Testimony of Thomas A. Saenz, President and General Counsel, MALDEF,  Before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the Committee on the Judiciary on July 27, 2021

Good afternoon. My name is Thomas A. Saenz, and I am president and general counsel
of MALDEF (Mexican American Legal Defense and Educational Fund), which has, for 53 years
now, worked to promote the civil rights of all Latinos living in the United States. MALDEF is
headquartered in Los Angeles, with regional offices in Chicago; San Antonio, where we were
founded; and Washington, D.C. We will soon open a regional office in Seattle.

MALDEF focuses its work in four subject-matter areas: education, employment,
immigrant rights, and voting rights. Since its founding, MALDEF has worked diligently to
secure equal voting rights for Latinos, and to promote increased civic engagement and
participation within the Latino community, as among its top priorities. MALDEF played a
leading role in securing the full protection of the federal Voting Rights Act (VRA) for the Latino
community through the 1975 congressional reauthorization of the 1965 VRA. In court,
MALDEF has, over the years, litigated numerous cases under section 2, section 5, and section
203 of the VRA, challenging at-large systems, discriminatory redistricting, ballot access barriers,
undue voter registration requirements, voter assistance restrictions, and failure to provide
bilingual ballot materials. We have litigated numerous significant cases challenging statewide
redistricting in Arizona, California, Illinois, and Texas, and we have engaged in pre-litigation
advocacy efforts, as well as litigation related to ballot access and local violations, in those states,
as well as in Colorado, Georgia, Nevada, and New Mexico.

As the growth of the Latino population expands, our work in voting rights increases as
well. There is little question that the growth nationally of the Latino community and its potential
voting impact is salient in the strategy and concerns of many in the United States political elite.
The Latino community has comprised the nation’s largest racial/ethnic minority community
since 2003, according to the Census Bureau – almost 20 years. The 2020 Census should – absent
some overwhelming, disparate undercount – confirm the continued significant growth of the
Latino population. Although we will not have decennial Census data by racial/ethnic
subpopulation until August, the Census Bureau’s American Community Survey (ACS) estimates
show that Latinos, who are currently about 19 percent of the nation’s total population, accounted for just over half of the entire nation’s population growth between 2010 and 2019. And, with
respect to potential voting power, ACS data estimates that Latinos made up over 44 percent of
the entire nation’s growth in citizen, voting-age population (CVAP), a suitable proxy for eligible
voters, between 2009 and 2019.

Our nation’s history confirms, through multiple empirical examples, that growth of the
population of a racial minority group, such as Latinos, frequently catalyzes attempts to limit and
delay the growth in political and voting power that should accompany population growth in any
democracy. Latinos and their demographic growth remain to this day a perceived “threat” to
those who have exercised apical political power over long periods of time in many jurisdictions.
This perception has a correlative in the “demographic fear” carried by many members of the
general public – at bottom a concern that demographic change and the ascendance of non-white
racial groups will change the fundamental familiarity of the United States and its national
culture. More irresponsible political aspirants have exploited this demographic fear by engaging
in dog-whistle and even more explicit political appeals to target members of specific racial
minority groups in exclusionary public policies.

In the realm of voting, negative actions in response to the perceived threat of growing
Latino political power have included attempts to render much more difficult voter participation
by new, and increasingly Latino, eligible electoral participants. Examples lie in policies to
impose new barriers to voter registration, only for new registrants, and to complicate the voting
process by restricting alternative voting mechanisms – such as remote voting and ballot drop-off
– and by permitting or facilitating the creation of intimidating features around the traditional in-person, election-day voting experience.

In general, race-based and race-motivated discrimination in voting coincides with an
interest by those in power to delay or prevent political ascendance for growing minority groups.
The size and continued growth of the Latino population in the United States as a whole,
unprecedented in our national history, thus presents a particular challenge to those charged with
protecting our democracy and the hallmark right to voter participation regardless of race or
ethnicity. This challenge led to the proposal of a practice-based coverage formula for preclearance under the VRA, to serve as a complement to the updated and still-needed, traditional
coverage formula focused on jurisdictions with an established history of adjudicated violations of
voting rights.

For the Latino community, in particular, two well-supported conclusions undergird the
need for a practice-based pre-clearance coverage formula: 1) the relatively rapid growth of the
Latino voting population in so many different jurisdictions across the country – and the expected
backlash against that growth in voter suppression measures – would overtax the Department of

Justice and the private non-profit organizations, such as MALDEF, that work to challenge race-based voter suppression in the federal-court system; and 2) accumulating the requisite
adjudications of voting rights violations as to trigger history-based pre-clearance coverage for
these jurisdictions – most of which do not have long histories of significant minority voting
populations – would involve so many resources as to delay such coverage for many years while
voter suppression continues in the jurisdictions largely unabated. Stated more succinctly,
practice-based coverage is necessitated by the scale and scope of the potential problem in the
future and by the costs involved in court-based adjudication of voting rights issues.

