WASHINGTON – This morning, U.S. Senator Chris Coons (D-Del.), a member of the Senate Judiciary Committee, will deliver the prepared remarks below and engage in a Q&A about voting rights in the Trump era at an event hosted by the Brennan Center for Justice at the National Press Club. Nicole Austin-Hillery, Director and Counsel of Brennan’s Washington Office, is moderating the discussion. Learn more about the event here.
Senator Coons’ remarks, as prepared for delivery, are below:
Voting Rights in the Trump Era: Why the Courts and Congress Must Protect Our Democracy
Sen. Chris Coons
Brennan Center for Justice
Wednesday, May 24, 2017
Over the past several months, we’ve heard a lot about the Russian government’s interference in our election. And rightly so – we should treat Russian aggression as the attack on our democracy that it is.
But we’ve heard less about another threat that’s just as destructive and just as effective at undermining the integrity of our democracy: a decades-long assault on American voting rights. This campaign is nothing less than a sustained attack on American democracy from within.
The right to vote is a core element of our democracy, yet we still struggle to secure that right for everyone. As Dr. Martin Luther King, Jr., once said: “So long as I do not firmly and irrevocably possess the right to vote I do not possess myself. … I cannot live as a democratic citizen, observing the laws I have helped to enact – I can only submit to the edict of others.”
Civil rights crusaders of the past knocked down many legal barriers to the ballot box. Now, we must confront the challenges posed by a quieter, but no less harmful, campaign to reduce access. Modern tactics are hidden behind seemingly benign objectives to “fight voter fraud” and “protect election integrity.” Who could disagree with that?
Today, I’ll discuss these tactics and what we can do to confront them. I’ll review how our courts have a critical role to play in both creating and correcting a status quo in which too many Americans are prevented from exercising their right to vote. I’ll also touch on why we can’t rely on the courts, the Department of Justice, or even Congress alone to address this situation, and why the American people are going to have to step in.
First, we have to start with the Supreme Court’s 2013 decision in Shelby County v. Holder. In Shelby County, the Supreme Court did something that a short time before would have been unthinkable: it struck down a core provision of the Voting Rights Act, the landmark law that was one of the greatest achievements of the modern civil rights movement.
Before Shelby County, the Department of Justice had the power to review changes to voting laws to ensure these changes were not being enacted with a discriminatory intent or effect. This review, known as “preclearance,” was not required nationwide. Instead, it applied to states and localities with a history of racial discrimination.
In the years following the Voting Rights Act’s 1965 passage, the law was reauthorized repeatedly with broad bipartisan support. In 2006, Congress overwhelmingly reauthorized the Voting Rights Act after considering thousands of pages of evidence showing that it was effective and necessary.
Yet by 2013, neither overwhelming evidence nor broad bipartisan support mattered to five justices on the Supreme Court. In Shelby County, the majority invalidated Section 4’s formula, disarming the preclearance provision that required federal approval of new voting laws before they could go into effect. Since then, new voter suppression efforts have multiplied, undermining voter participation in local, state, and national elections across the country.
To understand the context that led to the Shelby County decision, we have to go back to 2008, when the case first began making its way through federal courts. That year, African Americans, Latinos, and Asian Americans had turned out to vote in record numbers. Four years later, for the first time in American history, the rate of black voter turnout exceeded that of whites.
Some of my colleagues and I saw this as a victory for the Voting Rights Act. But others saw it as evidence that preclearance was no longer needed. Using that logic to upend the preclearance formula, the Supreme Court opened the floodgates to dozens of new restrictions.
The Shelby County dissent captured the backward logic of thinking we no longer needed the Voting Rights Act precisely because the law worked so well. As Justice Ginsburg observed, the majority’s reasoning was “like throwing away your umbrella in a rainstorm because you are not getting wet.”
The impact of Shelby County was immediate and devastating. The North Carolina experience captures it in a nutshell. At the time of Shelby County, the North Carolina state legislature had been considering a new bill to restrict voting access. Because of the Voting Rights Act’s preclearance provision, state legislators were constrained from being as restrictive as they wanted to.
