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Assistant Attorney General Kristen Clarke Gives Remarks at the National Conference of State Legislatures’ Legislative Summit


Washington, DC
United States

Remarks as Delivered

Good afternoon. Thank you so much, Ben Williams, for that kind introduction. I just want to take a brief moment before I start to thank NCSL for their efforts in putting together this important conference. It’s great to be here.

As state legislators, you all are standing on the front lines for crafting the rules for how our democracy operates. Those rules involve everything from voter registration systems to how voters cast their ballots – whether that be through early voting, vote by mail and traditional election day voting at a polling site – to the way in which post-election litigation is conducted. We greatly appreciate the hard work that you put into that process.

The Department of Justice also plays a pivotal role in how these aspects of our democracy operate. As the head of the Civil Rights Division at the Justice Department, I oversee the sections whose work touches directly on these issues. Our Voting Section enforces the civil provisions of statutes like the Voting Rights Act, the Uniformed and Overseas Citizens Absentee Voting Act, the National Voter Registration Act, the Help America Vote Act, and the Civil Rights Acts of 1960 and 1964. Our Disability Rights Section works on issues involving voting by citizens with disabilities, particularly polling place or voting accessibility under the Americans with Disabilities Act. And our Criminal Section has jurisdiction over election-related crimes that involve racial discrimination.

In recent months, you may have seen our work reaching settlements with a county in New York to ensure that voters are placed on the rolls in a timely way and that valid provisional ballots are counted, and with the State of New Jersey to see that citizens with disabilities are given opportunities to register at paratransit agencies. You may have also seen coverage of the guidance we have provided to states on the provisions of federal law that bear upon the methods of voting that states use or how states conduct post-election audits.

Recent months have also seen a disturbing surge in threats of violence against your public service colleagues who administer our nation’s elections. I am sure that we all agree that election officials must be able to do their jobs unfettered by physical threats, improper partisan influence or other conduct that obstructs free and fair elections. That’s why the Justice Department recently launched its new Election Threats Task Force – which includes career civil servants from the Criminal Division, Civil Rights Division and the FBI, who are working to address the rise in threats, intimidation and harassment faced by elections officials. This summer the Task Force held nationwide training sessions for all FBI Election Crime Coordinators and the District Election Officers in our U.S. Attorney’s Offices. The Task Force has also met with representatives from the National Association of Secretaries of State and the National Association of State Election Directors to establish lines of communication, and we welcome hearing from you all as well. As the Deputy Attorney General said when announcing the Task Force, any threat to an election official, worker or volunteer is a threat to democracy.

Today, I want to focus on another aspect of our work — and one in which many of you are intimately involved: the redistricting process. This coming year, many of you will be dealing with how to construct the districts from which you are elected and often you are engaged in the redrawing of congressional district boundaries as well. And for some of you, that process may well be underway. But before I turn to the department’s guidance on redistricting, I must acknowledge that the redistricting process involves many competing concerns, some of which are beyond the reach of our voting rights work at the Justice Department. As Attorney General Merrick Garland made clear, this Department of Justice is entirely nonpartisan when it comes to our voting rights work and all matters within the jurisdiction of the department. Other factors for the redistricting process are dictated by your state constitutions and state statutes, which reflect the full diversity of American law — everything from whether assembly districts have to be nested within state senate districts to measure the compactness to which factors map drawers can, and cannot, consider. As long as those provisions comply with federal law, it is entirely up to your legislative process to accommodate them.

But there are some important constraints that come from federal law. For example, since the reapportionment revolution of the 1960s, the U.S. Constitution has required you to draw state legislative districts with nearly equal populations. One person, one vote. From 1965 until the Supreme Court’s 2013 decision in Shelby County, Alabama v. Holder, many of you lived in states that were required to obtain federal preclearance before conducting elections under your new districting plans, and there is pending legislation that may reinstitute preclearance requirements for some jurisdictions.

But, today, I am here to speak about one additional federal restraint: Section 2 of the Voting Rights Act. When President Ronald Reagan signed into law the amendments that codified the current Section 2 provision, he called voting rights the “crown jewel of American liberties” and he described the statute as expressing “our unbending commitment to voting rights.” So it remains today.

In September, the Civil Rights Division issued guidance on how we are approaching Section 2 and our enforcement work this redistricting cycle. Section 2 prohibits discrimination in voting on the basis of race, color, or membership in a language minority group. The division enforces Section 2 of the Voting Rights Act across the country. Our efforts to evaluate compliance with Section 2 and to identify potential violations have a very broad scope. We look at plans regardless of whether those plans were adopted by legislative bodies, redistricting commissions, state courts, or other governmental bodies. And our analysis is intensely localized insofar as it looks at the particular facts in each jurisdiction.

The Supreme Court has repeatedly reaffirmed Section 2 of the Voting Rights Act as having application to districting plans. Under the “results” test laid out in section (b) of the statute, Section 2 prohibits drawing districts in a way that results in voters not having an equal opportunity to elect representatives of their choice on account of race, color or language minority status. Section 2 also prohibits any electoral law, practice or procedure enacted or maintained with the intent to disadvantage voters on account of those same factors. In short, states need to take the Voting Rights Act’s requirements into account when redrawing electoral maps.

When the Justice Department considers whether or not to get involved in a state’s redistricting, either by bringing suit ourselves or by participating as an amicus party in a case brought by private parties, we begin by applying the framework laid out by the Supreme Court in its 1986 decision in Thornburg v. Gingles, which involved state legislative elections in North Carolina — a framework that the Supreme Court just last term reaffirmed in its Brnovich decision, describing it as “seminal” for vote-dilution claims.

