Thank you for that introduction. I am pleased to be here today to discuss the Civil Rights Division’s work to protect the fundamental civil right that is the lifeblood of our democracy: the right to vote.
One of the great privileges of my current line of work has been the opportunity to travel around the country speaking with civil rights leaders and community groups. And on many of those trips I’ve had the chance to visit some of the symbols of this country’s civil rights movement – from the Birmingham jail where Dr. King penned his famous letter, to the National Civil Rights Museum and the Lorraine Motel in Memphis, to the location of the sit-ins at the Woolworth’s lunch counter in Greensboro, North Carolina. Those visits always remind me that civil rights is a marathon relay, and the baton is in our hands.
Last December I had the opportunity to travel with Attorney General Eric Holder to Austin, Texas, where he delivered an important speech on voting rights at the LBJ Library. The Attorney General often calls the Civil Rights Division one of the crown jewels of the Department of Justice. What he’s really referring to are the laws we have the privilege and obligation to enforce: the civil rights laws are really the crown jewels of the federal legal system. And as I toured the LBJ Library with the Attorney General, and with President Johnson’s daughters and Senator Robb, we were struck by how many of those crown jewels were enacted in just a few short years during President Johnson’s administration – from the Civil Rights Act of 1964, to the Voting Rights Act of 1965, to the Fair Housing Act of 1968.
We’ve come a long way since that era – since the days of Bloody Sunday and Bull Connor. But we still have a long way to go. We can all agree that the election and re-election of the country’s first African-American President are important milestones of national progress. But as we saw during the election just last week, we continue to have work to do to ensure that all eligible citizens are able to participate in the democratic process if they choose to.
This conference gives us the opportunity to have an especially timely conversation in light of last week’s general election – we can reflect on the democratic process and on what we can do both to protect the right to vote, and to improve the voting process. We are having a spirited debate in this country about the direction of our nation. It is passionate. The stakes are high. This is the essence of democracy. Let’s continue to have that debate, and let’s make sure we do everything in our power to ensure that every single eligible voter – and only eligible voters – can cast a ballot. Let’s break down barriers for military voters – and our aggressive MOVE Act enforcement is designed to do just that. Let’s also ensure that every eligible person entering a social service office can register to vote.
Let’s work to prevent fraud, but let’s not erect new, unnecessary requirements that have a discriminatory impact. Let’s have a debate on the merits without trying to make it harder for our perceived opponents to vote.
With that in mind, I wanted to take the opportunity of this conference to discuss just a few areas where we can and should be working together to improve our electoral system and combat discrimination.
As you know, the Justice Department has an extensive election monitoring program for elections throughout the year. Last week we deployed nearly 800 Department staff and OPM observers to 51 different jurisdictions in 23 states. We are still in the process of collecting our observations from the general election. But there is at least one obvious takeaway, which the country has spent much of the last week discussing: there were widespread breakdowns in election administration in state after state, which forced voters in many states to wait in line for hours at a time – in some states and counties, up to six hours or more.
Many of you heard the President’s speech on election day, in which he noted these multi-hour delays to exercise the right to cast a ballot. And as the President noted, requiring Americans to wait that long in line to vote is not tolerable, and “we have to fix that.”
We in the Justice Department take that instruction seriously and have already begun discussing ways to address long lines and other election administration problems, whether through proposed legislation, executive action, and other policy measures. And I know that many of the people in this room have thought long and hard about these issues, and have begun proposing solutions in op-eds and articles in the past few weeks. We welcome your ideas. We look forward to working with all of you in the near future to address these issues in a bipartisan manner. Because this is not a Democratic Party imperative or a Republican Party imperative – it’s a national imperative.
For too many people in our democracy, the act of voting has become an endurance contest. And “we have to fix that.” I used to run marathons; you should not feel like you have endured a marathon when you vote.
As the Attorney General has advocated, one way to start confronting the challenge of improving our election system is to take on the difficult but critical task of modernizing our voter registration system. One of the biggest barriers to voting in the country today is our antiquated registration system. According to the Census Bureau, of the 75 million adult citizens who failed to vote in the 2008 presidential election, 60 million of them were not registered and, therefore, not eligible to cast a ballot.
All eligible citizens can and should be automatically registered to vote. Under our current system, many voters must follow needlessly complex and varied voter registration rules. And every election season, state and local officials have to manually process a crush of new applications – most of them handwritten – leaving the system riddled with errors, and, too often, creating chaos at the polls. That’s exactly what we saw at a number of polling places on Election Day last week.
Fortunately, modern technology provides a straightforward fix for these problems – if we have the political will to bring our election systems into the 21st century. It should be the government’s responsibility to automatically register citizens to vote, by compiling – from databases that already exist – a list of all eligible residents in each jurisdiction. Of course, these lists would be used solely to administer elections – and would protect essential privacy rights.
