The Department of Justice (DoJ) will not idly remain on the sidelines as the GOP seeks to illegally game the electoral system in the wake of what U.S. Attorney General Eric Holder referred to as the "deeply disappointing and flawed" Supreme Court decision in Shelby County v. Holder.
That decision, which carved out the very heart of the Voting Rights Act of 1965 by finding unconstitutional the formula used to determine which jurisdictions with a long history of racial discrimination are required to "pre-clear" new election laws with the federal government before they can be enacted, has been a dramatic "setback", as Holder described it, to the voting rights movement, and has even proven to be a great leap forward for vote suppressors.
But, in a speech last week to the National Urban League Conference in Philadelphia, Holder signaled his intentions to fight back against the activist Court:
And today I am announcing that the Justice Department will ask a federal court in Texas to subject the State of Texas to a preclearance regime similar to the one required by Section 5 of the Voting Rights Act...based on the evidence of intentional racial discrimination that was presented last year in the redistricting case, Texas v. Holder – as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized – we believe that the State of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices.
The DoJ then promptly filed a July 25, 2013 "Statement of Interest" in Perez v. Texas, a federal court case challenging the imposition of new Congressional redistricting maps in the wake of the Supreme Court's gutting of the Voting Rights Act, despite the fact that both the DoJ and a panel of federal judges nixed the same map last year after it was found to have been purposefully discriminatory just last year.
The DoJ argued in its filing last week that, because the evidence presented both in Perez and in Texas v. United States, revealed intentional violations of the 14th and 15th amendments in the redistricting schemes at issue, the court should impose a ten year preclearance requirement upon the State of Texas as an equitable remedy available pursuant to Section 3(c) of the VRA.
In short, while SCOTUS gutted the VRA's existing Section 4 formula for determining jurisdictions to be covered by Section 5 pre-clearance requirements, it left Section 3, which allows for jurisdictions to be added or "bailed in" to the list of those subject to preclearance intact. The DoJ now wants Texas added to the list of such jurisdictions.
It is of critical importance to note, however, that Holder's Urban League speech made clear that his intentions of pushing back were neither limited to Texas nor to Section 3.
"This is the Department’s first action to protect voting rights following the Shelby County decision, but it will not be our last," Holder vowed.
He then stated (emphasis added): "My colleagues and I are determined to use every tool at our disposal to stand against discrimination wherever it is found."
As observed by University of California Irvine Law Prof. Rick Hasen, Holder's pledge to have the DoJ "use whatever tools it has remaining in its arsenal to protect minority voting rights" is "a big deal."
It's a "big deal" not just because of the creative use of Section 3 in Perez, but also because the DoJ is joining a case originally brought "under Section 2 of the [VRA] to enforce the guarantees of the [14th & 15th] Amendments against racial discrimination in voting." The DoJ's actions here suggests that they are finally prepared to add the power and resources of the federal government to legal efforts to protect the right to vote that had been primarily made during the last election cycle by privately-funded, public interest groups like the ACLU and League of Women Voters...
Texas is easy
As Ian Millhiser at ThinkProgress observed, just last year a "federal court found that Texas Republicans charged with drawing the states’ legislative maps 'consciously replaced many of [a] district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [the district's] Anglo citizens. In other words, they sought to reduce Hispanic voters’ ability to elect' a candidate of their choice."
The finding, that Republicans purposefully attempted to discriminate, leaves open only the question of what the equitable remedies should be. Should the court now impose preclearance under Section 3 of the VRA? If so, should preclearance apply to all Texas voting laws, or simply to any new redistricting laws?
Even if the federal court does not agree to the preclearance request, it would not be all that difficult for the DoJ to make the case for an injunction to remain in place as to the Lone Star State's Photo ID law, which, according to last year's three-judge U.S. District Court panel decision in Texas v. Holder "imposes strict, unforgiving burdens on the poor, on racial minorities in Texas [who] are disproportionately likely living in poverty."
