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 August 16, 2021

Good morning. 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 new regional office in Seattle. I appear
before you remotely today from the city of Los Angeles.

MALDEF focuses its work in five subject-matter areas: education, employment,
immigrant rights, voting rights, and freedom from open bias. 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 prelitigation
advocacy efforts, as well as litigation related to ballot access and local violations, in
those states, as well as in Arkansas, Colorado, Georgia, Nevada, and New Mexico.

Comparative rates of voter registration and voter participation among racial groups,
including Latinos, continue to demonstrate that voter suppression – through vote denial, as well
as vote deterrence – remains a salient flaw of our democracy. It is one of the unexplained ironies
of our national discourse that an election — the 2020 presidential general election — that showed
unprecedented numbers of voters participating and rates of eligible participation unseen in a
century, has not been universally celebrated as a milestone in reducing voter suppression, but has
instead been used to justify increased efforts to reduce minority voter participation in future

The fact that one presidential candidate has refused to date to accept the legitimacy of his
own substantial defeat at the polls is currently being used to justify new voter suppression
proposals in too many states across our country. The unprecedented egotism of Donald Trump,
despite positive past examples from presidents of both parties in graciously accepting electoral
defeat, has led to an attempted insurrection and is currently catalyzing too many legislative
attempts at suppression of minority voters.

Unfortunately, this continues a recent pattern of increasing voter suppression efforts.
This longer-term increase stems from ongoing demographic changes, including in particular the
unprecedented growth of the Latino voting community. These changes are perceived as
threatening to the long-term privilege of those currently in power who have not garnered support
among ascendant minority voter groups. The reaction of too many is not to change policy
positioning to appeal to the voter groups in ascendance, but to engage in expanded efforts at
voter suppression. These suppression efforts have taken the form both of new mechanisms to
obstruct, such as restricting access to food and water while waiting in line to vote, as well as
through the proliferation of longstanding mechanisms to suppress meaningful participation, such
as targeted voter purges, creation of at-large elected positions, and precinct changes that do not
respond to recent elections experience. The expected continued national demographic change,
affecting more and more parts of the country, does not present reason for optimism that voter
suppression will diminish nationwide in ensuing years.

While litigation, by private parties and by the Department of Justice, under Section 2 of
the Voting Rights Act remains a powerful means to stop voter suppression that has significant
effects on minority voters, such litigation is not sufficient to face the current and future potential
for elections changes tied to voter suppression. As I have explained in previous testimony to this
subcommittee, litigation under Section 2 is costly – in direct resources and opportunity costs –
and time-consuming. Pre-clearance review benefits jurisdictions by dramatically reducing their
costs in defending potential elections changes, and benefits voting rights by yielding more timely
resolution of voting rights disputes. Litigation under Section 2 is too often unable to secure
resolution before any election moves forward with the taint of voting rights violations attached.

Resources are simply insufficient to challenge all voter suppression measures under
Section 2. When resources are insufficient, too many jurisdictions will gamble that they can
violate voting rights without ever being restrained or at least not until numerous elections have
occurred, with the attendant damage of voter suppression affecting the outcomes. Such gaming
of the system, catalyzed by inadequate resources to challenge all instances of voter suppression
nationwide, would undermine confidence in our democracy and present a clear constitutional

In the aftermath of the 2013 Supreme Court decision in Shelby County v. Holder, 570
U.S. 529 (2013), MALDEF originated the idea of practice-based pre-clearance coverage as a
limited complement to a geographic, history-based formula for broader pre-clearance coverage.
Practice-based coverage was proposed as a means to address the increasing introduction and
enactment of voter suppression measures precisely in response to the growth of the local Latino
community to a level viewed as a threat to the political powers that be. Most often, where the
Latino community reaches that “tipping point” where they are perceived as a political threat, it is
the first minority community to reach such a point, meaning that the jurisdiction involved had no
reason to engage in race-targeted voter suppression – or to be challenged for such acts –
previously in the jurisdiction’s history. This means that building a record of adjudications
against race-targeted voter suppression sufficient to invoke geographic coverage would take
many years and involve substantial cost to plaintiffs and, even more so, to the jurisdiction. The
result could well be a severely budget-challenged city (or other jurisdiction) just as the
numerically ascendant minority group is provided sufficient voter protection to enable it to
exercise controlling political power in the city.