We must also address the fact that, although one in nine Americans move every year, their voter registration often does not move with them. Many would-be voters don’t realize this until they’ve missed the deadline for registering, which can fall a full month before Election Day. Election officials should work together to establish a program of permanent, portable registration – so that voters who move can vote at their new polling place on Election Day. Until that happens, we should implement fail-safe procedures to correct voter-roll errors and omissions, by allowing every voter to cast a regular, non-provisional ballot on Election Day. Several states have already taken this step.
Second, and relatedly, same-day registration is a reform we should be considering seriously – it would both facilitate election administration and promote electoral participation. For the 2012 election, eight states plus the District of Columbia had same-day registration in place. (Two more states have recently enacted it and will implement it next year – California, and Connecticut.) And we know that it increases participation: in both the 2008 and 2010 general elections, each of the eight states with same-day registration had higher turnout of the voting-eligible population than the national average. In fact, for the 2008 presidential election, five of the six states with the highest turnout in the country were states with same-day registration. Preliminary turnout estimates for the 2012 election show that this pattern will likely continue.
We should take seriously any reform – like voter registration modernization, and same-day registration – that will promote turnout and enhance participation in our democratic process. Our democracy is stronger when more people have a say in electing their leaders. And other democracies around the world have considerably higher turnout than the US, where turnout of the voting-eligible population has not exceeded 65 percent in the past several presidential elections. In Sweden, for example, more than 80 percent of the adult population voted in the last national election.
Despite the benefits of these modernization efforts, there will always be those who say that easing registration hurdles may lead to voter fraud. Let me be clear: voter fraud is not acceptable – and will not be tolerated by this Justice Department. But responsible commentators on all sides of this debate have acknowledged that in-person impersonation voting fraud is uncommon. We must be honest about this. And we must recognize that our ability to ensure the strength and integrity of our election systems depends on whether the American people are informed, engaged, and willing to demand commonsense solutions that make voting more accessible.
A third area that requires much-needed reform involves deceptive election practices – and dishonest efforts to prevent certain voters from casting their ballots. Over the years, we’ve seen all sorts of attempts to gain partisan advantage by keeping people away from the polls – from literacy tests and poll taxes, to misinformation campaigns telling people that Election Day has been moved, or that only one adult per household can cast a ballot. Senators Schumer and Cardin recently introduced legislation that would deter and punish such harmful practices. This bill has sparked and helped to advance a critically important dialogue across – and beyond – Capitol Hill.
Two other issues deserve our serious consideration. First: provisional ballots. In some states and elections, large segments of the electorate are required to cast a provisional ballot instead of a regular ballot on election day, for any of a number of reasons. The Justice Department will be considering whether we need to propose concrete solutions, such as national standards for counting provisional ballots for federal elections, to ensure that voters are not disenfranchised by moves close to an election, by appearing in the wrong polling place or precinct, or by poll worker errors. Second: it’s time to rethink our largely partisan system of state and local election administration. We risk leaving our election processes open to partisan mischief – or to the perception of such mischief. We should have a serious conversation about solutions to this risk, including developing an entirely professionalized and non-partisan system for administering our elections.
We will continue to discuss other potential measures to ensure ready access to the ballot for eligible voters, and we invite your suggestions in that process.
Ensuring that every eligible citizen has the right to vote must become our common cause. And, for all Americans, protecting this right, ensuring meaningful access, and combating discrimination must be viewed not only as a legal issue – but also as a moral imperative.
In this regard, the last week has been an eventful one for another reason. As you know, the Supreme Court agreed last week to hear a challenge to Section 5 of the Voting Rights Act this term, in the lawsuit filed by Shelby County, Alabama. The Justice Department is looking forward to demonstrating to the Court both that the statute is still constitutional and still has critically-important work to do.
The Voting Rights Act of 1965 is widely considered to be our nation’s most important and effective piece of civil rights legislation. It sought to address, and to undo, decades of systematic disenfranchisement – by outlawing barriers to voting, and by creating mechanisms for the federal oversight of elections nationwide.
Section 5 is a linchpin of the Voting Rights Act, and is directed at specific areas where discrimination historically was deeply rooted. Under that important provision, certain “covered jurisdictions” are prevented from altering their voting practices until it can be determined that any proposed changes would have neither a discriminatory purpose nor effect. This process, known as “preclearance,” has been a powerful tool in combating discrimination for decades. And it has consistently enjoyed broad bipartisan support – including in its most recent reauthorization, when President Bush and an overwhelming and bipartisan Congressional majority came together in 2006 to renew the Act’s key provisions and extend it until 2031.
Yet, in the six years since its reauthorization, Section 5 has increasingly come under attack by those who claim it’s no longer needed. Between 1965 and 2010 – nearly half a century – only eight challenges to Section 5 were filed in court. By contrast, over the last two years alone, we’ve seen no fewer than ten lawsuits contesting the constitutionality of that provision. These lawsuits claim that we’ve attained a new era of electoral equality, that America in 2012 has moved beyond the challenges of 1965, and that Section 5 is no longer necessary.
