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It's Bigger Than Voter ID

During his Senate hearing yesterday, Debo Adegbile, President Obama’s pick for Justice Department Civil Rights Division chief, was asked by Sen. Chuck Grassley if he would block state voter ID laws if confirmed. In his previous capacity, Adegible served as attorney and one-time acting president of the NAACP Legal Defense and Educational Fund, which has been in litigation with Texas over its voter ID law for the past three years. Adegbile also twice argued before the U.S. Supreme Court in defense of the Voting Rights Act. Sen. Grassley’s question mistakenly assumed that the assistant attorney general could unilaterally veto a state’s law, through dictatorship or executive order or something.

The role of the Assistant Attorney General is not “to determine in the first instance how states run their voting systems,” said Adegbile in response to Grassley. “It’s only in the context of a particular law that is passed that [it] then occasionally becomes subject to review either because of the way in which it was passed or because of its impact.”

Sen. Grassley failed to acknowledge that attorneys general don’t kill laws, racism kills laws—if the Justice Department finds racism in them. But the courts will have a lot of say over the next few years about when and how the Justice Department goes about those findings.

When the November midterm election comes this year, there will be 16 states requiring voters to show some form of photo ID to vote. Four lawsuits challenging voter ID laws in Pennsylvania, Wisconsin, Texas and North Carolina will determine if that list shrinks or expands—and that’s only assuming no other state passes a similar law this year.

You’re mistaken, though, if you think these laws are just about showing ID at the polls. There are broader questions at play in the current legal battles over voter ID, the answers of which will determine how the Justice Department can intervene in voting rights matters heading into the 2016 presidential elections. Republicans in other states are taking note—at least 92 restrictive voting bills were introduced in 33 states last year according to Brennan Center for Justice, many of which died, but only to come back in another legislative session. The drafters of these failed measures are watching how judges rule in the current voter ID cases to see how they should proceed in the future.

The judges’ opinions in these cases will also have ripple effects for other election law matters (aside from just voter ID)  across the nation. I see three major implications for the upcoming rulings:

Voter Integrity — This means different things depending on who uses it. When liberals say it, they mean protecting the rights of all eligible voters, unobstructed. For conservatives and Republicans, they mean protecting against voter fraud, even if its mostly fictional. What matters now is that conservatives are latching on to how Supreme Court Justice John Paul Stevens defined it in 2008, and how federal circuit judge Richard Posner defined it the year previous. Both upheld Indiana’s voter ID law passed in 2005 saying it was in the state’s best interest to protect it from voter fraud even though there was no fraud in Indiana at the time to speak of. However, both Stevens and Posner have since backed away from their own rulings, saying they lacked the data needed at the time needed to make informed decisions. We have better data now, but far from perfect.

Worth observing is whether the judges currently reviewing voter ID laws will abide by Stevens’ and Posner’s older interpretations of voter integrity, or their more recent revelations. Those old interpretations leaned heavily on the recommendations of the Commission on Federal Election Reform, chaired by former President Jimmy Carter, which endorsed voter ID. But Carter seems to have changed his mind on this as well. The final court decision on voter ID will determine whether integrity should be defined in favor of preserving people’s voting rights, free of obstructions, or in favor of states seeking protection from any problem they imagine with the election process, free of empirical evidence.

Race or Party? — Baked into Republicans’ defense of voter ID laws is the notion that they aren’t discriminating against people of color, just advantaging their party, as they are legally permitted to do. Remember that voting in the 18th century was enfranchised in some places only to landowners. That didn’t explicitly bar black people and women from voting, but we know most black people and women didn’t and couldn’t own land back then. But courts have bought Republicans’ dog-whistlin’, partisan-intent arguments as benign, especially in redistricting cases. Nevermind that the GOP’s “Southern Strategy” and gerrymandering antics basically engineered it so that race tracked with party. Courts will determine in these voter ID cases if partisan advantages can be preserved, even if the collateral damage is encumbering voters of color.

Election law scholar Richard Hasen offers solutions to the “race or party” conundrum in his recent Harvard Law Review Forum essay: “When a legislature passes an election-administration law (outside of the redistricting context) discriminating against a party's voters or otherwise burdening voters, that fact should not be a defense.“ Instead a strict standard should be applied when courts review these laws that won’t allow for any voters to be burdened for party nor racial reasons. But pay attention to the upcoming rulings to see if federal courts will allow partisanship to remain a sufficient bail bond when discrimination is suspected.

Legislative Privilege — Given the Supreme Court’s handicapping of Section Five, a lot of DOJ’s future civil rights work will rest upon proving whether lawmakers intentionally planned to trip up voters of color. To prove intent, you have to show the conspiracy: the emails, texts, public and private correspondence where lawmakers stated they wanted to hamper people of color. Republican lawmakers understand this so they’ve been attempting to block subpoenas and requests for such information, in both voter ID and redistricting cases, by arguing that such disclosures will have a chilling effect on the legislative process. Called “legislative privilege,” the logic goes that if lawmakers feel like they can’t speak candidly when drafting and debating legislation, out of fear it might be used against them in court later, then they’ll be discouraged from putting forth an A+ effort ... or something like that.

Texas and South Carolina Republican legislators have both requested legislative privilege immunities and were denied, which sucked for them because in both states we found that some lawmakers said some really racist stuff while drafting voter ID and redistricting laws. North Carolina Republican lawmakers recently requested it for their voter ID court fight with DOJ, leading “Moral Mondays” shepherd Rev. William J. Barber to accuse them of a “sleight of hand trick to avoid transparency and thwart accountability.” Federal judges have hitherto consistently denied legislative privilege asks in these cases, establishing disclosure as an essential component of voting rights matters. But an alternate turn in North Carolina could set a different and dangerous precedent. Hence, it’s not an issue that should be taken for granted right now.

How all of these chips ultimately fall will determine how the next DOJ Civil Rights chief can maneuver when necessary. Sen. Grassley’s question about whether Adegbile would block state voter ID efforts was out of line. Justice Department attorneys will do whatever Congress and the law compel them to do to protect the rights of voters. The more important question is whether courts will block the Justice Department from doing what’s necessary to uphold those protections.