Decision. But im also optimistic that we can fix this because nobody really disputes that the Voting Rights act is still needed. Writing for the majority in shelby and Shelby County, justice roberts, credited the votie rights act with quote gret strides. Voting still exist, no one doubts that, end quote. So it seems to me that question here isnt whether we need the Voting Rights act at all. The question is, what form should the law take. Im looking forward to working with all of my colleagues on the Judiciary Committee to address that question in months ahead. We have enacted an authorized Voting Rights act on a truly bipartisan basis. Hopefully we can do it again in 2013. Professor levitt, we have touched on this already. Preclearance. But i just want to get your response to this quote. This is from the house Judiciary Committee report from the 1965 act regarding preclearance. The burden is too heavy . The damage to our National Conscience is too great not to adopt measures that exist today. End quote. Do you believe that statement is still true . I do. I think it was right then, and i think although unquestionably matters have improved all over the country, i think there are still problems where that existing tools dont adequately address and for those problems the burden is still too heavy. For 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 and the right to vote or have that meaningful participation counted anywhere in the country. Justice should never be too expensive. Justice should never be too slow. Justice should never depend on an army to sweep in and help. And we are dependent on the ability to find help whenever we can. Congress has in the past always recognized that that, for our most fundamental right is not enough. I take it that congress is here today, this committee is here today in order to start the process of another bipartisan effort to restore the recognition that leading for help is not enough. Thats exactly why were here. Professor, from a constitutional law standpoint, i think that one of the most important point made in Justice Ginsburgs is that gathering with respect to the standard of review under the 15th amendment, the court said that quote congress may use any rational means to effectuate the congressional prohibition of Racial Discrimination in voting end quote. In other word to end quote a statute enfacted under congresss 15th amendment powers, the court must find that statute is irrational. That seems like a really differential standard and i agree with Justice Ginsburg that court didnt apply it in Shelby County. What are your thoughts on this and in particular what standard of review should we expect the court to use when it analyzes potential amendments to the Voting Rights act . Youre right. It is difficult to know what standard the court used in Shelby County. Only because it didnt tell us. The prevailing standard had been very deferential to congress and the court tossed out more or less with the back of its hand all of the oh congress had done. 15,000 pages of record. Prevailing standard had been that a recognition that congress is the body empowered in the first instance to enforce the 15th amendment. And that the legislation they passed should be viewed rationally. And in rational basis would suffice and the court seemed not to apply that standard. Seemed to depart from catsenback. They didnt tell us what standard they were applying. What they did say was that any step that Congress Takes has to reflect Current Conditions and although i think the old standard met that test, they did not. I think that congress has the ability to compile a record of Current Conditions that would more than authorize steps to 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. I think congress has plenty of latitude to establish a record supporting whatever steps Congress Takes to provide the protection we still desperately need. Thank you. And im sorry i went over time. But maybe we can get 16,000 pages, if we go a little longer this time. Thank you, i yield. Senator cruz. Thank you. I would like it thank all three witnesses for being here and testifying today. I want it ato ask a couple quess of mr. Carvin. Let me say at the outset, we have known each other a long, long time. My first job practicing a. A lawyer was for you in a very small firm. I commit two things. Number one, tell no tales from those days. Number two, hold you harmless for any mistakes i may make in this committee or elsewhere in the senate. I would like it ask your legal judgment on what is required in response to the Shelby County decision and the Supreme Court in Shelby County noted that congress had before in 2006 thousands of pages of record, as the last Exchange Just highlighted, and the court went on to say, regardless of how to look at the record, however, no one can fairly say that it shows anything approaching the pervasive flagrant widespread and rampant discrimination that faced congress in 1965 and that clearly distinguish the covered jurisdictions from the rest of the nations at that time. The question i want to start off 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. And i dont know if theyre remedial in terms of real imper cal evidence. The first is they gathered 15,000 pages of evidence against which jurisdictions are bad but didnt use any of that evidence to designate the jurisdictions that are covered by section 5. They relied on electoral information from 1968 and 1972. Which would be a kin to the 1965 Congress Looking back at Calvin Coolidge election to figure out who should be covered in 1965. So the first thing you need to do is look at what current information you have and get rid of the outdated formula. The second finding they never made, and this is the thrust of my basic commentary, is what part of section 5 