Voting Wrongs

When Barack Obama entered the White House, liberals hoped that the Civil Rights Division of the Department of Justice might return to its proper mission. The agency had been gutted during the Bush years, litigating individual cases of bias without tackling the systematic levers of discrimination that affect a far larger share of the population. Obama beefed up the agency's staff and DOJ started hiring actual civil rights attorneys (unlike the strict ideological conservatives without civil rights experience who entered during the Bush administration). More recently, Attorney General Eric Holder has advocated for an aggressive stance on protecting civil rights during Congressional hearings and visited Austin, Texas, earlier this month to lay out his vision for an expansive take on voter protection.

There had been some early evidence of this new direction beyond the tough talk—primarily challenges to city police departments and an objection to Texas' redistricting plans. But it wasn't until Friday that the department truly laid bare its new direction. DOJ rejected South Carolina's voter identification law, a clear signal that the agency won't allow the Republican effort to block Democrats from voting to go completely unchallenged.

South Carolina, like the other states who’ve passed laws requiring photo ID at the polls, claimed that its measure was needed to protect against voter fraud. DOJ sees no evidence to support that justification. "The state's submission did not include any evidence or instance of either in-person voter impersonation or any type of fraud that is not already addressed by the state's existing voter identification requirement and that arguably could be deterred by requiring voters to present only photo identification at the polls," wrote Assistant Attorney General Thomas Perez. The department also found that non-white voters were 20 percent more likely to be excluded by the new law. A total of 81,938 registered minority voters lack the requisite ID.

"South Carolina’s voter ID law was little more than a 21st Century poll tax," the NAACP said in a press release following last Friday's announcement. "While the ID may have been free, the underlying documents were not. For many rural and poor South Carolinians, such as those born to midwives that could not ensure they received birth certificates, getting the necessary documents to vote was extremely complex and cost- prohibitive."

Republicans have used their new state legislative majorities from the 2010 midterms to pass a slew of restrictive legislation. Many states have reduced timeframes for early and absentee voting. Before 2010, just two states had strict photo ID laws; six new states added themselves to that rank this year. Some of the most reliable liberal voters—racial minorities, the working poor, and young people—are the ones who tend to lack the required IDs. In Texas, military IDs and handgun licenses were included in the list of accepted IDs, but college IDs were excluded.

The new DOJ assessment of South Carolina's restriction is the clearest indication that the department is handling civil rights disputes more seriously than the Bush administration. When Georgia passed its version of voter ID in 2005, members of DOJ's career civil service staff examined the law under Section 5 of the Voting Rights Act. The law requires states with a history of voter discrimination to get federal approval for new voting laws. Bush’s DOJ produced a 70-page report, with three of the four experts arguing that Georgia’s law should be blocked for its excessive impediments for minorities. The day after the report was released, Bush’s political appointees ignored the assessment of the experts and cleared Georgia's law. "They weren't really interested in investigating Georgia's submission," Toby Moore, one of the lawyers reviewing the case, told TPM in 2007. "They were mainly interested in assembling evidence to support pre-clearance. Any attempt to bring up counter-evidence to suggest a discriminatory impact was ignored or critiqued."

Even though the rejection of South Carolina’s law represents a welcome new tone from DOJ, there is little the Obama administration can do to overturn the whole slate of new voter-suppression measures. Section 5 only covers nine states and a smattering of counties and townships, allowing states like Wisconsin, Tennessee and Kansas to implement the same kinds of restrictions without federal approval.

The dispute over South Carolina's rule unfortunately won't end with DOJ's ruling. The state is already planning to appeal the decision to a federal court, which has the power to overturn the finding. "The president and his bullish administration are fighting us every step of the way," Governor Nikki Haley said in a statement. "It is outrageous, and we plan to look at every possible option to get this terrible, clearly political decision overturned so we can protect the integrity of our electoral process and our 10th Amendment rights."

The most likely scenario is one in which this case will get fast-tracked to the U.S. Supreme Court, possibly paired with DOJ's soon-to-come assessment of Texas' similar law. University of California law professor Rick Hansen predicated such a situation on his blog last week. "I anticipate that in this litigation, South Carolina (and Texas) will argue, among other arguments, that Section 5 of the Voting Rights Act is unconstitutional—an issue which has been percolating in the lower courts," Hansen wrote.

A number of counties along with the states of Arizona and Florida have filed separate cases this year that seek to remove themselves from the confines of Section 5. "Subjecting Florida counties and other jurisdictions covered exclusively under the language minority provisions of the VRA to preclearance is not a rational, congruent, or proportional means of enforcing the Fourteenth and/or Fifteenth Amendments and violates the Tenth Amendment and Article IV of the U.S. Constitution,” Florida argued in a complaint filed by the state's Secretary of State.

Reading the tealeaves before a Supreme Court case is a dicey game, but the current court has landed on the side of strict voting restrictions before. In 2008, the court heard a challenge to Indiana's photo ID law (this was a general challenge, since Indiana is not one of the nine states covered by Section 5). The court upheld the measure by a 6-3 vote with Justice John Paul Stevens joining the conservative majority. Even with Stevens' retirement, there are still five justices on the record as proponents of restricting ballot access. In a separate opinion, justices Scalia, Thomas, and Alito declared that "the law should be upheld because its overall burden is minimal and justified."

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