As prepared for delivery
Thank you for the invitation to be here with you today. It is an honor and a pleasure to talk with you about the Justice Department’s enforcement of the federal voting rights laws.
I am pleased to see a number of familiar faces here today, as well as a number of new faces. The field of elections administration is a challenging one, and for all of you, whether you are new to your jobs or not, we look forward to working with you.
Like all of you, we take our responsibility to protect the right to vote very seriously. Whether ensuring that our military voters and civilians serving overseas have the right to register and vote absentee, ensuring individuals are not denied the franchise because of their race or the language they speak, or ensuring that covered states are following federal requirements for providing opportunities to register to vote at designated offices and administering voter lists, our work to protect voting rights is among our most important.
When President Johnson signed the Voting Rights Act in 1965, he made clear the dramatic impact of the law: “The vote is the most powerful instrument ever devised by mankind for breaking down injustice and destroying the terrible walls which imprison men and women because they are different from other men and women.”
The Voting Rights Act passed 328-74 in the House, and 79-18 in the Senate. Forty one years later, Congress once again came together in overwhelmingly bipartisan fashion to reauthorize the Voting Rights Act. Congressman Jim Sensenbrenner, a Republican from Wisconsin who was then chair of the House Judiciary Committee, led the effort in the House. When the debate turned to the reauthorization of Section 5 of the Act in 2006, which is a lynchpin of the bill, the House vote to reauthorize Section 5 was 390-33, and the Senate vote was 98-0. Congress had Republican majorities at that time, and the act was signed into law by President Bush.
I provide this brief history to remind us that voting rights and, indeed, civil rights, has a proud bipartisan tradition in America. We have a shared interest across America in ensuring that those who gave their lives to ensure the right to vote for all eligible people did not do so in vain.
Our voting section is as busy as it has ever been, and I would like to describe our work for you today.
Attorney General Holder has made clear his commitment to the enforcement of these and other civil rights laws. We are committed to enforcing them consistently, aggressively and evenhandedly. Two core substantive objectives guide our voting work. We are pursuing a voting program that seeks to ensure access to democratic participation for all legally qualified voters, and ensures opportunity to participate in the democratic process free from discrimination.
In general, we are in the midst of one of the busiest periods ever in our work, due to the convergence of a number of different trends. Over the last fiscal year, we equaled or exceeded our busiest year ever for new cases, new matters and new resolutions of litigation matters. Let me describe briefly our work in the following areas:
- Section 5 of the Voting Rights Act, and its critical preclearance provision;
- Section 2 of the Voting Rights Act, and its protections against vote denial and vote dilution;
- The National Voter Registration Act, which was passed by Congress to increase the number of eligible citizens who register to vote and to ensure accurate and current registration lists;
- The language minority provisions of the Voting Rights Act, to ensure that language barriers do not exclude citizens from the electoral process; and
- UOCAVA and the MOVE Act, protecting the right to vote for members of the armed services, their families, and overseas citizens.
Section 5 and redistricting
One of our biggest projects at the moment is the post-Census redistricting push that comes to us for review under the preclearance provisions of Section 5 of the Voting Rights Act. We typically get more than 2,700 redistricting plans for review during each redistricting cycle, including around 50 statewide redistricting plans from the 16 states covered in full or in part by Section 5. We also get a large number of related voting changes for review, such as polling place changes etc. This is very important work where we act as the surrogate for the D.C. District Court in making determinations on these submissions.
We did a lot of work preparing for this big expansion of our workload. On February 9, 2011, the Department published its updated substantive guidance document in the Federal Register concerning redistricting and Section 5 of the VRA. This updated the Department’s 2001 guidance document in light of the 2006 amendments to the VRA and developments in the case law. On April 15, 2011, the Department published in the Federal Register its final rule revising the Procedures for the Administration of Section 5 of the Voting Rights Act, located at 28 C.F.R. Part 51. These are the first significant proposed revisions to the procedures that govern review of Section 5 matters to be published since 1987.
The Census redistricting data started rolling out in February 2011 and was all released by April 1, 2011. Pretty quickly, we started receiving redistricting plans for review through the administrative process and through declaratory judgment actions in the D.C. District Court under Section 5. So far we have received more than 1,300 redistricting plans in total for review under Section 5, and a good number of those remain pending before us at the present time.
Last month, we received more redistricting submissions than any month in our history.
So far, a good number of the statewide redistricting plans from covered states have been reviewed under Section 5, and the Department has found compliant with Section 5 some of the statewide plans from Alabama, Alaska, Georgia, Louisiana, North Carolina, South Carolina, Virginia, Michigan, South Dakota, and California. Not all these states have enacted all of their plans yet.
I have provided a chart we filed as part of a brief in the Supreme Court last month that summarizes our Section 5 statewide redistricting work up to that date. Including developments in the month since that chart was prepared, you can see we have precleared or consented in litigation to 29 statewide plans. The only two statewide redistricting plans which we have opposed are the Texas Congressional and Texas state House of Representatives.