clearing that section 2 is not a remedy for . I doubt seriously can you make that argument. The one argument made today that again is demonstratable untrue, is you know from private practice, this theory that section 2 litigation has it wait three or four electoral cycles before anyone brings a lawsuit when we know they are brought before the first election as your home state of texas vividly illustrates. In fact, professor levitt makes any point, how he talks about the challenge of an at large system. The county cant get at large system because it deals with voting changes. It had nothing to do with getting rid of the principal vote dilution tech nick deployed in the deep south. This was a challenge for the city of charleston they could have brought at any time. They brought the case in january of 01 and didnt move for preliminary injunction until april of 02. They waited 15 months. They dont take advantage of it. What congress would have to do and what frankly i dont think they can show, is that there is such a difference between the jurisdictions that are being covered, that they need Justice Department oversight 24 7, and the districts that are not being overcome, there may be a handful of districts out there that need that kind of extra supplement for section two but congress hasnt come close to identifying what those would be particularly since the jurisdictions are actually doing better today in terms of minority vote participation than noncovered jurisdictions. Thank you. Let me ask a followup on that. You rightly noted that the section 2 of the Voting Rights act remains in full force. And its protections are entirely in place. Section 5, what i would like to ask is your practical experience. Have you lit getted a number of Voting Rights cases, you have worked with, along side, and after the fact, elected officials dealing with section 5. And what i wanted to ask is while section 5 was in place, while the department of justice had the authority to preclear or not preclear the decisions of elected officials and states, to what extent did section 5 effectively require elected officials to make decisions based upon race . There was no question. Its been well documented in the 1990s that the Justice Department had what they quite candidly labelled a black max policy. Which is you have to maximize the number of black and majority districts regardless of traditional districting princip principals. Which is why you have district in North Carolina down i95 and struck down as constitutional racial jerry manneders. Which i hasten to add, i was involved with in the 90s and greatly aided the republican party. No bones about that. Everything im telling you today is contrary to the republican parties partisan interest. In the latest round of redistricting, texas is another good example. They injected more politics into the discussion because they say the ability to elect standard enacted by congress in 2006 protects white democrats like lloyd doiget. So what section 5 has done is taken a guarantee of equal racial opportunities and converted it into a partisan preference scheme. So one of the beneficial results of Shelby County is that you will be a decreasing the amount of politically motivated racial jer j jerry manneders and where there is 90 minority population to 60 minority population which is clearly redistricting over the last 30 years. Thank you, mr. Carvin. Senator blumenthal. Thank you, mr. Chairman. I want to sort of follow senator cruzs questions, which i think real really elicited something very telling about the Supreme Courts opinion, when i heard you describing what would be irreimmediate yabl. I was struck by the observation of congress, which the chief justice gave for striking down the formula, and im quoting. Congress did not use the record it compiled to shape a coverage formula grounded in Current Conditions. Isnt that a legislative judgment . How to use a record, whether it is 15,000 pages or 30,000 pages. We are not talking about the absence after record. We are talking about the evidence from which congress could draw conclusion or perhaps draw conclusion as Justice Ginsburg said that maybe things have improved but one of the purposes of congress is to prevent only and i will quote, is guard against back sliding. My view is the court was legislating in the most inappropriate and worst way. Put aside whether you agree or disagree with the result, dont you agree, professionor carvin, i know you have thought a lot about this issue. I respectfully disagree for this reason. If they reweighted the Evidence Congress looked at, no, it shouldnt be this or that state, then no the chief justice said they didnt use the evidence. And that is how can he reach that conclusion . They had evidence. If you were to say about a jury coming out with a verdict, they had evidence. But they didnt use it. Courts dont do that. They say there wasnt elements of the kroim so no jury could have concluded reasonably. You need to have reasonable ground for distinguishing between the states youre covering and states youre not. You cant pass a lot that saw everybody east of the mississippi is a covered jurisdiction. And when the coverage formula was criticized does not reflect current realities, the answer is we locked at 15,000 pages of testimony. Justice roberts, i think using purely legal analysis said, we will defer like crazy if you were relying on that evidence for the coverage at issue. But since you didnt rely on that, there is literally nothing to defer to and a judge to usurp a jury or congress and say you didnt rely on it without having so voidire, i will look at that efd,ef evidence, i dont see enough of it for the law and i dont see enough for your decision to we will strike it down. Courts look at everyday. And youre arguing that similar deference should