The Wall Street Journal editorial board falsely claimed that the Department of Justice is relying on outdated civil rights law in its current lawsuits against the voter suppression of Texas and North Carolina.
Baselessly claiming DOJ's efforts to block redundant and unnecessarily restrictive voter identification laws that discriminate on the basis of race are motivated by politics, the WSJ incorrectly claimed that DOJ was trying to “reverse” the Supreme Court's infamous Shelby County v. Holder decision. From the editorial:
For Eric Holder, American racial history is frozen in the 1960s. The Supreme Court ruled in June that a section of the 1965 Voting Rights Act is no longer justified due to racial progress, but the U.S. Attorney General has launched a campaign to undo the decision state-by-state. His latest target is North Carolina, which he seems to think is run from the grave by the early version of George Wallace.
The worst argument against such laws is that they must be racially motivated because there is so little evidence of voter fraud. Yet no less that former Justice Stevens said in his opinion in the Indiana case that “flagrant examples of such fraud in other parts of the country have been documented throughout this nation's history by respected historians and journalists, [and] that occasional examples have surfaced in recent years.” Anyone who thinks voter fraud doesn't exist hasn't lived in Chicago or Texas, among other places.
It's telling that Mr. Holder prefers to file lawsuits rather than take up the Supreme Court's invitation to modernize the Voting Rights Act for current racial conditions. The Congressional Black Caucus has said it is working on a new formula for preclearance, but such legislative labor doesn't get the headlines that lawsuits against GOP-run states do.
The conservative wing of the Supreme Court gutted the Voting Rights Act in Shelby County when it overturned decades of precedent, ignored bipartisan congressional intent, and disregarded the text of the Fifteenth Amendment in order to dismantle the “preclearance” provisions of the VRA. These neutralized provisions - Sections 4 and 5 - required states with an engrained history of racially discriminatory voter suppression to "preclear" any subsequent election changes with DOJ or the courts before implementation.
Shelby County did not directly touch any other component of the VRA.
For example, despite the right-wing's obvious plan to drag this crown jewel of civil rights law back before the Supreme Court in the future, DOJ still has authority under the VRA to attempt to block voter suppression after legislative enactment, if no longer before. In addition to this after-the-fact enforcement powers under Section 2, DOJ also retains the ability to ask a court to once more place a jurisdiction shown to intentionally suppress the vote on the basis of race under the “preclearance” supervision of Section 3, similar but different to the process under Sections 4 and 5.
DOJ is seeking to block voter suppression in Texas and North Carolina using only those sections still intact after Shelby County. Contrary to the WSJ's claims, by litigating under Sections 2 and 3, DOJ is expressly not trying to “reverse” a decision that only affected Sections 4 and 5. It is, rather, making do with what is left of perhaps the nation's greatest civil rights achievement.
Furthermore, the reason that DOJ is targeting Texas and North Carolina specifically and not “launch[ing] a campaign to undo [Shelby County] state-by-state,” as the WSJ falsely asserted, is because new election changes in these states are the most egregious examples of how voter suppression previously kept at bay by Sections 4 and 5 are now being pushed by GOP legislatures. Indeed, while the grab-bag of likely illegal restrictions on the right to vote in North Carolina have yet to be tested, Texas' recent voter suppression was already found by a court to be intentionally racially discriminatory.
Instead of acknowledging this rash of voter suppression by states that were previously subject to the “preclearance” mechanism of Sections 4 and 5 - now shut down by Shelby County - the WSJ instead resorted to repeatedly debunked misinformation about the new photo voter ID requirements at the core of much of this new Republican legislation.
DOJ is not challenging all "[t]hirty-four states [that] now require voters to show some form of photo ID" because photo ID on its own is not necessarily the problem. Voter identification of some form or another has always been an election requirement. It is only those twists on voter ID that - intentionally or not - impermissibly discriminate on the basis of race that violate the Voting Rights Act. This is why right-wing media's incessant reference to the Supreme Court decision that upheld Indiana's voter ID law is a red herring. It is not Indiana's voter ID law that is currently being litigated, but rather that of Texas and North Carolina.
The WSJ also defended the use of photo voter ID laws in North Carolina by attacking the notion that “there is so little evidence of voter fraud.” But this is a conflation of the voter fraud of impersonation with voter fraud in general, a bait and switch technique that is common among those dubbed by election law experts as the "fraudulent fraud squad." In fact, in-person voter fraud has been shown repeatedly to be "virtually non-existent."
Nevertheless, it is this form of barely existent voter fraud that GOP legislatures are ostensibly trying to prevent with redundant and unnecessarily strict photo voter ID laws. Because this is nonsense, federal courts have repeatedly found this good government veneer is nothing more than a pretext for a restriction on the right to vote that impermissibly discriminates on the basis of race.
Finally, in its disingenuous pretense that litigating clear violations of still-good sections of the VRA is only a headline-grabbing attempt to “elect more Democrats,” the WSJ argues that Congress' attempts to fix the damage of Shelby County and repair the preclearance coverage formula in Section 4 “doesn't get the headlines that lawsuits against GOP-run states do.” In addition to pointing out that North Carolina is not literally “run from the grave by the early version of George Wallace,” this is one of the few things the editorial got right.
The lack of quality media attention for Congress' immediate attempts to address the coverage formula in the weeks following Shelby County was noticeable. If this is a problem the WSJ is truly concerned about, however, dissembling editorials like this aren't helping.