Voter ID and South Carolina: The Supreme Court Speaks Yet DOJ Won't Listen
by Horace Cooper
The Civil Rights Division of the Department of Justice has formally objected to South Carolina's new voter identification law. The Department of Justice is effectively ignoring Supreme Court precedent, signaling a willingness to ignore electoral voter violations, raising grave constitutional concerns over the constitutionality of the Voting Rights Act of 1965, and undermining the equal sovereignty of the States. South Carolina has rightly appealed this decision, but taxpayers unfortunately will have to cover the costs for an unnecessary extended appeal, the outcome of which is wholly predictable.
Last year South Carolina enacted R54, a bill that requires most of South Carolina's voters to present a government-issued photo ID in order to cast a ballot in-person at the polls. More than 30 states currently require voters to present some form of identification when voting, and at least 15 make in-person voters show a valid photo ID. But South Carolina is one of a dozen states subject to the requirements of Section 5 of the Voting Rights Act of 1965, a federal statute designed to address the state's history of disenfranchising minority voters.
Under Section 5, South Carolina must seek federal "preclearance" from the U.S. Attorney General, or from a three-judge panel in Washington, D.C., before it can make any change to its election laws. In seeking such "preclearance," the state has the burden of proof, and must convince Uncle Sam that the proposed law does not have "the purpose nor will have the effect of denying or abridging the right to vote on account of race or color."1
On December 23, 2011, the Civil Rights Division of the Department of Justice issued a letter in which it formally declined South Carolina's request for preclearance because, in the Department's view, the state's new photo ID requirement was more likely to disenfranchise minority voters than white voters. Thus, according to the DOJ, the State had not "sustained its burden under Section 5 of the Voting Rights Act."
But in objecting to South Carolina's new photo ID requirements the DOJ has stubbornly failed to account for relevant Supreme Court precedent.
The Supreme Court's 2008 decision in Crawford v. Marion County Election Board examined an Indiana voter ID law that is very similar to the one enacted in South Carolina. Indiana, however, is not subject to Section 5's preclearance rules. Its law was implemented and then challenged by the state's Democratic Party. The complaints in Crawford alleged that Indiana's photo ID requirement "substantially burdened the right to vote in violation of the Fourteenth Amendment," claimed it was not an appropriate method for avoiding election fraud because Indiana had enacted other fraud-prevention statutes, and argued it arbitrarily disenfranchised qualified voters who did not possess the required identification.2 These arguments were unsuccessful in every court that heard them – including the U.S. Supreme Court.
The Justice Department has made essentially the same arguments in objecting to South Carolina's R54 – without ever addressing the Court's holding in Crawford. The controlling plurality opinion in Crawford was written by Justice Stevens, the lionized liberal, who made perfectly plain that "the inconvenience of making a trip to the DMV, gather the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting."3 Justices Scalia, Thomas, and Alito agreed: "The burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not ‘even represent a significant increase over the usual burdens of voting.'"4
After Crawford one can only wonder on what basis the Justice Department believes that South Carolina's nearly identical requirements can "deny or abridge the right to vote" when the Supreme Court has already concluded that those same requirements are not a "substantial burden" or even a "significant increase over the usual burdens of voting."
Indeed, South Carolina did wonder, and in February the State appealed the DOJ's flimsy decision and sought a declaratory judgment, asking a three-judge panel to rule that the State's proposed changes "neither have 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."5
In its court filing, South Carolina pointed to Crawford and persuasively explained that the Justice Department's December 23 objection letter "reflects a position that any voting change that imposes any minor inconvenience upon a person's ability to vote and whose enforcement will have any adverse impact against non-white voters constitutes a ‘denial' or ‘abridgement' of the right to vote within the meaning of the VRA." And that position, South Carolina rightly argues, squarely "conflicts with the Supreme Court's ruling in Crawford v. Marion County Election Board."6
After more than two months, the Justice Department has finally responded to South Carolina's complaint. And to the question presented by the Court's holding in Crawford, the DOJ quizzically answered: "opinions of the United States Supreme Court speak for themselves."7
No, really, that's what the Justice Department told the court – again and again and again.
In legalese there is an old Latin expression, res ipsa loquitur, which means, "the thing speaks for itself." It is often an axiom that lawyers use as a last resort, to tacitly admit that they cannot explain how or why something happened, they have no evidence or proof, it just happened – res ipsa loquitur. And that is exactly what that the Attorney General of the United States essentially has said about the Court's Crawford decision – it speaks for itself.
