Case would represent first instance of the federal agency challenging such a law under Section 2 of Voting Rights Act...
By Brad Friedman on 7/23/2012, 8:12pm PT  

Good news for fans of democracy and voting rights, and for foes of discrimination! Bad news for Republican Gov. Tom Corbett, his GOP state legislature, and perhaps others like them in different states.

The U.S. Dept. of Justice may soon be filing a legal challenge to Pennsylvania's new GOP-enacted polling place Photo ID restriction. The law will affect the ability of some 750,000 legal voters to cast their once-legal vote in the Keystone State this November, unless it is overturned. If the feds choose to bring suit against the new law, it would be the first time the federal agency has used the anti-discrimination provisions of Section 2 of the Voting Rights Act (VRA) of 1965 to block such a law.

Last February, as a civil rights group had filed a federal challenge against the state of Wisconsin, charging that state's new GOP-enacted polling place Photo ID restriction violated the federal constitution, we explained how the moment presented a "golden opportunity" for the U.S. Dept. of Justice to join the case and challenge it, as well as similar laws in other states, under Section 2 of the VRA.

As Ernie Canning detailed at the time, the DoJ has, to date, only challenged recently-enacted polling place Photo ID restriction laws in jurisdictions which are covered by Section 5 of the VRA. That section of the landmark federal law requires that new election laws in some 16 states, or parts of states with long histories of racial discrimination at the polls, receive federal government preclearance for the new laws before they may be enforced. Section 5 places the burden on the jurisdictions themselves to demonstrate that the new laws will not have a discriminatory effect.

Since these particular laws have been shown, indeed, to be designed to discriminate against largely Democratic-leaning voters, the states where the laws have been denied preclearance by the DoJ --- states like Texas and South Carolina, for instance --- have been unable to demonstrate their laws did not have the effect of discriminating against legal minority voters. In both of those cases, using data supplied to the DoJ by the states, it was simple to show the discriminatory effect of the new laws. (For example, in South Carolina, African-American voters were found to be 20% more likely to lack the type of ID needed to vote under the new law than white voters. In Texas, the state's own data showed that legal Hispanic voters were as much as 120% more likely to lack the requisite ID to vote under the new law than non-Hispanic voters.)

But similar laws passed in states not covered by Section 5 --- states like Wisconsin, Tennessee, Kansas, and Pennsylvania --- have yet to face the same kind of legal scrutiny from the federal government --- until now...

Laws passed by states not covered by Section 5 may be still be challenged as discriminatory under the VRA, but under Section 2, which places the onus on the federal government to prove the laws were passed with a discriminatory intent. In short, Section 5 cases are much easier to prove, since the burden is on the state to demonstrate they're not discriminating, while Section 2 cases are thought to be more difficult win, because the burden is shifted to the federal government to demonstrate a discriminatory intent.

But now, finally, months after we'd called on the DoJ to take on some of these cases, under Section 2, in states not covered by Section 5, it looks like they may finally be showing an interest in enforcing the federal law in the Commonwealth of Pennsylvania.

As TPM's Ryan Reilly reports today...

The Justice Department’s Civil Rights Division has launched a formal investigation into whether Pennsylvania’s voter ID law discriminates against minorities, TPM has learned.

In a three-page letter sent to Pennsylvania Secretary of the Commonwealth Carol Aichele on Monday, DOJ requested state data on registered voters as well as the state’s list of individuals with driver’s licenses and ID cards.

Additionally, DOJ requested information on the state’s efforts to educate voters about the new law as well as documents and records supporting a March 14 statement from the office of Gov. Tom Corbett (R) which claimed “99 percent of Pennsylvania’s already have acceptable photo IDs.” (The state’s own data later proved that figure wrong.)
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Pennsylvania has said that over 750,000 voters lack an adequate form of voter ID, a number greater than President Obama’s margin of victory in the state in 2008. One top Republican even said the voter ID law would help Mitt Romney win the state. As TPM reported, the public relations firm contracted to educate the public about the new voter ID law is stacked with Republicans.

This is a very encouraging development, at least for voters in Pennsylvania, if not the other states were disenfranchising Photo ID restrictions are moving forward without federal challenge, where local civil rights groups, to date, have been forced to file their own costly legal challenges to the discriminatory new laws.

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The full 3-page 7/23/12 letter from the DoJ's Asst. Attorney General, Thomas E. Perez, to PA's Acting Secretary of the Commonwealth Carol Aichele, may be downloaded here [PDF].

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