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tv   Issue Spotlight on Campaign 2016 and Voting Rights  CSPAN  August 20, 2016 8:00pm-10:11pm EDT

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>> next, c-span's issues of spotlight look set legal challenges in several states. garveyhe son of marcus y says why he is asking for a posthumous pardon for his father. >> up next, c-span's issue spotlight. this program focuses on the 2016 election and voting rights. rights areing changing. flex some headlines in recent weeks.
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donald trump says he's afraid the election is going to be rigged. and he claims voter fraud lets people vote 10 times. here is the nominee at a rally in green bay, wisconsin. mr. trump: you have to win this election. we have to win it. have to win. movement wasr big not as big as we thought. that is not good. that is why november 8, you've got to get everybody you know. know that there is voter id, a lot of places are not going to have photo id. what does that mean was marked you just keep walking in and voting? not to be careful. -- you have to be careful. hill" believing seven
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in 10 voters backing donald trump believe the election will have been rigged against him if he loses. but mr. obama called his assertions ridiculous. iesident obama: it is -- don't even know where to start answering this question. of course the elections will not be rigged. what is that mean? the federal government doesn't run the election process. states and cities and communities all across the onesry, they are the who set up the voting systems and voting booths. if mr. trump is suggesting there that isspiracy theory being propagated across the country, including in places where typically it is
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not democrats who are in charge of voting booths, that is ridiculous. that doesn't a make any sense and i don't think anybody would take that seriously. we do take seriously as we always do our responsibilities to monitor and preserve the integrity of the voting process. that a votings machine or system is vulnerable thoseking, we inform local authorities who are running the elections they need to be careful. if we see jurisdictions that are violating federal laws, in terms of equal access, and are not providing rams for disabled voters or are discriminating some fashion or otherwise filing civil rights laws, the justice department will come in and take care of that. this will be an election like
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every other election. and i think all of us at some point in our lives played sports played in ast schoolyard. sometimes, if folks lose, they complain they got treated to read i have never heard about somebody complained about being cheated before the game was over. or before the score is even tallied. go outestion would be, there and try to win the election. pointstrump is up 10-15 on election day and ends up losing, maybe he can raise some questions. that doesn't seem to be the case at the moment. >> the democratic nominee is also weighing in in a different
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way. a statement from hillary clinton earlier this month reads, 51 years after the voting rights law was signed into law, americans are now facing the most systematic effort to curtail those rights since the era of jim crowe. ms. clinton: we have a responsibility to say clearly and directly what is really going on in our country. happening is a sweeping effort to disempower and disenfranchise people of color, poor people, and young people from one end of our country to the other. [applause] ms. clinton: because since the supreme court of the serrated -- iscerated a key provision of
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the voting rights act, many of the states that previously faced special scrutiny because of a history of racial discrimination have proposed and passed new laws that make it harder than ever to vote. >> the new york times national is votingent, why rights and issuing in the 2016 election? >> it is an issue because in some of the states that could be battlegrounds, wisconsin and north carolina, there are laws that restrict the ability of certain people to vote. ,he basis for these laws say, is voter critics say, that is not the case. they are designed to affect parts of the population and disenfranchise them.
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first electione since changes to the voting rights act. what impact is that going to have? achael: it is going to have substantial impact in some states. they were covered by section five of the voting rights act. section five did a number of things. one which was especially important, required people in these jurisdictions when making changes and elections to submit them to the justice department for what they called preclearance approval. that was done thousands of times every year. the other thing in it was sent out election monitors to certain areas that qualified under justice department rules. they sent out 800 right before that section of the act was struck down in 11 or 12 states. that is going to be reduced to about five states now.
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>> in recent weeks, there have been headlines about voting laws like this one. alabama demands border id -- v oter id. federal appeals court strikes down north carolina voter id requirements. what is going on? michael: the thrust of most of these laws is to require registered voters, when they come to the polls, to display some sort of id. driver's license, military id. and a couple of states, the license to carry a gun. if you have those with a photograph, you are a loud to vote every those are the strictest. the critics say these laws have been designed to target people who are least likely to have these ids. in the ruling in north carolina that struck down the voting laws
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there, the appeals court said the were specifically targeted at blacks, at students, at minorities who tend to vote predominantly democratic. so there are, studies have shown, hundreds of people across the country who either don't have these ids or have great difficulty getting them because they are poor. they are in rural areas. the argument by critics is these people are effectively disenfranchised. >> back to the supreme court case. what specifically did the justices say in that case? a lot of these actions across the country coming after this supreme court ruling. what specifically was their decision and that case? theael: the rationale was voting rights act was passed in
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1965 when discrimination was certainly pervasive. not just in the south. some of the areas covered by section five of the voting rights act were in new york, california. states that did not have a legacy of discrimination from the civil war. it wasn't just the south. the court concluded times had changed its 1965. this sort of pervasive discrimination no longer existed. and didn't justify what they would say was the intrusive nature of section five. this could now be handled by local courts, state courts, or local divisions of federal courts on a case-by-case basis. portion of that case. courtutes of the supreme arguments. this starts with antonin scalia theking questions about
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process. justice scalia: we submit congress was not writing on a blank slate. depends on the proposition section five was a big success. justice scalia: maybe it was making that , but that is a prob. the court does not like to get involved in racial questions such as this. the problem is, that initial enactment, and the senate, it was double digits against it. that was only a five year term.
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it was reenacted. double digits against it. then it was reenacted for seven years. single digits against it. and then, for 25 years. eight senate vote against it. the last enactment, not a single vote in the senate against it. the house is pretty much the same. i don't think that is attributable to the fact that i t is so much more clear that we need it. i think it is a phenomenon --led perpetuation of cradle racial entitlement. when a society adapts them, it is difficult to get out of it. i don't think there is anything
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to be gained by any senator to vote against this act. confident itfairly will be reenacted in perpetuity it doeshe court can say not comport with the constitution. you have to show when you are treating different states differently there is a good reason for it. that is the concern those of us who have questions about the statute have. it is a concern this is not the kinds of question you can leave to congress. there are certain districts in the house that are black districts by law just about now. and even the virginia senators, they have no interest in voting against this. the state government is not their government, and they are going to lose -- they are going to lose votes if they do not reenact the voting rights act. even the name of it is wonderful -- the voting rights act. who is going to vote against that in the future?
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>> you have an extra 5 minutes. >> thank you. i may need it for that question. [laughter] >> justice scalia, there's a number of things to say. first, we are talking about the enforcement power that the constitution gives to the congress to make these judgments to ensure protection of fundamental rights. so this is -- this is a situation in which congress is given a power which is expressly given to it to act upon the states in their sovereign capacity. and it cannot have been lost on the framers of the fourteenth and fifteenth amendments that the power congress was conferring on them was likely to be exercised in a differential manner because it was, the power was conferred to deal with the problems in the former states of the confederacy. so with respect to the constitutional grant of power, we do think it is a grant of power to congress to make these judgments, now of course subject to review by this court under the standard of northwest
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austin, which we agree is an appropriate standard. that's the first point. the second point is i do -- i do say with all due respect, i think it would be extraordinary to look behind the judgment of congress as expressed in the statutory findings, and -- and evaluate the judgment of congress on the basis of that sort of motive analysis, as opposed to -- >> we looked behind it in boerne. i'm not talking about dismissing it. i'm talking about looking at it to see whether it makes any sense. >> and -- but -- but i do think that the deference that congress is owed, as city of boerne said, "much deference" -- katzenbach said "much deference." that deference is appropriate because of the nature of the power that has been conferred here and because, frankly, of the superior institutional competence of congress to make these kinds of judgments. these are judgments that assess social conditions. these are predictive judgments about human behavior and they're predictive judgments about social conditions and human
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behavior about something that the people in congress know the most about, which is voting and the political process. and i would also say i understand your point about entrenchment, justice scalia, but certainly with respect to the senate, you just can't say that it's in everybody's interests -- that -- that the enforcement of section 5 is going to make it easier for some of those senators to win and it's going to make it harder for some of those senators to win. and yet they voted unanimously in favor of the statute. >> do you think the preclearance device could be enacted for the entire united states. >> i don't think there is a record that would substantiate that. but i do think congress was -- >> and that is because that there is a federalism interest in each state being responsible to ensure that it has a political system that acts in a democratic and a civil and a decent and a proper and a constitutional way. >> and we agree with that, we respect that, we acknowledge that northwest austin requires an inquiry into that. >> but if -- if alabama wants to have monuments to the heros of the civil rights movement, if it
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wants to acknowledge the wrongs of its past, is it better off doing that if it's an own independent sovereign or if it's under the trusteeship of the united states government? >> of course it would be better in the former situation. but with all due respect, your honor, everyone agrees that it was appropriate for -- for congress to have exercised this express constitutional authority when it did in 1965, and everybody agrees that it was the -- was the exercise of that authority that brought about the situation where we can now argue about whether it's still necessary. and the point, i think, is of fundamental importance here is that that history remains relevant. what congress did was make a cautious choice in 2006 that given the record before it and given the history, the more prudent course was to maintain the deterrent and constraining effect of section 5, even given the federalism costs, because, after all, what it protects is a right of fundamental importance
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that the constitution gives congress the express authority to protect through appropriate legislation. >> before your time expires, i would like to make sure i understand your position on this as-applied versus facial issue. is it your position that this would be a different case if it were brought by, let's say, a county in alaska as opposed to shelby county, alabama? >> no. no. let me just try to articulate clearly what our -- what our position is. they've brought a facial challenge. we recognize that it's a facial challenge. we're defending it as a facial challenge, but our point is that the facial challenge can't succeed because they are able to point out that there may be some other jurisdictions that ought not to be appropriately covered, and that's especially true because there is a tailoring mechanism in the statute. and if the tailoring mechanism doesn't work, then jurisdictions that could make such a claim may well have an as-applied
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challenge. that's how we feel. >> thank you, general. >> thank you, mr. chief justice. >> the point is this. at least some of these states have a better record than those state that are out. in 1965, we had history. 200 years of slavery. legal segregation and 41 years of the statute and this has helped. congress in 2005 looks back and says, don't change horses in the middle of the stream because we still have a ways to go. the question is, is it rational to do that. people could differ on that.
