Jim Crow has left the building. Voter ID is a poll tax no more. Eric Holder’s Justice Department has precleared voter ID in New Hampshire, a state covered by Section 5.
But make no mistake, this wasn’t a principled conversion to photo ID advocacy, preclearing New Hampshire voter ID was a crass political and self-interested move designed to preserve Section 5 of the Voting Rights Act. Currently, numerous states are challenging Section 5 as unconstitutional, as well as Shelby County, Alabama. Mark my words, when these cases are argued before the Supreme Court, DOJ will argue that Section 5 cannot be a very big burden on states because, after all, New Hampshire bailed out of Section 5.
How does a state bailout of Section 5? One of the requirements is that there be no objections recently for that state. Had Holder objected to New Hampshire voter ID, it would have foiled the litigation strategy in Shelby County. Now that Jim Crow and Poll Taxes no longer threaten New Hampshire voters, the next step is for DOJ to rush a state-wide bailout before Shelby is argued to the United States Supreme Court.
While DOJ is busy arguing that Section 5 isn’t much of a burden to states, hopefully someone will argue the truth of the matter – that New Hampshire enjoyed the Granite State Free Ride for 30 years. That is, DOJ lawlessly ignored the law as it pertained to New Hampshire, essentially ignoring the state triggers being challenged by Shelby and others. If New Hampshire didn’t have to submit changes under Section 5 even though it was covered, it undermines the argument that Section 5 is constitutionally congruent and proportional. In other words, today’s preclearance wasn’t based on principle as much as it was based on a strategic aim to preserve Section 5 and federal power over states. Let’s hope the litigants challenging the law turn the tables and expose how New Hampshire got a free ride for decades while other states did not.
UPDATE: Any doubt about the duplicitous nature of the New Hampshire preclearance vanishes when we learn who the lawyers were representing New Hampshire’s efforts to have Voter ID precleared – two left leaning lawyers who have opposed voter ID elsewhere. Consider Gerry Hebert. Hebert’s history of being involved in cases where courts have sanctioned the lawyers has been profiled by Hans von Spakovsky in “An Unconscionable Speaker.” In the Texas Voter ID case, Hebert argued that Voter ID is a racially motivated voter suppression tool.
J. Gerald Hebert, a well-known civil rights lawyer representing those intervening in the case, argued during his closing that the threat of voter fraud was “merely a pretext, a cloak” for a voter suppression effort and that Texas’ effort had been “tinged with race from day one.” He asked the court make an affirmative finding that the law was enacted with a discriminatory purpose.
In New Hampshire, Hebert fought for preclearance. This duplicity demonstrates the real motive behind the New Hampshire preclearance – a statewide bailout. Holder is willing to abandon all of the lofty rhetoric about Jim Crow if it preserves Section 5 of the Voting Rights Act.
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