At the Justice Department, we start with the 2020 Census data. And the first question we ask ourselves is whether members of a protected class are sufficiently numerous and geographically compact to constitute a majority of the voting-age population in a single-member district. Then we look at data from past elections. And we ask whether the minority group is politically cohesive and whether majority voters vote sufficiently as a bloc so as to prevent minority voters from electing their preferred candidate absent special circumstances.

If these three Gingles preconditions are present, the Justice Department then considers the totality of the circumstances in a particular jurisdiction, looking at nine factors laid out in the Senate Report that accompanied the 1982 Voting Rights Act Amendments. These range from looking at the history of discrimination in the state to looking at current racial bloc voting patterns to looking to see whether there are racial appeals in political campaigns to the extent which members of the minority group in the state bear the effects of discrimination in areas such as education, employment and health. These socioeconomic conditions may hinder their ability to participate effectively in the political process.

The Gingles opinions describes a review of the totality of the circumstances as an analysis that requires a “searching practical evaluation of past and present reality” in a particular a jurisdiction’s electoral system. This analysis is again “intensely local,” “fact-intensive” and “functional” in nature.

Section 2 of the Voting Rights Act also prohibits use of a redistricting plan or method of election adopted or maintained for a discriminatory purpose, which is the same prohibition that you find in the Fourteenth and Fifteenth Amendments of the Constitution.

Thus, the Civil Rights Division looks at the circumstances surrounding adoption of a redistricting plan to see whether there is any direct or circumstantial evidence of any discriminatory purpose to minimize minority voting strength.

When assessing evidence of discriminatory purpose, we rely on the Supreme Court’s 1977 decision in Village of Arlington Heights v. Metropolitan Housing Development Corporation. That case outlined what we call the Arlington Heights factors, a set of factors relevant to this “sensitive inquiry,” the things that we will look at pursuant to the Arlington Heights decision include: (1) The impact of the decision; (2) the historical background of the decision, particularly if it reveals a series of decisions undertaken with a discriminatory intent; (3) the sequence of events leading up to the adoption of the map; (4) whether the challenged decision departs, either procedurally or substantively, from the normal practice; (5) contemporaneous statements and viewpoints held and espoused by decisionmakers, and more. The Department of Justice will draw the normal inferences from the foreseeability of a discriminatory impact, and Section 2 does not require proof that a lawmaker bears racial animus.

Discriminatory intent need only be one motivating factor behind the enactment or enforcement to violate Section 2. It need not be the only motivating factor. So, for example, if a jurisdiction purposefully reduces minority voting strength in order to protect an incumbent elected official, the fact that incumbent protection was a motivating factor—or even the primary motivating factor—does not mean that the redistricting plan is necessarily lawful.

As I mentioned earlier, the U.S. Constitution imposes additional requirements on redistricting plans beyond those reflected in Section 2 of the Act. The Fourteenth Amendment prohibits substantial disparities or malapportionment in total population between electoral districts in the same voting plan (again the “one-person, one-vote” principle). The Fourteenth Amendment also prohibits certain forms of racial gerrymandering in drawing electoral districts.

The Justice Department does not enforce these particular constitutional requirements directly through Section 2. However, the department will consider these background constitutional requirements when enforcing Section 2. For example, a malapportioned district may facilitate vote dilution, and district boundaries drawn predominantly on the basis of race may provide evidence of discriminatory intent. In addition, the department will consider whether any efforts to change the apportionment base for a redistricting plan to a measure other than total population may violate Section 2. So, there, changing the base may mean equalizing eligible voter population between districts. And of course in any lawsuit in which the department participates, it will propose remedies that are consistent with the requirements of the U.S. Constitution.

I would also like to note that our work under Section 2 of the Voting Rights Act extends beyond redistricting. Throughout each decade, the Justice Department considers the methods used to elect governmental bodies, particularly jurisdictions, not just for states, but also counties, cities, school boards and other special districts. And the department reviews not just districting plans, but also jurisdictions that employ at-large election methods as well as mixed methods of election. And a large percentage of the cases brought by the department under Section 2 concern the methods of election for local jurisdictions.

Finally, I note that we have seen that many jurisdictions are providing opportunities for the public to understand and engage, and participate in the redistricting process in this cycle, and I encourage that. Having a redistricting process that is open to the public, for example, through an internet portal and public hearings, where voters can see and evaluate the redistricting plans that are being considered, as well as ensuring they are aware of the timelines, and have an opportunity to provide comments, promotes the kind of public involvement that we want to see in this very important aspect of the democratic process. Likewise, where jurisdictions have sufficient numbers of limited English proficient voters, we encourage you to provide access to the redistricting process through materials in minority languages – this too promotes the ability of all parts of your communities to understand and engage in the process.

I hope that my remarks provide you a sense of the seriousness and care the Civil Rights Division devotes to ensuring that districting maps comply with the Voting Rights Act. Our review of these maps will be thorough, fair and fact-based. We hope that in this redistricting cycle, you, and other officials drawing those maps, produce plans that give citizens a full , fair and equal opportunity to participate in the political process and elect representatives of their choice. I encourage you to visit our website, which you’ll find noted on this slide here. View us as a resource, we all have important jobs as public servants, I know that you all take your roles seriously and have profound respect for the importance of your jobs and the Constitution. I am grateful for this opportunity to participate in this convening to preview how the Justice Department is approaching redistricting this cycle. Thank you so very much.

Civil Rights
Voting and Elections
Updated November 4, 2021