June 01, 2009

Why Section 5 Still Matters, Or, The Obama DOJ Differs from the Bush DOJ

Via the Atlanta Journal-Constitution comes this objection letter from the Department of Justice to a Georgia voter verification system which checks, among other things, the citizenship eligibility of Georgia voters. Because Georgia is a jurisdiction covered under section 5 of the Voting Rights Act, it cannot make changes in its voting procedures without permission from the Department of Justice (or a three-judge court in DC).

I have little doubt that this kind of change would have been approved if the Bush Administration still controlled the DOJ (after all, that Department approved the controversial Georgia voter id law and the Texas mid-decade redistricting). But the new DOJ looked at the evidence of how this procedure has worked in practice (Georgia, in violation of section 5, put it in place before getting preclearance), and found that the list produced inaccurate false positives, removing eligible voters from registration databases incorrectly, because of minor discrepancies in drivers license numbers, etc. It further found that preclearance was not warranted because the law had a disparate impact on minority voters. "[A]pplicants who are Hispanic, Asian or African-American are more likely than white applicants, to statistically significant degrees, to be flagged for additional scrutiny." The DOJ says that the case is different from Crawford, the Indiana voter id case, where there was no evidence offered of discriminatory effect (as an aside, that's an interesting reading of Crawford). Finally, DOJ offers to work with Georgia to meet its goal of preventing voter fraud without causing discrimination against minority voters.

What to make of this development? To supporters of section 5, like me, it is one small piece of evidence that section 5 is still necessary, and that it is good to see the Department of Justice again aggressively enforcing the law. But I expect that opponents of section 5 will point to this ruling as an infringement on Georgia's sovereignty, and to argue that the potential for the DOJ to more aggressively enforce section 5 under orders from the Obama Administration is a reason for the Supreme Court to strike the provision down in the pending NAMUDNO case.

Posted by Rick Hasen at June 1, 2009 09:49 AM