Moreover, the simple fact of ongoing United States demographic change, highlighted
again last week in the many headlines surrounding the first release of detailed data from the 2020
Census, predicts that more and more local and state jurisdictions will face that “tipping point” of
perceived political threat from an ascendant minority group — likely Latino in the next many
years, but joined by Asian Americans in a similar position down the line. With so many
jurisdictions coming to that tipping point, we cannot reasonably expect that expensive and timeconsuming litigation under Section 2 of the Voting Rights Act – and the distant prospect of
sufficient successful litigation to trigger geographic pre-clearance coverage – will remotely
suffice to meet the scope of the nationwide challenge. Failure to meet the challenge would
permit entrenched powers across the nation to sacrifice democracy to their own retention of
authority. It is no exaggeration to characterize such widespread abuses of authority as an
existential threat to our democracy and a constitutional crisis of major proportion.

An adequate response demands recourse to the powerful and effective alternative dispute
resolution (ADR) mechanism in pre-clearance review under the VRA. As I have previously
testified to this subcommittee, like the best ADR, pre-clearance saves time and money,
efficiently addressing potential violations of voting rights without overburdening the courts and
parties with burdensome volumes of litigation under Section 2 of the VRA, with its timeconsuming
and resource-intensive “totality of the circumstances” test. The greatest benefit from the ADR of pre-clearance inures to the elections-administering jurisdictions themselves, which
face massive costs in losing Section 2 litigation because of fee-shifting under the VRA. Under
pre-clearance, by contrast, the jurisdictions receive timely and protective approvals of their
covered elections changes without facing the daunting prospect of lengthy and costly defense of
a Section 2 lawsuit.

Of course, the benefits of pre-clearance as effective ADR extend beyond the specific
circumstances of practice-based coverage and the demography-driven “tipping point”
phenomenon that is becoming increasingly widespread in the United States. These benefits also
inure to geographies that may be covered under a geographic formula for pre-clearance grounded
in recent historical patterns of voting rights violations. Here, the pre-clearance formula steps in,
as almost a tripped fuse or breaker box, to stop jurisdictions with a pattern of race-targeted vote
suppression from continuing to engage in such behavior and from perpetuating the expensive
prospect of successful challenges to that vote-suppressive behavior. Instead, the geographic
formula substitutes the ADR of pre-clearance in place of costly litigation.

In other ways, the two pre-clearance coverage formulas are symbiotic to one another.
That is to say, practice-based coverage is a complement to, not a substitute for, a geographic preclearance formula. As I have said colloquially, the two formulas together allow us to use the
powerful pre-clearance mechanism to target both serial vote killers and copycat vote killers. By
focusing on jurisdictions with a longstanding, yet recent, pattern of race-targeted, votesuppressive
conduct, the geographic formula does the former. By targeting jurisdictions using
practices employed in the past by many other jurisdictions to suppress votes, practice-based
coverage accomplishes the latter.

Changing metaphors, no one in their right mind would have suggested in the face of a
dangerous pandemic that science focus solely on finding successful treatment for infected
persons, without also seeking a vaccine to prevent serious infection from occurring among
others. Conversely, no one with any humanity would have suggested that science only seek to
develop a vaccine, while allowing those already infected to simply suffer and possibly die with
no scientific efforts to find effective treatments. Here, the geographic coverage formula
addresses jurisdictions already showing signs of severe infection with the disease of voter
suppression, while practice-based coverage uses the science of pre-clearance to prevent serious
infection among those jurisdictions showing susceptibility to it.

