Yesterday, Eric Holder opened a new front in his fight to preserve voting rights, as the Department of Justice announced that it would launch an investigation into Pennsylvania's voter ID law. The attorney general has been an outspoken critic of the strict new laws that require voters to show government-issued photo identification, calling them the equivalent of a modern-day "poll tax." The DOJ has blocked implementation of voter ID in Texas and South Carolina—states that, because of their histories of voter suppression, are listed in Section 5 of the Voting Rights Act and therefore must get preclearance from the DOJ before they can change their election laws. (Both states are fighting back in court.) But Pennsylvania, like half the states that have passed strict voter ID laws, does not need to get DOJ permission before it changes its election laws. Instead, the Justice Department has taken an entirely new line of attack.
In a letter to Pennsylvania's Secretary of the Commonwealth, the DOJ explained that it was reviewing the law to see if it complied with Section 2 of the Voting Rights Act, which prohibits voter discrimination. As I wrote yesterday, the DOJ faces a difficult fight using Section 2. While Section 5 allows the DOJ to preemptively stop laws that will have a discriminatory effect, in this case, the DOJ will have to convince a court (or more likely several courts) that the Pennsylvania law creates a significant barrier to voting that disproportionately hurts nonwhites. Though there's a lot of evidence that voter ID laws have a discriminatory impact on poor and nonwhite populations, it's harder to prove that before an election has even taken place, when there are no clear examples to point to; no one has already been denied the right to vote for lack of ID, and there's still time to get an ID if you don't have one.
But Pennsylvania's voter ID law is so egregious that the DOJ evidently thinks it has a shot. If anyone entertained doubts that the law was a politically motivated effort by Republicans to suppress Democratic votes in a swing state, those doubts were dispelled when the state's House majority leader, Mike Turzai, explained that by passing voter ID, the legislature had ensured a Romney win in the state. The law, passed in March, requires voters to show a government-issued ID that has an expiration date, which knocks out several forms of identifcation including many college IDs. When the legislature debated the issue, state officials said only one percent of voters lacked a government-issued ID. But earlier this month, the state revealed that as many as 759,000 people—9 percent of registered voters—lack an ID from the Department of Transportation, the kind most voters will likely be using. That number skyrockets to 18 percent in Philadelphia, a Democratic stronghold and a city with a very high black population. More recently, a report from the state ACLU estimates the number of voters without IDs could be as high as a million people. The ACLU, along with several other groups, has already filed a lawsuit, arguing that Pennsylvania's law violates the "free and equal" elections clause in the state constitution and adds a new burden to voters.
In its letter, the DOJ requests 16 different sets of documents, including a list of those lacking the necessary ID. It asks for the documents that support both the governor's claim in March that "99 percent of Pennsylvania's eligible voters already have acceptable photo IDs"—and documents to support the subsequent study showing that number was off by a mile.
Of course, we don't know if the DOJ will actually bring suit after it reviews the documents. But it has already sent a signal that just because states don't require preclearance, they can't get a free pass to create barriers to voting.