In sworn testimony at the link, the AAG for Civil Rights Tom Perez, when questioned by Senator Durbin on his review of voter identification laws, stated that the Voting Section is “following the facts, guided by the Supreme Court in Indiana and looking at the why question” as to why the jurisdiction passed the voter ID law. Perez admits the law of land is now clear in that voter ID has been upheld as legitimate by the Supreme Court and that his only role is to see if there is discriminatory purpose behind the law. Perez then calls the “why” question the big $64,000 question that still must be answered by states.
But is this really the correct analysis? Yes, the Voting Section should be investigating the facts of the law. Yes, Mr. Perez also confirms that Voting Section will follow the guidance of the Supreme Court in upholding the fundamental legitimacy of voter ID as a voting practice and not a Jim Crow poll tax. Then Mr. Perez specifically explained how the Voting Section will approach the analysis of voter ID laws with the remaining Section 5 states who have not yet implemented such laws. He states they will look for the “why” behind the passage of the laws and see if voter fraud findings justifies the passage of such laws.
The potential disconnect between Mr. Perez (including the Voting Section) and reality is obvious if they maintain the belief that voter fraud does not exist and there remains no room for substantive differences of opinion on that assertion. With that skewed prism of review, then a jurisdiction will never able to provide an acceptable answer to the $64,000 why question. And a Voting Section with that mentality would never be able to find a valid non-discriminatory intent in the passage of the law; therefore, the passing of such law by legislatures must have some evil design behind it. And despite the lack of any evidence of discriminatory purpose or intent, the Voting Section makes its illogical leap and fills in the blank to the “why” question with the first thing that comes to their mind – racism.
If the Voting Section would focus its responsibility on analyzing why the pertinent legislative body actually passed the administrative requirement of voter identification without letting their own political biases interfere, the law should be promptly precleared. Perez should recall that the Crawford court specifically highlighted many other legitimate state interests, in addition to voter fraud, as sufficient to justify the reasonable burden of voter identification laws. These interests include election modernization, election administration, and voter confidence. In fact, the Supreme Court ruled that actual fraud was not even necessary to answer the why question; rather, simply the deterrence of potential fraud would be adequate to answer the big why. Perez cannot ignore the many legitimate answers to the “64,000 question” of voter identification laws simply because he doesn’t believe voter fraud is prevalent enough to answer the question to his personal satisfaction. That is not his call.