Written Testimony of

Professor Justin Levitt,

Loyola Law School, Los Angeles

Before the
Alaska Advisory Committee to the U.S. Commission on Civil Rights

Alaska Native Voting Rights

September 22, 2017

Chair Landreth and distinguished Members of the Advisory Committee, thank you for the
invitation to offer this testimony. I am sorry that I was not able to join you in person for the
hearing on August 24, but I thank all of the staff — including Ana Fortes — who made my
participation possible, even from a distance.

My name is Justin Levitt. I am a Professor of Law and the Associate Dean for Research
at Loyola Law School, in Los Angeles.1 I teach constitutional law and criminal procedure, and I
focus particularly on the law of democracy — which means that I have the privilege of studying,
analyzing, and teaching the Constitution from start to finish. From the first words of the
Preamble to the final words of the 27th Amendment, our founding document is concerned with
how We the People are represented: what we authorize our representatives to do, what we do not
permit our representatives to do, and how we structure authority to allow our representatives to
check and balance each other in the interest of ensuring that the republic serves us all.

My examination of the law of democracy is not merely theoretical. I have just returned
to Loyola from serving as a Deputy Assistant Attorney General helping to lead the Civil Rights
Division of the U.S. Department of Justice. There, I had the privilege to support the Division’s
work on voting rights, among other issues. As discussed in further detail below, that work
included work in Alaska, and also work with respect to the voting rights of Native Americans in
other states. Before joining the Civil Rights Division, I had the chance to practice election law in
other contexts as well, including work with civil rights institutions and with voter mobilization
organizations, ensuring that those who are eligible to vote and wish to vote are readily able to
vote, and have their votes counted in a manner furthering meaningful representation. My work
has included the publication of studies and reports; assistance to federal and state administrative
and legislative bodies with responsibility over elections; and, when necessary, participation in
litigation to compel jurisdictions to comply with their obligations under federal law and the

1
My comments represent my personal views and are not necessarily those of Loyola Law School or any other
organization with which I am now or have previously been affiliated.
Constitution. I have had the privilege to address the Commission on Civil Rights in the past, and
it is a distinct pleasure to offer additional assistance to this esteemed advisory body.

My task, as I understand it, is to offer a brief overview of the federal law affecting Alaska
Native voting rights, and a brief snapshot of the Department of Justice’s role in enforcement of
that law. Of course, I no longer speak for the DOJ; this testimony is presented in my personal
capacity alone, and does not rely on any confidential information gleaned through my federal
service. What follows represents only my personal understanding, though it is certainly
informed by both past research and past experience.

Section 203 of the Voting Rights Act

My public presentation at the August hearing began with Section 203 of the Voting
Rights Act of 1965. The Voting Rights Act is one of the most important and successful civil
rights statutes ever enacted by Congress. It preserves a very special American commitment to
meaningful self-governance. Two years ago, we celebrated its 50th anniversary.2 But the VRA
turned 40 at the same time it turned 50. And though the 40-year benchmark is less well known,
for millions of Americans, it is no less important.

In 1975, Congress amended the Voting Rights Act.3 Section 203 was part of that
amendment. Among other things, Congress determined that “voting discrimination against citizens
of language minorities” — including Alaskan Natives — “is pervasive and national in scope,”4 and
that such citizens “have been effectively excluded from participation in the electoral process.”5 So
the country prohibited discrimination at the polls against American citizens solely because of how
they communicate. The Act also made sure that voting materials would be available in the
languages that sizable local communities speak.

