Eight states have passed laws that require voters to show IDs at the polls. Holder: Voter ID laws hurt minorities

Under increasing pressure from civil rights groups to take action against a wave of state voter identification laws, Attorney General Eric Holder issued a public warning Tuesday that the new laws could disenfranchise minority voters, but he stopped short of promising the broad legal crackdown many activists are seeking.

“It is time to ask: What kind of nation and what kind of people do we want to be? Are we willing to allow this era — our era — to be remembered as the age when our nation’s proud tradition of expanding the franchise ended?” Holder said in a speech at the Lyndon Baines Johnson Library and Museum in Austin, Texas.


This year, eight states have passed laws that require voters to show identification at the polls. Two of those states, South Carolina and Texas, need so-called pre-clearance from the Justice Department or a court, which has not yet been granted. Some states are also rolling back early voting options and adding new registration procedures, while others are imposing rules that could make it more difficult for college students and the elderly to vote.

Critics complain that the measures will have a disproportionate impact on minorities and the poor and are aimed at suppressing turnout of voters who tend to support Democrats. Supporters generally cite a need to fight fraud, though some have on occasion admitted seeking to discourage voting by specific groups, such as students.

Holder suggested that the new voter ID laws are unnecessary but was vague about what action the Justice Department plans to take against them, particularly in those states free to craft election procedures without the prior approval from the DOJ or the courts required by the Voting Rights Act. Under Section 5 of that law, most parts of nine states and a smattering of other counties and towns with a history of election-related discrimination must apply to the Justice Department or a court for permission to change voting procedures.

“Since January, more than a dozen states have advanced new voting measures. Some of these new laws are currently under review by the Justice Department, based on our obligations under the Voting Rights Act,” Holder said. “Although I cannot go into detail about the ongoing review of these and other state law changes, I can assure you that it will be thorough — and fair. We will examine the facts and we will apply the law.”

Holder’s message seemed as much a public exhortation to fight voter ID laws as a vow that the Justice Department would take action to block them.

“Speak out. Raise awareness about what’s at stake,” Holder said. “Call on our political parties to resist the temptation to suppress certain votes in the hope of attaining electoral success and, instead, encourage and work with the parties to achieve this success by appealing to more voters. And urge policymakers at every level to re-evaluate our election systems — and to reform them in ways that encourage, not limit, participation.”

In his remarks, Holder addressed the question of voter fraud that has been cited repeatedly by advocates of the new state laws such as Republican state Sen. Troy Fraser, a sponsor of Texas’s voter ID law, who said at the time the bill was passed: “Voter impersonation is a serious crime, but without a photo ID requirement, we can never have confidence in our system of voting.”

Holder said he prosecuted voter fraud cases earlier in his career but that “in-person voting fraud is uncommon.”

“We must be honest about this,” he said.

Holder’s speech followed a private meeting he held recently where civil rights leaders expressed a growing impatience with the Justice Department’s failure to act against the new laws, especially those in states that don’t require prior clearance from the department or the courts, according to sources who participated in the sessions.

“We were very concerned about the lack of enforcement from the Department of Justice,” said Barbara Arnwine of The Lawyers’ Committee for Civil Rights Under Law. “We have expected more from them in terms of voting rights. … We reviewed how many cases civil rights groups were bringing versus the number of cases brought by DOJ.”

Asked about the message delivered to the attorney general, Arnwine said: “It was that they were not doing enough. … We said that this was his watch.”

Arnwine said Holder was receptive to the criticism. “I think his doing the speech [Tuesday] is a testament to his determination that the world wants to know the department is going to be a major and significant player” in voting-rights litigation, she said.

Under Section 2 of the Voting Rights Act, the Justice Department or private citizens can sue any state or jurisdiction over procedures that dilute the votes of racial minorities, even where no intent to discriminate is shown.

But some Holder allies said his options to take action against the new voter ID laws are limited because of a 2008 Supreme Court decision that struck down a legal challenge to such a law in Indiana.

That ruling rejected the notion that such laws are unconstitutional on their face and suggested that lawsuits challenging voter ID require specific evidence that individuals or racial groups are facing serious obstacles to their right to vote. However, that evidence can be hard to develop in the lead-up to an election.

“At the moment, I’m not sure what he can do, given Supreme Court precedent,” said Del. Eleanor Holmes Norton (D-D.C.). “We haven’t had an election and since you haven’t had an election yet, you see the position he is put in and I am put in? You haven’t quite denied anybody the right to vote yet but when you do, it will be too late.”

Norton said she believes some of the new statutes have been deliberately timed to benefit Republicans in the 2012 election, while using the 2008 Supreme Court ruling to escape legal review until the elections are over. “Some compare these laws to Jim Crow laws, which did what they did through technicalities,” she said.

Norton said the voter ID laws were a key topic of discussion at a recent meeting between Congressional Black Caucus members and Holder. The attorney general “talked about how they’re keeping watch on these laws and looking for ways in which these laws may be drawn that make them vulnerable,” she said. “He understands what their purposes is. It’s hardly hidden.”

Still, some civil rights leaders say official action has been lacking.

“They’ve been a little silent and mute on voter suppression and cutting back early voting and they’ve moved a little slow on redistricting,” said John Brittain, a professor at the University of D.C.’s School of Law and longtime counsel to a variety of civil rights groups. Brittain also noted that it took the department and the broader administration more than 34 months to simply craft guidance for public schools and colleges on the permissible use of race in admissions and school assignment.

Wade Henderson of The Leadership Conference on Civil and Human Rights disagreed with critics of Holder’s record. “On voting rights, voter suppression and the right to vote, … I think in all of those areas, he has demonstrated not just a commitment to the rule of law but an effort to seek meaningful reform where possible,” Henderson said. “It’s some of his less visible, less glamorous work, … I think he has done extremely well.”

Holder’s speech came on the same day a new federal lawsuit highlighted the contrast between the civil rights groups’ legal campaign against voter ID law changes and the Justice Department’s deliberate approach.

The suit, filed against Wisconsin by the American Civil Liberties Union and the National Law Center on Homelessness & Poverty, charges that a voter ID law passed there in May and set to take effect for the state’s February primaries violates the Constitution and amounts to a poll tax.

“We will review the complaint that was filed [in Wisconsin] today,” Justice Department spokeswoman Xochitl Hinojosa said.