Louisiana is an instructive example of the approach we have taken in our statewide redistricting work. For the past 18 months, we have embarked on an aggressive campaign of outreach and education to explain our processes to covered jurisdictions. In the case of Louisiana, we went even further. At the invitation of a bipartisan group of lawmakers, I travelled to Louisiana and addressed a bicameral session of the State House and Senate to discuss our processes, and to underscore that good outcomes begin with transparent, inclusive processes. This was the first redistricting cycle ever in Louisiana where all of their statewide submissions were precleared the first time they were submitted. Every prior cycle, there had been litigation as to at least one of the statewide plans.
I mentioned the contested litigation involving the Texas plans. The Section 5 trial ended last week, and closing arguments are set for tomorrow. An appeal from a related federal case from Texas concerning interim maps for this year’s elections in Texas (Perez v. Perry) was heard by the Supreme Court earlier this month, and we participated as amicus in that case.
We also have other judicial preclearance cases pending from Florida, Texas and various local jurisdictions. We lodged objections in a number of counties.
We are also involved in a number of Section 5 matters arising out of recently enacted state laws relating to voter identification requirements, voter registration requirements, and changes to early voting procedures. Last month, we interposed an objection to South Carolina’s voter identification law. Last week, Texas filed a judicial action seeking preclearance of their voter identification law. Florida has adopted a number of changes to its electoral process, and filed an action seeking judicial preclearance of these changes. Both the Texas and Florida matters remain ongoing.
And while I can’t go into more detail on our review of ongoing matters, I can assure you that our review will be thorough, fair, and fact-based. States covered by Section 5 bear the burden of showing that proposed changes are not intentionally discriminatory and will not have a retrogressive effect. As the Attorney General has emphasized, where they meet this burden, we will preclear the changes; where they do not meet this burden, we will object.
Another critical part of our docket in the Section 5 setting is our work defending the constitutionality of Section 5. The Department of Justice remains firmly committed to vigorously defending the constitutionality of Section 5.
As our experience demonstrates, Section 5 continues to play a vital role in upholding equal access to the franchise by stopping discriminatory voting changes from going into effect, whether at a statewide level or in county or city level.
There are some who contend that Section 5 is over-inclusive. However, those jurisdictions with a clean record of nondiscrimination have the opportunity to bail out from Section 5 coverage. In the past 18 months, the Department has handled a record number of bailout cases. In our past fiscal year, more bailouts were granted than in the previous seven years combined. This activity will continue.
Let me turn to our work on the Section 2 front. The release of the Census redistricting data and the new American Community Survey data spurs our investigative work each decade under the non-discrimination provisions of Section 2 of the Voting Rights Act. We are reviewing data from jurisdictions all around the country, considering whether their methods of electing governmental bodies dilute minority voting strength under the Thornburg v. Gingles framework.
We’ve opened up more than 100 Section 2 investigations in the past year. Usually, our cases involve challenges to at-large methods of election, and the usual remedy we seek is single member districts. One of the most recent of these cases to be resolved came in August when the Second Circuit dismissed an appeal from the settlement of our Section 2 case against Port Chester, New York. Section 2 remains a lynchpin of our voting rights enforcement program.
Language minority provisions
Several sections of the VRA provide protections to members of language minority groups so as to ensure that they will be able to participate equally with English-speaking voters in the electoral process. The Voting Section enforces the language minority provisions of the VRA by developing investigations across the country that concern limited English proficient Hispanic, Puerto Rican, Asian, and Native American and Native-Alaskan voters.
We have brought a good number of cases under the language minority provisions of the VRA in recent years. This work has literally stretched from coast to coast. Our most recent language agreements include Alameda County and Riverside County in California, protecting voters who speak Spanish and Chinese; Shannon County, South Dakota; Cibola and Sandoval Counties, New Mexico, for voters who speak Native-American languages; and Cuyahoga County and Lorain County in Ohio, for voters who are Spanish-speaking Puerto Rican voters.
On October 11, 2011, the Census Bureau published the new determinations of language minority coverage under Section 203 of the Voting Rights Act. There are now 19.2 million voting age citizens from language minority groups that reside in covered jurisdictions, compared with 13.4 million in the previous determination. This represents a 42.7% increase. We have sent letters to the covered jurisdictions and are doing additional outreach to all of the newly covered jurisdictions.
The enforcement of the requirements of the NVRA also remains a priority for us. States covered by the NVRA must follow its requirements to make voter registration available to applicants at all driver license offices, at all public assistance offices and disability offices, and through the mail.
States must follow the requirements to ensure that eligible voters who submit a timely application are timely added to the voter registration list, conduct a general program of list maintenance that removes voters who are ineligible, and that voters not be removed from the list for moves without following all of the protections in the NVRA, including the notice and timing requirements.
We have put out guidance on our website that discusses all of the requirements of the NVRA. We are currently looking at compliance questions under all of the sections of the NVRA around the country. In starting our investigations, we look to sources such the EAC’s NVRA report to see how states are doing in complying with the NVRA and we conduct followup and investigation.
In the last year, the Department brought its first two lawsuits under Section 7 of the NVRA in seven years. Section 7 requires that voter registration materials be made available at, among other places, state offices providing public assistance or disability services. One involved Rhode Island while the other involves Louisiana. In the Rhode Island case, we reached an immediate resolution of this matter, and the results have been remarkable. More voters were registered in the first month after the settlement than in the entire previous two year reporting period. Let me give you some specific numbers.