Today, the largest populations served by Section 203 of the VRA speak Spanish. But
there are also significant concentrations of citizens who primarily speak almost 20 other covered
languages.6 The VRA provisions focus mostly on Asian, Hispanic, and Native language
communities with limited English proficiency and formal education, where the community with
limited proficiency comprises more than 5% or 10,000 of the voting-age citizens within the
jurisdiction or — for Alaskan purposes — more than 5% of the voting-age citizens within an
Alaska Native Village Statistical Area.7 That cursory description glosses over some important
details of the precise coverage formula. But for present purposes, it suffices to recognize that the
formula purports to ensure that coverage follows substantial populations of those who most need

2
Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (1965).
3
Pub. L. No. 94-73, § 301, 89 Stat. 400 (1975).
4
52 U.S.C. §§ 10303(f)(1), 10310(c)(3).
5
Id. § 10503(a), (e).
6
See Voting Rights Act Amendments of 2006, Determinations Under Section 203, 81 Fed. Reg. 87,532, 87,533-38
(Dec. 5, 2016) [hereinafter 2016 Determinations].
7
52 U.S.C. § 10503(b)(2).

2
it, to live up to our continuing obligation to ensure that all eligible citizens get the chance to have
their voices heard no matter what language they may use to speak most eloquently.

The list and the locations change as American society changes. It is now revised by the
Census every five years; it was last revised in December of 2016,8 and will be revised again in
2021. It is probably no surprise that several Alaskan jurisdictions have responsibilities under the
statute, including several with responsibilities in several different languages.9 In other states, I
know that many jurisdictions offer language coverage even beyond those required by the
statutory formula.10 The language provisions of the Voting Rights Act, after all, help eligible
American citizens engage in their democracy no matter what words they use to say “I voted.” It
does not surprise me that jurisdictions would want to offer this sort of customer service on their
own.

For those jurisdictions that are formally covered, the law speaks with vigor about how we
speak to our voters. When jurisdictions offer registration or voting notices, forms, instructions,
assistance, and other materials or information relating to the electoral process, the law requires all
those materials and information to be offered in the relevant language as well — including through
oral translation, where necessary.11

That mandate is robust. It includes registration forms and ballots — regular ballots and
provisional ballots and absentee ballots. But it also includes notices and directions and warnings,
and answers to questions. Indeed, it includes all official voting communication offered to voters
in English, live or printed or audio or online, before Election Day and at the polls through trained
bilingual pollworkers. Jurisdictions must provide materials and assistance in a way designed to
allow voters from language minorities to be effectively informed of, and participate effectively in,
voting-connected activities.12 The point is to ensure that the eligible voters who don’t speak
English well have just as much access to the process as those who do. For covered elections
offices, that means thinking about each and every communication as an effective communication
for the audience, including language minority voters. And that means thinking about each and
every communication as not just an English communication.

Technology can help in offering language access, but it is not a substitute for more
traditional means of communicating to language minority communities. Reliance on Google
Translate alone will not suffice. The meaning of a communication is as important, if not more

8
See supra 2016 Determinations, supra note 6.
9
Id. at 87,533.
10
For example, the County of Los Angeles has the statutory responsibility to offer election materials in Chinese,
Filipino, Khmer, Korean, Spanish, and Vietnamese, id. at 87,534, but also offers assistance in Armenian, Bengali,
Farsi, Gujarati, Hindi, Japanese, Punjabi, Russian, Thai, and Urdu. See Los Angeles County Registrar-
Recorder/County Clerk, Bilingual Pollworkers, https://www.lavote.net/home/voting-elections/pollworker-
information/become-a-pollworker/bilingual-pollworkers; Los Angeles County Registrar-Recorder/County Clerk,
Multilingual Services Program, https://www.lavote.net/home/voting-elections/voter-education/multilingual-services-
program/multilingual-services-program.
11
See 52 U.S.C. § 10503(c).
12
See 28 C.F.R. § 55.2(b).

3
important, as the words … and the means of access are as important as both. The jurisdictions
that have consistently found success in actually living up to the law tend to be the jurisdictions
that regularly engage local leaders within the language minority community, to figure out how
materials and information are best conveyed effectively. This dialogue is merely a form of very
old tech. There is no substitute for this sort of interaction: it’s simply the best kind of quality
control.