As The BRAD BLOG explained back in 2011 --- long before the successful legal challenges to discriminatory polling place Photo ID restrictions which Republicans had attempted to enact in Wisconsin, Texas and Pennsylvania, the Supreme Court's decision in allowing a polling place Photo ID law in Indiana (via 2008's Crawford vs. Marion County Election Bd.), does not stand for the proposition that all state Photo ID laws are similarly constitutional.
The test, under the lead opinion in Crawford, is to "identify and evaluate the interests put forward by the state as justifications" for such restrictions, and to weigh those interests against "the burden imposed by its rule."
Because the Crawford plaintiffs unsuccessfully alleged that the Indiana Photo ID law was unconstitutional "on its face," they did not offer evidence that would establish that any voter would either be disenfranchised or unduly burdened by Indiana's Photo ID restrictions. Based solely upon the record before it, the Supreme Court, in Crawford, simply upheld the District Court's finding that the Indiana statute did not impose an undue burden, while signalling that it would be open to a different result in a future case where evidence might be presented to show that that the law disenfranchised voters or imposed an undue burden.
In last year's Texas v. Holder, wherein the state challenged the DoJ's rejection of their polling place Photo ID law, the evidence of undue burden on voters was clear and unmistakeable in light of the fact that otherwise eligible voters, many of whom did not own cars or have drivers licenses, had to travel as much as 250 miles round trip to obtain the theoretically "free" Photo ID from the TX Dept. of Public Safety. The three judge panel, in Texas v. Holder, found that the "uncontested record", as based on evidence supplied by the state itself, "conclusively shows that the implicit costs of obtaining [Photo ID that would satisfy the new law] will fall most heavily on the poor and that a disproportionately high percentage of African Americans and Hispanics in Texas live in poverty."
Disparate impact cases
While the Attorney General's promise to utilize "every tool" at its disposal offers an encouraging silver lining, one should not overlook the adverse impact of the Supreme Court's VRA decision upon the DoJ's ability to protect voting rights in the formerly "covered jurisdictions."
Section 5 of the Voting Rights Act placed the burden on "covered" jurisdictions themselves to prove that any change in their voting laws "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color or [membership in a language minority group]."
Section 2, another tool available to the DoJ, and one which applies to all 50 states, places the burden of proof on the DoJ to show discrimination in voting laws, rather than on the jurisdiction, as per Section 5, to prove the new laws are not discriminatory.
Like Section 5, Section 2 "prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in [a specified] language minority." Unlike Section 5, Section 2 not only applies to all states and political subdivisions within the United States but is one whose constitutionality is well established. It was upheld by the U.S. Supreme Court in Mobile v. Bolden (1980) as simply a "restatement of the protections afforded by the 15th Amendment."
The question that arises is now whether DoJ can establish a Section 2 violation via a disparate impact upon minority voters without having to prove intentional discrimination.
That issue is one which we explored as part of The BRAD BLOG's Feb. 29, 2012 coverage of the ACLU's legal challenge to Wisconsin's polling place Photo ID restrictions. In that article, we suggested the DoJ should intervene in Section 2 cases filed by individuals and public interest groups, as opposed to its limited reliance upon Section 5 in "covered" jurisdictions. That was particularly true last year in light of what many anticipated could be a finding by the U.S. Supreme Court in Shelby that Section 5 itself was unconstitutional.
In the Wisconsin case, the ACLU alleged that the state had passed "a voter suppression law that burdens African-American and Latino voters most heavily [which]...results in them having 'less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,' and, thereby, constitutes a denial and abridgment of their right to vote in violation of Section 2 of the Voting Rights Act."
In other words, it wasn't necessary in a Section 2 case to show an intent to discriminate, only that the law resulted in such an effect.
At that time of our coverage of Jones, however, there was a division of opinion amongst election law experts on that point.
Hasen told The BRAD BLOG there was "no way" the plaintiffs in Jones could "win on discriminatory effect," absent proof of discriminatory intent. Loyola Law Prof. Justin Levitt, whose testimony on photo ID laws formed a centerpiece during the September 2011 hearings before a U.S. Senate Judiciary Subcommittee, believed the plaintiffs in Jones presented a "plausible" means for prevailing, but one which would require "an awful lot of factual development" as such cases turn upon statistics.