Indeed, I couldn't agree more.
The decision in Crawford does, in a manner of speaking, "speak for itself"; and it says that a voter photo ID law is a "neutral, nondiscriminatory regulation of voting procedure."8 Apparently, when the Supreme Court speaks, the Attorney General doesn't feel obliged to listen.
Even more concerning than his willful ignorance, however, is the implication of the DOJ's position. As South Carolina points out, Crawford makes clear that voter ID laws are constitutionally acceptable in states such Indiana that are not covered by Section 5 of the Voting Rights Act, and yet the only logical reason that the DOJ would bar South Carolina's almost-identical statute is because the State is covered by Section 5.
The danger inherent in the Attorney General's position is a grave one. As South Carolina correctly argues: "If Section 5… is interpreted to prohibit South Carolina's Act R54, it will create a situation in which similarly situated, but non-covered states may enact voting-fraud prevention legislation while covered states are barred from doing so. This would create the anomalous situation in which covered jurisdictions would be precluded from enacting legislation that the Supreme Court has found to be perfectly constitutional in a non-covered state."9
This reading of the Voting Rights Act would raise serious constitutional concerns, to say the least, because it would violate South Carolina's right to equal sovereignty.
Equal sovereignty is the bedrock notion that all fifty states have an "equality of constitutional right and power" to operate within their own jurisdictions, and that no state has more and no state less authority to act within its borders. That is, each state has the power to do what any other state has the authority to do.
Imagine Congress telling the states of Alaska and Montana that they must collect a state sales tax, even though New Hampshire and Oregon do not collect sales taxes and would not be required to do so. North Dakota and Oregon both allow their citizens to deduct health care expenses from their state income taxes; but imagine a federal law that required North Dakota to drop this deduction, but made no such requirement for Oregon. North Dakotans would be justly outraged. Such an ad hoc federal regime would violate the core of our nation's federalism and the balance of power carefully preserved in the Constitution. Congress is not an arbiter of state sovereignty, and it certainly cannot deny or respect state sovereignty unequally among the states.
But the Justice Department's interpretation of Section 5 negates this fundamental principle. Under the DOJ's construction of the statute, states covered by Section 5 would no longer be co-equals with their sister states – Indiana may require photo ID, but not South Carolina. The Supreme Court will recognize that danger in this position and will reject the DOJ's interpretation.
Alternatively, the Attorney General's persistent refusal to listen to what the Court had to say in Crawford may very well compel the Court to say something new: Section 5 is unconstitutional. Indeed, the Supreme Court recently acknowledged the precarious position that Section 5 already attempts to maintain, noting that Section 5, "which authorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial ‘federalism costs"; and those costs "have caused Members of this Court to express serious misgivings about the constitutionality of § 5."10 The Court has already signaled its discomfort with Section 5, and the Attorney General would do well to heed its warning.
It is one thing to ignore relevant cases and Supreme Court precedent – litigants do this at their own peril, and courts generally frown on such deceptive practices. It is quite another, however, to consistently advocate a politically-motivated and legally-untenable position that raises serious constitutional questions and threatens the equal sovereignty enjoyed by the states. Yet that is precisely what Attorney General Holder and his Justice Department continue to do.
And it's beginning to speak for itself.
Horace Cooper is an adjunct fellow of the National Center for Public Policy Research. He taught constitutional law at George Mason University in Virginia, was senior counsel to U.S. House Majority Leader Dick Armey and is a founding member of the black conservative leadership group Project 21.
1 42 U.S.C. § 1973c(a).
2 See, Crawford v. Marion County Election Bd., 553 U.S. 181 (2008).
4 Id. (Scalia, J. concurring).
5 28 C.F.R. 51.44.
6 See Complaint for Declaratory Judgment, South Carolina v. Holder (Feb. 7, 2012).
7 See Answer of Defendants, South Carolina v. Holder (Apr. 9, 2012).
8 Crawford, 553 U.S. at 203; id. at 204-205 (Scalia, J., concurring in judgment) (holding that the Indiana law was a "generally applicable, nondiscriminatory voting regulation").
9 Complaint, South Carolina v. Holder (Feb. 7, 2011).
10 Northwest Austin Municipal Utility v. Holder, 557 U.S. __ (2009) (quoting Lopez v. Monterey County, 525 U.S. 266, 282 (1999)).