Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Thursday, November 17
Inside Justice: The Georgia ID Preclearance
The cloud over the U.S. Department of Justice's administration of voting rights grew darker still today. The Washington Post featured this blockbuster story on DOJ's controversial decision to preclear Georgia's photo identification requirement. The Post obtained a 51-page internal memorandum, in which a team of DOJ staff attorneys and analysts recommended that the Department object to Georgia's photo ID requirement. The Post story follows concerns, which I discussed here earlier this week (before knowing about the memo), that Justice's decisionmaking has become increasingly partisan under the present Administration.

The internal Justice Deparment memorandum, dated August 25, 2005, concluded that Georgia had failed to meet its burden of showing that the ID law wasn't retrogressive, as to black voters. Four members of the five-person review team therefore recommended that the Department object -- i.e., that it not preclear Georgia's ID law -- a decision that would effectively have prevented it from going into effect. (The rationale of the fifth member, trial attorney Joshua Roberts, is not apparent.) According to the memo, the evidence available supported the inference that blacks were less likely than whites to possess the required photo ID. It notes that all black members of the state legislature but one opposed the ID requirement. The memo also discusses other non-retrogressive measures that could be taken, such as allowing other forms of ID.

The DOJ team found no direct evidence of a legislative intent to make black voters worse off. That's unsurprising, since no legislator is likely to be foolish enough to admit that a goal of a photo ID requirement is to disenfranchise black voters. But the absence of such intent is not sufficient. Preclearance should be denied where there is a retrogressive effect -- that is, where black voters would be made worse off. The team found that only one other state (Indiana) has an ID requirement that's comparable to Georgia's in its severity. All other states with comparable ID requirements have fail-safe mechanisms for voters who lack the required identification.

It didn't take much time for the powers-that-be within the Justice Department to reject the thoughtful and considered analysis of its career attorneys. On August 26 -- the day after the memorandum recommending objection -- the Chief of DOJ's Voting Section John Tanner precleared the plan.

My take: This most recent revelation is very troubling. It can only heighten concerns that DOJ has made its mission of protecting the voting rights of racial minorities subservient to partisan political interests. This makes it all the more important for Congress to consider means by which to check DOJ's power to preclear, which right now is effectively unreviewable. One possibility is to give individual voters a private right of action, where they believe that Justice has erroneously granted preclearance. Another is to take the power over preclearance away from Justice entirely, at least in certain types of cases, and place it in a bipartisan or nonpartisan panel.

Even if one could somehow dispute that DOJ has become increasingly politicized, there can now be no question that there is a strong perception that the Department is approaching its responsibilities in a less-than-evenhanded way. This is something that, painful though it may be, Congress must address as it considers the reauthorization of expiring provisions of the Voting Rights Act.

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Moritz College of Law The Ohio State University