Neither coverage formula can address all legitimate voting rights concerns; both are
needed. For example, because practice-based coverage only reaches specified changes in
elections-related practices, it cannot work to prevent proliferation of any new and crafty
mechanisms devised to limit the right to vote of voters of color. By contrast, geographic
coverage, in reaching all elections-related changes, does have the ability to stem any new or
obscure means of accomplishing voter suppression. Moreover, this distinction is rational
because serial vote suppressers, having unsuccessfully tried other means of vote suppression
(indeed, it is past challenges to discriminatory vote suppression that triggers pre-clearance
coverage under the geographic formula), are those most likely to seek out and attempt to
implement craftier means of suppressing and deterring voter participation. The jurisdictions
covered by practice-based coverage are less likely to seek to devise new means of vote
suppression because they can just copy mechanisms used elsewhere to swiftly stem the perceived
threat from an ascendant minority voter group.

Of course, over time, any jurisdiction – including those initially engaged in changes
triggering practice-based coverage – that engages in successive and different means of
attempting to suppress minority votes will ultimately find itself subject to the broader geographic
pre-clearance coverage. In this way, the two formulas are complementary as well. Neither is a
substitute for the other. The worst rights-violating jurisdictions may start with facing preclearance
of certain known practices, but ultimately face pre-clearance for all elections-related
changes under geographic coverage. While practice-based coverage may delay triggering
coverage under the geographic formula for some of the jurisdictions most tenaciously-committed
to vote suppression, that is all to the good because the delay occurs because specified practices
with a discriminatory intent or effect will have been blocked through practice-based coverage.
Finally, the use of practice-based coverage to efficiently prevent certain rights-violating changes
from being implemented, will also enable scarce enforcement resources – in both the Department
of Justice and in the private sector – to be marshalled toward Section 2 litigation challenging the
more innovative means of vote suppression that may be attempted in the future. It is in these
novel and knotty cases that court adjudication of the totality of the circumstances is most

Ultimately, of course, practice-based coverage may have the effect of deterring
jurisdictions from engaging in the targeted practices at all. If we reach that point, many years
from now, we can celebrate the highly effective deterrent of pre-clearance. In the meantime,
practice-based coverage is needed to sufficiently address the challenge of voter suppression
through historically established practices, especially as we face today’s suppression proposals
and as we look to a future of substantial demographic change that will challenge the ability of
many officeholders and political leaders nationwide to cede power voluntarily without
attempting to manipulate democracy through suppression of electoral participation by ascendant
minority voter groups.

Practice-based coverage is constitutionally sound, within the plain authority of Congress.
There is no more important goal, no goal more central to our national existence, than to prevent
race-targeted voter suppression. Our history demonstrates the ongoing harm from such
suppression. Practice-based coverage, grounded in demonstrated history of use of these practices
to suppress the votes of minority groups growing in population, is an appropriate and measured
response to the challenge facing a nation of rapid demographic change.

There are numerous constitutional bases of authority to enact practice-based coverage.
The most important of these are the congressional implementation provisions of the Fourteenth
and Fifteenth Amendments of the Constitution, and the Elections Clause of the Constitution.
The Elections Clause plainly would support practice-based pre-clearance in application to federal

Under its Fourteenth and Fifteenth Amendment authority, Congress may enact practicebased
coverage because the formula responds directly to the federalism and equal sovereignty
concerns expressed in the Supreme Court decision in Shelby County v. Holder. By restricting the
pre-clearance obligation to specified changes – changes that have historically correlated with
efforts at suppression of growing groups of minority voters — rather than to all elections-related
changes, practice-based coverage limits the intrusion on state policymaking and elections
administration, answering the Shelby County majority’s federalism concerns.

