It's no secret: Over the last year, state legislatures — largely those run by Republicans — have taken up and in many cases passed a series of laws that create new obstacles for voters, especially historically disenfranchised voters and Democrats.
The “war on voting” includes measures requiring voters to show photo ID at the polls, restrictions on voter registration, shortening of the early voting period and in Florida, a rule making it more difficult for ex-felons to vote. And as Facing South has shown, in a tight battleground state like Florida, the GOP laws could make all the difference in 2012.
In the face of the voting-restriction juggernaut, voting rights advocates in the South have one tool for fighting back that most other states don't: Section 5 of the Voting Rights Act, which requires covered states to gain approval from the Department of Justice before carrying out major changes to voting laws.
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With the 2012 elections just a year away, what has the Justice Department done so far? While DOJ's response to state redistricting plans has been largely muted, so far justice officials have taken an active interest in scrutinizing and challenging Southern state laws that affect voting rights.
Florida: It's no coincidence that Florida, one of the most prized battlegrounds in 2012, is also the state where GOP leaders pushed the most far-reaching changes to voting laws. After voting rights groups asked the DOJ to deny preclearance, Florida pulled several provisions from HB 1355 — including restrictions on third-party registration and shortening the early voting period — from their approval request to DOJ, instead submitting them to the U.S. District Court in D.C.
The court shot down a request from Florida officials to fast-track the case, meaning the rules won't be in place in time for Florida's January presidential primary. Will Florida try to use two voting systems, keeping the old policies in place for the five counties covered by the Voting Rights Act, but enacting the new voting restrictions for the rest of the state? It would likely provoke lots of litigation; stay tuned.
South Carolina: Gov. Nikki Haley and fellow Republicans likely thought the voter ID bill they passed in 2011 would be a slam-dunk case. But after a spirited campaign by black officials and voting rights groups fell short, the DOJ and media have pushed back.
In August, the DOJ issued a letter [pdf] to South Carolina officials requesting more detailed information about the impact of the law. The state responded in late October, but it only generated controversy. First, an AP investigation used state records to show the South Carolina's law would disproportionately hurt African-American precincts, as voting rights advocates had long claimed.
Others pointed that SC's own response confirmed that at least 239,000 of the state's 2.7 million voters don't have the necessary photo ID. The S.C. Election Commission announced last week that it has “no confirmed cases” of voter fraud. This week, the state's largest newspaper scolded South Carolina officials for not being honest about the impact of the voter ID bill.
Texas: Another state where voter ID seemed on solid footing until it ran into Section 5 preclearance. As with South Carolina, DOJ asked Texas to provide more detailed information about the impact of ID law on disenfranchised groups. Texas officials responded, but failed to include information about the race of those without approved ID.
Because the state doesn't collect registration information that discloses the race of voters, the state of Texas said it couldn't comply with the request. But in a letter to the Texas Secretary of State last week [pdf], Democratic state senator Rodney Ellis suggests that not only is such an analysis possible, but that the state demographer is currently conducting such an analysis.
The Fair Elections Legal Network reports there have been other, smaller developments: In Alabama, the state isn't seeking preclearance yet for a photo ID bill that isn't slated to go into effect until 2014; a citizenship requirement for registration is tied up with the state's litigation-magnet immigration bill. In Georgia, DOJ precleared the state's bill to reduce early voting from 45 to 21 days.
But overall, the situation is clear: In the Southern debate over voting rights, the Department of Justice and the Voting Rights Act are still major players.