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one thing to say is of course this is aimed at state. what do you think the civil war was about? of course it was aimed at treating some states differently than others. at some point, that historical practical,l -- justification runs out. and the question is, has it run out now? me, when does it run out? never? that's something you have heard people worried about. does it never run out? or does it run out, but not yet? or do we have a clear case where at least it doesn't run out now? now, i would like you to address that. >> fair enough, justice breyer. i think that the -- what the evidence shows before congress is that it hasn't run out yet. the whole purpose of this act is that we made progress and congress recognized the progress that we made.
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and, for example, they took away the examiner provision which was designed to address the registration problem. in terms of when we are there, i think it will be some point in the future. our great hope is that by the end of this next reauthorization we won't be there. indeed, there is an overlooked provision that says in 15 years, which is now 9 years from where i stand here today before you, congress should go back and look and see if it's still necessary. so we don't think that this needs to be there in perpetuity. but based on the record and a 2011 case in which a federal judge in alabama cited this court's opinion in northwest austin -- there were legislators that sit today that were caught on tape referring to african american voters as illiterates. their peers were referring to them as aborigines. and the judge, citing the northwest austin case -- it's the mcgregor case cited in our brief -- said that, yes, the south has changed and made progress, but some things remain stubbornly the same and the trained effort to deny african american voters the franchise is part of alabama's history to this very day. >> have there been episodes,
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egregious episodes of the kind you are talking about in states that are not covered? >> absolutely, chief justice roberts. >> well, then it doesn't seem to help you make the point that the differential between covered and noncovered continues to be justified. >> but the great weight of evidence -- i think that it's fair to look at -- on some level you have to look piece by piece, state by state. but you also have to step back and look at the great mosaic. this statute is in part about our march through history to keep promises that our constitution says for too long were unmet. and this court and congress have both taken these promises seriously. in light of the substantial evidence that was adduced by congress, it is reasonable for congress to make the decision that we need to stay the course so that we can turn the corner. to be fair, this statute cannot go on forever, but our experience teaches that six amendments to the constitution have had to be passed to ensure safeguards for the right to vote, and there are many federal laws. they protect uniform voters, some protect eligible voters who have not had the opportunity yet
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to register. but together these protections are important because our right to vote is what the united states constitution is about. >> thank you, counsel. mr. rein, 5 minutes. >> thank you, mr. chief justice. >> do you think that the right to vote is a racial entitlement in section 5? >> no. the fifteenth amendment protects the right of all to vote and -- >> i asked a different question. do you think section 5 was voted for because it was a racial entitlement? >> well, congress -- >> do you think there was no basis to find it -- >> may i say congress was reacting in 1964 to a problem of race discrimination which it thought was prevalent in certain jurisdictions. so to that extent, as the intervenor said, yes, it was intended to protect those who had been discriminated against. if i might say, i think that justice breyer -- >> do you think that racial
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discrimination in voting has ended, that there is none anywhere? >> i think that the world is not perfect. no one -- we are not arguing perfectibility. we are saying that there is no evidence that the jurisdictions that are called out by the formula are the places which are uniquely subject to that kind of problem -- >> but shouldn't -- >> we are not trying -- >> you've given me some statistics that alabama hasn't, but there are others that are very compelling that it has. why should we make the judgment, and not congress, about the types and forms of discrimination and the need to remedy them? >> may i answer that? number one, we are not looking at alabama in isolation. we are looking at alabama relative to other sovereign states. and coming to justice kennedy's point, the question has is alabama, even in isolation, and those other states reached the point where they ought to be given a chance, subject to section 2, subject to cases brought directly under the fifteenth amendment, to exercise their sovereignty -- >> how many other states have
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240 successful section 2 and section 5 -- >> justice sotomayor, i could parse statistics, but we are not here to try alabama or massachusetts or any other state. the question is the validity of the formula. that's what brings alabama in. if you look at alabama, it has a number of black legislators proportionate to the black population of alabama. it hasn't had a section 5 rejection in a long period. i want to come to justice breyer's point because i think that -- i think he's on a somewhat different wavelength, which is isn't this a mere continuation? shouldn't the fact that we had it before mean, well, let's just try a little bit more until somebody is satisfied that the problem is cured? >> don't change horses. you renew what is in the past -- >> right. >> where it works, as long as the problem isn't solved. ok? >> well, and i think the problem to which the voting rights act was addressed is solved. you look at the registration,
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you look at the voting. that problem is solved on an absolute as well as a relative basis. so that's like saying if i detect that there is a disease afoot in the population in 1965 and i have a treatment, a radical treatment that may help cure that disease, when it comes to 2005 and i see a new disease or i think the old disease is gone, there is a new one, why not apply the old treatment? >> well, mr. rein -- >> i wouldn't -- >> that is the question, isn't it? you said the problem has been solved. but who gets to make that judgment really? is it you, is it the court, or is it congress? >> well, it is certainly not me. [laughter] >> that's a good answer. i was hoping you would say that. >> but i think the question is congress can examine it, congress makes a record, it is up to the court to determine whether the problem indeed has been solved and whether the new problem, if there is one -- >> well, that's a big, new power that you are giving us, that we have the power now to decide whether racial discrimination has been solved? i did not think that that fell within our bailiwick.
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>> i did not claim that power, justice kagan. what i said is, based on the record made by the congress, you have the power, and certainly it was recognized in northwest austin, to determine whether that record justifies the discrimination among -- >> but there is this difference, which i think is a key difference. you refer to the problem as the problem identified by the tool for picking out the states, which was literacy tests, et cetera. but i suspect the problem was the denial or abridgement by a state of the right to vote on the basis of race and color. and that test was a way of picking out places where that problem existed. now, if my version of the problem is the problem, it certainly is not solved. if your version of the problem, literacy tests, is the problem, well, you have a much stronger case. so how, in your opinion, do we decide what was the problem that
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congress was addressing in the voting rights act? >> i think you look at katzenbach and you look at the evidence within the four corners of the voting rights act. it responds to limited registration and voting as measured and the use of devices. the devices are gone. that problem has been resolved by the congress definitively. so it can't be the basis for further -- further legislation. i think what we are talking about here is that congress looks and says, well, we did solve that problem. as everyone agrees, it's been very effective, section 5 has done its work. people are registering and voting and, coming to justice scalia's point, senators who see that a very large group in the population has politically wedded themselves to section 5 are not going to vote against it, it will do them no good. and so i think, justice scalia, that evidence that everybody votes for it would suggest some of the efficacy of section 5. you have a different constituency from the constituency you had in 1964. but coming to the point, then if you think there is
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discrimination, you have to examine that nationwide. they didn't look at some of the problems of dilution and the like because they would have found them all over the place in 1965. but they weren't responding to that. they were responding to an acute situation where people could not register and vote. there was intentional denial of the rights under the fifteenth amendment. >> thank you, counsel. >> thank you. the case is submitted. >> new can hear all of that oral argument on decided to strike down the section of the voting rights act requiring states to get preapproval of changes to their voting laws. in part because congress did not provide evidence that racial discrimination was still happening in the districts. >> thank you, thank you all.