Others have well documented the historical pattern of targeting growing populations of
racial minorities in order to stem their political ascendancy and threat to extant power holders.MALDEF has had its own experiences with this phenomenon over our entire organizational
existence. One experience of note in recent years followed the Supreme Court decision in Shelby
County v. Holder, 570 U.S. 529 (2013), which struck down the longstanding coverage formula in
section 4 of the VRA, which had included the entire state of Texas. Soon after that decision was
released and jurisdictions across the country escaped the obligation to submit electoral changes
to pre-review by the Department of Justice, the mayor of Pasadena, Texas announced that he
would seek to restructure city government, a change he would never have pursued were it subject
to pre-clearance review under the VRA.

The change involved the conversion of a city council comprised of eight members elected
from districts, to a council with six district representatives and two seats elected at large. This
change was plainly undertaken to prevent the growing Latino voting population from electing a
majority of the city council; voter turnout differentials virtually ensured that the white population
would elect its choices for the at-large seats in elections characterized by a racially-polarized
vote. Absent pre-clearance review, MALDEF had to challenge the change in federal court under
section 2 of the VRA. After a hard-fought trial, the district court judge held that not only would
the change have the effect of unlawfully diluting the Latino vote, but it was made intentionally to
accomplish that aim. This resulted in the first contested “bail in” order, requiring Pasadena to
pre-clear future electoral changes. However, again, that favorable outcome followed lengthy and
costly trial preparation and trial, all of which would likely have been avoided had the challenged
change itself been subject to pre-clearance review, as it would have been before the Shelby
County decision.

The undeniable fact, well-supported by ubiquitous experience of those engaged in voting rights litigation, is that such court litigation is notoriously costly and time-consuming. The operative test for resolving these cases, as established by the Supreme Court in Thornburg v.
Gingles, 478 U.S. 30 (1986), involves a court’s careful and searching evaluation of the “totality
of the circumstances.” As the name of the test implies, these cases involve tremendous work for
litigants and court; they generally involve multiple expert witnesses on both sides, multiple
percipient witnesses – both elected government officials and community voters – from the
jurisdiction involved, and pages and pages of documentary evidence. The range of different
issues addressed by these witnesses and evidence generally yields findings of fact from the court
that can readily exceed 100 pages. The scope of what is involved in section 2 litigation has
resulted in the fact that only a handful of litigating organizations nationwide engage regularly in
this kind of litigation. The voting rights bar is small, and it is experiencing only incremental
growth even as the scope of possible litigation has increased significantly in the aftermath of the
Shelby County decision.

While the scope of section 2 litigation in the vote-dilution context – in challenges to
unfair redistricting or to at-large elections systems as in Pasadena, Texas – has been well established for many years, the scope of section 2 litigation in the vote-denial context is still
developing. That development trends toward even greater cost and time for such cases. The
Supreme Court’s recent decision in Brnovich v. Democratic National Committee (decided July 1,
2021) will have many effects on such litigation in the future, but the clearest impact is to render
such litigation even more time- and resource-intensive.

The “totality of the circumstances” test is essentially a review and evaluation of all
relevant circumstantial evidence that may support a conclusion that discrimination is afoot. The
very nature of our society means that such evidence is often highly contested. There is simply no
way to avoid the extensive cost and time involved in court litigation under section 2 of the VRA.
With this backdrop, we should all recognize that, not only is the pre-clearance regime of
section 5 of the VRA one of the most effective civil rights enforcement tools in federal law, it is
also one of the earliest and most effective alternative dispute resolution (ADR) mechanisms
incorporated into federal law. Like all good ADR, pre-clearance reduces court burdens while
providing a quick and less-expensive resolution of disputes for all parties involved.

Over the nearly half a century that pre-clearance operated fully, prior to the Shelby
County decision, pre-clearance effectively resolved well over a thousand disputes over elections-related changes and their implications for voting rights through pre-clearance review and
objection and, by doing so, obviated the need for court litigation under section 2. A conservative
estimate would likely calculate the monetary savings at several billion dollars. The vast majority
of these savings accrued directly to the jurisdictions making the electoral changes because
successful section 2 litigation also results in plaintiffs’ recovery of attorney fees and costs from
the defendant jurisdiction. In effect, section 2 litigation results in double the costs for defendants
who do not prevail; they absorb their own costs for attorney, experts, and other matters, and then
must also pay those expenses for the successful plaintiffs.

Moreover, unlike ADR in other contexts, section 5 pre-clearance also had a clear
deterrent effect on other covered jurisdictions and even on jurisdictions not covered by a preclearance obligation but interested in avoiding costly section 2 litigation. Because the
Department of Justice acted publicly and transparently in rendering its objections, other
jurisdictions could and did act (or choose not to act) in response to these public ADR outcomes.
In this sense, pre-clearance was even more effective than private ADR that is too often
characterized by a lack of transparency and even mandated non-disclosure.