In the two year reporting period before the lawsuit, 457 voter registration forms were submitted by the four affected Rhode Island social services agencies. In the first month after the agreement, 1038 forms were received. In the second month, 1346 forms were received. In the ensuing two months, a total of 1787 forms were received. That is a total of 4171 newly registered voters in the four months after the settlement, as opposed to 457 in the two year reporting period before the settlement.
This ninefold increase is remarkable, and illustrates the critical importance of Section 7. I commend Rhode Island for its cooperative spirit throughout the case. The best policing is often the policing that comes from within. I urge all of you to conduct a self assessment on the NVRA front to ensure that there is full compliance. We are more than willing to assist you in addressing any questions you have.
In addition to these cases, the Division has filed a number of amicus briefs in NVRA cases in the last year on Sections 6, 7 and 8 of the NVRA (including cases from Arizona, Virginia, New Mexico, and Georgia). We also continue to carefully review data from the Election Assistance Commission on Section 8 compliance and have sent a number of letters to states that were an outgrowth of that data.
Let me turn to our continuing efforts on the UOCAVA and MOVE Act fronts.
In terms of our affirmative work, one of the Department’s highest priorities is aggressive enforcement of UOCAVA to ensure enfranchisement of military voters, their families and overseas civilian voters. That unwavering commitment was on display in the 2010 election cycle, and it will continue through the 2012 primary and general elections and beyond.
We devoted significant resources to its enforcement in 2010, after the enactment of the MOVE Act amendments to UOCAVA. The first election cycle after the passage of a bill such as the MOVE Act is invariably the most challenging for states, and for us.
I appreciate the efforts of states in seeking to comply with the MOVE Act in 2010.
I am hopeful that in the upcoming election cycle, we can continue to work to ensure that every eligible military and overseas has the opportunity to receive and cast his or her ballot in a timely fashion. I appreciate the efforts of states that have enacted legislation to move the primary dates to an earlier time frame. We have done a good bit of outreach work to states on UOCAVA since 2010, and many of you with special elections and early primaries this year have already heard from us in our UOCAVA survey work, and the rest of you will be hearing from us as the primaries continue.
Since the enactment of the MOVE Act, a number of states have moved their primary election dates further out from the general election date in federal election years to ensure that UOCAVA ballots can be timely transmitted. You may have seen that we have filed a motion for additional relief in our UOCAVA case against New York, which has a late primary and failed to get the ballots out on time in 2010 and failed to move its primary election further out from the general election. Last Friday, the judge in that case issued an order moving the New York primary date to June 26th.
Following the 2010 election cycle, we conducted a careful review of our nationwide experience and had a number of useful conversations and listening sessions with key stakeholders. As a result, we have prepared a package of proposed legislative reforms that we are happy to share with you. We welcome your feedback, and look forward to have a sustained dialogue on how to ensure that all eligible military and overseas voters have the meaningful opportunity to vote.
I have had a number of informal contact with Secretaries of State and other state elections officials, and I am well aware of the frustration that some feel toward our enforcement. One of the most common concerns I have heard is that the Justice Department is trying to hold states accountable for misdeeds of local jurisdictions over whom they feel they have little or no control. I appreciate that concern. At the same time, I would respectfully point to the law itself. UOCAVA and NVRA all create responsibilities and refer to states. By comparison, Section 203 refers to “states or subdivisions.” This is why in our Section 203 work, we deal directly with the political subdivisions that are subject to the statute’s requirements. Similarly, it has been the department’s longstanding practice - under both Republican and Democratic administrations – under statutes such as UOCAVA and the NVRA to hold states accountable in these statutory contexts, and this practice is based on the text of the statute. I look forward to brainstorming with you further in this area of concern.
Finally, let me spend a brief moment describing our election monitoring work. Every year we send federal observers from the Office of Personnel Management and personnel from the Department of Justice out into the field to monitor elections all around the country all throughout the election calendar, for federal, state and local elections. We had a big presence around the country for the 2010 elections. Overall in 2010 we monitored 56 elections in 45 jurisdictions in 19 states.
The job of these personnel who are deployed as observers is simply to monitor for violations of federal voting rights laws. They report back to Department of Justice supervisory attorneys who then decide what action to take based on their reports. Where we encounter concerns, we will be in touch with you to seek a resolution of them either on election day or thereafter. We have obtained court orders or Attorney General certifications for federal observers in a number of jurisdictions around the country.
I would encourage you to visit the Voting Section's page on the Department of Justice website to take a look at some of work that we are doing. It's available at www.justice.gov/crt/voting/. There are copies there of a number of our recent complaints, court orders, consent decrees, and other documents that discuss our enforcement efforts.
We all have important jobs to do. I view our authority and responsibility to enforce the federal voting rights laws and protect the right to vote as a sacred trust. I know you take your roles equally seriously, and I have profound respect for the importance of your jobs. We have considerable common ground and shared interests. I look forward to continuing this dialogue and appreciate the opportunity to speak to you today.