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i was disappointed with the supreme court decision in the shelby county case -- i was particularly troubled by the argumentn and oral that congress passed the voting rights act only because it has a nice name. not because of the mountains of evidence before congress or because of the body is one -- long-standing bipartisan commitment to the 15th amendment. the voting rights act is one of the greatest and most consequential achievements of the civil rights movement as are presented of simpson said. it has improved -- improve the democratic process tremendously. i would believe the law remains necessary today. the shelby county decision was a setback. justice ginsburg put it well in her dissent when she wrote -- i
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out freeg -- throwing clearance when it has worked, and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you're not getting wet". i was disappointed with the decision. i am also optimistic we can fix this. nobody really disputes the voting rights act is still needed. writing for the majority and shelby county, justice roberts credited the voting rights act with great strides that we have taken as a nation while also say" voting discrimination still exists, no one doubts that" it seems to me the question here is not whether we need the voting rights act at all, the question is what form should the law take?
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i am looking forward to working with all of my colleagues on the judiciary committee to address the question in the months ahead. we have enacted a reauthorized voting rights act on a truly bipartisan basis. five occasions in the past, hopefully we can do it again in 2013. thisssor, we have touched already preclearance. i want to get your response to this quote. judiciaryom the house committee report from the 19 625 act -- 1965 act regarding preclearance. quote the burden is too heavy. the wrong to the citizens is too serious. the damage to the national conscience is too great not to adopt more effective measures than exist today". do you believe that statement is still true? >> i do. i do think it was right then.
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i think although unquestionably matters have improved all over the country, i think there are still problems where -- that existing tools do not adequately address. for those problems the burden is for the existing tools to do the work that they need to do to make sure that there is no discrimination on the basis of race or ethnicity. the right to vote would have that meaningful participation counted anywhere in the country, justice should never be too expensive, never to slow, never depend on an army of lawyers sweeping in to help. that is the situation we have now. we are dependent on the ability to find help whenever we can. congress has in the past always recognized that that is where the most fundamental right is not enough. i take it that congress is here today -- this committee is here today to start the process of
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another bipartisan effort to restore the recognition that waiting for help is not enough. al franken: that is exactly why we are here. standpointfrom a law , i think one of the most important points made in justice ginsburg's dissent is that the majority departed from established precedent with respect to the standards of review under the 15th amendment, the court said quote congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting." in other words, to overturn a statute under the 15th amendment powers of congress the court must find the statute is a rational -- is irrational. that seems like a deferential standard, i agree with justice
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ginsburg in that the court did not apply it in shall be county -- in shelby county. what are your thoughts on this? what standard of review should we expect the court to use when it analyzes potential amendments to the voting rights act. professor: you are right. it is difficult to know what standard because used in shall be county. only the -- in shelby county. only because they did not tell us. the prevailing standard had been deferential to congress and the court tossed out more or less with the back of their hand all of the work congress had done -- the 15,000 pages of record. the prevailing standard had been that recognition that congress is the body empowered in the first instance to enforce the 15th of and meant. the legislation -- 15th amendment. the legislation may pass should be viewed rationally. the court seemed not to apply that. it seemed to depart from the. -- that.
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they did not tell us what standard they were applying. what they did say was that any step congress takes has to reflect current conditions. although i think the old standard met that test, they did not. theink that congress has ability to compile a record of current conditions that would more than authorize steps to set -- supplement the very important protections that exist today with more protections designed to ensure that there is no discrimination on the basis of race or ethnicity. congress has plenty of latitude to establish a record supporting whatever steps congress takes to provide the protection that we still desperately need. al franken: thank you. i am sorry i went over. maybe we can get 16,000 pages if we get longer this time. thank you, i yield. >> thank you, mr. chairman.
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i would like to thank all three witnesses for being here in testifying today. i want to ask a couple of questions to mr. carmen. you and i have known each other for a long time. my first job as a practicing lawyer was working for you, and a very small law firm. -- numberwo things and to tell no tales, number two to hold you harmless for any mistakes i may make in this committee or elsewhere in the senate. your legale to ask judgment on what is required in response to the shelby county's decision. the supreme court in shelby county noted the congress had thousands of pages of records as the last exchange highlighted. the court went on to say, regardless of how to look at the record however, no one can fairly say it shows anything
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approaching the pervasive, flagrant, widespread, and rancid dissemination and faced congress in 1955. to clearly distinguish jurisdictions from the rest of the nations at that time. the question i want to start with is -- what record would congress need to create in order to come up with a new coverage formula that would be constitutional? >> i think that congress made two basic mistakes in 2006, i remediedw if they were by evidence. thousands of pages about what jurisdictions were bad, but they did not use that to designate jurisdictions covered by section five. they relied on electoral information from 1968 in 1972, which would be a can to the 1955 congress looking back at the calvin coolidge election to figure out who should be covered in 1965.
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the first thing you need to do is look at whatever current information you have and get rid of this outdated formula. the second finding they never made -- this is in my basic commentary, what problem is that -- is section five curing that section two is not a remedy for? i doubt seriously you can make that argument. the one argument that has been made today that again is demonstrably untrue -- you know from private practice, this theory that section to litigation has to wait three or four electoral cycles before a lawsuit. we all know those lawsuits are brought before the first election, as your home state of texas vividly illustrates. myfessors example makes point that he is talking about a challenge to an at-large system. section five states they cannot get at large because it only deals with voting changes. it had nothing to do with getting rid of the principal vote dilution technique employed in the deep south.
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second is this was a challenge the city of charleston could have wrought at any time. they brought the case in january of 2001, and they did not move for preliminary junction until 2002. it sometimes is not taken advantage of. what congress would have to do, and what frankly i don't think they can show is there a such a difference between the jurisdictions that are being covered that they need justice department oversight 20 47 -- 24/7, and there may be jurisdictions that need that for section two but congress has not come close to identifying what would those be particularly because some of those are doing better today in terms of minority vote participation. ted cruz: thank you. let me follow up, you rightly noted that section two in the voting rights act remains in full force.
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areit's protections entirely in place. section five -- what i would like to ask you is about your practical experience. you have litigated a number of voting rights cases. you have worked alongside and after the fact, elected officials dealing with section five. is whilented to ask, section five was in place -- while the department of justice have the authority to the clear or not preclear the decisions of elected officials in states, to what extent did section five effectively require elected officials to make decisions based upon race? >> there was no question. it has been well documented in the 1990's that the justice department had what they quite candidly labeled the black max policy. thosed to maximize
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districts regardless of traditional principles. that is why you have those districts in north carolina that ran down i-95 and were struck down by the court as unconstitutional jury manders. -- jerry manders. add i was involved with in the 1990's, and greatly aided the republican party. no bones about that. everything i am telling you today is contrary to the republican party's partisan interest. in the latest round of redistricting, texas is a good example, they have injected more politics into the discussion. toy now say the new ability elect, enacted by congress in 2006 protects white democrats in 9% black districts. you cannot diminish any democrats ability to get reelected if they are the party predominantly supported by minorities. action five has taken guarantee of equal racial opportunities and converted it into a partisan preference scheme.