Section 2 of the Voting Rights Act

Section 2 of the Voting Rights Act is part of the original VRA, and in some ways, its
heart. It prohibits discrimination in the election process on the basis of race or ethnicity,
nationwide. This provision protects all of the election process, including the drawing of district
lines. Given the present focus of this advisory body on matters beyond redistricting, this
testimony will primarily forego the redistricting context, and instead address the application of
Section 2 to election administration, including the process of registering to vote and the process
of casting and counting ballots.

For those purposes, Section 2 prohibits any state or political subdivision from imposing
or applying a “voting qualification,” “prerequisite to voting,” or “standard, practice, or
procedure” that “results in a denial or abridgement of the right of any citizen of the United States
to vote on account of race or color” or membership in a language minority group.13 This
includes “all action necessary to make a vote effective in any primary, special, or general
election, including, but not limited to registration, . . . casting a ballot, and having such ballot
counted properly and included in the appropriate totals of votes cast.”14

A violation of Section 2 “is established if, based on the totality of circumstances, . . .

members of a class of citizens[, on account of their race or color,] . . . have less opportunity than
other members of the electorate to participate in the political process and to elect representatives
of their choice.”15 The reference to the “totality of circumstances” requires a relentlessly
practical and localized assessment, attempting to determine if a particular voting rule or practice
“interacts with social and historical conditions to cause” inequality of opportunity. 16

Essentially, with respect to casting and counting a ballot, this inquiry resolves to two
primary questions. The first question is whether a particular practice bears materially more
heavily on minority citizens than nonminority citizens. This may include the comparative
likelihood or the comparative magnitude of a burden on voting, and also minority citizens’
relative ability to overcome that burden.17 Note that the calculation of burden is not merely

13
52 U.S.C. § 10301(a).
14
Id. § 10310(c)(1).
15
Id. § 10301(b).
16
See Thornburg v. Gingles, 478 U.S. 30, 47 (1986).
17
See, e.g., League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 245 (4th Cir. 2014), cert. denied,
135 S. Ct. 1735 (2015); Poor Bear v. Cnty. of Jackson, No. 5:14-cv-5059, 2015 WL 1969760, at *6 (D.S.D. May 1,
2015); Spirit Lake Tribe v. Benson Cnty., No. 2:10-cv-095, 2010 WL 4226614, at *3 (D.N.D. Oct. 21, 2010).

4
limited to absolute denials of the ballot. Any practice that makes it materially more difficult for
minority citizens to cast a ballot is covered by the Voting Rights Act as well.18

If there is an inequitable burden, the second question is whether the practice at issue
interacts with historical, social, and political conditions to produce a discriminatory result.19
That analysis is informed in part by factors that Congress has instructed courts to consider —
factors like the degree of responsiveness to minority concerns in the jurisdiction, a history of
discrimination in the voting process, or a history of discrimination outside of the voting process
that creates lingering effects on the political process.20 The fact that Alaska was, before 2013,
subject to a preclearance requirement under a different provision of the Voting Rights Act is not
dispositive under Section 2 — but it indicates that the totality of circumstances may in many
circumstances point more emphatically toward discrimination than its absence.

Of particular note for Alaska, advocates for Native American voters have filed recent
claims under Section 2 of the Voting Rights Act over physical access to voting in several areas
of the country. In jurisdictions like Nevada and South Dakota, plaintiffs claimed that registration
locations, or polling places on election day or during early voting periods, were far more
accessible to Anglo voters than to Native Americans, and that the extreme distances that Native
voters had to travel interacted with socioeconomic conditions traceable to discrimination to
produce an unlawful discriminatory result.21 These cases were generally resolved for the 2016
election cycle by the addition of incremental registration or voting locations more accessible to
the Native communities.22 Courts sit ready to hear the next iteration.

Section 208 of the Voting Rights Act

Section 203 and Section 2 of the Voting Rights Act often yield the greatest leverage for
language communities of particular size. But it is worth a few moments of this legal overview to
briefly discuss a vital language protection for minority language communities as small as two.

