Sensenbrenner on Camera Denies Text of Own Voter Law

by J. Christian Adams
Wisconsin Republican seeks to restore racial categories, empower Holder DOJ

Rep. Jim Sensenbrenner (R., Wisc.) told constituents at Wisconsin town halls that voting-rights legislation he is sponsoring does not exclude white voters from the protection of the Voting Rights Act. Sensenbrenner also says he is proud to work with the ACLU and far-left groups to pass the legislation that would resurrect Attorney General Eric Holder’s powers to block state election laws such as voter ID or citizenship verification. 

In a video from Project Veritas founder James O’Keefe, Sensenbrenner also accused Texas and Georgia Republicans of trying to stop minorities from voting.

Sensenbrenner is sponsoring a bill to undo the June 2013 Supreme Court decision in Shelby County v. Holder. In Shelby, the Supreme Court struck down the federal mandate requiring 15 states to submit every single election law change, no matter how minor, to Justice Department bureaucrats for approval. Officials in the attorney general’s Voting Section have power to block state election laws — ranging from sensitive matters like voter ID to procedural items such as moving a polling place from a school cafeteria to the school library.

The federal mandate was part of the 1965 Voting Rights Act, which was designed to eradicate Jim Crow barriers to voting. While the law captured most southern states such as Texas and Mississippi, it also captured New York, California, Michigan, South Dakota, and Alaska — though not Sensenbrenner’s home state of Wisconsin. Forty percent of Americans lived in states subject to the federal mandate. 

The Supreme Court in Shelby held that the 1965 standards were obsolete, and that any requirement that states obtain federal approval of election changes could only be imposed if Congress found “blatantly discriminatory evasions of federal decrees,” lack of minority office holding, “tests or devices,” “voting discrimination ‘on a pervasive scale,’ or voting discrimination that was “flagrant” or “rampant.”

Sensenbrenner’s legislation would immediately return four states — Texas, Georgia, Mississippi, and Louisiana — to federal election receivership. More states would likely follow, once plaintiff’s lawyers and civil-rights groups commenced election lawsuits against states.

Sensenbrenner’s bill does not impose new preclearance mandates on Wisconsin.

Sensenbrenner’s legislation also includes a provision which strips white voters from protections of the Voting Rights Act – something Sensenbrenner incorrectly told his constituents did not exist on O’Keefe’s video.

Sensenbrenner’s bill includes triggers to determine which states will be covered by the federal mandate. His new triggers make it explicit that whites cannot be protected under the law. The formula to determine protection for minority groups on page 11 of H.R. 3899 (line 20) says “of a race other than white.” Five lines later in the bill, people of color are weighed against anyone who is “white” to calculate the new federal mandates.

In the video, before a town hall of constituents in Rubicon, Wisc., Sensenbrenner denied that his legislation says what it plainly says. 

O’Keefe: I’ve got a question about the bill you introduced; the voting rights bill. In the legislation it seems to contain language that explicitly removes white people protections of voting rights act.

Sensenbrenner: It does not do that.

O’Keefe: It doesn’t?

Sensenbrenner: Ah, you know. One of the things that the voting rights has always looked at is that if the minority turnout is lower than average then there is more scrutiny by the Justice  Department. What the bill does, it says if there is discrimination against white people that may happen in certain heavily black areas, then there would be extra scrutiny on that. But there is nothing that is targeting people by race in the voting rights act.

Sensenbrenner’s statement in O’Keefe’s video is wrong on multiple counts. First, his legislation explicitly excludes whites, even “in heavily black areas.” This exclusion matters. In 2007, the Justice Department obtained a judgment against a black Democrat in Mississippi under the Voting Rights Act for discrimination against white voters, a case on which this reporter worked. Sensenbrenner’s bill does what the racialist Left seeks to accomplish in many areas — exclude whites from civil-rights protection. 

Second, the original 1965 triggers did not look at low minority turnout, contrary to Sensenbrenner’s claims at the townhall meeting. The law looked at overall low turnout. The Justice Department’s own website does a better job of describing the old law than did Sensenbrenner: “The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964.”

If a state met this 1965 test, the state had to obtain Justice Department approval for all election changes, until Shelby.

The old triggers used voter registration or turnout percentages for all Americans, not just Americans of certain races, as Sensenbrenner’s bill does.

When pressed in the Project Veritas video, Sensenbrenner conceded that if the bill does what it says it does and excludes whites, it may need to be “fixed.” 

Project Veritas videographer Christian Hartsock caught Sensenbrenner claiming that Texas and Georgia Republicans try to block minorities from voting, a claim the Left frequently makes in order to mobilize Democrat voters. Hartsock first presses Sensenbrenner on why he worked with a former staffer turned ACLU lobbyist to write H.R.3899.

Hartsock: Why did you work with an ACLU lobbyist in writing this bill?

Sensenbrenner: Frankly Because I think it’s the right thing to do.  I don’t think Republicans should be running around saying we want to deny the right to vote to anybody and to prevent their vote from being effectively counted. Ah, you know.

