The Obama Administration’s Risky Voter ID Move Threatens the Voting Rights Act

The law, lawyers, and the court.
Dec. 30 2011 1:09 PM

Holder’s Voting Rights Gamble

The Supreme Court’s voter ID showdown.

The Supreme Court of the United States
The Supreme Court of the United States.

Photograph by iStockphoto/Thinkstock.

On the Friday before Christmas Day, the Department of Justice formally objected to a new South Carolina law requiring voters to produce an approved form of photo ID in order to vote. That move already has drawn cheers from the left and jeers from the right. The DoJ said South Carolina could not show that its new law would not have an adverse impact on racial minorities, who are less likely to have acceptable forms of identification.

South Carolina Gov. Nikki Haley denounced the DoJ decision blocking the law under Section 5 of the Voting Rights Act: “It is outrageous, and we plan to look at every possible option to get this terrible, clearly political decision overturned so we can protect the integrity of our electoral process and our 10th Amendment rights.” The state’s attorney general vowed to fight the DoJ move in court, and thanks to an odd quirk in the law, the issue could get fast-tracked to the Supreme Court, which could well use it to strike down the Voting Rights Act provision as unconstitutional before the 2012 elections.

The current dispute has an eerie echo. More than 45 years ago, South Carolina also went to the Supreme Court to complain that Section 5 unconstitutionally intruded on its sovereignty. Under the 1965 Act, states with a history of racial discrimination like South Carolina could not make changes in its voting rules—from major changes like redistricting to changes as minor as moving a polling place across the street—without getting the permission of either the U.S. Department of Justice or a three-judge court in Washington, D.C. The state had to show the law was not enacted with the purpose, or effect, of making minority voters worse off than they already were.

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In South Carolina v. Katzenbach, the Supreme Court said the law requiring “preclearance” of voting changes, while an extreme intrusion on states’ rights, was necessary because lesser measures—like federal government suits over each discriminatory voting practice—had not worked. As Chief Justice Warren explained at the time: “Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests designed to prolong the existing disparity between white and Negro registration… . After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.”

That was in 1966. While much has changed since then (who would have expected South Carolina to elect an Indian-American woman governor?), what has not changed is that the same states that had to obtain preclearance in the 1960s still must do so today (though other states and parts of states were added in the 1970s). Preclearance is the reason Texas is fighting in the Supreme Court over its redistricting plans, and why Florida has not yet been able to implement tough new voting laws opposed by Democrats, the League of Women Voters, and minority groups in Florida. And while the new voter ID laws in South Carolina and Texas need DoJ approval, the new voter ID law in Wisconsin, and the likely new law in Pennsylvania can go into effect without federal approval because those states are not subject to Section 5.

Some conservatives have been pushing the argument that Section 5 is no longer constitutional, because the states subject to preclearance don’t present a special danger of racial discrimination. In 2009, the Supreme Court strongly signaled that this crown jewel of the civil rights movement may no longer be constitutional because of its interference with states’ rights. Chief Justice John Roberts was especially vocal at oral argument in the case, questioning whether Section 5 was still needed to stop racial discrimination, and why the problem with racial discrimination in voting was confined to those states subject to preclearance, asking Debo Adegbile, lawyer for the NAACP: “So is it … your position that today southerners are more likely to discriminate than northerners?”

While many read the court’s 2009 decision as an invitation for Congress to fix or update Section 5, Congress has done nothing. Meanwhile, the constitutional question has been percolating in the lower courts, and most knowledgeable observers expected the issue to get to the court in the next few years.

But it now seems pretty likely that the South Carolina case will leapfrog over those others, and ask the Supreme Court to consider the constitutional question soon, in the same term that the court is likely to decide on the constitutionality of health care legislation, Texas’ new redistricting plans, and Arizona’s controversial immigration measure.

While you might expect the Supreme Court to try to duck the potential for yet another blockbuster decision this term, a procedural oddity of the Voting Rights Act makes it unlikely. Most cases come up to the Supreme Court review through a petition for a writ of certiorari. The court has total discretion about whether or not to hear such cases. But a very small minority of cases—almost all of them election cases—come to the Supreme Court on a direct appeal from a three-judge court. South Carolina’s expected litigation over its voter ID law will go before just such a court in Washington, D.C., with direct appeal to the Supreme Court. Unlike an ordinary denial to hear the case, a Supreme Court decision not to hear an appeal from a three-judge court is a decision on the merits, an indication that the lower court got the decision right. (That’s not true with cert. denials.)

If South Carolina argues in court that it is unconstitutional to require it to submit its voter ID law for federal approval, and the three-judge court rejects that argument, it is hard to imagine the Supreme Court conservatives refusing to hear that case. And further, because this is an election-related case, it is likely to be fast-tracked like the Texas redistricting case. South Carolina is claiming it needs to use voter identification in the upcoming election to preserve the integrity of its electoral process. DoJ is blocking the state’s law. This almost perfectly tees up the issue of federalism and state sovereignty.

Why did the Obama DoJ deny preclearance, knowing it could well set up this massive confrontation and potentially lead to the downfall of Section 5 of the Voting Rights Act? There are both principled and political reasons. First of all, it was the right thing to do. As the DoJ letter explains, South Carolina presented no evidence that its law was necessary to prevent voter fraud, and the evidence was uncontested that minority voters were less likely to have ID Second, if the Court is going to strike down Section 5, it might be politically better for this to happen before the 2012 elections, so that Obama can run against a Supreme Court, and the possibility that a President Romney could appoint a young version of Justice Scalia to take a retiring Justice Kennedy’s seat on the court, solidifying the court’s conservative majority for a generation.

It’s a gamble, both legally and politically, and no one knows for sure how it will turn out. But South Carolina may fare much better before the Roberts court this spring than it did before the Warren court in 1966.

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and is writing a book on campaign finance and political equality. Follow him on Twitter.

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