18
Cf. Chisom v. Roemer, 501 U.S. 380, 408 (1991) (Scalia, J., dissenting) (“If, for example, a county permitted
voter registration for only three hours one day a week, and that made it more difficult for blacks to register than
whites, blacks would have less opportunity ‘to participate in the political process’ than whites, and § 2 would
therefore be violated. . . .”).
19
See League of Women Voters, 769 F.3d at 245-46; Poor Bear, 2015 WL 1969760, at *7 n.9; Spirit Lake Tribe,
2010 WL 4226614, at *3.
20
See League of Women Voters, 769 F.3d at 240 (“In evaluating Section 2 claims, courts have looked to certain
‘typical’ factors pulled directly from the Voting Rights Act’s legislative history….”). These elaborations of local
context are often known as the “Senate factors,” because they appeared in the report of the Senate Judiciary
Committee constituting the primary legislative history of the Voting Rights Act. See Gingles, 478 U.S. at 36-37, 43-
45 (citing S. Rep. No. 97–417, 97th Cong. 2nd Sess., at 28-29 (1982), U.S. Code Cong. & Admin. News 1982, at
177, 206-07).
21
See, e.g., Sanchez v. Cegavske, 214 F. Supp. 3d 961, 966 (D. Nev. 2016); Poor Bear v. Cnty. of Jackson, No.
5:14-cv-5059, 2016 WL 3435181, at *1 (D.S.D. June 17, 2016).
22
See Sanchez, 214 F. Supp. 3d at 977 (granting a preliminary injunction for the 2016 election with respect to early
voting and election-day voting locations accessible to members of the Pyramid Lake Paiute Tribe and Walker River
Paiute Tribe); Poor Bear, 2016 WL 3435181, at *1 (citing an agreement to fund a satellite office on the Pine Ridge
Indian Reservation for all primary and general elections through 2022).

5
 Section 208 of the VRA offers additional, personalized, protection nationwide. Eligible
citizens with disabilities and those who cannot comfortably read or write the languages available
in a registrar’s office, at the polls, or at other stops in the voting process have a federal right to
receive assistance from an individual of the voter’s choice.23 The assister may not be the voter’s
employer or an agent of that employer, or an officer or agent of the voter’s union.24 But that is
the only restriction contemplated by the law. The voter’s chosen assistant may be family or
nonfamily, familiar or unfamiliar. And at the voter’s request, the right to this assistance applies
not only to the process of reading and marking a ballot, but to all activities allowing voters to
meaningfully and effectively exercise their right to vote, including navigating the polling place,
filling out forms, and answering questions posed by election officials.25

Pollworkers or officials who are not adequately trained on the right afforded by Section
208 may think that this assistance is illegitimate. In fact, it is protected by federal law. When
eligible voters get the assistance they desire, to help them vote as they wish, no matter the
language they speak, our election process becomes more reliable, more legitimate, and more just.
That makes the assistance they desire the assistance they are due.

Other federal laws

The provisions of the Voting Rights Act discussed above offer enhanced protections for
particular populations. And the Constitution, of course, prohibits intentional discrimination on
the basis of race or ethnicity.26 But there are several other federal statutes that protect all voters
— and while the protections of these statutes are not limited to Alaska Natives, they may offer
protections of particular salience to Alaska Natives engaging with the political process. What
follows is but a brief overview of some key features of those provisions.

The National Voter Registration Act of 1993 (NVRA) requires most states — including
Alaska — to provide at least three ways for voters to register to vote for federal elections. These
three methods are required in addition to any other means provided by state law, like Alaska’s
online voter registration system. The first federally required method is by mail, using a regulated
federal voter registration form.27 The second is as a part of the process of applying for,
renewing, or changing an address on a state driver’s license.28 And the third is through state-
designated voter registration agencies, including agencies providing disability services and those
providing public assistance.29 These agencies must provide registration opportunities in
connection with transactions conducted in person and those conducted remotely, including