In addition, by applying to all jurisdictions, rather than to specifically identifiable states
or other jurisdictions, practice-based pre-clearance coverage responds to the equal sovereignty
concerns expressed by Chief Justice Roberts in Shelby County. No stigma would even
theoretically attach to any state based on its history or previous policymaking. The only
threshold for coverage rests on demography, which is largely beyond the scope of historical or
ongoing policymaking of the jurisdictions that meet the threshold for coverage of specified
changes in elections practice. This threshold is a necessary bow to efficiency and cost. It
rationally relates to where voter suppression is more likely by excluding jurisdictions that are
overwhelmingly comprised of a single racial group. From a constitutional perspective, the
threshold supports the congruence and proportionality of the response, in practice-based
coverage, to the danger of race-targeted vote suppression. Because vote suppression that is not
targeted at race, or with disproportionate effect by race, lies beyond the scope of the Fourteenth
and Fifteenth Amendments, requiring jurisdictions without a history of discrimination that are
nearly all white (or increasingly likely, nearly all comprised of some other single race) would be
incongruent with the Amendments and disproportional to the actual danger of race-targeted vote

Some have recently raised concerns about this threshold because it relies on measures of
population by race. These concerns are unwarranted; our Constitution does not require
ignorance of matters like racial differences and their correlation with differences in voting
preferences. Indeed, the Supreme Court has acknowledged this correlation in its Voting Rights
Act Section 2 jurisprudence. Unlike in that context, however, no liability rests in whole or in
part on any assumption (versus proof) of that correlation; it merely triggers the application of
pre-clearance review, a less costly and more efficient means of addressing potential vote

Moreover, the threshold does not distinguish among the races; all that is required is the
presence of any two racial groups, each comprising a significant proportion of those potentially
eligible to vote in the near future in the jurisdiction. Although today, one of those two groups, in
virtually every jurisdiction, is most likely to be whites, that will almost certainly change over
time. Eventually, the threshold will be satisfied by other combinations of two racial groups in a
jurisdiction, like Latino-Native American (in New Mexico, perhaps), or Asian American-Latino
(in Hawaii, perhaps), or Black-Latino (in Georgia perhaps), or Black-Asian American (in
Virginia, perhaps) in specific states or sub-state jurisdictions.

Indeed, it is unlikely that the Supreme Court would see the demographic threshold as a
race-based classification at all. Jurisdictions, not people, face a legislative consequence from the
demographic threshold, such that racially mixed jurisdictions are treated differently from racially
isolated jurisdictions. As pointed out above, that distinction is rationally grounded in the
constitutional legislative purpose of targeting race-targeted vote suppression. Not without
reason, some would assert that the Shelby County decision itself, through the “equal sovereignty”
notion, anthropomorphized states to an extent never seen before, focusing on human emotions
like stigma with respect to states. Nonetheless, it would be hard to conclude that the Court is
prepared to anthropomorphize jurisdictions to the point of asserting that they have a “race.”

Indeed, the Congress and President have for many years, through the Higher Education
Act and its reauthorizations, provided funding and support targeted to HBCUs (historically Black
colleges and universities) and HSIs (Hispanic-serving institutions). This is an award of support
to colleges and universities based primarily on how racially-mixed their enrollments have been
historically and are today. This has occurred without credible challenge through an assertion that
these colleges and universities each have their own “race” and are being benefitted
unconstitutionally because of their specific “race” through an improper racial classification.

The recent Supreme Court decision in Schuette v. BAMN, 572 U.S. 291 (2014), may also
be instructive. There, in a plurality opinion announcing the Court judgment, Justice Anthony
Kennedy essentially rejected the notion that issues or policy areas could be judicially determined
to have a “racial focus” because they inure to the primary benefit of a specific race or races. He
cautioned against assumptions about how different racial groups feel about a particular issue or
policy, and about classifying the issues themselves on that basis. This suggests that, whatever
the Supreme Court’s tendency toward anthropomorphizing entities – closely-held businesses,
states – it is not yet prepared to extend that trend to the peculiarly human attribute of “race.”

Because the demographic threshold does not distinguish among the races, does not
impose consequences on people (as opposed to jurisdictions) of any specific race or on the basis
of race, and does not assign a “race” to jurisdictions but distinguishes based solely on racial
isolation, MALDEF does not believe the Supreme Court would characterize the threshold as a
constitutionally suspect racial classification. Moreover, without belaboring the point, MALDEF
also believes that, even were it so characterized, the threshold would survive strict scrutiny as
necessary and tailored sufficiently to serve the compelling government purpose of preventing
and deterring race-targeted voter suppression.

