Holder’s Assault on State Election Laws

The lawsuit was but one half of a two-pronged assault by the Holder Justice Department on Texas election practices. The department pursued separately a legal challenge to Texas’ congressional and legislative redistricting plans. Texas is not the only state in the federal crosshairs over issues of election sovereignty. Holder has challenged the electoral practices of North Carolina as well.

By Andrew Thomas | November 18, 2013

Source: Texas Tribune

As the nationwide collapse of ObamaCare has earned the growing ire and mistrust of voters, the Obama administration is now seemingly trying to minimize the political fallout in upcoming elections with an audacious plan: challenging state efforts to curb voter fraud. Spearheading this effort is Attorney General Eric Holder and a Justice Department increasingly famous for playing hardball politics in court.

On August 22, 2013, following a U.S. Supreme Court ruling that struck down part of the federal Voting Rights Act, Holder and the Justice Department filed suit to challenge Texas’ new voter ID. The law requires government-issued photo identification before citizens will be allowed to vote. In their lawsuit, Holder and federal authorities demanded that Texas election officials be put back under the preclearance provisions of the federal Voting Rights Act. This followed a U.S. Supreme Court ruling just a few weeks before which extricated Texas from those same provisions.

Holder accused the Republican-controlled Texas legislature of passing the new law to intentionally discriminate against blacks and Hispanics. “We will not allow the Supreme Court’s recent decision to be interpreted as open season for states to pursue measures that suppress voting rights,” he proclaimed. Texas Attorney General Greg Abbott shot back that Holder’s tactics reflected the “cynical politics of race.”

The lawsuit was but one half of a two-pronged assault by the Holder Justice Department on Texas election practices. The department pursued separately a legal challenge to Texas’ congressional and legislative redistricting plans.

Texas is not the only state in the federal crosshairs over issues of election sovereignty. Holder has challenged the electoral practices of North Carolina as well.

On August 12, North Carolina Governor Pat McCrory signed a series of voting-integrity measures into law. These included new photo ID requirements for voters, a repeal of same-day voter registration, and a shortening of the state’s early voting period by seven days. McCrory observed that “boarding an airplane” requires photo ID, so the state was not out of bounds in requiring the same thing “for the protection of our right to vote.”

The measure promptly drew a lawsuit by the North Carolina NAACP. The Justice Department filed its own shortly thereafter, on September 30. Holder alleged the North Carolina law imposes “troubling new restrictions” on voters.

The attorney general added saber-rattling to his rhetoric, warning that his department could bring lawsuits against more states. Referring to the federal suit against North Carolina, Holder augured, “I fear that it will not be our last.”

As part of the Justice Department’s lawsuits against Texas and North Carolina, the federal agency asked the federal courts to put those states back under preclearance, despite a very recent Supreme Court decision that relieved states of these same requirements. Under the Voting Rights Act, states and localities with a history of racial discrimination were obliged to gain permission from federal authorities before making any changes to their voting laws. This process, called “preclearance,” applied to nine states as of June 2013: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Some counties and townships in other states also were subject to preclearance. Originally applied to states with literacy tests and voter-suppressing procedures, Section 5 was expanded in later years to apply to jurisdictions with large minority populations and English-only election materials.

In Shelby County v. Holder (2013), the Supreme Court found the preclearance formula unconstitutional. The law violated states’ rights guaranteed by the Tenth Amendment. The court held that the coverage formula was “based on 40-year-old facts having no logical relation to the present day.” The court technically left intact Section 5 of the Voting Rights Act, which prescribes the process for preclearance, but struck down Section 4, which deals with how states and localities may be determined to be subject to preclearance.

The new election laws in Texas and North Carolina targeted by Holder and the Department of Justice are part of a broader national trend. Rising public concern over voter fraud has prompted review and changes of state and local election procedures across the country. Partisan fault lines have emerged in this debate. Republicans tend to champion the reforms as necessary to prevent voter fraud, while Democrats decry them as suppressing or obstructing voting by racial minorities.

At the heart of these measures are laws requiring voter identification. The Justice Department has approved some such changes, in states such as Virginia, but disallowed such reforms in other states where the agency claims they would impose an unfair burden on the poor and minorities.

Following the Shelby County decision, other states have pursued their own reforms as well. Florida began removing non-citizens from its voter rolls using the federal SAVE (Systematic Alien Verification for Entitlements) database. Run by the Department of Homeland Security, this database checks the immigration statuses of people applying for government benefits. Virginia’s legislature passed a new law requiring the Virginia State Board of Elections to use the SAVE database and check the voter rolls of other states to remove ineligible voters.

Yet, the same Supreme Court that recognized greater state autonomy over election procedures threw up a roadblock to this trend in another case in 2013. In Arizona et al. v Intertribal Council of Arizona, Inc., the court struck down Arizona’s voter ID laws, approved by voters in 2004, holding that Arizona could not unilaterally require voters to show proof of citizenship before registering to vote in a federal election. Arizona could, however, sue the Election Assistance Commission to force amendments to the federal voter registration form requiring proof of citizenship. Both Arizona and Kansas have sued the commission, and in the meantime have established two-tiered systems of voter registration and eligibility; this requires voters to provide proof of citizenship for state and local races but not federal ones.

Other states have tightened voting rules this year. They include Arkansas, Iowa, Indiana, Montana, Nebraska, North Dakota, and Tennessee.

Yet, all of these states risk drawing a lawsuit from Holder and the federal government. The specter of “racial politics,” as described by the Texas attorney general, looms heavily and obviously over these legal challenges. Indeed, it appears that years of litigation with a hostile Justice Department could become the norm for any state wishing to assert greater control over its election procedures—this despite the Tenth Amendment’s guarantee to the contrary.

Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected as Maricopa County Attorney, the district attorney for greater Phoenix, Arizona, Thomas served a county of four million residents and ran one of the largest prosecutor’s offices in the nation. He established a national reputation for fighting violent crime, identity theft, drug abuse and illegal immigration. He is the author of four books, including Clarence Thomas: A Biography and The People v. Harvard Law: How America’s Oldest Law School Turned Its Back on Free Speech. Mr. Thomas is also a contributor to SFPPR News & Analysis.