Lawsuits Challenging Illegal Voter Disenfranchisement Laws May Have To Wait Until It Is Too Late

In preparation for the 2012 election, GOP state lawmakers launched what former President Bill Clinton described as the most determined voter disenfranchisement effort since Jim Crow. The centerpiece of this effort are so-called “voter ID” laws, which could prevent millions of voters from casting a ballot in 2012. Moreover, because the voters disenfranchised by voter ID are disproportionately minorities, students and low-income voters — all demographics that tend to vote for Democrats — the overall effect of these laws is to skew the electorate towards Republicans.

Voter ID laws are also illegal. Section 2 of the Voting Rights Act forbids state voting restrictions that have a greater impact on minority voters than on others. There is, however, a catch. According to one of the nation’s top voting rights experts, before DOJ can bring a lawsuit challenging this illegal voter disenfranchisement, it must first allow voters to be disenfranchised:

“In order to bring a Section 2 case, you’d have to as a practical matter show two things. One, that there’s a significant racial disparity and two, that the burden of getting an ID is significant enough for us to care about,” Samuel Bagenstos, who was until recently the number two official in the Civil Rights Division, told TPM.

The Supreme Court’s decision in the Indiana voter ID case also suggests the court would be skeptical of a Section 2 case. And regardless of how the courts would find, any Section 2 case would almost certainly have to wait until after the 2012 election, since the evidence that the laws were discriminatory “can only be gathered during an election that takes place when the law is enacted,” Bagenstos said.

Sadly, the picture is even worse than Bagenstos suggests. If voter ID laws succeed in changing the result of the 2012 presidential election, than the next Attorney General will literally owe their job to their continued existence — hardly a recipe for vigorous enforcement of voting rights laws. Worse, the new Congress could very well owe its majority to voter disenfranchisement, and it could even repeal the Voting Rights Act outright if this law threatened their ability to remain in office.

The drafters of the Voting Rights Act anticipated this very problem, and they responded to it with Second 5 of the Voting Rights Act. Section 5 requires many states to “preclear” any new voting rules with a federal court or the Department of Justice, but it faces its own problem. Two years ago, the Supreme Court’s conservatives strongly hinted that they may strike down the provision of the VRA requiring many states to preclear new voting laws, and another recent case dealing with race discrimination in the workplace raises the — albeit less likely — possibility that they could also invalidate the VRA’s ban on laws that have a disproportionate impact on minorities.

So if DOJ acts now, they could run headlong into many of the same justices that brought us Bush v. Gore. If DOJ waits, then the fate of our democracy could rest in the hands of U.S. Attorney General Ken Cuccinelli. None of this means that DOJ should hesitate one second to block illegal voter ID laws under Section 5 when it has the opportunity to do so, but it does mean that the American people may effectively be powerless against a widespread effort to rig our future elections.