But after Shelby County, as one North Carolina senator observed, “now we can go with the full bill.” The new North Carolina law enacted voter ID requirements, scrapped same-day registration, and slashed early voting. After two years of litigation, the Fourth Circuit made the damning finding that such reforms not only were discriminatory in effect but were “passed with racially discriminatory intent.”
North Carolina wasn’t alone. State legislatures from North Carolina to North Dakota to Texas to Kansas to Wisconsin also went with “the full bill.” Courts across the country have been able to bat down some of these restrictions, but the courts have far more limited tools since Shelby County. Five states have already approved new restrictions this year.
How did this happen? I’d point to two causes. First, there’s no doubt that Shelby County empowered those with an intent to discriminate. In the words of the Fourth Circuit’s decision striking down North Carolina’s law, legislators have targeted racial minorities’ access to the ballot box “with surgical precision.” Today, many of these discriminatory restrictions are hidden behind baseless claims of “preventing voter fraud” and “protecting election integrity.” In reality, these tactics are an excuse to suppress the vote of communities of color.
The second problem that led to the post-Shelby County era is that those of us who oppose these voter suppression efforts have failed to raise awareness about the actual impact of these laws. Too many Americans, especially whites who haven’t experienced generations of government-sanctioned discrimination, are dismissive or simply unaware of what these new laws actually do.
They don’t realize that 10 percent of Americans don’t have the right form of identification. They may not appreciate how difficult it can be to take time off work to vote on Election Day, or get a drivers’ license or another “acceptable” form of voter ID. They don’t notice that DMVs and early voting places have been closed only in certain neighborhoods.
Moreover, they don’t see that these laws keep Americans from voting and disproportionately impact people of color. They don’t understand why discriminatory voting laws wouldn’t just be struck down by the courts. They don’t realize that after Shelby County, even the most egregious discriminatory laws often aren’t blocked until after an election, when the damage has already been done.
Too many Americans don’t realize that voter suppression works, and that it has a cumulative, destructive effect on our democracy that builds with every election.
If you’re a Florida resident who wasn’t allowed to vote in 2000 because you lived in a predominantly African-American community and were struck from the voter rolls, you’re not going to think the democratic process includes you.
If you’re an Ohioan who in 2004 took hours off work to wait in line due to reduced polling hours, but had to leave before getting a chance to vote, you’re not going to believe our democracy wants your vote to count.
If you’re a Texas student who was turned away from voting even though you brought a state-issued university ID as proof of identification, you’re not going to believe in the democratic process.
If you’re a black churchgoer in North Carolina who used to vote on the Sunday before election day before Sunday voting was eliminated in counties across the state, you’re going to feel shut out of our democracy.
If you’re a Wisconsin voter in 2016 who brought three forms of ID to vote but was still turned away from the polls because you didn’t have a driver’s license, can anyone blame you for thinking the democratic process doesn’t include you?
These real examples happen again and again, in state after state, in election after election. Over time, voter suppression makes elected officials less accountable to the people we represent by reducing voter turnout. It increases Americans’ apathy toward the democratic process while decreasing their trust in the results of that process. And it harms our credibility in the world by leading other nations to question the legitimacy of our elections.
Through all of this, voter suppression has a corrosive impact on the strength and integrity of our democracy.
One of the most challenging aspects of the fight for voting rights is the sense of hopelessness, apathy, and cynicism these laws create. For those of you who are here today because you want to fight this problem, here’s what you can do.
First, volunteer to help great organizations like the Brennan Center, which are continuing to fight critical battles in our courts. It is true that Shelby County deprived us of one important tool, but we need to continue to use the portions of the Voting Rights Act that remain intact to defend access to the ballot box.
This fight will be even harder without the full cooperation of the Justice Department. Since Attorney General Sessions was sworn in, we’ve already seen DOJ drop one claim of intentional discrimination in Texas. But Brennan and other groups kept fighting, and last month the district court ruled – again – that Texas legislators enacted restrictions with an intent to discriminate against minority voters. Those victories are why we have to keep up the fight in the courts.
