By J. Christian Adams
Eric Holder has been on a racialist bender the last few weeks. Last week, he said his skin color is responsible for the fury of criticism over his Justice Department allowing thousands of guns to flood Mexico. Friday, he blocked South Carolina from implementing a voter ID law under the Voting Rights Act saying it was racially discriminatory.
Sixteen states, including South Carolina, must submit all election law changes to the United States Justice Department for approval. States also have the option of bypassing DOJ and going straight to court for approval, an option they should readily choose. This law, unlike so many federal laws, actually has a legitimate Constitutional basis – the Fifteenth Amendment to the Constitution, which bars racial discrimination in voting. Passed in 1965, it was designed to prevent states from drifting toward renewed discrimination. It is now being challenged as unconstitutionally outdated by Arizona and Shelby County (AL) in federal court.
Eric Holder’s Voting Section, where I used to work, interposed an objection late in the day today. These Christmas Eve gifts are becoming tiresome. In 2009 it was Obamacare. Today, it was blocking Voter ID.
In the objection letter, DOJ said that South Carolina did not meet its burden to prove that photo identification laws did not have any discriminatory effect. Notice the word “any,” more on that later. The data show, according to DOJ, that 1.6 percentage points more voting blacks don’t have a driver’s license than whites. Roughly 10 percent of blacks registered to vote don’t have a photo ID, and 8.6 percent of whites don’t. That represents a “discriminatory effect” under the statute.
There are several problems with the objection. But some law first:
Those on the right like to say that the Supreme Court already upheld voter ID as constitutional. Wrong. In the Crawford vs. Marion County case the Supreme Court merely held that voter ID was not per se unconstitutional. It did not say it was per se constitutional, there is a big difference and proponents of voter ID should not argue bad law. Plus, under Section 5, the burden is on the state to prove a negative, an absence of discrimination. Crawford was brought under a different law and the burden was on the plaintiff to prove that Indiana discriminated.
Now the problems with the objection. The DOJ summarily rejected all of the mitigating provisions of the South Carolina voter ID law. For example, if you didn’t have an ID, you could still vote by filling out an affidavit, and later show evidence of your identity. Extraordinary steps were taken to ensure everyone could get a free ID. Governor Nikki Haley even offered rides.
DOJ turned their nose up at these mitigating facts, because personnel is policy, and the personnel reviewing the change have philosophical objections to voter ID.