The Obama administration's recent decision to block a new voter ID law in South Carolina is fueling one of the biggest partisan debates of the day: Do stronger state voter ID laws really curtail the minority franchise?
States have been on a tear of late to enact tighter controls on voting, including in South Carolina. Last year, 34 approved or considered tougher voting regulations, in a bid to ensure that voters who show up at the polls on Election Day are who they say they are.
Most of the new rules were approved by Republican-controlled legislatures, whose members say a crackdown on voter fraud is long overdue. But many Democrats decry the strictest rules – which won't allow a ballot to be counted unless that voter presents a state-approved photo ID – as a conspiracy to suppress turnout of their party's constituency, namely the poor, minorities, and college students.
Enter the US Department of Justice.
It moved in dramatic fashion last month to block South Carolina's voter ID law, refusing to give the state clearance to mandate that voters show a form of state-issued ID at the polls – DOJ's first such objection to a state voter ID law since 1994. The department, moreover, is poised to decide the fate of Texas's new voter ID law. Both states want to put the revisions in effect in time for the 2012 election.
At issue: Are the new laws retrogressive for minority voting rights under Section 5 of the Voting Rights Act – to wit, do the costs to voters of securing state IDs amount to a "poll tax"?
In announcing the South Carolina denial Dec. 23, Attorney General Eric Holder said federal oversight of voting in the South is still needed to "resist the temptation to suppress certain votes in the hope of attaining electoral success." Like most Southern states, South Carolina must get sign-off from DOJ's Voting Rights Section to change its voting laws because of past suppression of the minority vote.
South Carolina has said it will appeal the Justice Department's action, and many legal analysts expect the case will quickly advance to the US Supreme Court.
"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" and a potential fast-track vote by the Supreme Court ahead of the 2012 election, writes political scientist Richard Hasen at the University of California, Irvine, in an article for Slate.
As recently as 2009, a majority of the justices stated in a Texas voting rights case that "the South has changed." In that case, Chief Justice John Roberts questioned assertions that Southerners are more tempted to discriminate at the polls than are Northerners. In the South Carolina case, the high court would be expected to weigh the interests of the federal government in protecting voting rights against the state's own sovereignty rights.
In rejecting South Carolina's law, the Justice Department said the state failed to prove that it would not affect minority voters more than white ones, given that 10 percent of blacks don't carry government IDs, compared with 8.4 percent of whites.
Whether that discrepancy amounts to an attack on minority voting rights is arguable for a state where an Indian-American, Nikki Haley, serves as governor and where a black conservative, Tim Scott, was elected to Congress in 2010 from a mostly white district, some say.
Opponents of voter ID laws, however, cite studies that show voter fraud to be negligible. It makes no sense, they say, to risk disenfranchising people via tough new voter laws to fix a problem that is practically nonexistent.
"There is almost no voting fraud in America," asserted a New York Times editorial in October. "None of the lawmakers who claim there is have ever been able to document any but the most isolated cases. The only reason Republicans are passing these laws is to give themselves a political edge by suppressing Democratic votes."
The fear is that "voter ID laws ... can discourage and deter a lot of people, which is the exact opposite of what we should be doing," Katie O'Connor, an attorney with the American Civil Liberties Union, recently told The Epoch Times.
Still, a large majority of Americans support voter ID laws, according to a recent Rasmussen poll. Studies about the effects of voter ID laws are mixed: Some show dips in voter participation and others show a rise. In 2009, a study published in the Harvard Law and Policy Review found that the first generation of voter ID laws, enacted from 2002 to 2004, depressed turnout by 2.34 percent – disenfranchising as many as 4.5 million people – but that ID laws passed from 2004 to 2006 boosted turnout 1.95 percent. The author attributed the change to states' efforts to remind people to vote and bring ID.
In Georgia, where a strict voter ID law went into effect in 2007 after Justice Department sign-off, turnout among African-Americans rose 42 percent from the 2006 midterm elections to the 2010 midterms, according to the Secretary of State's office. Asked if fears of disenfranchisement are legitimate, Secretary of State spokesman Matt Carrothers said, "We're getting to the point of the discussion where you exit the realm of math and get into ideology, and at that point someone is basically telling you their opinion."
The opinion in many conservative circles is that the Obama administration is using voter ID laws to play politics, by painting itself as protector of minority voting rights against an allegedly racist Southern power structure.
"The political upside is that you keep your civil rights constituency happy," says James Guth, a political scientist at Furman University, in Greenville, S.C. "That's not to suggest Holder doesn't believe in what he's doing, but it also has that political effect."
But there's a risk for the Justice Department, too, if the Supreme Court steps into the fray. "The Supreme Court is not going to tolerate purist fantasies where an unwillingness to examine mitigating evidence justifies intrusion into state laws," says J. Christian Adams, a former civil rights attorney at DOJ and the author of "Injustice: Exposing the Racial Agenda of the Obama Justice Department."