23
52 U.S.C. § 10508.
24
Id.
25
See OCA-Greater Houston v. Texas, 867 F.3d 604, 614-15 (5th Cir. 2017).
26
See, e.g., U.S. CONST. amds. XIV, XV.
27
52 U.S.C. § 20505; Arizona v. Inter-Tribal Council of Arizona, Inc., 133 S. Ct. 2247, 2251 (2013).
28
52 U.S.C. § 20504.
29
Id. § 20506; Harkless v. Brunner, 545 F.3d 445, 449-50 (6th Cir. 2008); United States v. New York, 700 F. Supp.
2d 186, 200-01 (N.D.N.Y. 2010).

6
transactions conducted online or by phone.30 And they must offer the same degree of assistance
with voter registration as they do with applications for their own primary services.31

Just as the NVRA contains provisions to help eligible voters get onto the rolls, it also sets
standards for list maintenance, so that ineligible voters — but only ineligible voters — are pulled
off of the rolls.32 Those systematic maintenance efforts must be completed no later than 90 days
before a federal election.33 And there are special protections for voters who may have moved,
both locally within a jurisdiction and those who have moved out of town.34

Alaska has more servicemembers per capita than any state other than Hawaii,35 and so
UOCAVA — the Uniformed and Overseas Citizens Absentee Voting Act of 1986 — may also
be particularly resonant here. UOCAVA requires that the states and territories allow uniformed
service members serving away from home, their families, and Americans living abroad to
register and vote absentee in federal elections. Among its key provisions, UOCAVA requires
states to send qualifying voters an absentee ballot sufficiently early to give the voter time to
receive, vote, and return that ballot in time to be counted. Specifically, states must send absentee
ballots to UOCAVA voters at least 45 days before a federal election.36 And states must accept
otherwise-valid voted ballots, and special federal write-in ballots, from UOCAVA voters, even if
those ballots are printed on a nonstandard paper size or sent in a nonstandard type envelope.37

The Americans with Disabilities Act ensures that persons with disabilities have a full and
equal opportunity to vote, including the process of voter registration and the process of casting a
ballot. If a voting policy or practice interferes with the electoral access of a person with a
disability, and can be reasonably modified to give voters with disabilities the same level of
privacy and independence as every other voter, it must be so modified.38 For example, polling
places must be accessible,39 and at least one voting system in each polling place must similarly

30
See, e.g., 52 U.S.C. §§ 20504(a), 20506(a)(6)(A); United States v. Louisiana, 196 F. Supp. 3d 612, 664-71 (M.D.
La. 2016), vacated upon settlement by Order, United States v. Louisiana, No. 3:11-cv-00470, 2017 WL 4118968
(M.D. La. Aug. 21, 2017); Georgia State Conf. of the NAACP v. Kemp, 841 F. Supp. 2d 1320, 1331-32 (N.D. Ga.
2012).
31
52 U.S.C. § 20506(a)(6)(C).
32
Id. § 20507.
33
Id. § 20507(c)(2); Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1343-48 (11th Cir. 2014).
34
52 U.S.C. § 20507.
35
See Dep’t of Defense, 2015 Demographics: Profile of the Military Community 33,
http://download.militaryonesource.mil/12038/MOS/Reports/2015-Demographics-Report.pdf; U.S. Census Bureau,
Annual Estimates of Resident Populations for the United States, Regions, States, and Puerto Rico: April 1, 2010 to
July 1, 2016, https://www.census.gov/data/tables/2016/demo/popest/state-total.html.
36
52 U.S.C. § 20302(a)(8); United States v. Alabama, 778 F.3d 926, 929-30, 931-35 (11th Cir. 2015).
37
52 U.S.C. §§ 20302(i); 20303.
38
42 U.S.C. § 12132; 28 C.F.R. § 35.130.
39
See, e.g., Disabled in Action v. Bd. of Elections in the City of New York, 752 F.3d 189, 198-202 (2d Cir. 2014)
(noting that New York City violated the ADA when it failed to remedy barriers to access for voters with mobility
and vision disabilities at polling places).

