Sixteen senators led by Sen. Michael Bennet (D-CO) submitted a letter to Attorney General Eric Holder last week asking him to examine whether the Voting Rights Act’s prohibitions on laws preventing minorities from voting invalidate so-called “voter ID” laws, which effectively disenfranchise thousands of elderly, disabled, and low-income voters:
We are writing to express our concerns about highly restrictive photo identification requirements under consideration or already signed into law in several states. These measures have the potential to block millions of eligible American voters without addressing any problem commensurate with this kind of restriction on voting rights. Studies have shown that as high as 11% of eligible voters nationwide do not have a government-issued ID. This percentage is higher for seniors, racial minorities, low-income voters and students. Voting is the foundation of our democracy, and we urge you to protect the voting rights of Americans by using the full power of the Department of Justice to review these voter identification laws and scrutinize their implementation.
Section 5 of the Voting Rights Act vests significant authority in the Department to review laws before they are implemented in covered jurisdictions. As you know, the burden of proof in this preclearance process is on those covered jurisdictions, which must be able to show that legal changes will not have a discriminatory impact on minority voters. […] The Department should [also] exercise vigilance in overseeing whether these laws are implemented in a way that discriminates against protected classes in violation of Section 2 of the Voting Rights Act. Additionally, federal civil rights law — 42 U.S.C. 1971(a)(2)- prohibits different standards, practices or procedures from being applied to individuals within a jurisdiction. We believe the Department should ensure that these photo identification laws do not violate this statute or other federal voting rights statutes.
It is difficult to see how many of the voter ID laws being pushed in GOP-controlled states could survive scrutiny under the Voting Rights Act, which not only forbids laws that are passed specifically to target minority voters but also strikes down state laws that have a greater impact on minority voters than on others.
There is, however, reason to fear that the Supreme Court could simply strike down parts of the VRA if the Justice Department attempted to make Republican-controlled states follow the law. The Court’s conservatives strongly hinted that they may strike down the provision of the VRA requiring many stakes 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.
Sadly, in the wake of Bush v. Gore and Citizens United v. FEC, there are no longer any guarantees that the Supreme Court will place democratic values ahead of corporate interest groups and other conservatives eager to seize control of our elections.