Holder bets Section 5 of the Voting Rights Act on opposition to photo-ID voting requirements

posted at 12:00 pm on December 30, 2011 by Ed Morrissey

For a man who supposedly doesn’t have the faintest clue what his own ATF is doing while bodies pile up in the hundreds in Mexico, thanks to Operation Fast and Furious, Eric Holder is rather busy sticking his nose into the business of states — and perhaps spelling the end of disparate treatment by the Department of Justice of southern states entirely.  The DoJ, through its Civil Rights division, announced that it would block a new South Carolina law that required voters to show a photo ID when casting a vote, claiming that it had a disproportionate impact on minority voters.  The Wall Street Journal scoffs at the claim, and points out that Holder has put the DoJ on a fast track to losing Section 5 in the 1965 Civil Rights Act as a result:

In a letter to South Carolina’s government, Assistant Attorney General for Civil Rights Thomas Perez called the state law—which would require voters to present one of five forms of photo ID at the polls—a violation of Section 5 of the 1965 Voting Rights Act. Overall, he noted, 8.4% of the state’s registered white voters lack photo ID, compared to 10% of nonwhite voters.

This is the yawning chasm the Justice Department is now using to justify the unprecedented federal intrusion into state election law, and the first denial of a “pre-clearance” Voting Rights request since 1994.

One of the forms of acceptable photo ID is the South Carolina identification card issued by the state … for free.  Applicants have to show proof of residency in the state and a birth certificate or passport that shows US citizenship.  If they lack a birth certificate, the state will provide a certified copy for $12, either in person, by mail, or by phone for an additional fee of $12.95.  Note that the federal government requires states to check photo-IDs to get gun permits, another right explicitly guaranteed by the Constitution, for which all of these same fees would apply in South Carolina.

Interestingly, this is almost identical to Indiana, which has a provision for free state IDs but only for the purpose of voting.  They require the same documents to get the state ID, and charge between $5 to $12, depending on which county the birth record resides.  Why is Indiana important?  Because the Supreme Court approved an identical photo-ID voting requirement in Indiana in 2008, not to mention one in Georgia, also covered by Section 5, in 2005:

The 1965 Voting Rights Act was created to combat the systematic disenfranchisement of minorities, especially in Southern states with a history of discrimination. But the Justice position is a lead zeppelin, contradicting both the Supreme Court and the Department’s own precedent. In 2005, Justice approved a Georgia law with the same provisions and protections of the one Mr. Holder nixed for South Carolina. In 2008, the Supreme Court ruled 6-3 in Crawford v. Marion County Election Board that an Indiana law requiring photo ID did not present an undue burden on voters.

In a later case, this one involving Holder, the Court declined to make a decision about Section 5 of the Voting Rights Act, although they did note the “substantial federalism costs” of interfering in the law-making ability of a subset of states decades after the voting-rights issues have been settled.  But that’s not all they said on the matter to Holder:

A second case offers a further glimpse into the High Court’s perspective on the modern use of Section 5. In 2009′sNorthwest Austin Municipal Utility District v. Holder, the Court declined to decide the question of the constitutionality of Section 5, writing that while it imposes “substantial federalism costs,” the “importance of the question does not justify our rushing to decide it.” But the Justices didn’t stop there.

They also cast real doubt on the long-term viability of the law, noting in an 8-1 decision by Chief Justice John Roberts that it “imposes current burdens and must be justified by current needs.” That such strong criticism was signed by even the Court’s liberals should concern Mr. Holder, who may eventually have to defend his South Carolina smackdown in court.

South Carolina Governor Nikki Haley tells us she “will absolutely sue” Justice over its denial of her state’s law and that challenge will go directly to federal district court in Washington, D.C. From there it may be appealed directly to the Supreme Court, which would have to consider whether South Carolina can be blocked from implementing a law identical to the one the High Court approved for Indiana, simply because South Carolina is a “covered” jurisdiction under the Voting Rights Act.

