February 24, 2010

The Showdown Over Preclearance of Georgia's Voter Verification Program

In recent years, the U.S. Department of Justice has rarely exercised its preclearance power under Section 5 of the Voting Rights Act to stop election adminstration rules from taking effect. But in a letter issued Monday, DOJ declines to withdraw its objection to Georgia's proposed program for verifying voters' citizenship. The letter concludes that the state has still failed to carry its burden of showing that the program doesn't have a discriminatory purpose or effect. It also reminds Georgia's AG that the state is required to secure preclearance for a state statute passed in 2009 (SB 86), requiring proof of citizenship for registration. Although the statute has a January 1, 2010 effective date and implementing regulations have been promulgated, preclearance hasn't yet been sought -- which means that the statute and regs can't be given effect.

Yesterday, Georgia's Secretary of State Brian Kemp issued this press release in response to DOJ's continuing objection. According to Kemp, the state intends to litigate the matter by seeking judicial preclearance from the U.S. District Court in D.C, as it is entitled to do under Section 5. The press release states that judicial preclearance will be sought for both the voter verification program and SB 86.

If Georgia follows through, this will be a case worth watching. As Rick noted yesterday, it could provide a vehicle for challenging the constitutionality of Section 5. But even if no constitutional claim is raised, the case will still be significant. There's little precedent, at least in recent years, on how Section 5 should apply to election administration practices, as opposed to redistricting plans. During the last administration, DOJ precleared Georgia's photo ID law -- contrary to the recommendation of some DOJ career staff, as I've discussed here and, at greater length, in this article. If Georgia goes to court, the case could turn out to be important in clarifying the requirements for preclearance of election administration rules.

Posted by tokajid at February 24, 2010 09:50 AM