Voter Photo ID and Pre-Clearance Under Section 5 of the Voting Rights Act

   Ever since the Supreme Court upheld Indiana's photo ID law against a facial challenge, states have begun to enact photo ID laws.  There are now 14 such laws on the books, and more in the pipeline.  Another 15 states have some form of ID requirement, but not necessarily photo ID.  A convenient summary of the laws is here.   Photo ID laws enacted by Georgia, Texas, and South Carolina are subject to DOJ pre-clearance because they are covered jurisdictions under the increasingly antiquated section 5 of the Voting Rights Act.  The DOJ (in the Bush administration) cleared Georgia's law, but in December the Obama DOJ denied pre-clearance to South Carolina's law.  The DOJ letter of denial is here.  What stands out in the South Carolina denial is the flimsy evidence on which the DOJ based denial.  Quoting the letter:  "[T]he state's data show that 8.4% of white registered voters lacked any form of DMV-issued ID, as compared to 10.0% of non-white registered voters."  While it is true that this disparity means that "minority registered voters were nearly 20% more likely to lack DMV-issued ID than white registered voters," it does not follow axiomatically that they are "thus ... effectively disenfranchised."  The South Carolina law, as was true of Indiana's and Georgia's laws, has several methods to make photo ID easy and free in order to preserve the franchise.  Photo ID may or may not be a good idea, but the use of the pre-clearance power to frustrate a racially neutral attempt to ensure an honest vote illustrates how anachronistic section 5 has become in practice.  One can justly celebrate the benefits of section 5 and simultaneously doubt its current utility, to say nothing of its questionable status as a current exercise of the enforcement power. 

Comments

[Rick Hasen]

Under section 5, the covered jurisdiction bears the burden of showing that the proposed change does not have the purpose, and will not have the effect, of making members of the protected minority group worse off than they were before the change in the law. To me, this disparity means that, at least at first cut, South Carolina cannot prove no discriminatory effect.

Whether this is still a constitutional burden upon South Carolina is a separate question. But it appears that DOJ is right based upon the common understanding of the meaning of section 5.

[Calvin Massey]

One can't determine whether minority voters are "worse off than they were before the change in the law" without consideration of the effect of all the alternative methods in the law that preserve the franchise for all voters (minority and otherwise).

[Rick Hasen]

Absolutely true. But South Carolina put forward that evidence and DOJ did not think it sufficient to overcome the state's burden. That determination will now be tested in court, as it should be if the state doubts DOJ's determination.

[vark]

In Indiana where I live, getting photo ID is neither easy nor free.

The typical Indiana would-be voter pays $12 for a birth certificate, then $20 for a driver's license, with a renewal fee every 4 years. 60% of those who go to the BMV to get ID are turned away for not having the right paperwork.

I do not know the details of S Carolina's program. Those details would be relevant to whether the program would survive scrutiny under the Crawford test, or under a 24th Amendment analysis. If the program is unconstitutional on some ground, we might be able to avoid the conflict about whether the VRA is constitutional.

[anon]

"honest vote"? where's the voter fraud these laws are meant to prevent?