7
be accessible.40 The ADA applies to the absentee process as well: courts have required that
when a jurisdiction has reliable and secure technology that lets blind voters cast absentee ballots
with the same degree of privacy and independence as other voters, states must permit the use of
that technology.41

Similarly, the ADA requires official election-related communications with people with
disabilities to be as effective as communications with others. Officials may have the
responsibility to provide auxiliary aids and services, when those services are necessary to afford
people with disabilities an equal opportunity to participate.42

And finally, the Civil Rights Act of 1964 merits a mention in this context. Title I of that
Act prohibits denying the right to vote in a federal election because of an error or omission on a
record relating to a voting prerequisite — like a mistake on a registration form or absentee ballot
application — if that error is not material to determining the voter’s qualifications.43 If a
registrar otherwise has all of the information necessary to gauge someone’s eligibility, a lapse on
a form lodged at some point in the process cannot be preclusive.44 This is an exceedingly
important protection, and likely underenforced.

Department of Justice

In addition to the cursory and necessarily abbreviated review of pertinent federal legal
provisions, above, I briefly summarize in this testimony the ways in which the Civil Rights
Division of the U.S. Department of Justice enforces that federal law.

One of the most prominent ways that the DOJ ensures compliance with federal law is,
naturally, through the investigation of violations, followed by litigation or settlement in an
anticipation of litigation. The DOJ will sometimes join existing private lawsuits and will
sometimes proceed on its own.

The DOJ will also engage in litigation without becoming a party, by filing amicus briefs
or statements of interest.45 These briefs are generally intended to assist courts in interpreting
federal law, particularly in light of judicial decisions or enforcement activities in other
jurisdictions. For example, the DOJ filed a short statement in federal court in Alaska in 2012,

40
52 U.S.C. § 21081(a)(3); Remedial Order, United States v. N.Y. State Bd. of Elections, No. 1:06-cv-00263
(N.D.N.Y. June 2, 2006) (requiring, inter alia, accessible HAVA-compliant voting devices that provide the
opportunity to vote independently and privately to all voters with disabilities, inasmuch as possible given the
impending election); Supplemental Remedial Order, id. (N.D.N.Y. Jan. 16, 2008) (same).
41
See Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016).
42
28 C.F.R. § 35.160.
43
52 U.S.C. § 10101(a); Wash. Ass’n of Churches v. Reed, 492 F. Supp. 2d 1264 (W.D. Wash. 2006); Schwier v.
Cox, 412 F. Supp. 2d 1266 (N.D. Ga. 2005), aff’d, 439 F.3d 1285 (11th Cir. 2006).
44
See generally Justin Levitt, Resolving Election Error: The Dynamic Assessment of Materiality, 54 WM. & MARY
L. REV. 83, 146-54 (2012).
45
See 28 U.S.C. § 517 (authorizing the Attorney General to attend to the interests of the United States in any
pending lawsuit).

8
pertaining to Alaska’s redistricting plan and the federal preclearance process in place through
2013.46 The DOJ also filed a statement of interest in federal court in Alaska in 2014, regarding
the language minority provisions of section 203 of the Voting Rights Act.47 I understand that
that particular litigation, Toyukak v. Treadwell, is the topic of far more detailed inquiries by, and
testimony presented to, this Advisory Committee in connection with the August hearing.

The Department of Justice once had another means to enforce federal law, but this
enforcement tool was in 2013 radically curtailed. Section 5 of the Voting Rights Act required
certain jurisdictions to submit changes in election practices to federal authorities: either the DOJ
or a three-judge federal court in Washington, DC.48 In 1975, Alaska was brought within this
structure.49 As in other jurisdictions, all changes to Alaska electoral practices were henceforth
reviewed to ensure that they were not intended to harm racial or language minorities, and that
they did not have that result.50 And — most powerfully — this Section 5 process, known as
“preclearance,” allowed the Department to stop discriminatory practices before they could go
into effect.