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one of the beneficial results of shelby county is that you will be decreasing the political amount of jerry manders and decreasing the amount that race has to be considered now in every district -- 9% minority to 60% minority population, clearly driven redistricting over the last 30 years. >> senator blumenthal. senator blumenthal: thank you. i want to sort of follow senator cruz's questions, which i think really elicited something that i thed very telling about supreme court's opinion -- when i heard you describing what would be irremediable. the observation about congress making a mistake
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here. reasonretty much the that the chief justice gave for striking down the formula. i am quoting -- congress did not use the record a compiled to shape the coverage formula grounding it in current conditions. isn't that a legislative judgment? how to use a record? pages ort is 15,000 30,000 pages, or we talk about the absence of a record -- we're not talking about that, we are talking about the evidence from which congress could draw a conclusion -- perhaps one as justice ginsburg said that maybe things have improved -- that one of the purposes of congress is or i will quote her, guard against backsliding. , the court was legislating in the most
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inappropriate and worst way. put aside whether you agree or disagree with the result. don't you agree, professor, i know you have thought and written a lot about this issue -- that you think? -- don't you think? >> i respectfully disagree. if they relate it i would agree with you. >> here the chief justice said they did not use the evidence. how can he reach that conclusion? they had evidence. if you were to say about a jury coming out with a verdict, well they had evidence. but they did not use it. courts do not do that. they say there was not evidence at all about this element of the crime, so no jury could have concluded reasonably. >> he said that the coverage formula was not based on that evidence. he was saying you need to have some reasonable grounds for distinguishing between these take your covering any states or not. you cannot pass a law that says everybody east of the
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mississippi is in the covered jurisdiction. when a coverage formula was criticized as not reflecting current realities the answer was, well we looked at 15,000 pages of testimony. justice roberts, i think, using purely legal analysis said, we will differ like crazy, if you are relying on that evidence for the coverage formula. since you did not rely on that, there is literally nothing to do for. the judge to usurp a jury or congress and say, you did not rely on it, without having some inquiry as to what was going on? was there an improper influence? don't we open the door to courts saying, well for all of your fact-finding, mr. congress, i am going to look at that evidence, i don't see enough of it to sustain this element of the law or this part of your decision -- therefore we are going to strike it down. >> we defer it every day to administrative agencies. you are arguing 7 -- similar
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deference should be done here. let's assume the epa looked at co2 when they should've been wouldg at a -- h2o, it not do them good to say they based the formula on co2, we could have had a different formula based on h2o. >> the court was saying the absence of h2o and the presence of co2 is what justifies this decision. i know we could go back and forth for some time, i am limited in terms of time. i want to ask the two other witnesses beginning with professor levitt, if i may. perhaps we will be limited to you unless the chairman gives you additional time -- how do we fix this or miller -- this formula? the court did not strike down the preclearance procedure. it simply struck down a formula which may be in fact irremediable if we cannot get a
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bipartisan coalition together, which perhaps the court counted on congress failing to do. striking down only that part of the law and upholding the preclearance procedure. but really the task ahead of this committee and the senate is to try to arrive at a bipartisan decision. >> i think there are a lot of paths ahead. it is part of why i'm so excited the committee is convening this hearing now, in order to start down that path. i think there are lots of different potential things that will help. the basic premise is, the existing tools do not do the job. there are lots of ways to modify the existing tools, or return the tools that did exist in ways that will do the job, or at least further the job. the vigilance has to continue. some of that involves different ways to get information about where discrimination is actually occurring. the sorts of things that you do not get with having to go out in
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the world to file a lawsuit, but you did get from the preclearance process. some of what i am sure will be discussed are different ways to identify where there is the most risk. whether that is based on current violations, political polarization, other danger signs , you'll have to look to where the most risk currently is. other things we have done in order to make this available section to process less cumbersome, less burdensome, less expensive, all of that will help. it may well be that some combination of all of the above is what congress will need. other creative ideas that have not been put forth yet in order congress is that able to effectively stop the problem. that is really the task that congress has. it is the task he constitution gives to congress. i really look forward to the months ahead when there will be lots of different ideas, most of which may be in combination will be sufficient to the task. >> that was part of a congressional hearing from a 13.
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-- 2013. michael, from the new york times, from what we just heard, members of congress are looking for ways to make sure they restore the voting rights act, are they making progress? michael: no, they are not. this has become a very partisan issue. the voting rights act once was a issue on which everyone almost agreed. the last time it was extended it got an 25 year extension with broad bipartisan support. that has changed drastically in the last few years. now with the gridlock in congress, it is impossible really even to get a bill started, much less on the floor. >> next, former attorney general eric holder on voting rights. he talks about the need for automatic voter registration when getting a drivers license, which is already the law in oregon, california, vermont, and west virginia. [applause]
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eric holder: it is a pleasure to be here. i am worried when i heard danielle was introducing me. we go a long way back. she knows where a lot of things are buried. that introduction could have gone a number of ways. thank you so much, daniel for those kind words. today i would like to discuss with you an issue that i believe threatens the integrity of this great nation. it puts in peril the future welfare of our country. i would like to suggest some ways in which we might make real to the people of the united states. we need the promise of the democracy. the passage of perhaps the most significant civil rights legislation in the nation's history. the voting rights act of 1965 -- the most basic of american rights, the right to vote is under siege. as president johnson said when he signed the voting rights act,
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i will quote -- the right to vote is the basic right. without which all others are meaningless." we should ben expanding opportunities to cast a ballot, there is a movement in america that attempts to make it more difficult. ,betted by a wrongly decided factually inaccurate, and disconnected supreme court decision that unfortunately there's my name. that really, really this is me off -- me off. whenever you talk about that case, don't ever say shelby county versus holder. just say shelby county. make like it does not exist. come i garland and i hope when he is confirmed will have some sort of president -- president. we will go back and change the name. it is one of my requirements for his confirmation. , itted by that decision
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think too many in this country are trying too hard to make it too difficult for the people to express their views. let me start with a basic statement upon which i think everybody can agree, left, right, conservative, progressive. every person attempting to vote should have to show that he or she is who they claim to be. too many today forget that this has always been the case, in the past our fellow citizens were allowed to demonstrate that in many credible ways. let me say that again, there has always been a component of identifying yourself before you could cast a ballot. it's only very recently that in some states they have become overly prescriptive and unfairly restrictive in enumerating what is sufficient proof. it has been in the recent past, in certain states, with certain legislatures and governors that this more restrictive prescribed approach has been mandated. the question is, why?
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the usual justification is to ensure the integrity of the electoral system by preventing better pod -- voter fraud. given the nature of the fraud that is to be eliminated the new restrictions must, i assume, be designed to prevent in person falls i did a vacation voting -- false identification voting. while there is no statistical proof about this concern, the vote fraud mantra is said so often, it is almost robotic. some people have unthinkably believed it israel. studies show the actual instance of in person voter fraud is extremely, extremely rare. this is very logical. the penalties associated with far outweigh the impact that an individual or even a group of people might affect. to truly impact an election would probably require substantial numbers of people,
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somehow holding themselves out as voters that in fact they are not. that would increase almost exponentially the potential exposure of the scheme. no such widespread schemes have been detected. it is moreated likely an individual will be struck by lightning, and -- then in person ate another person at the polls come -- kohl's." -- polls." i think they should have used a powerball analogy. one expert found 31 cases out of more than one billion votes cast in the united states from 2000 to 2014, 31 out of one billion over the course of 14 years. -- people grounded in the facts really have to ask where is the problem. they have to conclude there is not a consequential one.
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the restrictive voting laws combats a nonexistent problem with their serious, negative collateral consequences. instead of ensuring the integrity of the voting process, they actually do the opposite by keeping certain groups of people away from the polls. voteris not a fact-based impersonation problem, what then could be the basis? sadly, one party has decided to to short-term political expediency and put itself on the wrong side of history. history will be harsh and its assessment. -- in its assessment. in a 2007 houston chronicle article -- among republicans it is an article of religious faith that voter fraud is causing us to lose elections. the article goes on to say, he does not agree, but does believe that requiring photo ids could
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cause enough of a drop-off in legitimate democratic voting and add 3% to republican votes. in pennsylvania and a last presidential election of 2012, the republican state house majority listed a few partisan issues that would help mitt romney carry the state. after listing guns and abortion, he said quote the voter id which would allow the governor to win the state of pennsylvania --gun. a federal court in washington dc in referring to a taxes voter id law said they would impose strict, unforgiving burdens on the poor. remember, under that texas state law, a university id with sound not to be adequate proof, but a state issued concealed weapons permit was. ok. finally, in wisconsin last year, a chief of staff to a meeting
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republican state senate resigned after attending a party caucus in which he said some legislatures were -- i'm quoting his words were literally giddy over the effective state voter id laws on minorities and college students. let's be frank, faced with demographic changes that they perceived were against them, and saddled with a governing philosophy at odds with an evolving nation, some republicans have decided that if you cannot beat them, change the rules. make it more difficult for those individuals least likely to support republican candidates to vote. this is done with the knowledge that simply depressing the votes of certain groups, not even winning the majority of votes under the groups, elections can in fact be affected. found14 study by the gao that the more restrictive voter id laws decreased the votes of young people, minorities, and the poor in kansas and tennessee in 2012.
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a recent study conducted by the university of california at san diego -- after controlling for a variety of factors, concluded these new laws disproportionately affected democratic voters. the study found that democratic turnout dropped about 7% where a strict photo id law was in place. latino turnout decreased by 10%. there was an increase in the precipitation -- participation gap between whites and people of color. what were supposed -- if one were going to try to do -- define what it was, that is voter fraud. the attention should not be focused on these phantom voters. the census bureau reported that in 2008 in the presidential election, of the 75 million adults edison's who did not vote, 16 million were not residents -- adult who did not vote, 16 million were not registered. this is one of the places i
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think we should focus efforts. the speech i gave in 2011 at the i called forbrary, the automatic registration of all eligible citizens. the arguments i made then, i believe are still sound. the ability to vote is a right, not a privilege. under the current system many voters must follow needlessly complex and cumbersome voter registration rolls. before and after every election these in state and local officials have to manually new applications, most of them handwritten, leaving the system creating chaos of the polls. the pew center estimates that one in eight but registration's in the u.s. is invalid or significantly inaccurate. modern technology provides them a i believe, a straightforward fix. if we have the political will to bring our election systems into the 21st century.