be done here. Lets assume the epa looked at co2 which it should have looked at h2o. It wouldnt do any good to say, we looked at co2 you could say the absence of h2o and the presence of co2 is what justifies this decision. I know we could go back and forth, im limit et in time. I want to ask the other two witnesses, beginning with professor levitt, if i may and perhaps will be limited to you, unless the chairman gives you additional time, how do we fix this formula . The court did not strike down the preclearance procedure. It simply struck down the formula, which may be, in fact, irremediable, if we cant get a bipartisan decision together, which 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 substitute. And i think there are lots of paths ahead. Part of why im so very excited this this committee is convening this hearing now in order to start down that path. I think and there are lots of different potential things that will help. The basic premise is the existing tools dont do the job. But there are lots of ways to modify the existing tools or return the tools that did exist and ways that will do the job or at least further the job. Vigilance have to continue. Some of that involves different ways to get information about where discrimination is actually occurring. Sorts of things that you dont get with having to go out into the world to file a lawsuit but you did get from the preclearance process. Some of what im sure will be discussed are different ways to identify where there is the most risk. Whether thats based on current violations. Whether thats based on political polarization, you have to look at where the most risk currently is. Other ways to make this available section 2 process less cumbersome, less burdensome, less expensive, it may be some combination of all of the above is what congress will need and other Creative Ideas that havent even been put forth yet. In order to make sure that congress has stopped the procedure. I look forward to months ahead when there are lots of different ideas. Most may be in combination, will be sufficient to the task. Thank you very much. I want to thank you, mr. Chairman, and thank all of our witnesses for bringing to us the very important insights and intelligence that you have given. And i apologize, mr. Carvin, for cutting you off there. No, no, no. I would welcome, i think other members of the committee would as well, any answers, more specific answers you may have to that question i asked about the formula. Thank you. Im interested in the question of deference as well. Lets just stick with the senate side that im familiar with. Here you have a bill that passed senate 980. You were dealing with congress at the height of its powers. Under the steel yard cases. You are dealing with a very, very extensive legislative record. We all concede the record was abundant. The Supreme Court made the decision that within the halls of congress, congress had not looked at that record in the right way. And thats a point that one could argue and debate. It strikes me that the people who actually get elected around here knew and demonstrated by their vote that this bill was necessary. Including the senators from all of the state that were subject to the preclearance procedure. Do you think it should not be relevant to the court, even if youre looking at kind of an admission against interest theory, as long as youre trying to once the court starts secondguessing how Congress Makes decisions, it opens a whole arena of new areas. But you would think that one might be that you could follow kind of an admission against interest theory and say, look, if both senators from every state that are subject to this voted for this, they must know something about elections in their states. These are not stupid people. These are not familiar who are not familiar with the elective process in their state. And they have not suggested by their vote that this is necessary. Why would that vote by those home state senators not be entitled to discussion or weight by the court. I fully agree with you. It is up to congress to be the way of conflicting evidence. I dont think the court ever suggested that strong bipartisan support effects the constitutional c Constitution Constitutional calculus. It wasnt because it was signed by president clinton and inferred that was different. Was it . That was different. That was different because the challenge is more or less on the face of the law. Here, you had a congressional record and the courts decision was that congress, in reviewing its record, didnt review it in the right way. They are actually not looking at the the statute, they are looking at the behavior of congress. If you lock at the behavior of congress, why not look at the behavior of congress from the actual state that actually conceded that the bill is necessary. Fair enough. If they had secondguessed the efd that congress was looking at, they would have skoeded the judicial role. But they knew what congress was looking at because they told them. That is whether or not you are a jurisdiction subject to the extraordinary preclearance requirement or not and no one, i dont think anyone pretended that the situation that existed in 1968 in mississippi was reflective of the situation that existed in all of the jurisdictions. So they defer to that judgment. They just thought that the judgment except that one could argue that senators from the state that are involved in election answers know more about elections in those states, than a Supreme Court judge who has never been elected to anything, particularly not in that state, does, they appear to agree. But i think we agreed psycho analyzing for a vote for doma or anything else is not how courts thats exactly what the court did in this case. They tried to sort of psycho analyze congress