Holder’s Legacy of Racial Politics
This column by ACRU founding board member Edwin Meese III and former Ohio Secretary of State and director of the Club for Growth J. Kenneth Blackwell was published September 28, 2014 on The Wall Street Journal website.
Attorney General Eric Holder, who announced his resignation on Thursday, leaves a dismal legacy at the Justice Department, but one of his legal innovations was especially pernicious: the demonizing of state attempts to ensure honest elections.
As a former U.S. attorney general under President Reagan, and a former Ohio secretary of state, we would like to say something that might strike some as obvious: Those who oppose photo voter-ID laws and other election-integrity reforms are intent on making it easier to commit vote fraud.
That conclusion is inescapable, given the well-established evidence that voter-ID laws don’t disenfranchise minorities or reduce minority voting, and in many instances enhance it, despite claims to the contrary by Mr. Holder and his allies. As more states adopt such laws, the left has railed against them with increasing fury, even invoking the specter of the Jim Crow era to describe electoral safeguards common to most nations, including in the Third World.
Ascribing racial animus to people who are trying to safeguard democratic integrity is a crude yet effective political tactic that obscures the truth. But there’s something even worse than name-calling: legal interference from Washington with valid laws.
Attorney General Holder has sued Texas and North Carolina since the U.S. Supreme Court’s ruling last year in Shelby County v. Holder. That decision invalidated Section 4 of the Voting Rights Act of 1965, which made inoperable Section 5, a provision requiring the Justice Department or a D.C.-based federal court panel to pre-clear all election-law changes in nine states and multiple jurisdictions. The court rightly noted that the data on which the law was based are no longer valid, and that times have changed.
What has been lost in media coverage is that the court rightly left untouched Sections 2 and 3, which together give the federal government ample power to enforce a national ban on racial discrimination in voting. Section 2 bars intentional discrimination as well as racially discernible “results” based on a court review. Section 3 empowers a court to pre-clear any changes if the court finds intentional discrimination. Following the Shelby ruling, Mr. Holder proved the point by invoking Section 2 to sue Texas and North Carolina.
In April, Eastern Wisconsin U.S. District Judge Lynn S. Adelman, a Clinton appointee, put a stay on the Badger State’s new photo voter-ID law, but on Sept. 12 a Seventh Circuit Court of Appeals panel lifted it, clearing the way for the law to apply to November’s election. Judge Adelman had justified his ruling with a questionable finding that 300,000 minority citizens might lose the right to vote if required to show an ID.
One common assertion is that low-income Wisconsinites, or poor people anywhere, cannot afford to obtain a birth certificate or other proof of identity or easily find their way to government offices that issue such documents. You could apply that reasoning to almost any interaction with government or business and claim discrimination. Judge Adelman was among those concerned about the poor being capable of obtaining a valid ID, an inability “traceable to the effects of discrimination in areas such as education, employment, and housing.”
Let’s consider the facts. For starters, voter-ID laws include measures for people who fail to produce identification on Election Day, such as provisional ballots, and many states go to great lengths to see that anyone who wants an ID but cannot afford one can get it free of charge.
In November last year under its new photo-ID law, Texas held off-year primary elections without incident. Although the state set up offices issuing free voter IDs to those who lacked them, only 121 were issued statewide by Election Day. For those who say voter-ID laws suppress the vote: Overall turnout in Texas rose to 1,144,844 in 2013, from 690,052 votes cast in 2011. In several counties dominated by minorities, turnout increased even more significantly.
In 2008 the U.S. Supreme Court upheld Indiana’s photo voter-ID law, which has become a model for many states. The court found no evidence that such laws disproportionately affect minorities. Minority participation in the Hoosier State rose in subsequent statewide elections, including in the nonpresidential election year of 2010.
Minority voting in Georgia also increased significantly under its photo-ID law, which took effect statewide in 2008. As noted by Hans von Spakovsky and John Fund in their 2012 book Who’s Counting?, the law didn’t exactly discourage turnout, with 65% of the black voting-age population casting ballots in 2008, compared with 54.4% in 2004. Even without Barack Obama on the ballot, the pattern held, the authors noted: “While only 42.9 percent of registered black Georgians voted in 2006, 50.4 percent voted in 2010.”
One of the most often-cited factoids—something that sounds authoritative but is not fact-based—is the NAACP’s claim that 25% of black American adults lack a government-issued photo ID. Think about that for a moment. This would mean that millions of African-American men and women are unable to legally drive, cash a check, board an airliner or participate in everyday activities of modern life enabled by a photo ID such as a driver’s license.
One final point. The validity of laws does not hinge on popular surveys—except for laws approved directly by voters at the ballot box. Public opinion can wax and wane. Nonetheless, it is instructive to note that a majority of Americans in all demographic categories, including political party, consistently support voter photo-ID laws. In a national Fox News poll released in May, 70% overall approved of voter-ID laws, including majorities in all age groups and by race, sex and party affiliation.
When the Senate holds confirmation hearings for Mr. Holder’s replacement, Republicans should make a point of exploring the nominee’s thinking about voter-ID laws. After the Holder Justice Department sued North Carolina over its new photo-ID law, Republican Gov. Pat McCrory said: “I believe if showing a voter ID is good enough and fair enough for our own president in Illinois, then it’s good enough for the people in North Carolina.” We think so, too.
Mr. Meese, a former U.S. attorney general, and Mr. Blackwell, a former mayor of Cincinnati and Ohio secretary of state, serve on the policy board of the American Civil Rights Union.