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the government can and should automatically register citizens to vote by compiling from existing databases a list of all eligible residents in each jurisdiction. several states have taken steps in that direction. on implemented an automatic registration procedure at its dmv in january. they have seen a fourfold increase in registrants. california, vermont, and west virginia have passed similar laws. other states are leaning in that direction as well. it is estimated that if implemented at dmv's, but other key government agencies -- not just the dmv, these needed reforms could add 50 million eligible voters to the rules -- to the rolls, save money, and increase accuracy in the record necessary to the system. we must also address the fact that over one in nine americans move every year. the registration does not move
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with them. many would be voters do not realize this until after they have missed the deadline for registering in their new location, which can fall a full month or more before election day. election officials, i believe, should work together to establish a program of permanent, portable registration so that voters can vote at their new polling place on election day. until that happens, i think we should implement failsafe procedures to correct voter roll errors by allowing every voter to cast a regular, non-provisional ballot on election day. several states have already taken this step, but it has shown to increase turnout by at least three-five percentage points. these efforts would not only improve the integrity of elections, it would also save precious taxpayer dollars. benefits, there will always be those that say hurdlesng registration
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will only lead to voter fraud. , tome be clear, voter fraud the extent that it actually exist is not acceptable. it should not be tolerated. as i learned earlier in my career as a prosecutor, i actually investigated and prosecuted real, real voting fraud cases -- making voter registration and voter -- voting easier are not likely by themselves to make the elections more susceptible to fraud. indeed, those on all sides of the debate have essentially acknowledged that in person voting fraud is uncommon. we have to be honest about this. we must recognize that our ability to ensure the strength and integrity of our election systems, and to advance the reforms necessary to achieve this depends on whether the american people are informed,
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engaged, and well -- willing to demand fact-based intentions and common sense solutions and regulations that make voting more accessible. politicians may not readily and willingly vote for the systems they were elected. republicans80% of oppose the citizens united decision and two thirds of voters support strengthening voter protections in the restoring of the voting rights act. only we, the people can bring about meaningful change and alter current discriminatory chance -- trends. i want to commend the brennan center for its leadership on these issues. the center first proposed automatic voter registration in 2007. and has done much since then to advance the policy in other voting enhancements through research and public education. so, speak out. raise awareness about what is at stake.
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column me political party most responsible to resist temptation to suppress certain voters in hope of obtaining electoral votes. instead, appeal to more voters. what do they fear? the very people they claim they want to represent? urge policymakers at every level to reevaluate our electoral systems and to reform them in ways that encourage, not limit participation. insist that they make it easier to register and easier to vote. voting tied to a single tuesday in november? work to expand voting days and hours so that many of our fellow citizens need not choose between casting a ballot and keeping their job. as wase, not decrease disastrously done in arizona recently, the number of polling places where fellow citizens can truly participate in democracy. today we cannot and must not take the right to vote for
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granted. nor can we sure the sacred responsibility the falls upon our shoulders. his presidency lyndon johnson made the promise of the 1965 voting rights act real. he frequently pointed out, again i will quote -- america was the first nation in the history of the world to be founded with a purpose. to write wrong and to do justice." of the last to sign -- over the itt two centuries the film has taken many forms -- protest, compassion, war and peace, and a range of efforts to make -- as another president said governments of and by and for the people shall not parish from the earth. today there are competing visions about how the government should move forward. we are a noisy nation, that is a good thing. that is what the democratic process is all about. creating space for thoughtful debate. grading opportunities for citizens to voice their opinions.
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ultimately letting the people chart their own course. our nation has worked and even fought to help people around the world establish such a process. our at home, honoring democracy demands that we remove any and all barriers to voting. a goal that all american citizens of all political backgrounds must share. despite so many decades of struggle, sacrifice, and of achievement, we must remain vigilant in safeguarding our most basic and important right. recent actions i believe our shameful and have the potential to reverse the progress that defines us and has made the nation exceptional, as well as an example for all of the world. we must be true to the art of america's history. that compels us to be more inclusive with regard to the franchise. we must never forget the purpose that more than two centuries ago inspired our nations founding and now must guide us forward.
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let us act with optimism and without the life -- delay. let us overcome the fallacies of our time. to the world that in america today the pursuit of a more perfect union lives on. now is not the time to retreat in the face of a partisan assault on the most basic of american rights. the battle to ensure the voting rights of all americans is, i believe, a defining one. this is not only a legal issue, it is also a moral imperative. if we are to be the nation that we claim to be, we must challenge in every way possible those who would undermine our democracy and who have lost faith with the covenant between government and the people. the right to vote is not only the cornerstone of our system of government, it is the lifeblood of our democracy. i am confident that with a focused citizenry and with leaders like those in the room today, the struggle for right
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will bewon. if we remain true for those who sacrificed for the right to vote, we must not fail. thank you very much. [applause] >> more now on the 2016 election and voting rights with part of a discussion on whether the voting rights act is still necessary. voting identification, fraud, and discrimination. this is from a meeting of the american bar association. >> i'm going to be the dissenter in the room, which i'm sure will make people unhappy. -- me say a couple of things first of all, the voting rights act is the most important piece of legislation passed in the last century. frankly, more important than the civil rights act.
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the voting rights act finally helped and the segregation and lack of political power and strength of black americans. passed, when the law was blacks were registered at a rate of only about 27% in georgia, mississippi -- less than 7%. election of the year before section five was to expire, in many parts of the southeast covered by section five -- blacks were registering and voting at higher rates than white voters. everyone here has been talking as if the voting rights act has ended. that is simply not the case. the voting rights act has a number of different sections. against powerful tool racial discrimination is section two. it is permanent. it is nationwide. we also have section 11 be, permanent, nationwide. the justice department can go
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against anyone who is intimidating or threatening or coercing voters. the issue in a shelby county case was one provision of the voting rights act -- section five. section five was originally supposed to be an emergency provision. only supposed to last five years. it only covered a small number of jurisdictions in the country. what was the reason for section five? the reason was the justice department would go to court, they would get a court order against the jurisdiction it was discriminating against black voters. that jurisdiction would basically evade the court decree. the idea was with section five, they would not be able to make any changes in the voting laws without getting the permission of the justice department or a three-judge panel in d.c.. of discrimination going on was, as i said, low voter registration. congress came up with the
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coverage formula. if you had less than 50% voter registration or turnout of all donors, not just black voters -- voters, not just black voters. in the 1964 presidential election -- you would be covered. would be renewed section five they added the 64, 68, and 72 elections. after that congress never updated the formula. they didn't do it in 2006 when they were looking at it again. the reason for it was, if they had looked at it not a single state would have been covered when they renew section five ,ecause the systematic widespread, official discrimination was happening was ended. in fact, just a couple of things, the black registration and turnout was higher in the covered states than the rest of the country. there were far more black officeholders in the covered
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states than the rest of the country. the states with the fewest black elected officials, in fact they listed this in the court case were states that had previously not been covered by section five like illinois and delaware. fully justified in saying, history did not stop in 1965. there was no evidence that states like georgia were so different still today from places like massachusetts that georgia needed to be under special protection. the point was, if discrimination occurs, not only can the justice department and private party sue under section two, but they can even get folks under a preclearance regime. because something that is not often mentioned is section three of the voting rights act. and if you can prove a section to case, you go to the judge and
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-- we have we think evidence this jurisdiction is going to try to evade this decree. themink you should put under a five-year regime where they have to get an ok from you or from the justice department to make a change in voting rights. the judge can impose it. that is a much more equitable way of putting in a preclearance requirement based on actual evidence in that jurisdiction than a blanket covering of all of these states. shelby county, by the way, alabama county that had filed a suit -- the county government had never had an objection filed in the entire history of the voting rights act. i want to show you this -- and then i will end. i know you cannot see this map, it is a map of the united states . this is from a 2013 since his report -- census report.
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see the green areas covering the southeastern united states? those are states where the census bureau says black americans outvoted whites by anywhere from up to 6% more. those are the states where conditions actually our best today. there has been no evidence of section five, a new one needs to be applied. canhere is a problem, you sue under section two and you can get a remedy from a court. >> tom, let me turn to you. one of the lines in the majority opinion in shelby is that the voting rights act imposes significant current burdens, so it needs to be justified by a showing of current needs. is that not correct?
