A new 206-page report from by the non-partisan Government Accountability Office [PDF] finds that Republican-enacted polling place Photo ID restriction laws in states such as Kansas and Tennessee resulted in lowered voter turnout among African-Americans as well as younger and recently-registered voters.
The study will likely serve as yet more important evidence to rebut the disingenuous, cherry-picked claims by Republicans over the years that Photo ID voting restrictions do not affect minority participation.
Congress’s research arm blamed the two states’ laws requiring that voters show identification on a dip in turnout in 2012 – about 2 percentage points in Kansas and between 2.2 and 3.2 percentage points in Tennessee. Those declines were greater among younger and African-American voters, when compared to turnout in other states.
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“This new analysis from GAO reaffirms what many in Congress already know: Threats to the right to vote still exist,” [Senator Patrick Leahy (D-VT)] said in a statement. “That is why Congress must act to restore the fundamental protections of the Voting Rights Act that have been gutted by the Supreme Court.”
The report, according to Leahy’s full statement, “also found scant evidence of voter fraud that the new laws that ostensibly are designed to discourage.”
I’m on a number of deadlines today, so haven’t gotten to peruse the actual report yet, but let me note a quick point or two, based on The Hill’s reporting on the GAO study, which was requested by Democratic Senators Leahy (VT), Durbin (IL), Schumer (NY), Nelson (FL) and independent Sanders (VT), all of whom are co-sponsoring legislation to fix the part of the Voting Rights Act that the U.S. Supreme Court gutted last year in its notorious 5-4 decision…
While Leahy, the U.S. Senate Judiciary Chair, is quoted in the story as correctly and squarely placing the blame for all of this on Republican “efforts to limit access to the ballot box” and the GOP “playing politics with the right to vote” by implementing these unnecessary and disenfranchising voting restrictions, there is a point that that needs to be made here, at least in response to The Hill’s juxtaposition of Photo ID restrictions in KS and TN next to Leahy’s remarks citing the GAO report to underscore “why Congress must act to restore the fundamental protections of the Voting Rights Act that have been gutted by the Supreme Court.”
On that point, Leahy is also absolutely correct. However, what isn’t pointed out by either The Hill or in Leahy’s full statement, is that both Kansas and Tennessee, the two states cited by The Hill and highlighted specifically in Leahy’s statement, enacted their polling place Photo ID voting restriction before the U.S. Supreme Court gutted the Voting Rights Act.
That’s right. The restrictive laws in both of those states, and the failure of the federal government to block them from disenfranchising voters, had nothing to do with SCOTUS gutting the VRA. It had only to do with a failure of the federal government to try and stop them from being enacted.
With U.S. Attorney General Eric Holder having announced his plans to resign recently, there have been many in the media who have positively cited his aggressive stance on civil rights issues, particularly in the voting rights arena.
It is true that Holder and the DoJ have been both outspoken and aggressive in their attempts to protect voting rights in a number of states since the Court shredded the ability, for the time being, to use the preclearance requirements of Section 5 to block discriminatory voting laws in jurisdictions that were covered by that part of the law.
But prior to SCOTUS’ decision last year — and even still today — the DoJ has simply failed to take aggressive action, or any at all, under Section 2 (which applies to all 50 states) to block disenfranchising Photo ID restrictions in states like Kansas and Tennessee that were not covered by Section 5.
We have roundly and repeatedly criticized Holder, in the years prior to last year’s SCOTUS ruling, for failing to take action to protect voters in those “red states” under Section 2, and noted the apparent hypocrisy when the DoJ threatened to do as much in response to Pennsylvania’s GOP Photo ID restriction in advance of the 2012 election. (That law was eventually struck down by a state court, so no federal action was ultimately necessary by DoJ).
In the bargain, we occasionally irked a number of folks whose work on this issue we otherwise greatly admire. No need to name names here, they are more than capable of speaking up on this matter if they wish.
So, why threaten Section 2 action against PA, but not KS or TN? It’s hard to draw any other conclusion other than Democrats at the DoJ felt they needed PA to win the Presidency, but had no illusions that states like KS or TN would fall into their column — even though voters would almost certainly lose their right to vote under the Republican voting restrictions enacted there. There may be other, better explanations, but we’ve yet to hear a particularly persuasive one in the years we’ve spent asking — and irking — folks about it.
“Red states” or not, as we’ve been yelling and screaming for years, voters in those states — all voters, in all states — deserve federal protection against disenfranchisement. The voters in KS and TN never received that protection from the DoJ. So it seems more than a bit hypocritical now for folks like Leahy to cite those two states as reasons why the VRA needs to be fixed — which it absolutely does — even though neither of them were among the ones affected by SCOTUS having gutted Section 5.
Democrats and Republicans who pretend to give a damn about democracy, the U.S. Constitution and related American values need to take action to fix the VRA. And Holder has, in the year since the Court broke one of the key provisions of that law, been much more aggressive in defending the voting rights of minorities in a number of states. But nothing was stopping him then, and nothing is stopping him now, from filing suit against the disenfranchising laws in those states.
Let’s get the record straight on all of this before Democrats break their arms trying to pat themselves on the back for being right about Photo ID restrictions and before the outgoing AG’s hagiography is set in stone.
Okay. Now that we’ve done that, let’s fix the VRA and start fighting to protect voting rights for all Americans in every state in the union. How about a lawsuit in Kansas or Tennessee as a parting gift before you head out the door, Mr. Attorney General?
Recall that way back on Feb. 29, 2012, I suggested that the ACLU’s federal challenge to Wisconsin’s photo ID law in Frank v. Walker — the case upon which we are now all anxiously awaiting a decision by the Supremes on whether to reinstate the permanent injunction for the 2014 election — provided the DOJ with a golden opportunity to seek application of Section 2 of the VRA.
At the time, we received conflicting opinions from U.C. Irvine Law Prof. Rick Hasen and Loyola Law Prof. Justin Levitt. Hasen said there was no way a section 2 claim could succeed absent evidence of discriminatory intent. Levitt disagreed, but stated that the parties would have to present a fully developed record.
In its recent decision on same day registration in NC, the 4th Circuit sided with Levitt’s view.