This portion of the Voting Rights Act was based largely, though not entirely,51 on a
formula renewed in 1970, 1975, 1982, and 2006.52 The 2006 renewal, like its predecessors, was
challenged in court. In a 2013 decision known as Shelby County v. Holder, the Supreme Court
formally left Section 5 preclearance standing,53 but struck down the statutory provision
determining where it could be applied.54 Which means that — until Congress acts to determine a
renewed basis for geographic coverage — Section 5 is effectively in place nowhere.

Another provision of the Voting Rights Act allows federal courts to subject jurisdictions
individually to preclearance, upon a finding of intentional discrimination.55 But only three

46
Statement of Interest of the United States Under Section 5 of the Voting Rights Act of 1965, Samuelsen v.
Treadwell, No. 3:12-cv-00118 (D. Alaska June 27, 2012).
47
Statement of Interest of the United States of America, Toyukak v. Treadwell, No. 3:13-cv-00137 (D. Alaska June
3, 2014).
48
52 U.S.C. § 10304(a).
49
See Office of the Attorney General, Voting Rights Act Amendments of 1975: Partial List of Determinations, 40
Fed. Reg. 49,422 (Oct. 22, 1975).
50
52 U.S.C. § 10304.
51
See, e.g., Justin Levitt, Section 5 as Simulacrum, 123 YALE L.J. ONLINE 151, 155-60 (2013).
52
52 U.S.C. § 10303(b); see also Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, §§ 3-5, 84 Stat. 314
(1970); Pub. L. No. 94-73, §§ 202-204, 89 Stat. 400 (1975); Voting Rights Act Amendments of 1982, Pub. L. No.
97-205, § 2, 96 Stat. 131 (1982); Fannie Lou Hamer, Rosa Parks, Coretta Scott King, César E. Chávez, Barbara C.
Jordan, William C. Velásquez, and Dr. Hector P. Garcia Voting Rights Act Reauthorization and Amendments Act of
2006, Pub. L. No. 109-246, § 4, 120 Stat. 577 (2006), amended by Pub. L. No. 110-258, 122 Stat. 2428 (2008).
53
Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612, 2631 (2013).
54
Id. at 2629, 2631.
55
52 U.S.C. § 10302(c).

9
localities — two cities and one county56 — are currently under such orders. Alaska no longer
has the responsibility to preclear any new election changes, and the DOJ can no longer block
them before they become law.

I am a civil rights lawyer and a law professor: I can understand and explain the Shelby
County decision, but I cannot justify it.57 Rather than debate what the Court did, and why, I will
instead turn briefly to describe one impact of the decision, even beyond the gutting of federal
pre-implementation review of changes to election practice.

One of the other means that the Department of Justice uses to help enforce federal law is
the deployment of trained individuals to watch the election process and collect evidence about
the process by which elections are conducted. In more than fifty years of deployment, officials
and voters alike recognized the value of these federal personnel in helping to deter wrongdoing,
defuse tension, promote compliance with the law, and bolster public confidence in the electoral
process, merely through their presence and through their capacity to observe and bear witness.

Before Shelby County, the DOJ deployed these personnel in three primary ways. First,
the DOJ sent federal election observers, specially recruited and trained by the Office of
Personnel Management (OPM), to jurisdictions selected in part based on the preclearance
coverage formula.58 The Bethel Census Area, for example, was in that list.59 Second, the DOJ
sent these OPM observers to areas subject to a pertinent court order.60 And third, the DOJ sent
its own personnel, to investigate as they investigate any other potential infraction.61

The first prong disappeared with Shelby County, as the DOJ determined that the Court’s
invalidation of the coverage formula for preclearance purposes meant that the DOJ could not rely
on the authority to send observers to jurisdictions identified based in part on that formula.62 This
represented a substantial portion of the Department’s capacity to monitor the election process.
The DOJ is still sending its own staff to watch the election process — in 2016, it managed to
muster more than 500 people to 67 jurisdictions.63 And it is still sending OPM observers where