I wish this were the case. But the reality is that – in jurisdictions across the country – both overt and subtle forms of discrimination remain all too common – and have not yet been relegated to the pages of history. In just the past few months we’ve seen numerous vivid examples of the continuing salience of the VRA.
In the South Carolina voter ID case, for example, the three-judge court denied the State’s request for preclearance of Act R54 for the 2012 elections, and granted preclearance of Act R54 for future elections starting in 2013 based only on a series of conditions and requirements for the implementation of the law. These conditions include sweeping modifications to the “reasonable impediment” exception in Act R54, as well as the State’s compliance with its binding promise during the trial that all qualified voters without photo ID will still be allowed to vote without additional burden. As the majority of the court explained, “to state the obvious, Act R54 as now pre-cleared is not the R54 enacted in May 2011. It is understandable that the Attorney General of the United States . . . would raise serious concerns about South Carolina’s voter photo ID law as it then stood. . . . An evolutionary process has produced a law that accomplishes South Carolina’s important objectives while protecting every individual’s right to vote and a law that addresses the significant concerns raised about Act R54’s potential impact on a group that all agree is disproportionately African-American.” The majority of the Court also noted, “one cannot doubt the vital function that Section 5 of the Voting Rights Act has played here.”
The Texas redistricting cases present another striking example of the continuing importance of Section 5. The Justice Department opposed preclearance of several of the state’s maps because of concerns both with retrogression and with intentional discrimination. With regard to the state’s Congressional map, for example, Texas was allocated four new congressional seats because of population growth, and although most of that increase was caused by a growth in the Hispanic population, the state proposed adding zero additional seats as Hispanic ability-to-elect districts. And in both the state House and Congressional maps, there was evidence that the map-drawers intentionally manipulated the map lines based on their knowledge of low Hispanic turnout in some areas to draw districts that would give the appearance of minority control, but that were actually designed to minimize minority electoral strength. The three-judge court denied preclearance to these maps in August. And in one particularly striking passage of the decision, the court explained: “The parties have provided more evidence of discriminatory intent than we have space, or need, to address here.”
Section 5 continues to play an important prophylactic role as well, encouraging non-discriminatory voting practices at the outset. In many of the Section 5 covered states, for example, the statewide redistricting process following the release of the decennial census data in this cycle began with a decision to identify the existing ability-to-elect districts, and to protect the ability of minority voters to elect their candidates of choice in those districts. And at the more local level, one county in Texas recently withdrew a preclearance submission involving polling place changes after DOJ requested more information on the reasons for the change. The County planned to move the polling place from a school to a private club. The school had been agreed upon in earlier litigation as a compromise polling place location within the county, while the club had been a historically segregated organization. In our request for more information, we explained that our investigation had identified concerns that the use of the proposed polling place could discourage minority voters from turning out to vote. The County withdrew the submission after that request. As Congress recognized in 2006, and as the D.C. Circuit recently agreed, these kinds of examples are further evidence that Section 5 promotes compliance by covered jurisdictions.
At the same time, the statute has very effectively been used to allow covered jurisdictions to “bail out” when they demonstrate a history of compliance. Our bailout work has increased dramatically since the Supreme Court’s decision in Northwest Austin. Since the current bailout provision became effective in 1984, bailout has been granted in 36 cases. Fully half of those bailouts have been granted since the Supreme Court’s decision in Northwest Austin. Several more cases are pending now, including a bailout lawsuit filed by the State of New Hampshire just yesterday. The effectiveness of the bailout mechanism further demonstrates that Section 5 is proportionate to the harms it is aimed at eliminating. In short, Section 5 continues to be necessary, and our bailout work illustrates that it is not over-inclusive.
These are just a few examples that illustrate why we must – and will – continue to vigorously defend Section 5 against challenges to its constitutionality. As one of the trial-court judges put it just last year, “Congress determined in 2006 that 40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment.”
Today, as Assistant Attorney General, I have the privilege and duty of enforcing the Voting Rights Act and other laws that protect the right to vote. For the Department of Justice, this is among our highest priorities – as we’ve demonstrated through our actions. In the fiscal year that just ended, our Voting Section participated in the largest number of new litigation matters in any fiscal year ever, to the best of our knowledge; and we participated as amicus in more cases just last year than in the previous nine fiscal years combined. This important work included cases under Sections 2 and 5 of the VRA; Sections 7 and 8 of the NVRA; nationwide enforcement of UOCAVA and the MOVE Act; among others.
The Department of Justice will continue this effort, whether through enforcement and litigation, or through legislation and policy measures to expand the democratic process to all eligible participants. We look forward to working with you and with many other partners as we do so.