Holder’s Voting Rights Speech Part I: Protecting Democracy In The Era Of John Roberts

This post is the first in a three-part series on last night’s voting rights speech by Attorney General Eric Holder

Last night, Attorney General Eric Holder traveled to the Lyndon Baines Johnson Presidential Library to give the most comprehensive explanation of the Obama Administration’s voting rights policy to date. The venue was certainly well chosen. Sixty years ago, when Holder was born, southern men who shared his skin color enjoyed no real access to the ballot box. Today, Holder himself is the chief guardian of America’s voting rights. In the America Holder grew up in, men and women faced fire hoses, endured beatings, bled under the blows of billy clubs wrapped in barb wire and spent night after night in jail as part of a decades long struggle to cast a vote. A few decades later, many of those same veterans of peaceful protest marched into the polling booth and elected Barack Obama president. What changed between now and then was the Voting Rights Act, Lyndon Johnson’s signature accomplishment and probably the most important civil rights law in American history.

Yet, as Holder explained, the very voting rights that he is now charged with enforcing are endangered by an all-too-common pattern of voter suppression laws in the states:

As Congressman John Lewis described it, in a speech on the House floor this summer, the voting rights that he worked throughout his life – and nearly gave his life – to ensure are, “under attack… [by] a deliberate and systematic attempt to prevent millions of elderly voters, young voters, students, [and] minority and low-income voters from exercising their constitutional right to engage in the democratic process.” Not only was he referring to the all-too-common deceptive practices we’ve been fighting for years. He was echoing more recent concerns about some of the state-level voting law changes we’ve seen this legislative season.

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. Texas and South Carolina, for example, have enacted laws establishing new photo identification requirements that we’re reviewing. We’re also examining a number of changes that Florida has made to its electoral process, including changes to the procedures governing third-party voter registration organizations, as well as changes to early voting procedures, including the number of days in the early voting period.

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. If a state passes a new voting law and meets its burden of showing that the law is not discriminatory, we will follow the law and approve the change. And where a state can’t meet this burden, we will object as part of our obligation under Section 5 of the Voting Rights Act.

It is both significant and reassuring that the nation’s top lawyer acknowledges the dire threat state voter suppression laws present to our democracy. Yet the sad irony is that, through no fault of his own, America’s first African-American Attorney General may see the worst contraction of voting rights since the Jim Crow era — and the threat comes from a much more powerful place than a handful of state governments.

Make no mistake, voter ID laws are unconstitutional. If the Constitution’s guarantees of equal protection and equal voting rights mean anything, they must mean that laws intended solely to disenfranchise particular kinds of voters — including many racial minority voters — must not be allowed to stand. Yet, in Crawford v. Marion County Election Board, the Supreme Court largely abdicated it’s responsibility to strike these laws down.

Of course, as Holder notes, Section Five of the Voting Rights Act provides him with an important tool that can be used to block these racially discriminatory laws from going into effect in many states. Sadly, the Supreme Court probably has a plan to remove this tool as well. Conservative lawmakers are begging the courts to declare Section Five unconstitutional, and Roberts has strongly hinted in the past that he wants to give them what they want.

Indeed, forty years from now, it is likely we will look back on John Roberts and some of his colleagues on the Court and remember them for doing more to stand in the way of voting rights than nearly any person since Lyndon Johnson drove the knife into Jim Crow more than four decades ago.