56
Order, Allen v. City of Evergreen, Ala., No. 1:13-cv-00107, 2014 WL 12607819 (S.D. Ala. Jan. 13, 2014);
Consent Decree, Blackmoon v. Charles Mix Cnty., No. 4:05-cv-04017 (D.S.D. Dec. 4, 2007); Final Judgment and
Order of Injunction, at *3-4, Patino v. City of Pasadena, No. 4:14-cv-03241 (S.D. Tex. Jan. 16, 2017), on appeal,
No. 17-20030 (5th Cir.).
57
See generally Levitt, supra note 51; Justin Levitt, Shadowboxing and Unintended Consequences, SCOTUSBLOG,
June 25, 2013, http://www.scotusblog.com/2013/06/shadowboxing-and-unintended-consequences/.
58
52 U.S.C. § 10305(a)(2).
59
U.S. Dep’t of Justice, About Federal Observers and Election Monitoring, https://www.justice.gov/crt/about-
federal-observers-and-election-monitoring.
60
52 U.S.C. § 10302(a).
61
Id. § 10308(d).
62
See U.S. Dep’t of Justice, Fact Sheet on Justice Department’s Enforcement Efforts Following Shelby County
Decision, https://www.justice.gov/crt/file/876246/download.
63
Press Release, U.S. Dep’t of Justice, Justice Department to Monitor Polls in 28 States on Election Day (Nov. 7,
2016), https://www.justice.gov/opa/pr/justice-department-monitor-polls-28-states-election-day.

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there is a court order — including several other Alaskan jurisdictions covered by the Toyukak
order otherwise reviewed in the August hearing.64 But Shelby County this still leaves the DOJ’s
ability to monitor the election process seriously depleted, in Alaska and elsewhere.

The final element of the DOJ’s engagement on voting rights that I will mention briefly in
this testimony is the Department’s engagement in the legislative process. Civil rights advocates
have long recognized the difficulty that many Alaska Natives and other Native American
populations have in effectively casting their ballots, based on concerns with the mail and on the
barriers of substantial physical distance. And at the same time, while existing federal statutes are
powerful, they are also occasionally inadequate to the task, with burdens of proof that are
difficult to meet.

And so, in 2015, the DOJ took a relatively rare step in proposing legislation of its own to
Congress.65 The Tribal Equal Access to Voting Act would, in a nutshell, require any jurisdiction
containing Native American or Alaskan Native tribal lands to provide at least one polling place
in a location chosen by the relevant tribe, to be staffed by the relevant tribe, and open to all
citizens, whether members of the tribe or not.66 The Act would enhance the ability of Native
communities to secure equitable access to the polls in conditions suitable to the community. The
suggestion was incorporated into the Native American Voting Rights Act of 2015, introduced by
Senator Tester.67 Like the full restoration of the Voting Rights Act of 1965, it should be
considered once again by this Congress.

The summary above covers a great deal of territory in very short order; there are,
naturally, many details omitted in the interest of concision. Nevertheless, I hope that the
overview is useful to the Advisory Committee as it continues its essential work. I thank the
committee once again for the opportunity to present this testimony, and to speak with the
members of the Committee in the August public hearing.

64
Stipulated Judgment and Order ¶ 10, Toyukak v. Mallott, No. 3:13-cv-00137, 2015 WL 11120474 (D. Alaska
Sept. 30, 2015).
65
Press Release, U.S. Dep’t of Justice, Department of Justice Proposes Legislation to Improve Access to Voting for
American Indians and Alaska Natives (May 21, 2015), https://www.justice.gov/opa/pr/department-justice-proposes-
legislation-improve-access-voting-american-indians-and-alaska.
66
Draft Legislation, Tribal Equal Access to Voting Act of 2015, https://www.justice.gov/file/440986/download.
67
Native American Voting Rights Act of 2015, S. 1912, 114th Cong. (2015).

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