In the 2008 case, Section 5 wasn’t an issue, since Indiana wasn’t a covered state under its terms.  It will be a big part of the case when Haley pushes it to the Supreme Court, not just on the thin 1.6% difference that the DoJ cited, but because the Court will have to take into account the 2008 case when it decides on South Carolina’s law.  They can’t uphold the DoJ’s interpretation without relying on Section 5, but overruling the DoJ on this would all but eviscerate that section — and return the states under its aegis to the same voting-rights standards as every other state in the union, even if the Supreme Court doesn’t explicitly end Section 5, which the 2009 case showed they seriously considered doing at the time.

That wouldn’t be a bad outcome for anyone except Holder, Obama, and the radical activists on their staff at the DoJ’s Civil Rights division.


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These ladies you refer to, that you talk so casually about, have most likely more conservative viewpoints than you ever will. They all long for law and order, few if any condone what they see in so many inner city streets,the drug dealing,stealing, crime, etc. and most have engendered so much respect by their friends,neighbors and relatives that most anyone in their neighborhood would not think twice about helping these ladies get an ID were that really a problem. Which both you and I know is not.

rodguy911 on December 30, 2011 at 8:48 PM

Ah, but rod, as you see, that’s not the point.

Urban Elite doesn’t WANT these ladies to have their lot improved. He just wants them to vote and do as they’re told so that he can put himself and his party in power and then systematically loot whoever he wants.

Healthy, successful, liberated black people are not dependent on government handouts and thus are not controllable. Without helpless, despondent, welfare-addicted people, the Pelosi-Obama-Urban Elite Party would have no voters.

northdallasthirty on December 30, 2011 at 9:27 PM

It won’t be heard before the election, and that is all they care about.

Hueydriver on December 30, 2011 at 12:33 PM

Everything this administration has “accomplished” is dated 2013. Obamacare, regulations, everything, hinges on His Imperial Majesty not needing to be re-elected.

So Everything is punted past the election. If the Commie wins, there won’t be another one.

“A Civilian security force, as large and well-funded as the U.S. Military”…

Well, ultimately, the U.S. Military will probably have an opinion about that…I just hope it’s not in 2013.

Vote ABO!

Who is John Galt on December 30, 2011 at 10:14 PM

So when the “Occupy” “movement” kicks in late summer, and the riots start, remember the DOJ dismissing charges the NBP of Philly had already plead guilty to: Voter Intimidation.

Who is John Galt on December 30, 2011 at 10:17 PM

This may be hard to believe but is absolutely true:
Last week I made an appointment to have a mammogram and was told TWICE to bring a photo ID or I would not be allowed the procedure!

So, getting your boobs squished = photo ID
Voting, eh, not so much…

Babs on December 30, 2011 at 10:44 PM

Hey the president does not even have to show a valid birth certificate and we are surprised that HOLDER says people don’t have to show ID to vote?

Cmon!

TX-96 on December 30, 2011 at 1:22 PM

A president who won’t show valid ID wants to allow people to re-elect him without showing valid ID.

Sounds like a double-blind study.

cane_loader on December 30, 2011 at 11:10 PM

Old women born at home don’t have ID? They never drove, received state or federal benefits, held a job, got legally married, bought alcohol or tobacco products, finaced a car or home?

Who knew?

Tim_CA on December 30, 2011 at 5:56 PM

He meant to say old women unicorns.

cane_loader on December 30, 2011 at 11:14 PM

88% of Americans do.

Del Dolemonte on December 30, 2011 at 6:04 PM

So 12% don’t.

urban elitist on December 30, 2011 at 6:22 PM

Translation: “Those 12% are More Equal Than Others, so Deserve Special Treatment”

What you are saying is that a certain class/group of people should get a pass from all existing laws and regulations. Please tell us why only they should be given that consideration.

I’m almost to the point of handing out a G- Grade.

Del Dolemonte on December 30, 2011 at 11:28 PM

Not worth it Del, the Dark Side is strong in this one, it is

cane_loader on December 30, 2011 at 11:50 PM

Yeah, liquor laws are kind of a hobby of mine. I don’t want my watering holes to lose their licenses and did not complain at the time. And my wife brought me a couple of shots when no one was looking.