I should also note that some have recently questioned – whether from concerns of
constitutionality or practical utility – why the demographic threshold established in the proposed
practice-based coverage utilizes voting-age population (VAP), rather than citizen, voting-age
population (CVAP). Because practice-based coverage is grounded in perceived threat from a
growing group of minority voters, something other than total population is appropriate because
large numbers of children, particularly younger children, are not an electoral threat to the
political powers that be. Indeed, this may be why so many young people of all races believe
elected officials to be inattentive to their concerns. Using CVAP instead of VAP would also
exclude another set of current non-voters – immigrants not yet naturalized. Initially, I note that
VAP data from the Census is more accurate than CVAP data, which comes only from American
Community Survey (ACS) estimates, normalized over several years.

But, more important is the fact that the powers that be in jurisdictions hitting the “tipping
point” of perceived political threat are forecasting future electoral threats to their perpetuation in
office. This generally means that they are looking four years out – to their next potential reelection
– assuming a four-year term of office. The vast majority of immigrants not yet
naturalized are lawful permanent residents. All lawful permanent residents, except the small
number disqualified from naturalizing, are three to five years or less from eligibility to naturalize
and to vote. Thus, political-threat perception projected four years to the next election should
include immigrants not yet naturalized; therefore, VAP is the better measure of the potential for
perceived political threat by those in power. Indeed, because of the likely four-year time
horizon, it would be best to include also those from age 14 to 17, but doing so would be unduly
cumbersome to implement. VAP is the best, most readily available measure for these purposes.
Professor Bernard Fraga’s recent testimony and report demonstrates strong empirical support for
this conclusion.

As explained above, practice-based pre-clearance coverage was conceived many years
ago in response to Shelby County. It has been continually refined since. Most recently, voting
rights advocates have proposed some important modifications since the version of practice-based
coverage passed in the last Congress.

First, with respect to the redistricting practice, which only triggers pre-clearance coverage
where there is a significant minority population that has experienced substantial growth in the
decade since the previous redistricting, the proposed amendment ensures that these demographic
triggers (which may apply to any racial group, including whites, that is the second-largest racial
group in the jurisdiction) are expressed only in percentage, not numerical, terms. This change is
to prevent triggering coverage in very heavily populated jurisdictions based on high numerical
changes that are not significant in percentage terms. The change is consistent with the “politicalthreat
perception” rationale described above.

The second proposed amendment would change the description of the voter identification
practice that is subject to pre-clearance. The change would align the description with other
pending voting-related congressional legislation and would make clear that all changes made to
voter identification changes after enactment of this bill would be subject to pre-clearance review. This amendment also ensures that undue voter registration requirements are also subject to preclearance review.

The third proposed amendment would ensure that pernicious new attempts to prohibit
providing sustenance to voters waiting in line to vote do not proliferate. This amendment would
make such requirements put in place after enactment of this bill subject to pre-clearance review.

The fourth proposed amendment would limit pre-clearance review of voter purges to
those with a disparate impact on any racial or language-minority group. This amendment would
thus exempt from pre-clearance review all evenhanded purges necessary to adequate
maintenance of voter rolls.

Our changing nation faces significant challenges in the future with the growing presence
of minority voters, and in particular the unprecedented growth of the Latino voting population.
These significant changes present an opportunity to ensure that our democracy thrives based on
real, core values of fairness and non-discrimination. Unfortunately, we have already seen a
tendency among some political leaders, including the disgraced former president, Donald Trump,
to resist those demographic changes through lies around election integrity that catalyze attempts
at further race-targeted voter suppression. We can only hope to effectively counter these threats
and to seize the opportunity to build a thriving democracy by including practice-based coverage,
together with geographic coverage, to reinvigorate the powerful pre-clearance mechanism, in the
John Lewis Voting Rights Advancement Act. Thank you.