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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. I want to thank BLSA, ACS and the Federalist Society for sponsoring the event.
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. I had another opportunity to travel with him to the Kennedy Library last month to discuss voting rights in the aftermath of the 2012 election.
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 two months ago, 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.
Now is an appropriate time to 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 others serving our nation – and our aggressive enforcement of absentee voting rights for servicemembers and overseas citizens is designed to do just that. Let’s also ensure that every eligible person entering a social service office, disability services office and other designated offices 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 discuss tonight 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. During the November general election, 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: 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 night, 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.” The President echoed that call in his Inaugural Address two days ago, noting that, “Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote.”
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 we look forward to working with academics, advocates, state and local election officials, and politicians from both sides of the aisle 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.
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% in the past several presidential elections. In Sweden, for example, more than 80% of the adult population voted in the last national election.
Yet despite the benefits of voter modernization efforts – improved accuracy, cost savings, enhanced electoral participation – 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 o ur 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, engaged, and willing to demand commonsense solutions that make voting more accessible.
A second 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. Before the 2004 elections, fliers were distributed in minority neighborhoods in Milwaukee, falsely claiming that “[I]f anybody in your family has ever been found guilty [of a crime], you can’t vote in the presidential election” – and that you risk a 10-year prison sentence if you do. Two years later, 14,000 Latino voters in Orange County, California received mailings, warning in Spanish that, “[If] you are an immigrant, voting in a federal election is a crime that can result in jail time.” Both of these blatant falsehoods likely deterred some eligible citizens from going to the polls.
And, at the end of last year, the campaign manager of a Maryland gubernatorial candidate was convicted on election fraud charges for approving anonymous “robocalls” that went out on Election Day to more than 100,000 voters in the state’s two largest majority-black jurisdictions. These calls encouraged voters to stay home – telling them to “relax” because one candidate had already wrapped up a victory. Such harmful practices must be punished and deterred.
Finally, the Department is pursuing additional opportunities to partner with Congressional leaders to strengthen voting protections for overseas citizens and servicemembers. Based on the Civil Rights Division’s experience enforcing the Uniformed and Overseas Citizens Absentee Voting Act, we’ve identified a series of recommendations for improving this law, and have sent them to Congress as part of a package of wide-ranging legislative proposals.
But all of this is only the beginning. And, as we seek new ways to carry this comprehensive work into the future, we should also examine how best to address long lines at polling places. We should take steps to ensure that every polling place has an adequate number of voting machines. I’m pleased that some of these ideas – along with other potential fixes – are already under consideration in Congress.
We will continue to discuss other potential measures to ensure ready access to the ballot for eligible voters, and to ensure that ballots are counted in appropriate, consistent fashion, 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 next few months will continue to be eventful for us. As most of you know, the Supreme Court recently agreed to hear a challenge to Section 5 of the Voting Rights Act, in a lawsuit filed by Shelby County, Alabama. Oral argument has been scheduled for the end of February, and 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. Before I describe that recent evidence, though, I think a brief history lesson will give us a helpful reminder of where we’ve been and where we need to go.
On July 2, 1964, President Johnson signed the landmark Civil Rights Act of 1964. The Act expanded opportunities across a vast swath of American life, from public accommodation to housing to employment to education. It was one of the most important pieces of legislation in United States history. Yet, despite the wide scope of the law, considerable unfinished business remained.
Four days after President Johnson signed this modern day emancipation proclamation, a young leader named John Lewis led a group of African Americans to a county registrar in Alabama where they sought to register to vote. The Sheriff arrested them rather than allow them to exercise this fundamental right. Civil rights is about persistence, and John Lewis was one persistent leader. A few months later, the Selma Voting Rights movement began. On the first Sunday in March, 1965, a day that would go down in history as Bloody Sunday, John Lewis and others confronted blatant bigotry and brutality from law enforcement officers as they marched across the Edmund Pettus bridge seeking voting rights for African Americans. Ten days later, President Johnson sent the Voting Rights Act to Congress for consideration, and less than five months later, the bill became law. The bill passed 328-74 in the House and 79-18 in the Senate. In marking the Act’s passage, President Johnson made clear the dramatic impact of the law, saying: “The vote is the most powerful instrument ever devised by humankind 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 of 1965 is now 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.
Congressman Jim Sensenbrenner, a Republican from Wisconsin who was then Chair of the House Judiciary Committee, noted that the reauthorization was based on “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27 ½ years that I have been honored to serve as a Member of this body.” By a vote of 390 to 33 in the House, and 98-0 in the Senate, Congress determined that Section 5 of the Voting Rights Act was still necessary to prevent minorities from being “deprived of the opportunity to exercise their right to vote, or having their votes diluted, undermining the significant gains made by minorities in the last 40 years.”
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. T hese 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 38 cases. More than half of those bailouts have been granted since the Supreme Court’s decision in Northwest Austin. Three more cases are pending now, including a bailout lawsuit filed by the State of New Hampshire in which the parties filed a proposed consent decree last month, which will – if entered by the court – allow the state’s ten covered towns to bail out. 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 recently explained, “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.” Section 5 has not yet completed its important charge of, as the Supreme Court put it a generation ago, “banishing the blight of racial discrimination in voting.”
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.
Our efforts honor the generations who have taken extraordinary risks, and willingly confronted hatred, bias, and ignorance – as well as billy clubs and fire hoses, bullets and bombs – to ensure that their children, and all citizens, would have the chance to participate in the work of their government. And our efforts reflect the fact that the right to vote is not only the cornerstone of our system of government, it is – and always has been – the lifeblood of our democracy. In fact, no force has proved more powerful – or more integral to the success of the great American experiment – than efforts to expand the franchise.
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.