Legal Battles Loom In Fight Over Voter ID Laws

September 5, 2011 3:00 am

Conservative “investigative reporter” Matthew Vadum caused a real stir last week. As one of the many individuals who proselytizes about the threat of voter fraud and the need for restrictive measures to protect the ballot box, he’s generally expected to stick to a predictable script.

The argument usually goes like this: everyone should be able to vote and that voter ID isn’t supposed to make it harder for anyone to vote. Also, voter ID efforts aren’t partisan, but rather about good government, and that if you have to show your ID to buy liquor or rent a movie from Blockbuster you should have to show it to vote.But Vadum — who wrote column upon column and even a book about the community organizing group ACORN — published a piece last week that really gave away the game, writing that groups that want to register poor people are un-American and are essentially “handing out burglary tools to criminals.”

Voter ID legislation in the states has been getting a lot of attention lately, with Sen. Dick Durbin (D-IL) announcing a hearing examining the issue this week.

It all started in January, as many new Republican state legislators who had been swept into statehouses across the country in the 2010 elections started pushing like-minded legislation soon after they took office.

“These bills started popping up everywhere and what started as a trickle almost seemed like a flood,” Carolyn Fiddler of the Democratic Congressional Campaign Committee told TPM.

Altogether this year, 20 states which did not have voter ID laws and 14 states that already had non-photo ID laws have considered legislation requiring citizens have a photo ID to vote, according to the latest figures from the National Conference of State Legislatures.

Of those 34 states which considered voter ID legislation, six of them enacted laws: Alabama, Kansas, South Carolina, Tennessee, Texas and Wisconsin.

Many suspect some sort of coordinated campaign behind the voter ID bills. Back in March, Campus Progress uncovered model legislation published by the conservative group American Legislative Exchange Council (ALEC). Fiddler isn’t so sure they’re entirely responsible.

“I know a lot of folks point to ALEC and what they’re doing but what my experience tells me is that a lot of these legislators are influenced by their colleagues in others states,” Fiddler told TPM. “They say, ‘hey that works! Let’s try to push that thing here’.”

A few years back, there was a centralized group, the American Center for Voting Rights, that was dedicated to pushing the idea that voter fraud was a major threat. Now it’s more a loose network of conservatives who have used their influence at think tanks like the Heritage Foundation and the pages of various conservative media outlets to push voter fraud as a threat to democracy.

The Tea Party is also getting in on the game, with a group in Texas playing a major role, starting an affiliated group called “True the Vote” that hosted its first national conference back in March. Speakers insisted that their efforts were non-partisan and that they wanted everyone to be able to vote.

Obama Justice Department Will Weigh In On South Carolina, Texas Laws

The last line of defense against voter identification laws is the Voting Section of the Justice Department’s Civil Rights Division, which enforces Section 5 of the Voting Rights Act. Alumni of the section joke it is recovering from post traumatic stress disorder following the politicization of the section that took place during the Bush administration.

“It is evident that the Section, at times at the behest of DOJ’s highest ranking officials, prioritized a voter fraud prevention and prosecution agenda designed to suppress minority voter turnout; and decisions on some Section 5 submissions were crafted to serve partisan ends,” an Obama-Biden transition team report on the Civil Rights Division found.

Section 5 — which requires certain jurisdictions to clear changes to their voting laws with the feds before they go into effect — only applies to two of the states which have passed voter ID laws: Texas and South Carolina. Both states are trying to convince the Justice Department that their laws don’t have the intent or effect of suppressing the minority vote.

“There’s a lot of reason to think that voter ID laws depending on how they’re constructed could have a harmful effect on minority voters,” University of Michigan Law School Professor Samuel Bagenstos told TPM. Bagenstos was the number two official in the Civil Rights Division until he returned to Michigan this summer.

The VRA, Bagenstos said, “puts the burden on the state to prove that the change in voting isn’t discriminatory in purpose and effect.”

“The people who are proposing those laws say there’s a problem with voter fraud,” he said. “But since the overwhelming majority of voter fraud that occurs occurs via absentee ballot and not at the polls, there’s a very tenuous connection.”

Since the legislatures proposing voter ID laws don’t typically come out and say that they’re trying to stop minorities from voting, it’s usually much easier to argue that regardless of what lawmakers intended to accomplish when they passed the law that it would have a discriminatory effect.

Just proving that the laws were written to benefit Republicans isn’t enough. “Purely partisan purpose is not something that would violate the VRA,” Bagenstos said.

Texas is arguing that the Bush-era pre-clearance of Georgia’s voter ID law — a decision made by political appointees over the objections of career staffers — should mean that their similar voter ID law should be pre-cleared as well. Bagenstos said that the Obama Justice Department isn’t bound by the decisions of the previous administration.

“Certainly the Georgia pre-clearance decision from the Bush administration is a decision that is under a bit of a cloud based on everything that emerged about it and given the findings of various DOJ investigations,” Bagenstos said.

Thanks to a constitutional challenge from Arizona, Section 5 of the VRA is facing a somewhat uncertain future itself. Several localities have gone to court arguing that Section 5 is unconstitutional, but Arizona’s challenge was the first that came from a state.

Arizona’s top lawyer Tom Horne has argued that Section 5 was “either archaic, not based in fact, or subject to completely subjective enforcement based on the whim of federal authorities.”

The Justice Department said they’ll defend the 1965 law.

“The Department of Justice will vigorously defend the constitutionality of the Voting Rights Act in this case, as it has done successfully in the past,” Attorney General Eric Holder said in a statement. “The provisions challenged in this case, including the preclearance requirement, were reauthorized by Congress in 2006 with overwhelming and bipartisan support. The Justice Department will continue to enforce the Voting Rights Act, including each of the provisions challenged today.”

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