Hartsock: But who’s saying that?

Sensenbrenner: Well, you know, uh, uh, I’ve, I’ve I’m saying that the right to vote is — you know — key to having a functioning democracy.  And when I was chairman of the Judiciary Committee, one of my subcommittees had a whole string of hearings and a 15,000 page record showing, particularly in Texas and Georgia that there were still games being played to prevent minorities from voting, and that’s wrong.

Later, at a townhall meeting in Ixonia, Wisc., O’Keefe asked whether Texas and Georgia Republicans are racists. From the Project Veritas video:

O’Keefe: Recently some videos have come out in Texas showing people breaking the law… Do you think the people of Texas are racist?

Sensenbrenner: The thing is when we had hearings in ‘05 and ‘06, I would say a good part of the 15,000 pages of testimony were on violations that occurred in Texas and in Georgia.

But according to the DOJ’s own webpage, which lists all Voting Rights Act cases, not a single one is against Republicans in Georgia or Texas. Instead, cases come from Massachusetts, Pennsylvania, Colorado, Michigan, Tennessee, California, Illinois, Montana, New Jersey — all states not covered by Sensenbrenner’s bill. Nor did any of the DOJ objections in Georgia and Texas involve Republicans trying to stop minorities from voting.

Rep. Louie Gohmert (R., Texas) responded to Sensenbrenner’s statements about Texas to National Review:

“What many did not realize is that we Texas Republicans were generally supportive of the Voting Rights Act renewal so long as it dealt with racial discrimination wherever it was found — including Wisconsin, California, and Massachusetts, where there are indications that significant discrimination exists. Those pushing the last renewal [in 2006] refused my outreach that what they were pushing violated the Constitution. The Voting Rights Act has helped drastically reduce racial discrimination in many places since its inception. Now it is time to deal with racial discrimination where it exists today, not where it was 50 years ago.”

The Project Veritas video also captures Sensenbrenner’s misunderstanding of the damaging effect his bill could have on the integrity of American elections. If enacted, the law would resurrect Eric Holder’s power to block state voter-ID laws in covered jurisdictions — a power Holder seems keen to abuse, as he did in South Carolina. The attorney general could block new election-integrity laws merely by sending an objection letter. DOJ objections under the Voting Rights Act are inexpensive. Reversing a DOJ decision is not.

Advocates of federal preclearance powers over state elections claim that victims of Holder’s abuse can always go to court to undo the damage. South Carolina found out the hard way that the price for reversing an abusive objection can be millions of dollars. Sensenbrenner’s legislation resurrects that abuse, and he doesn’t appear to understand it.

“The good part about the Voting Rights Act modernization is that I got a provision in there that basically gets Eric Holder out of going after photo ID laws,” the 18-term Badger State congressman claims on the undercover video.

O’Keefe challenged Sensenbrenner’s false characterization.  “But the law can still be used to block photo ID in places like Texas and South Carolina,” he said in the Project Veritas video. “It only exempts photo ID from counting against the number of strikes a state gets, but the bill could still be used by Holder to put pressure on states, right?”

“It can’t be,” Sensenbrenner responds in the video. 

It is true that, under Sensenbrenner’s bill, a court finding against a voter-ID law cannot count toward the five infractions that would put a state back under federal receivership. But civil-rights groups would be eager to litigate to judgment all of the infractions necessary to place a state back under the DOJ boot. 

Worse, Sensenbrenner’s bill would plainly give the DOJ renewed power to block any election-integrity law in any covered jurisdiction. This includes voter ID and laws requiring voters to prove they are citizens. The Holder Justice Department has been quick to interfere in states seeking to remove non-citizens from the rolls, as happened in Florida before the 2012 election and Georgia in 2009.

No matter what Sensenbrenner might say in his townhall meetings, his bill returns massive federal power to the Justice Department to make American elections less secure.

The bill does far more than simply reverse the Shelby County decision. It also imposes burdensome and impractical federal mandates on every state and local election official. For example, election officials will be required to post data about poll workers 30 days before an election, including the race of all voters in a precinct. If the election officials fail to post, naturally Sensenbrenner’s bill gives plaintiffs the right to sue. For good measure, any finding that election officials were liable for a failure-to-post violation will count against the jurisdiction and help recapture that jurisdiction for federal preclearance mandates.

In other words, Sensenbrenner has written a dream bill for Democrat trial lawyers and activist groups fighting election-integrity laws.

Strangely, in the Project Veritas video, Sensenbrenner said he hoped President Obama would veto his bill. That’s an odd position for any lawmaker to take, but especially a Republican who is helping civil-rights groups resurrect power for a highly activist Democratic Justice Department. Given the massive activation of federal power contained in Sensenbrenner’s bill, it’s a safe bet President Obama will sign the bill, despite Sensenbrenner’s perverse veto wish.

J. Christian Adams is the author of the New York Times bestseller, Injustice: Exposing the Racial Agenda of the Obama Justice Department (Regnery, 2011), and former attorney in the Justice Department Voting Section.