Georgia ID Fight Heads Back to Court
To no one's surprise the U.S. Department of Justice has issued a letter preclearing the new version of Georgia's photo ID requirement (Act No. 432/SB 84), passed earlier this year. The reason this isn't surprising is not because the ID law should be precleared, but rather because DOJ had previously precleared a predecessor ID law in Georgia -- against the recommendation of DOJ career staff. That statute was subsequently enjoined by the federal district court on the grounds that it violated equal protection and constituted a poll tax. My previous thoughts on this decision may be found here, and I've got a more elaborate explication on concerns of partisanship underlying DOJ's preclearance of the old Georgia ID law in this forthcoming article in the Howard Law Journal.

One interesting point in the new preclearance letter is that it says that the determination "does not extend to changes that have yet to be adopted pursuant to the enabling portions of this legislation." That includes the designation of specific locations where ID cards will be made available. Other rules governing the administration of ID cards, the letter states, will also be subject to review. Such language wasn't included in the letter preclearing the old ID law. This may have to do with the differences between the old law and the new one. In any event, this puts Georgia on notice that its future decisions regarding such matters as where to make photo ID available will also have to be precleared before they can take effect. If, for example, Georgia chose to make ID available mostly in white neighborhoods and not in black ones, that could be deemed "retrogressive" and on that basis denied preclearance.

The preclearance letter properly notes that DOJ's decision only concerns the new law's compliance with Section 5 of the Voting Rights Act, and doesn't foreclose challenges on other legal grounds. The constitutionality of Georgia's new ID law will now go before the federal district court. Defendants in Common Cause/Georgia v. Billups have already given the court notice of the DOJ's preclearance.

The new law is slightly different from the old one, mainly in that photo ID is now to be provided free of charge. But this difference is more of form than of substance, and does little to lessen the burdens imposed by Georgia's photo ID law. Voters will still have to pay for the underlying documents needed to obtain photo ID, not to mention the burdens on one's time that we know to be associated with a visit to the DMV office.

Moreover, Georgia has still failed to come up with evidence to show on that it has a serious problem with voters showing up at the polling place pretending to be someone they're not -- the sole issue that a photo ID law would effectively deal with. Absent such a record, Georgia's 2006 ID law isn't much different from the 2005 law: a transparent effort by the party in control of the legislature to suppress votes among groups likely to vote for the other major party's candidates. - posted by Dan Tokaji @ 11:39 AM