Assistant Attorney General Thomas E. Perez Speaks at the Ame

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Assistant Attorney General Thomas E. Perez Speaks at the American Constitution Society Washington, D.C. ~ Thursday, December 1, 2011
Thank you for the introduction, Caroline. I am pleased to join you, the American Constitution Society, and the other organizations represented here today at this symposium, 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.

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, and there was no time for civil rights leaders to rest on their laurels.

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 the blatant bigotry and brutality of Bull Connor-like 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.”

Forty one years later, Congress once again came together in an 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, 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, a lynchpin of the law since its inception, 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.” A few months ago, a federal district court judge rejected a constitutional challenge to Section 5 of the Voting Rights Act, and correctly noted that “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.”

President Johnson was right; Congressman Lewis was right; Congressman Sensenbrenner was right. Judicial decisions spanning over a century have identified the right to vote as “preservative of all rights,” a conclusion that is as true today as when the Supreme Court first made that pronouncement in 1888.

I provide this history to remind us that voting rights and, indeed, civil rights has a proud tradition of bipartisanship in America, from the Civil Rights Act of 1964 to the Voting Rights Act of 1965, to the Fair Housing Act of 1968 to Americans with Disabilities Act of 1990, to the Voting Rights Act Reauthorization of 2006 to the Matthew Shepard-James Byrd Jr. Hate Crimes Prevention Act of 2009. I also reflect on this history to remind myself and my staff of our solemn responsibility to enforce voting rights and other laws that people fought for, and in many cases, died for. Attorney General Holder has frequently referred to the Civil Rights Division as a crown jewel of the Department of Justice. The laws we enforce are the crown jewels that ensure access to opportunity and equal access to participation in our democracy.

When I became the Assistant Attorney General for the Civil Rights Division more than two years ago, I pledged to restore and transform the Division, and to vigorously enforce all of the laws under our jurisdiction. Since the beginning of their tenure, President Obama and Attorney General Holder have repeatedly made clear their commitment to robust civil rights enforcement that is vigorous, fair, and evenhanded. This is a commitment that my colleagues in the Division and I share and that we take very seriously. And it is nowhere more important than in the voting rights context.

Senator Edward Kennedy, who I had the great privilege to work for, often said that “civil rights is the unfinished business of our America.” It is the unfortunate reality that unlawful discrimination in voting persists, just as it does in the workplace, in schools, and in so many other parts of our lives. That is why our Voting Section is as busy as it has ever been – we handled 27 new cases during Fiscal Year 2011, and that doesn’t even include ongoing cases that were opened in previous years. This figure – 27 new cases during Fiscal Year 2011 – means we had an additional new voting rights matter more than once every two weeks over the past year. Based on our review of the historical docket, we believe this number exceeds the number for every single year going back to 1977, which is the earliest year for which we could construct the records, save for one, 1994, which it tied.

Our approach to voting rights enforcement is rooted in three core objectives. One is a process objective while two are substantive objectives. On the process front, we have recommitted ourselves to ensuring the integrity and independence of our decisionmaking processes. Substantively, we are pursuing an enforcement program that seeks to ensure access to democratic participation for all legally qualified voters, and ensures equal opportunity to participate in the democratic process free from discrimination.

As I’ll describe to you today, we are taking a multifaceted approach to achieve our substantive voting rights goals of ensuring access and guaranteeing non-discrimination. This approach includes a comprehensive effort to enforce, among other statutes:

Section 5 of the Voting Rights Act, and its critical preclearance provision;
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 protections of the Voting Rights Act, to ensure that language barriers do not exclude citizens from the electoral process; and
Section 2 of the Voting Rights Act, and its protections against vote denial and vote dilution;
UOCAVA and the MOVE Act, protecting the right to vote for members of the armed services, their families, and overseas citizens.

Our comprehensive approach towards these and other critical voting rights protections involves not simply litigation, but all the tools at our disposal, including guidance, public education, and outreach with a diverse array of stakeholders.