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premise thatthe there is a significant burden from preclearance is one that is totally unproven what the court majority in chill county talked about at length was stigma -- shelby county talked about at length with stigma, the quintessential state right case. attentionot given due are a number of things -- first of all, with respect to the burden of section five preclearance, there was a ready mechanism used by many jurisdictions that could have been used by shelby county. they could've been used by entire states if they could prove that they had complied and not had an objected to change over time, they could bailout. that is what the supreme court .n the earlier case -- rested their decision upon. there was a ready mechanism used
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by a number of jurisdiction to get out of the burden of preclearance. let's talk about what the burdens maybe. the main provision of the voting rights act is section two, it does permit the federal government or a private litigant to challenge practices. there are two problems with section two, first is often you have to have the evidence of implementation of the practice to demonstrate a discriminatory effect. that means you have to suffer through a number of elections -- denied did not votes before you have a chance to realistically go into court and have that change overturned first. second, everyone in this room has lawyers -- as lawyers understand, section two is an inefficient way of adjudicating these matters. congress2 when authorized the reauthorize the voting rights act -- the operative test for prevailing a
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section to case is quote unquote totality of the circumstance. a lawyer in any area of the law can understand what must be involved in satisfying a totality of the circumstance test. there are experts on both sides. hundreds, if not thousands of hours of lawyer time on both sides. great expense and consumption of time before you have an opportunity to overturn what may be clearly discriminatory change in the electoral process. let me give you an example --shelby while county was being decided, the state of texas had two cases being adjudicated under section five as well as section two. what involved redistricting, the other involved a voter id provision made mordred conan -- -- more
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in those cases there was presented tremendous evidence of not just discredit tory effect, but intentional determination -- discrimination. intentional by the texas legislature to prevent the power of latino and african-american voters from increasing. concluded that that was very strong evidence of intentional determination. as a result of shelby county those cases are today, two years after, still being litigated with those provisions potentially in place. fortunately on redistricting there was a revelation that resulted in new maps. those provisions could be in place, even though judges had concluded there was intentional is aimination, that demonstrable indication of the difference between section two
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and section five. saying --clude by lawyers in the room should understand, in addition to being the most effective piece of civil rights legislation ever, the voting rights act in section five had one of the earliest and most effective alternative dispute resolution mechanisms ever put into federal law. that is how we should see it -- see preclearance. it is an efficient and timely, effective way of resulting -- resolving disputes. timeliness is important to prevent those changes from being implemented and having election occur. what if someone's right to vote is denied and an election happens, you cannot unring that bell and do it again if a judge decides that was discriminatory. you have to have a timely mechanism. efficient because all of the preclearance involved was submission of the change and the data to support the potential effects of the change to the
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department of justice. the department of justice in a vast majority of cases would approve the change and it would be implemented. that is more cost effective and efficient. >> tom mentioned we have a room full of lawyers. from thee students saint rio catholic high school. where are they? we would like to welcome them into the room. [applause] as well as illinois state representative kamala harris is also in the room. [applause] ask you, whate
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impact has the voting rights act had? is it still important? andrea: of course the voting rights act had significant impact. earlier on thecs increase in the number of people the number of minorities, in particular african-americans, and those in office. i think there are some real things you can understand -- a couple of things i wanted to touch on. the first is -- i want to remind people that this argument around state's rights and the importance of state's writes, how that govern -- how that argument was levered against the civil rights laws. historically it is the idea that balancing states against civil rights -- it is important to remember the role of the federal government in overcoming that and recognizing there are some
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particular constitutional protections that have to come from the federal government to balance against state rights. the other thing i think that is really important is when you go -- it troubles me a bit, the argument made that the voting rights act worked -- african-americans are being elected to office. it is the argument behind, look, we haven't african-american president, that is great, we are good now -- we have an american -- african american president, that is great, we are good now. the idea that we do not need those protections is that false understanding. we are good because we have those protections because we have preclearance. the immediate shelby response to , -- the immediate response to shelby with state immediately pursuing restrictive voter id laws would indicate to you that
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the protections of the preclearance reviews were critically important. the other thing people need to remember is that -- about the voting restrictions that preceded the voting rights act -- the voting rights act recognized that voting is a very local activity. the restriction of voting is a very local activity. congresswoman waters touched on it, but the idea is, you pass the law, you say, great, we will have voting rights. at a local level there is a lot of opportunity to restrict voting rights. that is why we put in preclearance to say, forget it, you can't change it because we cannot get to every single one of the thousands of jurisdictions where you could be discriminating. we're not going to allow you to change it. it is that protection that we are missing because -- as tom
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pointed out, we all know them as lawyers, particularly the gators, litigation takes a long time. while that litigation is happening, elections are occurring where rights are being limited. think is a what i quote that justice ginsburg said, if you have a number alone in the rain -- an umbrella in is keeping you dry, it is not the time to close the umbrella. >> the point is if you're going to say a certain number of states have to be under federal supervision, then you have to provide evidence of current systematic, widespread discrimination was justified -- that has not been shown. let's talk about voter id. it is a myth that this all occurred after the shelby county decision. i will remind people that the georgia voter id law was passed in 2005.
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indiana's was passed after that. law has been in place since the 2008 election. indiana's has been in place since 2008. they have had election after election. , a largeon georgia african-american population, 30% shows that after the voter id law went in place, the turnout of black voters and hispanic voters went up dramatically. it went up at a higher rate than the turnout of white voters. same thing happened in the 2010 election. voter idwhen indiana's law was in place for the first time, in place because their case went to the supreme court. it was upheld by the court. it was 6-3. justice stevens was a liberal. barack obama won indiana with
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her photo id law in place. first democrat to win the state since the 1964 election. folks have also complained about cutbacks in early voting. first of all, a large number of states do not have early voting. new york does not have it. friday, he probably know, it was the last day of the trial in north carolina, over the fact that they had changed their 10,y voting days from 17 to although they had the same number of hours. the justice department had trouble because they had put experts on -- more than a year ago when they tried to get a terrific estuary restraining order to keep that change from being in place for the 2014 midterm elections for the primary general, they had experts in place who said, if this early floating -- early voting is in place, the turnout of voters that are black will go down because -- the expert said
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-- i find unbelievable that somebody from the justice department would say this because they said quote that black voters were less sophisticated voters" it is less likely to imagine these voters can figure out how to avail themselves of other forms of registering and voting. i find that to be the most patronizing and frankly bigoted attitude. the cutback in early voting times was in effect for the may primary and north carolina and the general election. in the may primary black turnout went up 30% over the 2010 primary, when that change was not there, the white turnout went up 14%. in the general election, the black share of the vote went 2010 to 41.1% in the election. in a general election, remember
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the midterm congressional election last year, turnout was down all across the country. it went down all across from the primary -- prior midterm. one of the only states where turnout went up with north carolina, where the suppose was predicted. don'ts in early voting keep you from voting. in fact, the university from just put a professor out a study and the conclusion was counterintuitive, that it hurts turnout. they concluded it made decrease turnout from 3-4%. the reason being the campaign spent the majority on get out
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the voters. if they have to spread the money three-week,wo-week, four-week time, it is not as intense and effective in people who normally would not vote on election day keep saying, i can vote tomorrow, i can put the next day independently it is enough to hurt turnout by a small percentage. it is not me saying this, this is a study at the university of wisconsin and a number of other studies. >> mark, let me respond. apparently voter id restrictions are measures to increase turnout. [laughter] crexendo. i did not say that. second, just one second.
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>> opponents have said -- you are employing that here and elsewhere. >> since the supreme court action in 2013, stricter voting laws i been passed in alabama, arizona, georgia, mississippi, texas, in virginia. some states have been challenged on that and overturned some of the state laws. for example, new york times said,pondent headline texas agrees to soften voter id law after court order. what exactly took place russian mark >> that was a prolonged fight over a law in texas like many others that required voters cast auce specific id to ballot. this has been up into down the courts and in the most recent decision the u.s. court of appeals decided this law was discriminatory.
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needed to be greater opportunities for people who had trouble getting these identifications to obtain them. there have been meetings between the plaintiff voting rights into theynd the state came to an agreement which effectively ended the photo id law and allowed anybody who has difficulty in getting an id to secure a vote by signing an placevit of the polling and they could not reasonably obtain one of the document so that was a good change. scorednorth carolina struck down a law and in the argument one of the judges questioned the intent of the voting laws. here's a couple minutes of that. >> all of this rhetoric. african american registration
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continues. the laws changed and they claimed that it was adversely affected. to protect your own political interests. case republican party got control of the house and the senate and the governorship and the opportunity changed those pretty liberal voter registration provisions and half of them saying they would be decided. purposeful discrimination. can persuade you it was not a nefarious thing. certainly the judge found it was
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not. there is a couple premises in your questions then i have to challenge. same-daytion between out ofation and 17-day precinct voting and registration and the increase in the lack registration or participation 2012during the 2008 and election. now, i remember being at a trial with experts from m.i.t. land harvard and every university in the country and they did what is called a cross-state analysis where they give opinions on whether election practices have a qualitative increase in turnout or registration. at the plenary junction stage, none of them had done a cross-state analysis to try to determine whether these practices had caused an increase
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in turnout at registration in and they were put on notice that that therevidence were states like north carolina, virginia where the black turnout registration numbers went up at equivalent rates and virginia did not have same-day registration, out of precinct voting, and 7-day. so at the preliminary injunction give athey had failed to link between these repeal practices and to be increase in participation by african americans. >> you can listen to the entire fourth circuit argument at michael of the new york times, what occurred in north carolina since that court ruling? >> that was a remarkable rolling that not only said north carolina's voter id law and other changes had eight but thatatory impact
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they actually were intended to disenfranchise certain blocks of voters and that is a very unusual and stronger rolling. since then, the state board of elections handed down some rules for local elections boards on how they should restructure their voting in order to comply with the appeals court decision and that has not always gone well. in one of the first meetings on in north carolina, the voting board actually in the view of many critics tried to make an and run around the appeals court, doing things like cutting back on sunday voting. that is broadly used by minority groups. theys who go to churches, go to church and then a bus picture up to exercise your constitutional right to vote. by cutting back on sunday voting limitsone example that
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the opportunities of minorities to vote and said the critics say. that county and others, there citizens.prising by some of these meetings on voting rules for actual attacks. in the case of gopher, many of those efforts to place new restrictions on voting were withdrawn. >> michael of the new york times, thank you for joining us. here's more about recent changes to voter id laws. looking ahead to the november election from c-span in washington. >> serving at counsel in the burning center -- minor center. she joins us to discuss voter identification rules. how many states are trying to rules? where could voters see this?
