Last Sunday, New Year's Day, was the day that Texas' new photo voter ID law (SB 100) was supposed to go into effect.
Instead, Texas is still waiting to see whether the Justice Department signs off on the new law – a required step known as 'preclearance.'
That's a step that Texas and 16 other (mostly southern) states, or parts of states, have to go through under section 5 of the Voting Rights Act before any new voting law goes into effect because of their history of discriminating against minority groups.
But Texans may have gotten a preview of what's coming with the DOJ's eve of Christmas Eve rejection of a very similar voter ID law in South Carolina on the basis that the law had a disproportionate impact on African-Americans.
And when he was in Austin just a few days before that, U.S. Attorney General Eric Holder delivered a much heralded speech at the LBJ Library on voting rights in which he expressed serious concerns about efforts to erode the franchise around the country:
[D]espite our nation's long tradition of extending voting rights – to non-property owners and women, to people of color and Native Americans, and to younger Americans – today, a growing number of our fellow citizens are worried about the same disparities, divisions, and problems that – nearly five decades ago – LBJ devoted his Presidency to addressing. In my travels across this country, I've heard a consistent drumbeat of concern from many Americans, who – often for the first time in their lives – now have reason to believe that we are failing to live up to one of our nation's most noble, and essential, ideals.
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.
So where does the Texas review stand?
At the moment, the ball's in Texas' court. Back on November 16, the Justice Department sent Texas a letter which said that the “information provided [by Texas]thus far is incomplete and does not enable us to determine that the proposed changes have neither the purpose nor will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group.”
In specific, the DOJ said that Texas still needed to provide a breakdown by race or ethnicity of the more than 600,000 registered voters who, according to the state's own records, lack a driver's license or state-issued ID.
The DOJ's letter gave Texas 60 days to provide the additional information and said that if Texas failed to do so, the Attorney General could reject the law on that basis. That sixty day period runs out January 17.
As of December 31, Texas had yet to provide any additional information.
If the state can't provide the information- or if as expected- it shows that African-Americans and Hispanics make up the bulk of citizens without an ID, it could spell trouble for SB 100.
But the story is unlikely to end there. In fact, many legal observers think the voter ID cases could give conservative Justices on the Supreme Court an opening to strike down the preclearance process as unconstitutional.
That came close to happening in 2009 when the high court heard the Northwest Austin Municipal Utility District No. 1 v. Holder case. At the time, the court managed to dodge the issue by resolving the case, 8-1, on alternative grounds.
But with the Supreme Court having already upheld voter ID laws in Indiana, the fact that a voter ID law that might be okay in Indiana (or Wisconsin) – which are not subject to preclearance because they were 'good' states back in the late 1960s and early 1970s – would not be okay in Texas or South Carolina, is something the Supreme Court could find troubling.
In fact, that's exactly what Rick Hasen, an election law expert at the University of California at Irvine School of Law, thinks will happen:
I have been expecting this decision from DOJ (just as I anticipate that DOJ will reject Texas's request for preclearance of its new voter id law). And I anticipate that South Carolina (and Texas) will take the preclearance decisions to a three judge court in DC, with direct appeal to the U.S. Supreme Court. I further expect that in this litigation, South Carolina (and Texas) will argue, among other arguments, that Section 5 of the Voting Rights Act is unconstitutional-an issue which has been percolating in the lower courts.
It would further not surprise me for South Carolina (and Texas) to seek expedited review of this question in the DC court as well as in the Supreme Court, on grounds that the state wishes to use its new voter i.d. law in the 2012 election. That could cause the constitutional question in this case to leapfrog over the other cases raising this issue, giving the Supreme Court a chance to strike down section 5 of the Voting Rights Act as unconsitutional before the 2012 election.
That would make a momentous term even more momentous.
And not waiting for DOJ's answer, Texas Attorney General Greg Abbott is already promising a fight, tweeting on December 23 this:
So stay tuned and fasten your self belts. This could be a bumpy ride.