’s abuse of its authority. Instead, the Department is trying to intimidate states to prevent them from returning to their election rules that were in place prior to the health emergency caused by the COVID-19 pandemic.

Conclusion

Existing federal voting laws, including the VRA and other statutes such as the National Voter Registration Act and the Help America Vote Act, are more than sufficient to protect voters and ensure that they can easily and securely practice their franchise without discrimination, fear, or intimidation. Americans today have an easier time registering and voting securely than at any time in our nation’s history. Voter registration and turnout data, as well as the enforcement record of the U.S. Justice Department, show that there is no widespread, systematic discrimination by state or local election officials to prevent citizens from registering and voting. The permanent, nationwide provisions of the VRA such as Section 2 and Section 3 that apply across the country – not just to formerly covered jurisdiction under Section 5 – are powerful tools and are more than adequate to protect voting rights in those increasingly rare instances where discrimination does occur.

There is simply no need to resuscitate the outdated and obsolete preclearance provisions of Section 5 of the VRA and certainly no need to implement a new, vastly expanded Section 5, which in addition to bringing back preclearance for covered jurisdictions, would add a “practice-based” preclearance requirement that applies to every city, county, and state in the country.

It is not 1965 and there is no longer any justification for giving the federal government the ability to veto the election laws and regulations that citizens and their elected representatives choose to implement in their respective states.

Authors

HansvonSpakovsky
Hans von Spakovsky

Election Law Reform Initiative and Senior Legal Fellow