as a body and i think they failed dramatically. And the other point i would make, i ask ms. Wineberg to respond to, when we hear in Congress Hear about elections concerns, one we hear an enormous amount about is voter fraud. And we have had voter id laws and all sort of discussions about the problem of voter fraud. Youre the one elected official on this panel. At my experience of voter fraud is that it is a problem that is so dimin muss, it has to be imaginary. It almost never comes up. It requires someone to not vote. Then smp someone has to come in, pretend to be them, and there is harm in in the infessty mall. It is a such a tiny amount. Here on the other hand you have people who shot up to vote. They want to. And they are told, sorry, wrong day. Because they changed the day. Devices are used that actually prevent people who want to vote from having that opportunity. And when you weigh the two of them side by side, it strikes me that the level of concern relative to the rarity of somebody actually having their vote taken away by fraudulent person coming in an trying to be them, compared to the kind of wholesale discriminatory election practice, disenfranchise, hundreds of thousands of people, and the court didnt seem to be as concerned about that aspect of it. In your electoral experience, how would you balance the risk to the electoral process of voter fraud versus disenfranchisement through laws designed to manipulate and deter voting . I have trouble saying disenfranchisement too. Im glad to see that you did too. Youre correct. And to echo earlier comment on voter fraud and how often that is we have experienced, this is earlier last year in florida with the citizens and all the voter i. D. Issues, and i love to hear the fact that people recognize that there are those who love to come out to vote and dont get to. Voter fraud is not as significant an issue as the larger picture, and heres the deal with the decision hasnt been passed. Its already a done deal. Congress now has an Incredible Opportunity to review what the coverage formula should be. Ive given you examples briefly in my testimony and many others in my written testimony about how we are personally on the ground at local elections dealing with our voters in our inner cities. Im very scared as an elected official for my constituents and the millions of folks in florida and the millions of residents in the united states, and ill tell you why. The discriminatory practices of the 1960s when which gave birth to the voting right act have gotten what i call my three ss. Theyve gotten extremely sneaky, extremely sophisticated and extremely smarter. So it really behooves congress at this time to take all that into consideration, all the histories of not only my five counties in florida that are under preclearance coverage, the noncovered counties that have tried to change some election laws that are of question and im sure my state of florida is not alone with the other 49 ways to come up with these discriminatory practices. I think its a great time for congress to revisit because we might not end up with what we had in the preclearance formula. I hope that there will be a whole lot of better Legal Protections for voters all across the state and all across the country for those specific instances where people have been thinking about it. While senator grassly is settling in, let me ask one more question. Senator cruz asked mr. Carvan the question about what lessons congress should take from the courts discussion of the role of congress in all of this and how we should improve our record on a Going Forward basis. We have another scholar here whos interested and expert in this particular field of law. Professor levitt, let me ask you to provide an answer to that same question. What lessons should we take from the Shelby County decision and how when we go about this can we meet the test that the court has imposed upon us . The only real clarity that the court has offered is that what congress does has to be justified by Current Conditions. I think there is ample evidence that was before congress, i think theres ample evidence that congress can now compile about Current Conditions requiring more than the tools that presently exist, that the fact that the existing responsive reactive expensive cumbersome tools are powerful but not good enough and that there is ample room for congress to legislate to respond to the fact that the existing tools, while powerful, are not good enough. To have pro active and far more nimble protections to make sure that the most discriminatory laws are stopped before they ever go into effect. I think thats what congress is going to have to focus on in the hearings to come, and there are many ways to achieve that, but thats the primary task that congress has before it now. And ill add that this has always been a task that congress has embraced on a bipartisan basis in the past, and i think theres great hope that congress will do so again in the future. Every single reauthorization of the Voting Rights act came with a recognition that section 2 on its own is not enough and every single time substantial majorities of both republicans and democrats voted to confirm that, and i look forward to Congress Creating that record once again now. Let me recognize our distinguished Ranking Member, senator grassly, but before he begins this question let me ask unanimous consent that testimony provided by a variety of groups be added to the record. Without objection. The reason i wasnt here except for the first witness testifies is because i had to be over on the floor. I apologize. Commissioner wineberg and professor levitt, other than the abstract concepts that the professor mentioned in his testimony, what specific ideas do you have on how congress should fix the statute . Ill start