Drinking in bars is a much less serious issue than voting, you know, and — lacking an ability to strike a precise balance — erring on the side of letting people vote is the American thing to do.
urban elitist on December 30, 2011 at 8:27 PM

Underage drinking in bars, you forgot the word underage. One irresponsible drinker can do a lot more damage to many lives than the damage done to one citizen who is denied a single vote because they will not get an ID.

The bar you went in denied you the ability to drink because you were irresponsible about renewing your license, why should they think you have cause to be a responsible drinker? And yet you violated the rules of that establishment and had someone else illegally supply you with alcohol, shots at that, – of course you see no problem with illegal voting. Your Progressive mind tells you you are the ultimate authority.

You justify this thinking with your erroneous perception of the history of voter disenfranchisement and portray blacks, as most paternalistic Progressives do, -”le bon sauvage” incapable of self-awareness or self-determination. America Errs on the side of believing in the ability of the individual not in thinking that someone is handicapped by the color of their skin. That is the American thing to do.

batterup on December 30, 2011 at 11:53 PM

This is really disgusting. The fact that more blacks by percentage than whites fail to have enough snap or interest to get themselves a voter ID does not imply that voter ID requirements are unconstitutional. By the same logic math tests are unconstitutional. Holder ought to be ashamed to make such an argument. But a sense of shame has no place in racial politics, only a larger turnout of voters for the democratic party matters, and this is all this is about – not justice of any kind.

Personally, I would not mind seeing Section 5 bit the dust of divisive history. I’m not even convinced that literacy requirements are unconstitutional or even wrong – it would much encourage better literacy among blacks (desperately needed), and make for more informed voting.

When the government forces the public to bend over backwards to accommodate a group’s failings it doesn’t make the group stronger as a whole, just ever weaker for expecting the back bending to compensate for shortcomings. But the democratic party doesn’t care, it just wants to be in power no matter what. I can’t believe anyone takes their phony rationale for outlawing voter ID seriously.

Chessplayer on December 31, 2011 at 12:01 AM

Babs on December 30, 2011 at 10:44 PM

Lots of folks would do that without ID, Babs. Oh, wait… never mind………

GWB on December 31, 2011 at 1:56 AM

Also in the 2009 NW Austin v. Holder case, Roberts asks the NAACP lawyer: “So is it … your position that today southerners are more likely to discriminate than northerners?” Bye-bye Section 5?

Ed’s other point that can’t be made often enough is that photo IDs (plus background checks, permits, etc) are required for the Constitutionally-protected right to keep and bear arms, and you sure don’t here the left complaining THAT’S discriminatory or “gun-owner suppression”.

The endless list of other activities for which we know people are required to show photo IDs are considered optional, so are not relevant to a legal case (though I’d argue that getting a Social Security card – which requires photo ID and a birth certificate, and is necessary to get a job, file tax returns, and get government benefits – comes pretty close to a federal mandate).

TxTea on December 31, 2011 at 2:09 AM

When the government forces the public to bend over backwards to accommodate a group’s failings it doesn’t make the group stronger as a whole, just ever weaker for expecting the back bending to compensate for shortcomings

This is an awesome quote and should be reposted! This can apply to every “victim” group!

melle1228 on December 31, 2011 at 3:47 AM

Holder, again, is shooting himself and the Obama administration in the foot. He will lose this one. Surprised he has not been charged yet in Fast and Furious.

Amazingoly on December 31, 2011 at 8:24 AM

So when the “Occupy” “movement” kicks in late summer, and the riots start, remember the DOJ dismissing charges the NBP of Philly had already plead guilty to: Voter Intimidation.

Who is John Galt on December 30, 2011 at 10:17 PM

Actually, IIRC the NBP didn’t plead guilty, they didn’t even contest the charges and were therefore found guilty. Dropping the charges for such an egregious violation was still despicable, though.

Parabellum on December 31, 2011 at 11:02 AM

Holder evidently wants to scuttle ID laws because he knows which organization will be hurt most: ACORN. For years, community activist groups, such as the Association of Community Organizations for Reform Now, have engaged in massive electoral fraud..

