Eric Holder's Big Voting-Rights Gamble

Just about everyone who goes through a musical-theater phase at some point falls in love with Sky Masterson of Guys and Dolls. In the movie version, Marlon Brando plays the gambler who will wager “sky high” stakes and finds himself singing “Luck Be a Lady” while rolling the dice to see if he gets the girl.

Going all in may be what you’d expect in a fictional singing crapshooter, but it’s a bit more surprising in a U.S. attorney general.

Eric Holder’s announcement Monday that the Justice Department was going to bring a lawsuit against North Carolina’s new and wide-sweeping election law, which includes a laundry list of voter restrictions and changes making it harder to vote, showcases just how high he’s willing to make the stakes when it comes to voting rights. His department is now going to be litigating two high-profile cases—one against a voter-ID law in Texas, and the other against the omnibus bill in North Carolina. The DOJ is also involved in a case to show that Texas’s redistricting maps intentionally discriminated. Some legal advocates say he’s taking the only logical course of action. Others say he’s going double or nothing.

Holder is in a tough position to begin with. This summer, the Supreme Court struck down the preclearance criteria in the Voting Rights Act, which had required states and counties with histories of discrimination to get all election-law changes approved by the feds before they could go into effect. The decision effectively ended preclearance, known as Section 5, and removed the single most powerful tool the Department of Justice had for fighting voter suppression. Since then, a number of former Section 5 states have implemented draconian restrictions. Texas implemented the voter-ID law the DOJ is now challenging, which will require some citizens to drive as far as 176 miles to get the required identification.

North Carolina’s omnibus bill is the harshest of the bunch. In addition to limiting the types of ID voters would be allowed to use at the polls, the law also ends same-day registration—in which you can register and vote in one visit—and cuts the state’s 17-day early voting period by one full week. It prohibits paid voter-registration drives (which tend to register more poor and nonwhite voters) and eliminates provisional voting if someone comes to the wrong precinct to cast a ballot. Any registered voter would be able to challenge the eligibility of another at the polls. It’s a doozy—especially for minority voters.

Holder has repeatedly expressed his determination to fight these restrictions with the tools he still has—most notably Sections 2 and 3 of the Voting Rights Act. Section 2 outlaws any legislation that has either a discriminatory intent or effect. Section 3 allows judges to require states with laws found to be intentionally discriminatory to get preclearance. (I’ve written a basic explainer for Section 3 here.) But whereas in the old preclearance, the legal burden fell on the states to prove that new laws didn’t discriminate, under Section 2 and 3, it’s on the feds or other plaintiffs to show that the law does discriminate. That’s a much heavier legal lift.

Since the Supreme Court decision, Holder’s made it clear he’s willing to play hardball. While Congress could potentially pass an amendment to the Voting Rights Act that would implement a new set of standards for preclearance, Holder has opted to start requesting states to be brought in under Section 3. According to Rick Hasen, a law professor at the University of California-Irvine and author of The Voting Wars, that decision alienated Republican lawmakers and closed the door on any potential Congressional action—not that one was likely to happen anyway.

But by pursuing both cases at once, Hasen says the attorney general is increasing the risk. “This is a high-stakes gamble,” he says. “If they lose both cases, it really is the sky’s the limit in terms of the rules that might be passed that make it harder for people to vote and register to vote.” Hasen thought Holder might hold off of any decisions around North Carolina until the Texas voter-ID case played out.

The outcome of these cases will have major effects—a win for the DOJ would likely freeze similarly restrictive proposals in other states, while a loss could encourage more states to pass more voting restrictions.

But not everyone sees the move as such a big risk. Doug Chapin, director of the University of Minnesota’s Program for Excellence in Election Administration and former director of Election Initiatives for the Pew Center on the States, notes that states are already passing restrictive laws. Many consider the North Carolina measure the most restrictive single piece of voting legislation passed since the Voting Rights Act. Bringing another case, says Chapin, helps “signal to states that it’s not open season on voting rights.”

The North Carolina and Texas cases also deal with different terrain. While Texas’s suit centers around a voter-ID law, the North Carolina case is much broader, since the bill includes a number of provisions. The two cases will show how courts respond to a single law versus a number of restrictions at once, and how judges look at voter ID versus other restrictions.

No one knows what the odds of success might be. Typically, Section 2 has been used in redistricting cases, in which there’s plenty of Census data to use as evidence and show the impact of different maps on minority groups. When it comes to election-administration questions, however, we’re in uncharted territory. Among other things, each side will have to gather huge amounts of evidence for the trials—everything from the number of people affected to the legislative process that resulted in the measures may come up.

How damning will the evidence have to be in these cases? Since the Supreme Court decision, some hope courts might be willing to find discrimination based on more circumstantial evidence. In North Carolina, the numbers to be presented are pretty jarring. According to Bob Hall, the director of Democracy North Carolina, a civic group that fought the omnibus bill, the changes will have a drastically disproportionate impact on African American voters. While African Americans made up 22 percent of the state’s registered voters in 2012, they made up 45 percent of the folks who used same-day registration to update their information and 43 percent of those who voted on the first Sunday of early voting. Both same-day registration and early voting on Sunday have been eliminated under the new law.

“It’s not like you need to find an email that says, ‘If we enact [this bill], it will mean no more African American Democrats will be able to cast ballots,’” says Chapin.

In his speech, Holder cast his decision to take North Carolina to court not as a gamble but rather as a looming threat to any other states considering similar moves. At one point, he addressed them directly: "To other states considering voting restrictions like North Carolina's, I want to say this: I and my colleagues at every level of the Justice Department will never hesitate to do all that we must to protect the Constitutionally guaranteed civil rights of all Americans.”

The legal results will help determine whether Holder can make good on such remarks. But whether or not the gamble pays off, Holder has certainly found one safe bet: The two cases virtually guarantee that voting rights will continue to get coverage and attention.

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