It is the need to develop a solid factual record that makes Holder's decision to use all the tools in the DoJ's arsenal "a big deal." Instead of leaving the defense of voting rights to public interest groups, the Attorney General, as the nation's chief law enforcement officer, is now signaling that he is prepared to muster the immense resources of the U.S. government in the defense of a right that is foundational to the very existence of representative democracy.
Moreover, the DoJ arsenal includes not only the VRA, but statutory remedies such as the National Voter Registration Act of 1993 (NVRA) --- which it relied upon, for example, in its successful effort to strike down Arizona's proof of citizenship requirements for new voters --- and rights guaranteed by the 1st Amendment (right of association relating to new attempted restrictions on voter registration), as well as rights to due process and equal protection (14th Amendment) and the constitutional prohibition of poll taxes embodied in the 24th Amendment.
As Brad Friedman reported, on the same day that Holder delivered his Urban League speech, the North Carolina GOP passed "the most extreme anti-voter bill..since the Jim Crow era." The sheer breadth of the bill, which not only imposed one of the nation's strictest polling place Photo ID restrictions but which, per Hasen, contains "a laundry list of ways to make it harder for people to vote," suggests that the GOP mistakenly believes that the Court's Shelby County decision now permits them to suppress the vote with impunity.
But where Hasen sees the NC bill as "a nightmare for voting-rights advocates," those advocates might wish to consider whether the extreme nature of the bill is a blessing-in-disguise because it makes the GOP's blatant effort to game the system by suppressing the vote so readily apparent.
That proved to be the case last Fall when an arrogant PA House Majority Leader Mike Turzai (R) boasted that a polling place Photo ID law that threatened to disenfranchise between 758,000 and 1.6 million voters, would "allow Governor Romney to win the state of Pennsylvania" in the 2012 Presidential Election. That voter suppression law was passed by a GOP majority legislature even though, as the Commonwealth was later forced to admit, it was unaware of any instance of in-person voter impersonation (the only type of voter fraud that can possibly be deterred by polling place Photo ID restrictions) as having occurred at any time in the storied history of one of our nation's founding states. Indeed, the Commonwealth admitted that it was unaware of any cases of in-person voter fraud having occurred elsewhere, either.
The PA GOP's effort at partisan gaming was so transparent that it prompted the DoJ to submit a four-page letter seeking 16 broad categories of documents that the DoJ felt were needed to evaluate whether the Keystone State's Photo ID law complied with federal laws barring discriminatory election laws. It also triggered revulsion on the part of Stanley R. Lawson, Sr., a 70-year-old, who had previously served as the chair of the Dauphin County Republican Party. Lawson, who was also the head of the Harrisburg chapter of the NAACP stated bluntly: "This whole thing stinks."
In the case of North Carolina's newly passed voter suppression bill, the outrageous overreach of the NC GOP's assault on a foundational right that so many fought and died to protect was captured in a single photo of an elderly, Korean War Navy veteran being led away by a state trooper, as he clutches his cane with his zip-tied hands.
When the GOP acts in such a shameless and open manner to suppress the vote, as it did in both PA and NC, it runs the risk of a significant backlash at the polls --- blow-back that could prove quite effective if the DoJ succeeds in blocking voter suppression by using "all tools" at its disposal.
Now, if we could only get the government to focus not simply on the right to cast a vote, but on what is needed to insure that every lawfully cast vote is both accurately and transparently counted.
UPDATE 8/22/2013: Today, the DoJ filed a new lawsuit, United States v. Texas, alleging the Lone Star State's polling place Photo ID law violates Section 2 of the VRA as well as the 14th and 15th Amendments to the U.S. Constitution. A copy of the DoJ's complaint is embedded in the Washington Post's coverage, which also notes that the "Department is looking at challenging a new law in North Carolina."