The subcommittee heard testimony on continuing constitutional problems with the Voting Rights Act since the U.S. Supreme Court’s landmark ruling in Shelby County v. Holder. In 2013, the high court struck down an outdated provision of the Voting Rights Act which required nine states, including Texas, to seek preclearance from the U.S. Justice Department or a federal court before making changes to voting laws.
Solicitor General Hawkins testified that the Supreme Court’s decision in Shelby County v. Holder recognized the importance of federalism. The Court also noted the profound changes and progress that have occurred in the U.S. since the Voting Rights Act was passed by Congress in 1965.
“Given the grave constitutional concerns that arise from subjecting a state’s laws to federal approval, preclearance must be reserved for the extraordinary circumstances,” Solicitor General Hawkins said. “In Shelby County, the Supreme Court threw out Congress’s reauthorization of a preclearance regime because the legislative record failed to show anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation at that time.”
In his prepared written testimony, Solicitor General Hawkins noted that preclearance inevitably causes harm to the political process because it fuels political rhetoric that displaces legitimate policy debate with claims of racial discrimination. He used Texas’ voter ID law as an example. The Obama-era Department of Justice abused the preclearance process to thwart the state law not because it was unconstitutional, but because the Department of Justice deemed it unnecessary.
Solicitor General Hawkins concluded by summing up the main lesson of Shelby County:
“Before imposing a preclearance regime, Congress must make credible findings that a state is so determined to evade the commands of the Fourteenth or Fifteenth Amendment that its citizens will be unable to protect their constitutional rights through traditional litigation under existing law.
“As Congress revisits the Voting Rights Act, it must adhere to the constitutional principles the Supreme Court articulated in Shelby County that limit the power of the federal government to impede on fundamental principles of federalism and disturb the coequal sovereignty of the states.”