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are 15 states in which voters when they go to the polls this november will be facing new restrictions for the first time in a presidential election. part of atates are larger trend since 2010 where we see voters in about 21 states are facing new restrictions over the past five or six years. >> are they the same kind of voter identification rules? or are some more stringent than ? >> the ones that are concerning are the ones referred to as laws. voter id under those, voters can show only one of a very small number of government issued the order
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identification documents to vote a hand if they do not have anyone of those documents, they are out of luck. they oftentimes cannot cast a ballot. we have seen this in texas and wisconsin over the past few years our attempt to put those kind of strict photo id laws into lace. in addition to voter identification restrictions, we're seeing different kinds of restrictions. cutbacks on early voting opportunities. elimination of the opportunity to register to vote and vote in one trip which is referred to as same-day registration and we have seen things such as making it more difficult for those with prior criminal convictions to get there right to vote restored. it runs the gamut. the folks trying to roll back some of the restrictions have seen several victories and recent court rulings. can you walk us through for those who may not have seen the stories recently?
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>> sure. you're right. in the past couple weeks we have really seen torts stepping into protect the right to vote in november's election. one of the states have already mentioned as texas. photo idsed a strict law in 2011, it was blocked by one court and it went through a very long litigation process to end up where you are today which the fiftho weeks ago circuit court of appeals, a federal appellate court, said law discriminated on the basis of race. it had a disproportionate affect on voters who are african-american and latino in texas and so texas will not be able to enforce its love this november. in fact, voters need to have an opportunity to pass a ballot with other types of identification that those limited number of photo ids from about.ernment i talked
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nursing push back against research in records in wisconsin where we have seen two court cases over the past couple of weeks. texasmilar to the decision and the fact that voters without photo identification will have to be given another opportunity to cast a ballot this november. and we have also seen some in wisconsin against restriction against early voting opportunity there. wisconsin passed a law making it harder for municipalities to of early voting. in addition to those states, recite a big victory against restrictions in north carolina where about a week and a half ago there was another federal appellate court that issued an opinion saying north carolina's on the bus restriction law which was passed a few years back and included photo identification to vote, restrictions on early voting and same-day registration
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and a bunch of other restrictions, that federal courts of that law was passed with the intent to his complaint against minority voters in north carolina said that lie has also been right off the books although north carolina has said they are going to take that up to the supreme court. in addition to those, we have also seen a court in north dakota say that that state cannot enforce its photo id law into their was also a litigation victory in kansas. in kansas there has been a concerted effort to push forward documentary proof of citizen requirement which many voters did not show when they register to vote so they are being taken off the rolls. a court recently said at least in part this voters have to be given the opportunity to vote said there has been a lot court decisions in the past couple weeks that really push back on the section. host: for those rubber visual theners, a map of where
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major legislation that can impact voter access is taking place. the light blue states where there were recent litigation victories and don't blow where challenges to restrictive voter laws are taking place. for those joining, questions and comments for jennifer clarke at the brennan center. (202) 737-0001. (202) 737-0002. tonifer: we were founded and justice.acy to work in voting, we do work in other areas such as justice
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.eform responses to liberty and national security issues. >> if you have been involved in these various litigation efforts that were talking about? >> yes. in the texas case we talked about. in the other cases, we have not actively participated in litigations. andave filed amicus briefs we served as one of the plaintiffs attorney in the texas case we talked about. host: susie, good morning. when you buy a two things you have to present voter alcohol, toes, apply for welfare, medicaid, social security, unemployment.
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to rent or buy a house. to drive or by a car. to get on an airplane, get married, purchase a gun, a depth a pet, on and on. so what is wrong with when we vote which is an important thing, to present photo id? problem?see the host: thank you for the question. jennifer? jennifer: sure. you're right. voting is an incredibly important thing and people should have to be able to prevail over they say they are. i think everybody agrees that integrity is of the utmost importance. everyone is on the same page with that. the problem with the types of laws i talked about comes in the strict photo identification part. there are a large number of americans who simply do not have
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those forms of identification. a lot of them do not board airplanes or do some of the other things you mentioned. they are not homeowners. or they are able to use other types of federal identification that is not accepted under these laws. for example, in texas you can only a drivers license from another state or a drivers license that is expired more than 60 days. those things which are under the strict version of the law that in state has a texas cannot use for this november's election but up until that was issued, those are types of ids many people use for things you talked about. in the litigation we ran into, a lot of people, particularly older people who did have identification but it expired five or six years ago because they do not drive anymore so they had no need to renew their driver's license but they kept their expired driver's license or they could show it when they
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needed to but that was not an identification found they could use to vote in texas. those people who spoke at the trial were not alone. there were multiple experts who gave statistical analyses of voters in texas and found that over 600,000 registered voters in texas did not have one of the use to vote can under the laws so that is a sizable portion of the electrode being locked up because they do not have the identification. so proving you who you say you are can be done in other ways that does not disenfranchise people. host: john, you wrong with jennifer clarke. caller: i have a, then a question. center is a quasi-socialistic organization that has always been for the main objective of allowing illegal immigrants to vote. i worked for the government 20
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years ago. i saw it illegal immigrants and i know this for a fact, i cannot tell you how about where i worked there were getting voter registration cards around the country illegally. is whole objective of this to allow anyone to vote whether they are a citizen or noncitizen. that disenfranchises my vote. when people talk about disenfranchising and a cab of the 600,000 are probably have illegal. the women give you 20 things you -- and thee 40 600,000, really? it does not affect any of them? host: question? jennifer: the brennan center and i think anyone else who works in elections thinks ineligible
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citizen should be voting. that is the basis of elections in this country to make sure vote.le citizens can that is what i believe and what the brennan center believes. the most important and of folks are not eligible to vote, then they should not be casting a boat. there are plenty of ways other states makes sure that people who they say they are such as allowed them to provide other forms of identification. not one of a very small limited number that a good percentage of americans do not have. host: john, back to for your question. caller: illegals have been getting driver license from the cross the country for a number of years now. just because you have the voter id law does not mean you are a citizen. in florida all you have to do is check of a box you are a u.s. citizen. no voter police who god and verify information and i know for a fact because of what i
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used to work. 's, illegal the 90 immigrants were getting voter ids. did point out a disconnect between some of the strict id laws, but this is where doing and what they do. there are many states where people are not u.s. citizens can get driver's licenses and it is not because they are doing something wrong. they are here on a ring card and get driver's licenses and there are plenty of folks who are not u.s. citizens who get driver's licenses and are licensed to drive. there is nothing intrinsic about jenny piece of identification that moves you are in fact they u.s. citizen. what is your u.s. citizen is when you registered to vote you have to swear you are a u.s. citizen and the penalty for that is 6.6 years. in fact there are some
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prosecutions of people who ended up registering and often times it gets election officials talking about what they see and oftentimes people make a mistake. they think because they got handed a voter registration pamphlet profs with their application for a drivers license their able to register to vote and they end up on the voting rolls. there are protections if that is something you saw during your time in government, many of those people have been affected and many times it is a simple misunderstanding. fide how often does bona happen per election cycle? jennifer: there are statistics on that. it is important to think about what we're talking about when we say voter fraud. it gets used as an umbrella term. example it down, for the type of voter fraud that gets stopped by something like the texas law is called in person impersonation fraud.
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i go and pretend to be somebody fraud is verye of rare. there are numbers on it. we have a few studies on it. one was published in the washington post where there was an extensive look and they found 31 credible instances of this type of in person impersonation fraud between 2000-2014. that is at about a billion ballots cast. 31 instances. that is a n infinitesimally small number. when texas passed its strict voter id law, the legislature had evidence before it that between 2000-20 10, there were two instances of this kind of in-person impersonation fraud and that us out of millions of ballots cast in texas at that time said that type of fraud is incredibly where -- where.
