Just about everyone who goes through a musical-theater phase at some point falls in love with Sky Masterson of Guys and Dolls. In the movie version, Marlon Brando plays the gambler who will wager “sky high” stakes and finds himself singing “Luck Be a Lady” while rolling the dice to see if he gets the girl. Going all in may be what you’d expect in a fictional singing crapshooter, but it’s a bit more surprising in a U.S. attorney general. Eric Holder’s announcement Monday that the Justice Department was going to bring a lawsuit against North Carolina’s new and wide-sweeping election law, which includes a laundry list of voter restrictions and changes making it harder to vote, showcases just how high he’s willing to make the stakes when it comes to voting rights. His department is now going to be litigating two high-profile cases—one against a voter-ID law in Texas, and the other against the omnibus bill in North Carolina. The DOJ is also involved in a case to show that Texas’s redistricting maps intentionally discriminated. Some legal advocates say he’s taking the only logical course of action. Others say he’s going double or nothing.
Holder is in a tough position to begin with. This summer, the Supreme Court struck down the preclearance criteria in the Voting Rights Act, which had required states and counties with histories of discrimination to get all election-law changes approved by the feds before they could go into effect. The decision effectively ended preclearance, known as Section 5, and removed the single most powerful tool the Department of Justice had for fighting voter suppression. Since then, a number of former Section 5 states have implemented draconian restrictions. Texas implemented the voter-ID law the DOJ is now challenging, which will require some citizens to drive as far as 176 miles to get the required identification.
North Carolina’s omnibus bill is the harshest of the bunch. In addition to limiting the types of ID voters would be allowed to use at the polls, the law also ends same-day registration—in which you can register and vote in one visit—and cuts the state’s 17-day early voting period by one full week. It prohibits paid voter-registration drives (which tend to register more poor and nonwhite voters) and eliminates provisional voting if someone comes to the wrong precinct to cast a ballot. Any registered voter would be able to challenge the eligibility of another at the polls. It’s a doozy—especially for minority voters.
Holder has repeatedly expressed his determination to fight these restrictions with the tools he still has—most notably Sections 2 and 3 of the Voting Rights Act. Section 2 outlaws any legislation that has either a discriminatory intent or effect. Section 3 allows judges to require states with laws found to be intentionally discriminatory to get preclearance. (I’ve written a basic explainer for Section 3 here.) But whereas in the old preclearance, the legal burden fell on the states to prove that new laws didn’t discriminate, under Section 2 and 3, it’s on the feds or other plaintiffs to show that the law does discriminate. That’s a much heavier legal lift.
Since the Supreme Court decision, Holder’s made it clear he’s willing to play hardball. While Congress could potentially pass an amendment to the Voting Rights Act that would implement a new set of standards for preclearance, Holder has opted to start requesting states to be brought in under Section 3. According to Rick Hasen, a law professor at the University of California-Irvine and author of The Voting Wars, that decision alienated Republican lawmakers and closed the door on any potential Congressional action—not that one was likely to happen anyway.
Full Article: Eric Holder’s Big Voting-Rights Gamble.