with commissioner wineberg. Specific ideas on how congress should fix the statute now, and fix it is a good word. Actually, theres been a few Different National organizations that have been having conversations in washington, dc, and heres what i think Congress Needs to consider very carefully which has just made my previous comments before you walked in, Ranking Member grassly, is the fact that these certain areas that, first of all, are covered counties but also the noncover counties theres been instances in situations in states and counties where there have been certain practices that have been attempted to be put in place. So Congress Needs to look at that overall picture on what those events have transpired. That would be my first recommendation. Secondly, i wanted to take the opportunity actually to thank the members of the committees on the recent work on comprehensive Immigration Reform because that ultimately, of course, leads to voters and Voting Rights acts. Thats the only thing i can see that Congress Needs to do. We are happy with all of the other Partnership Organizations that we work with to work with congress bipartisanly not partisanly. Professor levitt. Thank you, Ranking Member grassly. I think there are a number of things that congress can and should look at, including some of those mentioned by commissioner swanberg, some of which ive spoken about, some of which are in my remarks. In addition to the big, shiny actions that mr. Carbon has been focusing on that will, in fact, draw lawyers, i would urge the committee to consider very carefully how it may best prevent and remedy discrimination in smaller jurisdictions where the ability to attract tall length of mr. Carbons level is not quite so great. Some of what congress should consider will be informational, Getting Better information out on the impacts of new practices and what they may tell us about discrimination ongoing. Some of what congress should consider may be about easing the costs and burdens of the very same responsive litigation that mr. Carbon is mentioning. Some of what congress should consider is i think focusing on in the jurisdictions where we have the most concern, stopping discrimination before it takes effect, and that, perhaps, the most important and the most directly targeted by the Shelby County decision itself. I think all of those problem in some combination will be will be more adequate to fulfill congresss 15th amendment, both opportunity and obligation to ensure that discrimination based on race and ethnicity is not found in america. Sadly, weve made a lot of progress, but were not there yet, and i dont think that the existing tools will help us get there adequately. I think that theres an awful lot that congress can do to further that goal. Mr. Carbon, a part of maximizing racial gerrymandering, are there other ways that the Justice Department has applied preclearance requirements that should inform our decision of whether or how we might legislate . Yeah. I think the Justice Department has a very regrettable track record of not seeking to enforce nondiscrimination or equal opportunity but, as i mentioned, partisan preference. You referred to the partisan gerrymandering, which weve already discussed. As i say, the texas case, theyve successfully took a very aggressive approach that would affect white democrats even in areas where no minority democrat could be elected. Ms. Wineberg referenced the whole question of whether efforts to identify citizens is prohibited by section 5. I represented the state of florida which was using the federal database to identify people who would be committing a federal felony by voting, i. E. , noncitizens but they are nonetheless on the voter roles and the Justice Department in my mind incredibly came in and said it would violate federal section 5 to deprive people of the ability to commit a felony by being a noncitizen that was voting. So in many ways it dilutes the voting power because every time you allow a fraudulent vote by a noncitizen or a person whos traveling under false i. D. , you of course negate the votes of others. The case that i brought to challenge the constitution nalt is another example. Majority black jurisdiction had made the decision that in local elections they wanted to switch from partisan to nonpartisan elections. The Justice Department came in and said some reason that the black community in that area didnt know what was good for black voters and struck it down under section 5 on the theory, again, that it would hurt the election of democrats. So its been a very a poor track record of distorting the equal opportunity mandate of section 5 into one of preferences, particularly preferences with a partisan result. Professor, your testimony cites objections that the department of justice raised in the preclearance process from 82 to 2006. You also cited objections since 2000 which occurred at a lower rate and you did not cite any figures of objections since we last reauthorized the law. This year the Supreme Court ruled that the kinds of selective intrusions on state powers to section 5 represents can only be justified by Current Conditions and must connect the coverage formula to a problem it targets so my question, in citing data from 1982, which is more than 30 years old and no specific post 2006 data, how does your testimony provide contemporary evidence of discrimination in particular jurisdiction that the Supreme Court has determined is necessary for a constitutional coverage formula . To be clear, senator grassly, the written testimony including the parts that you mentioned included objections after 2000 not merely limited to 20002006, but at any point after 2000. That is, within the last 13 years, this millennium, this century not in any way ancient history. I dont think that the current