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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