In order to carry out our substantive enforcement efforts effectively, it is imperative to ensure that we have investigative and decision making processes and protocols in place that are unimpeachably fair, independent and evenhanded. Regrettably, Attorney General Holder inherited a Civil Rights Division where the longstanding commitment to evenhanded, independent enforcement of civil rights law, including the voting rights laws, had been compromised. The politicized hiring of the prior administration, which is documented in a 2008 Report from the Office of Professional Responsibility and the Office of the Inspector General, had a dramatic negative impact on the Civil Rights Division. Under the leadership of Attorney General Holder, we have worked tirelessly to restore fair and evenhanded hiring processes in the Civil Rights Division, and to ensure decision making in every case is governed by a careful application of the facts to the law.

Let me give you an example of how decision making processes were compromised, and what we did to fix it. As many of you know, Section 5 of the Voting Rights Act is one of the most critical tools to combat discrimination in voting. Section 5 was put in place because of the well documented history of government sponsored discrimination in voting in all or parts of 16 states. Jurisdictions covered by Section 5 are required to obtain preclearance for every change they make to their voting procedures and practices and to demonstrate both that the change has no discriminatory purpose and that it has no retrogressive or discriminatory effect. Changes ranging from moving a polling location to a different place, to the enactment of a statewide redistricting plan, must be precleared before they can go into effect. A jurisdiction can obtain preclearance by either filing administratively with the Civil Rights Division, or by filing a lawsuit in front of a three-judge panel in the District of Columbia. Under either scenario, the Civil Rights Division is involved. If the jurisdiction chooses to file administratively with the Division – and most jurisdictions take this route because it is faster and cheaper – then the Division acts as a quasi judicial body in reviewing this submission. In these circumstances, if the Department determines that the jurisdiction has met its burden of proof, then the proposed change is precleared. To put it slightly differently, once the Department determines that a plan should be precleared, nobody can appeal this finding. The Section 5 case is over. This does not prevent the filing of other actions under the Constitution or other provisions of the Voting Rights Act, such as Section 2.

I outline the Section 5 process to illustrate the point that the Division, in carrying out its Section 5 responsibilities has substantial authority. With this authority comes a corresponding responsibility to ensure that the decisionmaking process is fair, thorough and independent. The dedicated and experienced career personnel play a critical role in ensuring the integrity of the review process. A guiding principle of our Section 5 review is to give every person working on a submission the opportunity to express his or her views, because I believe that a robust and honest exchange of ideas is critical to effective decision-making. This had been the longstanding tradition in the Voting Section in both Republican and Democratic administrations for decades until it was changed in 2005 to exclude career attorneys and analysts from full participation in the process. Career staff, for example, were directed to no longer put their recommendations in writing. Decisionmaking suffered, and potentially flawed decisions to preclear submissions were nonreviewable.

This was wrong. We enforce the Voting Rights Act. It is not the Republican Party Empowerment Act or the Democratic Party Empowerment Act, and we do a profound disservice to the nation, and to the bipartisan group of lawmakers that overwhelmingly passed the Voting Rights Act, and reauthorized it multiple times, when the Voting Rights Act is allowed to be subverted for partisan purposes.

It has been suggested that one possible approach to address any imbalance in past enforcement is to undertake imbalanced enforcement of our own. The Attorney General and I categorically reject this approach. Two wrongs don’t make a right. In addition to restoring career driven, merit-based hiring, we have restored the integrity of the decisionmaking process in Section 5 and all voting rights cases. As a result, our decisionmaking has been considerably strengthened.

A consequence of our approach is that there have been times, and will continue to be occasions during our enforcement efforts when we have disappointed and will disappoint people across the entire ideological spectrum. This is true throughout all the areas of the Division’s work, and our voting work is no exception. So, while I can’t commit that we will always agree on the right outcome in a given case – and I suspect we’ll continue to have both areas of agreement and disagreement no matter where you sit on that spectrum –it’s precisely because there will frequently be someone who would prefer a different outcome on the merits that the Department must have your confidence that our decisionmaking process is fair.

