It’s not just Texas where Attorney General Eric Holder wants to get around the Supreme Court’s ruling in Shelby County. The Department of Justice will announce this morning that they will file a lawsuit to block North Carolina’s voter-ID law, just as they did in Texas, and probably will in all of the former pre-clearance states that attempt to enforce one:
The U.S. Department of Justice will file a lawsuit Monday to stop North Carolina’s new voter ID law, which critics have said is the most sweeping law of its kind, according to a person briefed on the department’s plans.
Attorney General Eric Holder, who has said he will fight state voting laws that he sees as discriminatory, will announce the lawsuit at noon Monday, along with the three U.S. attorneys from the state. …
The North Carolina ID law, which was signed by Gov. Pat McCrory in August, goes into effect for the 2016 elections. It requires voters to show a valid, government-issued ID before casting a ballot. It also has a number of other provisions, which will be challenged in the federal lawsuit, according to the person briefed on the Justice Department’s plans.
Among them: the elimination of seven days of early voting; the elimination of same-day registration during early voting; the prohibition against counting provisional ballots that are cast when a voter shows up at the wrong polling place.
The suit will allege explicit discriminatory intent on the part of North Carolina’s legislature, according to ABC News:
“North Carolina enacted these provisions with a discriminatory purpose to deny African-Americans equal access to voting,” and the provisions “will have the result of denying or abridging an equal opportunity to vote for African-Americans,” the source briefed on the lawsuit said.
The source cited a report by North Carolina’s State Board of Elections four months ago, showing that while African-Americans comprise 22 percent of registered voters in North Carolina, African-Americans account for 34 percent of voters who do not have an ID issued by the state’s Department of Motor Vehicles.
Governor Pat McCrory scoffed at the notion last month:
“North Carolinians overwhelmingly support a common sense law that requires voters to present photo identification in order to cast a ballot,” McCrory said in a statement last month. “Common practices like boarding an airplane and purchasing Sudafed require photo ID, and we should expect nothing less for the protection of our right to vote.”
This is yet another attempt by Holder to get around the loss of pre-clearance by forcing the courts to provide Justice a de facto pre-clearance in the courts. However, it has less than a good chance of working, thanks to the Supreme Court’s explicit actions in Shelby County. In all other states, Justice had to wait before suing states over voting laws to show actual damages, ie, actual and systemic discrimination rather than rational action to protect the validity of the ballot. The court ruled this summer that the formula in the Voting Rights Act that Congress created to violate the states’ expectations of sovereignty and equal process had become irrational after 50 years.
Holder needs to wait to use those preclearance powers for Congress to come up with a new formula that allows Justice to intervene prior to actual damages, but Congress is clearly not interested in doing so. As I have repeatedly noted, this does not prevent the DoJ from pursuing real instances of racial discrimination through Section 2 of the VRA, but it does force the DoJ to proceed as it does with the forty-plus other states by (a) waiting for the laws to take effect, and (b) bearing the burden of proof that the laws are discriminatory in intent and practice, neither of which they had to do during the pre-clearance era. Given the court’s ruling this summer, I’d bet that they will take a very dim view of Holder’s attempt to push a political strategy to reconstitute preclearance through the federal courts rather than Congress.