It is one of the great ironies of policymaking and adjudication in voting rights — a most
critical area of policy to our nation’s democracy – that so many legislators and judges who
embrace mandatory ADR, even in the face of vehement opposition by one set of parties, in the
employment and consumer context, fail to accord such positive consideration to pre-clearance
under the VRA. Nonetheless, all of the policy arguments in support of ADR apply to the voting
rights arena, particularly because the cost of court litigation in this area is so particularly

In addition to the virtues of good ADR, practice-based pre-clearance coverage also
reflects careful attention to two major concerns expressed by the Supreme Court majority in
Shelby County — federalism and equal sovereignty. Thus, practice-based coverage serves as a
constitutional complement to necessary geographic coverage, which reaches jurisdictions with an
established recent history of adjudicated voting rights violations, by reaching jurisdictions
without such a history but engaging in practices and circumstances that have proven fraught with
potential for racial discrimination in voting.

By focusing solely on limited, identified elections-related changes, practice-based
coverage narrowly tailors its intrusion on the ordinary policymaking process in states and other
jurisdictions, reflecting respect for principles of federalism. Only where the historical experience
relating to specific elections-related changes indicates both potential motivation for, and frequent
implementation in a context of, racial discrimination in voting, would any jurisdiction have to
submit its change for pre-clearance. Thus, the specified practices that trigger pre-clearance are
only those most likely to yield potential violation of minority voting rights.

MALDEF, together with Asian Americans Advancing Justice | AAJC and the NALEO
Educational Fund, recently published a report, submitted with this testimony, to document
historical indications that the identified practices have been used to discriminate, particularly
against growing minority voting communities that have reached a size perceived as a threat to
those currently in power. Moreover, where the identified practice is a necessary or regular part
of elections administration — such as constitutionally-required redistricting, or the relocation and
reduction of polling places — pre-clearance coverage has been further restricted to contexts of
rapid growth in minority community or disparate effects on minority communities.

Practice-based pre-clearance coverage leaves the bulk of elections-related policy and
practice changes to the ordinary processes of state and local law. This is appropriate for
jurisdictions that do not have patterns of adjudicated voting rights violations, but that are
engaging in elections-related changes that have proven rife with the potential for such violations.
This strict limitation demonstrates attention to the concern for federalism expressed in the Shelby
County decision.

In addition, practice-based pre-clearance coverage does not single out specific states or
jurisdictions for differential treatment; thus, it presents no threat to equal sovereignty among the
states, another concern articulated in the Shelby County decision. The only geographic limitation
to practice-based coverage relates to population demography. Aside from this limitation, all
states and jurisdictions are treated equally with regard to the pre-clearance obligation under
practice-based coverage.

Moreover, the demography-based limitation is both efficacious and rational. It is
efficacious because it appreciably reduces the burden on the Department of Justice in engaging
in pre-clearance review. That reduction occurs through leaving out jurisdictions that are
overwhelmingly of solely one race or ethnicity, with no significant population of any other
specific racial/ethnic group.

The demographic threshold for practice-based pre-clearance is rational because racial
discrimination in voting is less likely to occur where there is no minority group large enough to
be perceived as a threat to apical powers. As noted above, it is this threat perception that often
triggers elections-related changes that target growing population groups, such as Latinos.

Finally, because diversity of population and the growth of minority populations are
occurring across the entire nation, more and more states will evolve into meeting the
demographic threshold under practice-based coverage. This universal potential for future
coverage through satisfaction of the demographic threshold also demonstrates equal treatment of
the states.

As a legislative matter, practice-based coverage is not particularly extraordinary, as the
Shelby County Court characterized the previous 2006 VRA pre-clearance coverage formula,
because practice-based coverage narrowly limits its impact on federalism and leaves all states
with equal sovereignty.

Our country is in the midst of significant and ongoing demographic change, which has
and will result in a changed electorate. The Latino community, historically unprecedented in
size and growth of a racial minority community, has already faced and will continue to face
negative reaction to that demographic growth in the form of concerted attempts to suppress,
deter, and dilute Latino voter participation.

As more and more jurisdictions confront Latinos and other minorities achieving critical
mass in the local electorate, leadership will react in differing ways. Unfortunately, too many
leaders will likely respond to a perceived threat to continued power by employing means and
practices of voter discrimination employed by their predecessors in other jurisdictions.

These actions by leaders present a challenge to our democracy, heightened by the future
frequency with which jurisdictions will face the phenomenon of minority voter ascendancy. If
the nation fails to establish systems to respond effectively to this challenge in its increased
frequency, the nation as a whole will confront a constitutional crisis and conundrum.

There is little hope of successfully overcoming this potential crisis for our democracy if
we rely solely on court litigation under section 2 of the VRA. We need to employ effective ADR
in the form of tailored pre-clearance. Pre-clearance is appropriate and efficacious both for
jurisdictions with consistent histories of voting rights violation and for any jurisdiction engaging
in a practice with a history of use in voting rights violation.

Stated differently, if you want to stop the vote killers, it is appropriate to target both serial
vote killers and copycat vote killers. Practice-based pre-clearance coverage is a critical means to
accomplish the latter. Practice-based coverage is a rational, tailored, and necessary complement
to geographic coverage in the Voting Rights Act.

Read a 2019 report on Practice-Based Preclearance HERE.

Read follow-up “Questions for the Record” from committee Chairman Jerrold Nadler (D-NY) to Thomas Saenz HERE.