An ounce of prevention and outreach is worth a pound of cure. In the redistricting context, we have invested considerable time and energy explaining the Section 5 process to lawmakers and other key stakeholders. We revised and published our Section 5 guidance, traveled across the country to conferences, and met with elected officials in a nonpartisan fashion in an effort to get the word out that a good, legally defensible result in the redistricting context begins with an inclusive, transparent process.

I traveled, for instance, to Louisiana at the invitation of the Republican and Democratic leadership and addressed a bicameral session of the State House of Representatives and the State Senate on the Section 5 process. I outlined the Section 5 process and addressed questions from members in an open session that had never before been conducted by an Assistant Attorney General. I am very proud that we have restored independence and fairness into our process, and we want to make sure that elected officials do the same in their redistricting processes.

Let me turn to our substantive work of using a variety of tools to ensure access to opportunity to vote for all eligible voters, and guaranteeing nondiscrimination. I mentioned how busy we are, and let me describe our work.

As should come as no surprise, among our most critical work to ensure access and guarantee non-discrimination is the vigorous enforcement of Section 5 of the Voting Rights Act. This work involves strict application of the Section 5 standard in administrative submissions as well as judicial actions, and also involves our full-throated defense of the statute in the face of a number of challenges to its constitutionality. Those challenging Section 5 contend that it is no longer necessary, and that it is overinclusive because there are jurisdictions whose record of reform merits removal from Section 5 coverage.

Our ongoing work under Section 5 is the best possible demonstration that Section 5 is constitutional and that it remains critically necessary. For those who believe that the country has eradicated voting discrimination in the 46 years since the enactment of Section 5 and that therefore Section 5 is no longer needed, I submit that our voting rights docket is proof positive that this is not the case. Since October, the Department has objected to five different voting changes around the country on the ground that those changes were discriminatory.

In Texas, where the state asked a federal court to review its statewide redistricting plans, we have lodged our objections in our court filings that the proposed maps for both the State House and the Texas delegation to the United States Congress are impermissible because the state has failed to show that they are neither intentionally discriminatory nor lack a retrogressive effect. With regard to the 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. The state used an unusual process to make changes to its House of Representative districts, at a level for which only racial data was available. This raises questions about the state's ability to show that plan meets Section 5’s standards. While the litigation with Texas is ongoing, a three-judge court in D.C. gave us an important interim victory a few weeks ago when it held that “the State of Texas used an improper standard or methodology to determine which districts afford minority voters the ability to elect their preferred candidates of choice.”

The Department has also objected to the recently-enacted redistricting plans in East Feliciana Parish, Louisiana; and Amite County, Mississippi; as well as refusing to change an earlier determination that a change in the method of electing city council members in the City of Galveston, Texas violated Section 5. We analyze redistricting plans for local government positions with the same rigor and independence as we employ for statewide plans.

In addition, it would be incomplete to measure the impact of Section 5 simply by looking at the number of objections. Section 5 also serves a critically important prophylactic function, wholly apart from discriminatory practices that we identify and object to in the course of our review. Because covered jurisdictions know their voting changes will be reviewed under Section 5, most jurisdictions are particularly careful to avoid enacting discriminatory practices. For this reason, Section 5 has instilled an ethic of inclusion and opportunity that can’t be captured simply by looking at the number of overt discriminatory practices it bars after they’ve been enacted. I have heard time and again from state and local legislators that the existence of Section 5 keeps the process honest and prevents backsliding that would otherwise occur. In the redistricting context, for example, most state and local governments are aware of the need to prevent retrogression and often begin their process by identifying districts that ought to be protected in order to avoid violating Section 5.