They ALREADY require these same people to provide ID for social security, for medicare/medicaid, for welfare, for employment AND un-employment but they can say with a straight face that it is too much to ask for them to produce the document to vote?! Give me a break!!

http://theobamafile.com/

Capt-Dax on December 31, 2011 at 11:46 AM

I just came across this post, the whole countdown is interesting but the top finisher is Governor Bev Perdue and one of the reasons listed is her veto of the Photo ID…the real kicker – click on the link to see the photo of the invitation for interns…wait for it “Picture ID required for admittance”

http://www.carolinapoliticsonline.com/2011/12/31/2011-jackass-of-the-year/

The runner up award went to people opposed to Voter ID
http://www.carolinapoliticsonline.com/2011/12/30/2011-jackass-of-the-year-2/

The blog goes on to list others in contention for the 2011 top award, I think readers here would find it amusing to see there is a tie between Senator Lindey Graham and Senator Richard Burr

http://www.carolinapoliticsonline.com/2011/12/29/2011-jackass-of-the-year-3/

beacon on December 31, 2011 at 1:19 PM

Why is this man not in jail, out of office at the very least, for perjury under oath, criminal ineptness, handing over thousands of guns to Mexican drug cartels, and laundering their money for years?! It was bad enough he dropped charges on US terrorists to help Hillary get elected as a NY rep, but then he stepped in to drop charges against the New Black Panthers who were carrying clubs and threatening whites at a polling location in 2008. A whistle-blower then exposed his refusal to prosecute black-on-white discrimination charges. The dude needs to be in jail, not on this side of the justice system!

easyt65 on December 31, 2011 at 2:46 PM

Yeah, liquor laws are kind of a hobby of mine. I don’t want my watering holes to lose their licenses and did not complain at the time. And my wife brought me a couple of shots when no one was looking.
Drinking in bars is a much less serious issue than voting, you know, and — lacking an ability to strike a precise balance — erring on the side of letting people vote is the American thing to do.
urban elitist on December 30, 2011 at 8:27 PM

I think no matter how questionable a person is who knocks on your door, for the sake of the possibility of this person being decent, you should invite them in despite the likelyhood they will do you harm

Riiiiiiiiight

Sonosam on December 31, 2011 at 7:40 PM

Why isn’t Eric Holder in jail?

franksalterego on January 1, 2012 at 8:13 AM

By the same logic math tests are unconstitutional.

When the government forces the public to bend over backwards to accommodate a group’s failings it doesn’t make the group stronger as a whole, just ever weaker for expecting the back bending to compensate for shortcomings. But the democratic Democrat [there's nothing "democratic" about them] party doesn’t care, it just wants to be in power no matter what. I can’t believe anyone takes their phony rationale for outlawing voter ID seriously.
Chessplayer on December 31, 2011

The entire post pretty much sums it up.
If nothing else (sigh), Holder is dämn sure guilty of malfeasance.
More than once.
“Voter Suppression” my glutes. Try pulling that “I have no identification” cräp in any other country on the planet and see where that gets ya.

~(Ä)~

Karl Magnus on January 1, 2012 at 11:19 AM

By the same logic math tests are unconstitutional.

“Math is hard!” – Barbie, the recalled one
~(Ä)~

Karl Magnus on January 1, 2012 at 11:20 AM

While it has not been only members of the Democrat party that have been guilty of harmful patronizing of blacks for their vote, the Democrat party on the whole seems especially to champion the cultivation of failure among blacks through special accommodations and I’m not even talking about the racially discriminating policies & rules euphemistically called “affirmative action”. The same sort of lame excuse used to get rid of voter ID has been used against police & fire departments in a number of cities where dumbing down of promotion requirements has been ordered absurdly by the DOJ on the basis of “disparate impact” nonsense. Even in matters affecting life & death Democrat minds will ever spew nonsense for that precious block vote – which reflects very poorly also on those block voters – and pretend righteousness for it.

IMO it will be a glorious day when the SCOTUS finally trashes both the current section 5 and the disparate impact nonsense like toxic waste from a gone benighted era.

Chessplayer on January 1, 2012 at 4:42 PM

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