DOJ Civil Rights Division Calls On Congress To Pass Voting Rights Legislation

Kristen Clarke, assistant attorney general for civil rights, testified before the House Judiciary Committee on Monday, and called on Congress to pass the voting rights bills:

US Assistant Attorney General Kristen Clarke  testified in front of a House Judiciary subcommittee hearing about voting rights legislation on Monday, as the House prepares to move forward a major element of Democrats’ voting rights push.

Her prepared opening statement addressed provisions in the 1965 Voting Rights Act that were gutted by the Roberts Supreme Court in 2013. House Democrats are preparing to introduce legislation to revive the VRA’s so-called “preclearance” regime, which, before the 2013 ruling, required localities with a history of racial voting discrimination to get the department’s or a federal court’s approval for election procedure changes.

Since that 2013 Supreme Court ruling, Clarke said Monday, according to her written testimony “We have seen an upsurge in changes to voting laws that make it more difficult for minority citizens to vote and that is even before we confront a round of decennial redistricting where jurisdictions may draw new maps that have the purpose of effect of diluting or retrogressing minority voting strength.”

Her testimony called on Congress “to pass appropriate legislation that will restore and improve the Voting Rights Act, enhancing the department’s ability to protect the right to vote in the twenty-first century and beyond.”

The For the People Act passed in the House but it is stalled in the Senate, while the John Lewis bill is expected to be taken up by the House later this month. Pieces of both bills are being considered in Senate negotiations for a voting rights package that would win the support of West Virginia Democrat Sen. Joe Manchin. But even with his support, a filibuster by Senate Republicans will keep the voting rights legislation from reaching President Joe Biden’s desk. Manchin and other Democratic centrists have balked at changing the filibuster rules.

Even in the face of the legislative obstacles, the Biden administration has made voting rights a top priority. Clarke, who started her legal practice as a career attorney in the DOJ’s voting section, is one of three attorneys with deep voting rights experience that Biden appointed to top DOJ roles.

Clarke, in her testimony, emphasized the effectiveness of the Voting Rights Act when the preclearance regime was fully functional. Under it, 3,000 voting changes were blocked for their discriminatory intent or effect between 1965 and 2013, according to her written testimony. Still, Clarke said, that was only one percent of all the changes the department considered, and jurisdictions were otherwise able “to institute new voting changes or rules without interference.”

She reiterated what Attorney General Merrick Garland alluded to in a recent Washington Post op-ed: that while the Justice Department has the authority to challenge individual laws that threaten voting rights — the DOJ sued the state of Georgia this summer — case by case challenges aren’t adequate since litigation is complex, requires vast resources, and is too time intensive to adequately address inequities fast enough.

Her testimony also addressed what the absence of a preclearance regime means for the coming redistricting cycle, which will be the first redistricting cycle since the 2013 Supreme Court decision.

“Without preclearance, the department will not have access to maps and other redistricting-related information from many jurisdictions where there is reason for concern,” she said.

The Washington Post’s Jennifer Rubin writes, Why the plea to Congress on voting rights is so urgent:

As Republicans change state laws to facilitate GQP Jim Crow 2.0 voter suppression and attempt to rig elections – and give themselves the power to reject the results – the head of the Justice Department’s Civil Rights Division offered a timely reminder on Monday that gerrymandering is a form of voter suppression — a technique for diminishing the voting power of Black People, Hispanic people and Native Americans.

“The 2020 Census numbers show that the United States is an increasingly diverse nation,” said Kristen Clarke, assistant attorney general for civil rights, before the House Judiciary Committee. “This raises profound questions about how the next redistricting will be conducted, including whether the officials who draw congressional and legislative maps and decide districts for city councils and county commissions draw districts that are fair to all voters. This round of redistricting is the first since the Supreme Court’s 2013 decision in Shelby County v. Holder … severely cut back on the protections the Voting Rights Act provides.”

Clarke added: “It is now time for Congress to respond, by developing legislation that responds to our current situation, with respect to redistricting and otherwise — a situation in which voting rights are under pressure to an extent that has not been seen since the Civil Rights era.”

Or not since the Reconstruction era ended with the Compromise of 1876, and a wave of white terrorism and state-sanctioned segregation.

While much of the public debate about voting rights protection has centered on federal legislation to supersede state-imposed barriers to voting, Clarke makes a powerful case that members of Congress cannot anticipate every maneuver to curtail voting and dilute voting strength. For that, she argues, we need to reauthorize Section 5 of the Voting Rights Act, which would require the Justice Department to review changes to election procedures in certain states.

It’s clear now that Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate against minority groups, cannot protect against discriminatory laws on its own. The Supreme Court made sure of that by eviscerating Section 2 in Brnovich v. DNC. What is needed is an efficient review of election changes before they are implemented, which has happened effectively for years before Section 5 was gutted. As Clark explained in her testimony, “More than 800 proposed changes were altered or withdrawn in the period after 1982. … Empirical studies demonstrate that the Department’s requests for more information had a significant effect on the degree to which covered jurisdictions complied with their obligation to protect minority voting rights.”

The upshot of reauthorizing Section 5 is simple: There is no way to out-organize multifaceted voter suppression, racially discriminatory redistricting or rigging the vote-counting process. There are no more instruments in the Justice Department’s toolbox. Only Congress can offer relief. In an unusually urgent plea, Clarke testified: “The Department will continue to use its existing tools to enforce the current laws. But that does not change the harsh reality that the Shelby County decision eliminated critical mechanisms for protecting voting rights.” She added, “On behalf of the Attorney General, we ask Congress to pass appropriate legislation that will restore and improve the Voting Rights Act, enhancing the Department’s ability to protect the right to vote in the twenty-first century and beyond.”

Still, reauthorizing Section 5 is not sufficient alone. To prevent the Republicans’ wholesale attack on voting, we need specific provisions to override barriers to the ballot, not only for protections for early voting but alsofor nonpartisan redistricting. No one can honestly argue that there are 10 Republicans to do any of this.

The task ahead is simple and urgent: Craft a bill that all 50 Democrats can support covering essential voting rights protections and reauthorization of Section 5. Give ample time for Republicans to get on board. Then reform the filibuster (as Sen. Robert Byrd did for the budget in crafting the reconciliation process).

That’s it. That’s the singular path to preserving an onslaught of anti-democratic voting measures designed to preserve White minority rule at a time its demographic power is diminishing. Ironically, the difference between diverse majority rule (with minority protections) and White minority rule will large rest with one White, Democratic senator from West Virginia.