state of objections alone is the full state of the record, that there is still a significant problem that section 2 cannot alone address. That is, weve had 73 objections since 2000. In addition to that, there have been changes that were submitted that were then withdrawn after the department of justice asked for more information. Those are not always but often an indication that they were going to draw an objection. And so those requests as well add to the record. Beyond that, and here we have a problem relying on section 5 alone, and that is that one of the largest impacts of the Voting Rights act has actually concerned changes deterred specifically because the preclearance regime exists. She mentioned it in her testimony before. The very fact that it was in place stopped us from jurisdictions from making changes they otherwise would have put in place. Now despite that, i think you have ample signs that the existing problems in recent history, not ancient history, are not solvable by the tools that we have today, that there are problems with the existing tools that congress will need to fix and that requires a record not only of objections since 2000 but also of discriminatory behaviors, some of which were in briefs submitted to the Supreme Court and in argument before the Supreme Court. Weve seen some truly regrettable is not a sufficiently strong word but i dont think im allowed to use the strong words that id like to describe some behaviors not in ancient history but as recently as 2011 you had members of a state legislature referring to africanamericans as aborigines. Thats the environment were in. Thats the environment that still needs amply robust tools beyond the tools that currently exist to help combat the discrimination that inevitably result. I think there are lots of examples that i could give you. Id be happy to supply further examples, but i dont know that i have the time at the moment in counties and local jurisdictions all over the place that have practices that would not be cured by todays laws that we desperately need congress to supply us tools to combat. Thank you. Ive gone way beyond my time. Thank you very much, mr. Chairman. Thank you. One thing we havent focused on much is the wait time issue, the waiting in line of a 102yearold woman who was at the state of the union who had waited for hours to vote. Its not just anecdotes. A recent study showed that in the 2012 election, 22 of africanamericans, and 24 of hispanics had to wait more than 30 minutes or longer to vote but only 9 of white voters had to wait 30 minutes or longer. Ill start with you, comm commissioner, what do you see as the cause of disparity and what can be done to remedy it . Thank you. For us personally in Miami Dade County, im not smiling because its funny, im smiling because its incredibly embarrassing. Half hour is a gross understatement. I personally waited over two hours. Had it not been for my Firm Commitment to continue to vote every election, i probably would have walked away as many did, i should note. At least for my i assume you would have still won . Huh . All right. As for us specifically in Miami Dade County, i can tell you there were several factors. The statistics that you quote are true and unfortunate and ill tell you why they are. These districts that are predominantly minorities, that are predominantly africanamerican and latino communities are either not properly staffed. Many of them, we had to deal with our early voting hours execution last year in Miami Dade County and an extremely long ballot on issues that had been held off that could have been voted on earlier. So you put together an extremely long ballot, improperly staffed, improperly Trained Personnel to assist those language proficient needs of those communities, then youve got yourself a formula for hours and hours of wait. And so if someone, say, has an hour long lunch break and they show up and see that line, they can be likely to extremely awful. Ill tell you why. These are communities that work Early Morning jobs. An hour lunch is very generous. Most of these communities have half hour lunches if youre lucky. If you have a half hour lunch and you have to wait in line, are you going back to work so you make sure you have a full paycheck to feed your family . Professor, thank you. Professor levity, is this the kind of information youre talking about . Yes. I completely agree. Its actually the 30minute average is only an average and the tail of that swing goes way, way, way, way up. 8 hours in 2004, seven hours in 2012. Thats a system that does not accommodate its own citizens choosing their own representative and that system is a system thats broken. In some ways lines are like fevers. Theyre caused by a lot of different factors and the factors vary from place to place. Shes absolutely right that those were the factors that were primarily at issue in florida. Ill add to that, a reduction in the opportunities to vote early in florida contributed to the damage. I know thats something that members of this committee have investigated before. These are not unsolvable problems so starbucks has figured out how not to make you wait in line seven hours. It may be a long wait, but its not seven hours. Thats because they paid a lot of attention. Im going to speak on saturday to the National Association of state election directors about exactly this issue. They paid a lot of attention to whats known in the academic literature as cuing theory. How many people are arriving, how many points of service you have to serve all of them and how long each one takes and all of those are things that laws or practices can help alleviate the burdens of citizens waiting online to cast their ballot. If i had one Silver Bullet to try to get at much of this problem, it would be a massive reform to