The Department of Justice, which is currently embroiled in fights over voter-ID laws in South Carolina and Texas, has passed on an opportunity to pick a fight in Virginia. TPM’s Ryan Reilly reports that the structure of Virginia’s regulation — which was opposed by Democrats when Governor Bob McDonnell signed it into law — made it difficult for the DoJ to fight it on Section 5 grounds. However, that’s due in part to Virginia’s non-photo-ID options for voter identification, too:
The Justice Department approved changes to Virginia’s voter ID law Monday, suggesting there is a way forward for such laws — even in states that must have election laws pre-cleared under Section 5 of the Voting Rights Act — so long as they’re written in a way the federal government will sign off on.
Unlike voter ID laws passed in South Carolina and Texas (both of which have been opposed by the Justice Department under President Obama), Virginia’s voter ID law allows voters do show a wide range of types of identification to cast a ballot. The law, labeled a “strict non-photo identification law” by the National Conference of State Legislatures, OKs types of identification more likely to be held by voters who lack a state-issued photo ID.
“Unlike other voter ID laws that the department has challenged in recent months, the Virginia law does not require a photo identification,” Justice Department spokeswoman Nanda Chitre said in a statement.
“Instead, this law actually expands the types of identifications voters may use at the polls, and the state is required to mail to all registered voters a voter card prior to the general election, which voters can use to vote, removing the burden of travel on many residents to obtain the necessary documentation,” she said.
That doesn’t mean that the DoJ will win their challenges in other Section 5 states. They’re already pushing the envelope hard on those arguments in South Carolina, where the state adoped the exact same kind of photo-ID system that the Supreme Court approved in 2008 for Indiana, and in Georgia, another Section 5 state, in 2005. In a 2009 case, the Supreme Court warned in another 8-1 decision that the days of Section 5 are numbered:
A second case offers a further glimpse into the High Court’s perspective on the modern use of Section 5. In 2009′s Northwest 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.
The DoJ may lose their Section 5 oversight in their suit against South Carolina as it is. If they pushed the envelope on Virginia, the court would probably take an even dimmer view of the prosecutorial oversight at DoJ in their stewardship of Section 5 states and move to dump it even more quickly. I’d guess that this is the main reason why the DoJ doesn’t plan to take on Virginia.
Even with the wider acceptance of identification types, the new law in Virginia significantly tightens control at the polling precincts. It eliminates the option of signing an affidavit attesting to one’s eligibility and identity as a permissible option. McDonnell also issued an EO that requires Virginia to send out voter ID cards to all registered voters, which can be used as ID, a mechanism that allowed Virginia to argue that it had assumed nearly all of the burden of requiring positive ID at the precincts. Even with that, some Democrats refused to endorse the law; the EO, said state rep Donald McEachin, was nothing more than “trying to put lipstick on a pig.”
Looks as though the law is at least pretty enough for Eric Holder’s DoJ to give it a kiss of approval, or at least choose to fight another day.