But we can’t stop there. The second thing we need to do consistently and decisively is debunk the Trump administration’s baseless claims of voter fraud. The President’s so-called “Commission on Election Integrity” should be called out for what it is. At its most generous, it’s a waste of time and taxpayer dollars. But at its most honest, it’s a futile attempt to justify the President’s groundless claims that millions of people voted illegally, and a pretext for future suppression. We need to shine sunlight on what this commission actually does, and we need to challenge what its leaders say.
That brings me to the third field on which we have to compete: the legislative process. The most important step Congress could take is to restore or modernize the preclearance provisions of the Voting Rights Act.
Shelby County put Congress on notice. We needed to act, and I got to work on revised legislation. The Senate Judiciary Committee convened a hearing just weeks after the decision on necessary updates to the Voting Rights Act. In 2015, I joined a group of more than 40 Senators and 100 members of Congress to introduce the Voting Rights Advancement Act.
Among its many provisions, this critical bill would have created a new geographic coverage formula, allowed federal courts to “bail in” states for preclearance, and ensured voters had to be made aware of last-minute changes to state voting procedures. Most importantly, it would have allowed a court at the start of voting rights litigation to immediately halt a challenged voting practice, rather than waiting until after the election when it’s too late to vindicate voters’ rights.
These critical provisions would have gone a long way towards healing the damage done by Shelby County, but the bill never made it out of committee last Congress. In fact, despite tireless efforts to find bipartisan support, only one Republican Senator joined the bill. The Republican party, of which my family was a member for decades, long championed voting rights. It’s deeply disappointing that support for the Voting Rights Act has evolved from nearly unanimous to nearly party-line.
That’s why I encourage you to call your Republican representatives and ask why they don’t support this bill. If they have a better idea to restore the protections of the Voting Rights Act and engage more Americans in the exercise of voting, I want to hear it. Because every election that passes without the full protections of the Voting Rights Act represents a lost opportunity for justice.
But we can’t focus only on restoring the Voting Rights Act. We have to seek other proactive measures to increase voter engagement, like the FAST Voting Act, a bill I introduced last year and will reintroduce this Congress. The FAST Voting Act would create a new program to help participating states develop comprehensive and coherent plans to improve their election processes. That means making registration more flexible, providing for early and absentee voting, helping voters with disabilities and language barriers, and better training election officials.
The FAST Voting Act would also make an immediate, measurable impact on restoring real integrity to our democratic process. But I’m under no illusions that Congress will take action on this bill either, particularly since it doesn’t have any Republican support.
That’s why members of Congress have to use the platforms we’ve been given. With the support of organizations like the Brennan Center and other advocates for social justice, we’ll continue to raise awareness of these issues.
- We have to aggressively rebut the claims of President Trump and others of rampant voter fraud, which provides a pretext for voter suppression.
- We have to use congressional oversight authority to keep a close eye on the Department of Justice to be sure that this administration follows the letter of the law and the spirit of the Constitution.
- We have to fight state-by-state to encourage legislatures and governors to restore the voting rights of those with felony convictions who have served their time and paid their debt to society.
- We have to share the stories of voters in states across the country to show just how pervasive discrimination and disenfranchisement remain today.
- We have to get involved with the mechanics of government at the most local level because it’s in city and county office buildings – not the halls of Congress – where voting hours are determined, polling places are set, and district lines are drawn.
Most importantly, we have to pursue each of these steps before an election happens with discriminatory barriers still in place.
Together, these efforts will help the American people better understand that for far too many of our fellow citizens, voting is still a privilege, not a right.
I began my remarks today referencing a dire threat facing American democracy, which is the interference of a foreign adversary that sought to sway the results of our election.
We need to confront this threat with great urgency, but we must also confront a threat to our democracy that has nothing to do with Vladimir Putin: the systematic undermining of Americans’ right to vote.
As we face this challenge, we have to remember that voting alone is not enough. Activism every four years is not enough. Democracy requires a citizenry that is consistently active, attentive, and engaged – in state and local government as much as on the national stage.
In the words of Justice Ginsburg’s Shelby County dissent, “The arc of the moral universe is long, but it bends toward justice if there is a steadfast commitment to see the task through to completion.”
It’s up to us to make and maintain that commitment.
Thank you for the opportunity to be with you today. Nicole Austin-Hillery, I look forward to our conversation.
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