the Registration System that we have. Registration problems are at the root of a lot of this fever and you find it in various ways, whether its people arriving at the wrong place, people not finding themselves on the rolls when they arrive, whether its staffs dealing with registration problems on the ground and dont know how to combat it. Whether you have problems over provisional ballots. A lot of things that lead to lines have their root in the Registration System. There are other problems besides and lots of things that can be done, but if i had one change that i could make in order to relief some of that fever, it would be changes to the Registration System. Weve already talked about the sameday registration happens in other states. Just to make the point that long lines are bad but they dont have anything to do with Racial Discrimination or section 5. Dade county, for example, where all those long lines were is not a coverage jurisdiction. The absence of presentation of section 5 but as we look at potentially the reauthorization, were looking at new problems that have been created over the years or gotten worse over the years, this is certainly something we could look at. We dont just have to be stuck in the old wads which clearly there are many of us that like to see the preclearance and do some more work with that, but we also could look at other things that we could do and it seems like these long lines are something that mitt romney and Barack Obamas downed together to form commissions to look at what we can do and we could incorporate that work into this. Fair enough. I would suggest that you may want to look at romney and obama counsels decisions because its much less of a civil rights issue than a Voting Administration issue. I note, for example, that the lines were longest in the areas run by predominantly minority cities. To turn this into a minority issue is sort of backwards. I was looking at how we can get more people to vote. You can call it whatever you want, but i think when people are waiting in these lines we have problems. So were trying to come up with Practical Solutions after the Court Decisions to solve some of these problems. Fair enough, and i certainly didnt mean to disagree. The topic of this hearing is section 5 and the damage done by Shelby County. Congress should always be looking at long lines, whether it has anything to do with Shelby County or section 5. I just wanted to make the point that any such Good Government regulation of that sort would have nothing to do with any problem caused by Shelby County or resurrecting section 5. Just the last thing i wanted to focus on is i think both professor levitt id like to know why you think section 2 isnt enough and why we need to look deeper into that . One of the main things i see as an issue here is deterrence. That is if people think its going to take four years to litigate a case or hundreds of thousands of dollars to hire a law firm, thats not really deterrence. Could you talk a little bit about that, professor . Sure. And youre right, there are jurisdictions, as i mentioned before, that have discriminatory laws in place right now that are not being challenged under section 2 because the people in those jurisdictions cant get the data sufficiently, cant get the money together to hire a lawyer sufficiently, dont have the resources or the time to do whats necessary. There are other jurisdictions that are locked in current litigation that have not seen a resolution to their problems as time passes and as the individuals elected under those unjust systems continue to make policy. Mr. Carbon talked before about the opportunity for swarms of lawyers to descend to get preliminary injukttive relief. I wish it were as simple, straightforward and easy as he describes. Sometimes it works. Thats great. Sometimes it does not and in part thats because the Supreme Court has told courts in 2006, dont jump to conclusions. We dont want you offering preliminary relief, particularly right before an election if the facts are still disputed. And often in these cases, as you can imagine, the facts are quite disputed, which is why preliminary relief like mr. Carbons talking about isnt actually offered that often. I believe at the Supreme Court solicitor general borelli mentioned that fewer than 1 4 of cases end up in a preliminary injunction. I believe other attorneys at the department of justice have said that figure is closer to 5 or less. All of that means that when discriminatory laws are passed, jurisdictions arent deterred from passing those laws by the potential prospect maybe of a cumbersome burdensome lawsuit that theyre not paying for coming down the line. Got t. Commissioner just as a republican, local elected official, you can see we have strong support here from republican congressmen since were moving forward. You want to move forward on reauthorizing this. How do you think we should build this given the push back. What arguments do you think are going to work with our republican colleagues to move forward . I think the focus is to remain on the fact that this is an american issue. I think the moment we start cutting it down into the prevalent fact that in some areas in a lot of parts of this country it is a racial issue unfortunately, but we need to keep in mind that it is an allamerican issue. I think if you reach out to the members of my party from that perspective and in an ideal world that should be sufficient. Looking at a lot of the overall picture of why are we doing this, not for whom are we doing this. Very well put. Thank you. The note of an ideal world being a good one to end this particular hearing on, perhaps even an ironic note, we will adjourn the record of the hearing will stay open for one additional week
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