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there's a reason it is rare. it is not a very good way to have an outcome on the election to vote as another person. it does not have that much of in effect and the penalties are very severe. tens of thousands of dollars in fine and potential jail time. host: from maryland, a republican. good morning. caller: good morning. a couple things. the first lady was very articulate. add to the list of things that identification for, obamacare. i find it difficult to believe in this day and age there are people who do not have voter id that am very disappointed i feel like my vote is being discounted because of the nonsense going on. thank you very much.
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host: jennifer clarke, any thoughts? jennifer: sure. certainly, there is nothing wrong with having people prove they are who they say they are. a useful distinction between what texas had before this court decision came out which allowed piecesuse one of several of voter id. many citizens did not have. this is what they're going to put in place for this november election after the court case came down saying that law was discriminatory. so under the new proposal you can use a paycheck that has your name and address, you can use another government document what your name and address. two can use something called a voter registration certificate which is something texas males people when they register to vote. it comes to them at the address they put on the voter registrations of they have that it means they live at that address and they got it. that is a much broader range of
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documents. a lot of them to show them at the polls means that their voices will count. dismay atexpressed a the filling your vote does not count and that was a very real thing for these people who did not have one of the small number of voter ids texas required. testifying on the standby how they attempted over it and over again to use the documents they did have two get one of the identifications and they failed because they did not have the money they needed or we run into trouble as transportation or perhaps they had a mistake in one of their underlying documents. their name is spelled one way here and another way there, they're unable to reconcile and it put them in a loop or they could not get one of the very small numbers of voter identifications and that made them feel their voices did not count. it is about making sure every eligible citizen can vote.
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to talk to waiting you. withdrew. a democrat. good morning. caller: yes. a quick comment. given theirdied and lives so that we can all vote. i think it is something we need to hold as a precious jewel and treasure. voters should be able to vote, we should exercise that. pass these hard laws to stop people from voting and are doing a disservice to their constituents who live in the state. what do you consider us
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too much in your opinion? caller: restoration of criminal rights to vote after they have served time. they should have an opportunity and the right to be put back into society and exercise a right to vote for whomever they choose whether it is democrat, republican, or independent. they should not be cast out anymore. it quick response. jennifer: sure. so, the color has identified florida as a state where it is particularly difficult for people with prior criminal convictions to get their rights restored. that is true. it is one of only three states in the country where you are facing potential lifetime disenfranchisement. the right to vote is incredibly
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important. it is a right and responsibility. we are seeing that states are doing a lot of things to increase turnout to try to make it more likely people will be invested and their democracy. it is a shame to see those efforts undercut and see some states doing quite the opposite which is making it much more difficult for certain segments of the population which you have seen in the court decisions in the past couple week disproportionally tended to be minority voters to make it harder for those people to vote. host: adam is an independent. caller: other forms of identification required, either mechanisms in place for them to get those forms of identification? i know in pennsylvania you can get a non-driver id. ouray county id.
9:59 pm a county jennifer: under the texas law that was recently struck down by photourt, the types of identification that were allowed under that law were a texas drivers license, a texas non-driver's license, a state where you go to the department of motor vehicles and if you do not drive you get a state id, you still have to pay for. also a passport was excepted and about three other documents with identifications and a photo on it. texas created an election identification certificate which was a card that had a photo identification on it used for thatg purposes only and was supposed to be the cost-free
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alternative for people who did not have any one of these ids. however, you needed a birth certificate and other documentation to get done and what we saw was people do not have the original or certified copy of their birth certificate anymore. these were primarily people who were older eight and moved around a lot and lost that document or perhaps had been born outside of a hospital setting and did not have that document to begin with. a freeough there was voter id provided, and ended up andg a problem for people texas did not make a lot of effort to get identification and those people's hands. another states that was my fun effort. the caller specifically -- in other states there was not much of an effort. in new york city, there is a new
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york city id where the city made a big push to get the identification of people's hands. and texas, they did not allow any government issued documents except for the ones i already mentioned. if you had a county id with your picture, if you were a government employee and you had in employee id with your picture on it you could not use it. republican. is a you are on with jennifer of the london center. caller: first i would like to say the tenant center is not nonpartisan. it has never supported a conservative cause. second, 40% of california driver license masterwork given to illegals. get a driversn license if you are in illegal born in a foreign country with limited ability to speak english, how difficult is it for born here ands
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has a birth certificate? the other point is, in alabama you have to have a photo id. if you do not have uncovered the state will come to your house and issue one three. you must provide roof of citizenship in order to register to vote in the first place. jennifer: the first comment, the brennan center is nonpartisan. we do not support conservative or liberal causes or any cause attached to a particular party. i have worked with republican legislatures and democratic legislatures and other third-party. this is not about partisanship in any way. the idea that we all go to the polls if we're eligible citizens and will vote for whoever it support, that is fundamental. it crosses party lines.
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every elected official who was put there by voters should feel very passionately about making sure that all eligible citizens can vote. i cannot believe that feeling is actually a partisan feeling one way or the other. it is about the fundamental right to vote. host: have you worked with mark ilias before? jennifer: i have not. i do know he is bringing some lawsuits but i do not know him and have not worked with him. host: a front-page story about -- calling him a go-two lawyer. taking him to a controversial place among the groups challenging a rate of election laws rewritten and recent years. efforts exclusively on the part additional bringing
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claims in states that are especially important for hillary clinton's campaign and the future democratic candidates. the question is, does his work in this area concern a group like yours that is nonpartisan and trying to work on this in a nonpartisan way? jennifer: i think these fights should be kept nonpartisan to the extent possible. that is very important. the idea that there are more holes that people need to stuff in and fill is not shocking. what we saw this in 2013 the supreme court in a decision called shelby county struck down part of the voting rights act made it much easier for states that have a history of discrimination at the ballot box to pass laws such as the one in
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texas, the one in north carolina, the one in virginia and elsewhere to make it harder for people to vote in so now that we do not have the full protection of the voting rights and it is the first election in 50 years without those, we have seen an uptick in the number of states passing restrictive laws and so of course as we see those laws to up and number it makes sense that more lawyers are coming to the table because there are more people who are reaching out righte they have lost the to vote. it is not surprising people are the void.n to fill what should happen is that congress should restore the voting rights act to its former power in pass a voting amendment act which the brennan center and others have been working on with bipartisan support for the past few years. host: victoria's waiting on the line for democrats.
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caller: good morning. i tuned in a little bit ago. we have been voting by mail for years. for all of our elections. local and national. now we have the motor voter law and people have to provide a lot of documentation when they go to the department of motor vehicles their andan register -- it is an unaffiliated registration of they choose not to affiliates as get a greatw you voter pamphlet for every election, you can read up on the issues. it biographies. is amazing for people in the rural areas. why does in every state to something like that and make it easy? : you mentioned a new
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initiative in oregon on which the new motors voter law. a form of automatic registration -- currentlyzens the default in many states is that the voter has to take the initiative to get registered to vote and a lot of people and of going through the cracks as many states a very long registration deadlines and people miss the opportunity to get registered to vote. so you mentioned, why is not everybody making it easier? that is a great example of a state trying to make it easier for people to get registered and participate. in the first three months of the implementation of the automatic photo registration program, theon has seen not only registration was jump up from want water eligible citizens are getting put on the rolls, but they have also seen turnout jump
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up among those people who were automatically registered. so that is a good example of a state making it easier rather than more difficult. host: pleasanton california, grace is waiting. republican. caller: good morning. thank you for taking my call. the reason i call as i work for a union. fci youth. i saw what happened during election years. i saw our representatives giving out registration forms and having illegals filling out. fill out the voter information so that these people who did not know how to speak or write english would vote for the right people. -- how do yout stop that? guest: people are not eligible to vote should not be
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registering to vote. if there is somebody that is ispetrating that, that something that should be reported certainly. i do not think any of us want to stand for that kind of fraud being perpetrated so i would encourage people who actually see something like that happening to reach out to elected officials and let them know what is going on. however, that is not a widespread problem. the studies that have been done looking at instances of different types of voter fraud often include instances of folks who are not owed to bill citizens who end up on the voting rolls. a lot of times that is a mistake. they think because they are allowed to get a drivers license that means they are allowed to vote and they had upon the voting rolls because there is confusion. do not attempt to vote. that is something that doesn't
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affect happen sometimes and those people are often -- it is brought to their attention and they are taken of the roles but that is often not a widespread problem. there is a study out of arizona where they looked at instances voter fraud in and they used that term very largely. looking at impersonation fraud. another part of the was looking -- people notble being eligible ending up on the voting rolls but they found that out of one billion votes cast, 1000.umber was below so does happen, but is a small problem compared to the number of votes cast overall in certainly every effort should be made so that people are not accidentally signing up for something they are not eligible to sign up for. host:


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