All of these examples make clear Section 5 continues to play a vital role in upholding equality by stopping discriminatory voting changes from going into effect, whether at the statewide level or in county- and city-level changes. And to those who believe Section 5 is over-inclusive, this concern is disproved by the ability for jurisdictions with a clean record of non-discrimination in voting to “bail out” from Section 5 coverage. Following the Supreme Court’s recent decision in the Northwest Austin case, the Department has handled record numbers of bailout actions. And where, in our independent review, a jurisdiction meets the bailout standard, we have reached consent decrees allowing bailout. Overall, since January 2009, the District Court in D.C. has granted bailout in twelve cases, all with the Department’s consent. These include the first-ever bailouts from covered jurisdictions in Texas, Georgia, and California, the first bailout from North Carolina since the 1960s, and a number of additional bailouts from covered jurisdictions in Virginia.

With this comprehensive approach – applying Section 5 thoroughly and fairly to voting changes; carefully reviewing requests for bailout where the standard is met; and doggedly defending the constitutionality of the law – we are carrying out Congress’s intent that voting changes in covered jurisdictions be scrutinized for discriminatory purpose and effect, in order to “banish the blight of racial discrimination in voting.”

We have received numerous inquiries about recently enacted state laws relating to voter identification requirements, voter registration requirements, and changes to early voting procedures. We are carefully reviewing these laws, and a number of the provisions have been enacted in states that are covered by Section 5. Texas and South Carolina have enacted laws establishing new photo identification requirements. We are currently reviewing these submissions. In both cases, our initial view was that the states did not submit enough information to allow us to determine whether they had met their burden of proving that the changes were not discriminatory. We requested more information from both Texas and South Carolina, and our review of those photo ID laws remains ongoing.

Florida also has implemented a number of changes to its electoral process, including changes to the procedures governing third-party voter registration organizations, as well as changes to its early voting procedures, including the number of days in the early voting period. Florida originally submitted these changes for administrative review, which meant that the Department had 60 days to either preclear the plan, lodge an objection, or ask for additional information. In the course of conducting our due diligence, we spoke with the state to gain a better understanding of the bills. We asked a number of questions. On the 50th day of the 60-day review period, Florida withdrew part of its submission and subsequently filed a lawsuit for judicial review of four of those changes. And while I can’t go into more detail on our review of these changes – Texas and South Carolina are in administrative review, and we’re in litigation with regard to the Florida changes – I can assure you that our review will be thorough, fair, and fact-based. These states bear the burden of showing that proposed changes are not intentionally discriminatory and will not have a retrogressive effect. 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 that is reflected in the Florida lawsuit I just mentioned is our work to defend the constitutionality of Section 5 of the Voting Rights Act. The Florida lawsuit is one of five that we are currently litigating where plaintiffs are challenging the constitutionality of Section 5, essentially claiming that it has outlived its usefulness. The Department, as Attorney General Holder has stated, is firmly committed to vigorously defending Section 5’s constitutionality, and although the litigation is far from over, we recently achieved a significant victory in one of our cases when a federal district judge in the District of Columbia upheld the statute. We are filing our brief today in the appeal to the D.C. Circuit from that decision.

I have said that we are pursuing a multifaceted approach to ensuring access and guaranteeing non-discrimination, and Section 5 is not the only tool we use. Among the new matters that we have prioritized is vigorous enforcement of the National Voter Registration Act – the “Motor Voter” law. Congress passed the NVRA to “establish procedures that will increase the number of eligible citizens who register to vote” and to ensure accurate and current registration rolls in federal elections. Congress has tasked DOJ with the critical responsibility of ensuring that this mandate is met, and we will continue to devote significant resources to promoting access to voter registration and the accuracy of the rolls through comprehensive enforcement of the NVRA.

This year, the Department has brought its first two new lawsuits under Section 7 of the NVRA in seven years. Section 7 requires that voter registration opportunities be made available at, among other places, state offices providing public assistance or disability services. Congress specifically designed this provision to increase the registration of the poor and persons with disabilities who do not have drivers’ licenses and therefore won’t come into contact with the other principal places where voter registration is made available.

The first of our two Section 7 lawsuits this year was against Rhode Island. We reached a settlement with the state so that it now is offering registration opportunities to all applicants for public assistance and disability services, and is also implementing a range of training, auditing, monitoring and reporting requirements. We saw immediate results from that settlement; in the first full month af
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