WSJ "Abuse[s]" Precedents To Support South Carolina's Voter ID Law

››› ››› MATT GERTZ

The Wall Street Journal's editorial board attacked the Justice Department's decision to block South Carolina's voter ID law, claiming it was the first such denial since 1994 and that the action "contradict[s] both the Supreme Court and the Department's own precedent." In fact, DOJ regularly blocks such "'pre-clearance' voting rights request[s]" and the "precedent[s]" cited by the Journal are inapt.

WSJ Falsely Claims The Justice Department's Actions In South Carolina Are Unusual

WSJ: SC Denial Is "The First Denial Of A 'Pre-Clearance' Voting Rights Request Since 1994." From the Wall Street Journal's December 30 editorial:

Eric Holder must be amazed that President Obama was elected and he could become Attorney General. That's a fair inference after the Attorney General last Friday blocked South Carolina's voter ID law on grounds that it would hurt minorities. What a political abuse of law.

In a letter to South Carolina's government, Assistant Attorney General for Civil Rights Thomas Perez called the state law -- which would require voters to present one of five forms of photo ID at the polls -- a violation of Section 5 of the 1965 Voting Rights Act. Overall, he noted, 8.4% of the state's registered white voters lack photo ID, compared to 10% of nonwhite voters.

This is the yawning chasm the Justice Department is now using to justify the unprecedented federal intrusion into state election law, and the first denial of a "pre-clearance" Voting Rights request since 1994. [The Wall Street Journal, 12/30/11]

REALITY: DOJ Has Denied Dozens Of Preclearance Requests Since 1994. According to a Media Matters review of the Justice Department's online listings, since January 1, 2005, DOJ has interposed at least 108 objections to preclearance requests under Section 5 of the Voting Rights Act, including 45 during the Bush administration. [, accessed 1/4/12]

WSJ Pushes Faulty "Precedent[s]" Of DOJ's South Carolina Action

WSJ: Justice Position "Contradict[s] Both The Supreme Court And The Department's Own Precedent" In Georgia And Indiana. From the editorial:

The 1965 Voting Rights Act was created to combat the systematic disenfranchisement of minorities, especially in Southern states with a history of discrimination. But the Justice position is a lead zeppelin, contradicting both the Supreme Court and the Department's own precedent. In 2005, Justice approved a Georgia law with the same provisions and protections of the one Mr. Holder nixed for South Carolina. In 2008, the Supreme Court ruled 6-3 in Crawford v. Marion County Election Board that an Indiana law requiring photo ID did not present an undue burden on voters. [The Wall Street Journal, 12/30/11]

Voting Section Chief Overruled Review Team To Approve Georgia Voter ID Law

Justice Staff Members Called For Blocking Georgia's Law Because It Would "Reduce Blacks' Access To The Polls." From a November 2005 Washington Post article:

[A]n Aug. 25 staff memo obtained by The Washington Post recommended blocking the program because Georgia failed to show that the measure would not dilute the votes of minority residents, as required under the Voting Rights Act.

The memo, endorsed by four of the team's five members, also said the state had provided flawed and incomplete data. The team found significant evidence that the plan would be "retrogressive," meaning that it would reduce blacks' access to the polls. [...]

The Voting Rights Act puts the legal burden on Georgia to show that proposed election-related changes would not be retrogressive. According to the Aug. 25 memo from the Justice review team, Georgia lawmakers and state officials made little effort to research the possible racial impact of the proposed program.

The 51-page memo recommended several steps that Georgia could take to make the ID program fairer to minority voters, such as continuing to allow the use of non-photo identification, such as birth certificates and Social Security cards, that have not been shown to pose security problems.

Those in favor of issuing an objection were Robert Berman, deputy chief of the voting rights section; Amy Zubrensky, a trial lawyer; Heather Moss, a civil rights analyst; and Toby Moore, a geographer, according to the memo. A fifth member of the team, trial lawyer Joshua Rogers, recommended approval, but the memo does not include his reasoning. [Washington Post, 11/17/05, emphasis added]

Justice Review Team Was Overruled By Voting Section Chief Tanner. From the Post article:

A day [after the review team memo was submitted], on Aug. 26, the chief of the department's voting rights section, John Tanner, told Georgia officials that the program could go forward. "The Attorney General does not interpose any objection to the specified changes," he said in a letter to them. [Washington Post, 11/17/05]

Tanner Later Resigned After Controversial Comments, "Amid Allegations That He'd Used [His] Position To Aid A Republican Strategy To Suppress African-American Votes." From a December 2007 McClatchy News article:

The Justice Department's voting rights chief stepped down Friday amid allegations that he'd used the position to aid a Republican strategy to suppress African-American votes.

