Rodger Mallison / Fort Worth Star-Telegram/MCT

A man votes in Texas, November 6, 2012.

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States, Justice Department girding for battle over voting laws

Published: Friday, Aug. 23, 2013 - 2:06 pm
Last Modified: Thursday, Oct. 17, 2013 - 1:16 pm

Now comes the far-flung fallout from a Supreme Court decision in June blowing up a key provision of the 1965 Voting Rights Act.

A federal lawsuit filed Thursday against a Texas voter identification law seems certain to be followed by a similar suit against one in North Carolina. Other states, too, could face federal legal challenges over their actions in the wake of the high court’s decision.

Congress, if it’s up to the task, could also get messy trying to partially restore the guts of the landmark 1965 law.

The fights to come will span many fronts, including several of the 33 states that have passed voter identification laws. The separate conflicts, moreover, will inevitably cross-pollinate. One key lawmaker, tellingly, believes the federal action in Texas will “make it much more difficult” to get Voting Rights Act revisions through an already divided Congress.

And, as in any global conflict, strategic thinking could pay dividends.

“I’m sure the Department of Justice will pick its spots carefully,” election law expert Daniel P. Tokaji, a professor at Ohio State University’s Moritz College of Law, said in an interview Friday. “These aren’t easy cases.”

Beyond the legal debate, however, the controversy has political ramifications, as well.

In the Justice Department’s 15-page lawsuit targeting the Texas voter ID law, signed by Houston-based Assistant U.S. Attorney Daniel D. Hu, the department deployed arguments potentially applicable against other states, as well. The Texas law, Hu wrote, would “deny equal opportunities for Hispanic and African-American voters to participate in the political process, resulting in a denial of the right to vote.”

The Texas law requires voters to present a government-issued photo identification; student IDs, for instance, no longer count. Critics say this effectively shuts out many, particularly the poor and minorities, who may have to travel a great distance to the Texas state offices that issue the identification cards.

Responding in turn, Texas officials, likewise, foreshadow a common state defense.

“Voter IDs have nothing to do with race,” Texas Attorney General Greg Abbott stated. “The Obama administration continues to ignore the 10th Amendment and repeated Supreme Court decisions upholding states’ authority to enforce voter identification and redistricting laws.”

The 10th Amendment declares that “powers not delegated to the United States by the Constitution . . . are reserved to the states respectively, or to the people.” These state powers include “the power to regulate elections,” the Supreme Court has concluded.

Thirty-three states have passed various kinds of voter identification laws, and state legislators keep tinkering. Most recently, on Aug. 12, North Carolina’s governor signed an elections package that includes strict new voter ID requirements, as well as other changes that could make it harder to vote.

“While some will try to make this seem to be controversial, the simple reality is that requiring voters to provide a photo ID when they vote is a commonsense idea,” Republican Gov. Pat McCrory said on signing the North Carolina measure.

Mississippi, South Carolina, Alabama and Arkansas, among other states recently freed from strict Justice Department control, have their own strict voter ID measures that could raise federal hackles, as well.

The coming conflicts reflect, in part, the decades-old tension between state and federal powers. Texas Gov. Rick Perry hit this nail on the head when he complained that the Justice Department seeks to “obstruct the will of the people of Texas.” The coming conflicts reflect, as well, political motives that are cast in dramatically different lights.

The stricter laws described by Republicans as a way to protect voting integrity are described by skeptics as an attempt to suppress minority voters who are predominantly Democrats. In turn, the Justice Department legal actions described by Attorney General Eric Holder on Thursday as an effort to “prevent voter disenfranchisement” were recast by Texas Republican Sen. John Cornyn as a blatant attempt to “turn our state blue.”

The Supreme Court set everything in motion June 25, in a case called Shelby County v. Holder, in which the Alabama county south of Birmingham sued Holder over the constitutionality of parts of the Voting Rights Act.

The court’s 5-4 decision struck down the “coverage formula” section that determines which states and local jurisdictions require prior Justice Department approval before making electoral changes, from redrawing political boundaries to setting voting requirements. This is called preclearance.

Nine states had to submit to preclearance under the coverage formula struck down by the court: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Selected jurisdictions in seven states were also covered by the old formula, including parts of California, Florida, North Carolina, Michigan, New Hampshire, New York and South Dakota.

“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” Chief Justice John Roberts Jr. wrote.

Until Congress rewrites the law, the court’s decision effectively frees states from needing prior approvals. One result, Tokaji predicted, is “there will be a great effort on the part of some states to impose new barriers to voting.”

That could change. As Roberts noted, “Congress may draft another formula based on current conditions.” The key word is “may.”

Some want Congress to wade in. The California state Senate on Thursday passed a resolution urging Congress to replace the missing preclearance coverage formula; the absence of which, Democratic state Sen. Leland Yee of San Francisco said, “has already made voting more burdensome and less accessible throughout the country.”

The legislative task, though, was tough enough even before the Justice Department acted. Now, some caution it could be impossible.

Republican Rep. James Sensenbrenner of Wisconsin, a key author of the last Voting Rights Act revisions, warned Holder this week that his lawsuits would exacerbate partisan tensions and undermine coalition-building in the GOP-controlled House of Representatives.

“The lawsuit would make it much more difficult to pass a bipartisan fix to restore the heart of the (Voting Rights Act),” he predicted in a statement.

An alternative view is that Republicans and Democrats alike already have figured out that Congress is unlikely to move voting rights legislation anytime soon. Democrats, then, have nothing to lose and potentially some symbolic and substantive victories to gain in court, while Republicans now have their own reasons to rally.


Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

Read more articles by Michael Doyle



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