As the U.S. Department of Justice investigates the new Pennsylvania voter ID requirement for discrimination against minorities, election law experts say a legal challenge could require the courts to navigate undeveloped areas of federal voting rights law. The commonwealth was preparing to defend the Voter ID Law in state court last month when the Justice Department’s top civil rights lawyer wrote to announce a review for compliance with the Voting Rights Act, the 1965 legislation that prohibited literacy tests at the polls and strengthened the federal government’s ability to enforce the voting guarantee of the 15th Amendment. While the department has blocked the enforcement of voter identification laws in Texas and South Carolina, those states fall under a part of the Voting Rights Act requiring Justice Department or court approval for election law changes in places with a history of discrimination.
The review of the Pennsylvania law is for compliance with a section of the Voting Rights Act prohibiting any state from enacting voting practices that discriminate against racial, ethnic or language minorities. The provision, known as Section 2, requires the challenger to prove a discriminatory result. A Justice Department spokesman said the department has not challenged or taken other enforcement action against a voter ID law under it.
“This is a move by the Justice Department into potentially challenging photo identification laws much more aggressively and affirmatively,” said Michael Pitts, a professor at Indiana University Robert H. McKinney School of Law who served as a career attorney in the Voting Section of the department from 2001 to 2005. “This is a new move by the Justice Department into a realm that has previously been untrodden for them.”