John Tanner became the latest of about a dozen senior department officials, including former Attorney General Alberto Gonzales, who've resigned in recent months in a scandal over the politicization of the Justice Department in the Bush administration.

In recent months, McClatchy has reported on a pattern of decision-making within the department's Civil Rights Division, of which the Voting Rights Section is a part, that tended to narrow the voting rights of Democratic-leaning minorities.

Tanner has been enmeshed for months in congressional investigations over his stewardship of the unit that was established to protect minority-voting rights. He drew increased focus this fall after he told a Latino group: "African-Americans don't become elderly the way white people do. They die." [McClatchy News, 12/14/07]

DOJ's Ethics Office Later Reported That Tanner Had Asked For His Coffee "Mary Frances Berry Style - Black And Bitter." A July 2008 report from the Department of Justice Inspector General's Office and the Office of Professional Responsibility stated:

In that incident in August 2004, Voting Section Chief John Tanner sent an e-mail to Schlozman asking Schlozman to bring coffee for him to a meeting both were scheduled to attend. Schlozman replied asking Tanner how he liked his coffee. Tanner's response was, "Mary Frances Berry style - black and bitter." Berry is an African-American who was the Chairperson of the U.S. Commission on Civil Rights from November 1993 until late 2004. Schlozman forwarded the e-mail chain to several Department officials (including Principal DAAG Bradshaw) but not Acosta, with the comment, "Y'all will appreciate Tanner's response." Acosta said that when he was made aware of the incident, he required Schlozman to make a written apology to him for his role in forwarding the e-mail and that Schlozman did so. Acosta said that he believed Schlozman wrote him the apology in an e-mail, but we were unable to retrieve Acosta's e-mails and did not find such an e-mail among Schlozman's recovered e-mail messages. [IG/OPR report, "An Investigation of Allegations of Politicized Hiring and Other Improper Personnel Actions in the Civil Rights Division," 7/2/08]

Supreme Court Case Did Not Address Whether Indiana Voter ID Law Violated Section 5 Of The Voting Rights Act

Complaints Alleged That The New Law Violated The 14th Amendment, Not The Voting Rights Act. From the majority opinion in the Supreme Court case, Crawford v. Marion County Election Board:

Promptly after the enactment of SEA 483 in 2005, the Indiana Democratic Party and the Marion County Democratic Central Committee (Democrats) filed suit in the Federal District Court for the Southern District of Indiana against the state officials responsible for its enforcement, seeking a judgment declaring the Voter ID Law invalid and enjoining its enforcement. A second suit seeking the same relief was brought on behalf of two elected officials and several nonprofit organizations representing groups of elderly, disabled, poor, and minority voters. The cases were consolidated, and the State of Indiana intervened to defend the validity of the statute.

The complaints in the consolidated cases allege that the new law substantially burdens the right to vote in violation of the Fourteenth Amendment; that it is neither a necessary nor appropriate method of avoiding election fraud; and that it will arbitrarily disfranchise qualified voters who do not possess the required identification and will place an unjustified burden on those who cannot readily obtain such identification. Second Amended Complaint in No. 1: 05-CV-0634-SEB-VSS (SD Ind.), pp. 6-9 (hereinafter Second Amended Complaint). [U.S. Supreme Court, Crawford v. Marion County Election Board, 4/28/08]

Indiana Is Not A "Covered Jurisdiction" Under Section 5 Of The Voting Rights Act And Was Not Subject To Preclearance. According to the Department of Justice, neither the state of Indiana nor any county or township within is a "covered jurisdiction" under Section 5 of the Voting Rights Act, meaning that the state's laws are not subject to preclearance. [, accessed 1/4/12]

Posted In
Elections, Election Law, Voting Rights & Issues
Wall Street Journal
Voter Fraud and Suppression
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