Are States Delaying Voter ID Enactment to Duck Federal Racial Review?

Some states may be hedging on a Supreme Court decision that might strike the Voting Rights Act's Section Five clause.

By Brentin Mock Jun 12, 2013

In March, Virginia passed a strict photo voter ID law that won’t go into effect until 2014. It’s the second voter ID law they’ve passed in as many years — the first one enacted last year only after a review by the federal government made sure that it would not disenfranchise voters of color, even by mistake. The U.S. Department of Justice reviewed and cleared it just in time for the November elections last year. The much stricter version of Virginia’s voter ID law passed this year may not enjoy the same federal scrutiny given its 2014 start date. Reason being, if the U.S. Supreme Court rules that Section 5 is invalid — and a ruling is expected within weeks — then the voter ID law would go into effect regardless of its impact on people. Over 870,000 Virginians, mostly people of color, may lack the appropriate ID to vote, according to a letter sent from the ACLU to Virginia Gov. Bob McDonnell asking him to veto the new voter ID law. 

So, it has to be asked: Is Virginia holding the new law to escape racial discrimination review? It’s tough to think of Virginia in that context given its governor just went through the trouble of lifting voting bans on citizens formerly incarcerated for nonviolent felon charges. But if those who’ve left prison are unable to get government ID or a driver’s license — not uncommon for many formerly incarcerated, as pointed out by the Legal Action Center, due to missing vital documents like birth certificates — then they may suffer disenfranchisement under the new law next year anyway.

Virginia isn’t the only state holding back on passed election legislation. A report from the Brennan Center for Justice, "If Section 5 Falls: New Voting Implications," shows that many states have voter ID and other election laws on ice, and could quickly thaw them out for implementation immediately upon a SCOTUS ruling killing Section 5. It is not a foregone conclusion that SCOTUS will do this, but Chief Justice John Roberts, Justice Antonin Scalia and Clarence Thomas have all indicated that they want to strike it

The Brennan report points to the Section 5-covered Alabama, which provides two examples similar to Virginia:

  • In 2011, Alabama passed a law that requires residents to submit proof of their citizenship to register. The state submitted this law for review last year, but then withdrew it a month ago, after the Justice Department requested more information.
  • The state also passed a voter ID law in 2011 that, like Virginia’s, isn’t slated to go into effect until 2014, and has not been submitted for federal review.

Laughlin McDonald, a veteran voting rights attorney and leader of the ACLU’s Voting Rights Project, told Brennan he believed Alabama’s withdrawal of the proof-of-citizenship law might be "motivated by a desire to avoid an objection in the short-term," and the hope that the Supreme Court would ultimately remove the Section 5 review as a barrier.

"There are experts in the field and on the ground who are very concerned that certain [election law] changes that are anticipated are being stalled in moving forward for section five preclearance and the concern is that it is being done with the hopes of section five not being a barrier in the future," said Myrna Perez, deputy director for the Brennan Center for Justice’s Democracy Program and co-author of the report, in a call with Colorlines this morning.  

There are other consequences, unintended or maybe intended, if Section 5 is deleted from the Voting Rights Act, according to the report.

There are election laws recently blocked under Section Five that could be revived if it’s struck and with no heavy lifting. "Of particular concern are those election changes that could be resuscitated with little delay and little public notice." Changes to polling place locations and for assistance for voters with limited English could be changed without a vote or new legislation. But there is some legislation that has been blocked that have remained on the books, even while not enforced. They could be dialed up immediately in some places.

And then there’s the election legislation waiting in the wings in states like North Carolina, another Section 5 state that is looking to impose a strict voter ID requirement, cut early voting and disenfranchise those convicted of felonies. The bills have not become law yet, but it’s possible that the Republicans who voted for them are awaiting the SCOTUS decision so perhaps they won’t have to submit them for review. Meanwhile, North Carolina’s attorney general Roy Cooper has filed an amicus brief asking that SCOTUS keep Section Five in tact.

Thousands have come out in North Carolina’s state capital to protest these laws and others that would cause low-income and middle-class families there to suffer. Many of them have been jailed. These are the Section 5 headwinds the Supreme Court Justices will fly