Pro-tip: When you win a big court case giving you the go-ahead to suppress voter turnout for your political opponents, don’t gloat about it.
That is surely one of the lessons in the remarkable news that the U.S. Department of Justice is challenging new voting-rights laws in Texas and elsewhere even after the Supreme Court ruling that eviscerated the part of the Voting Rights Act that the feds had relied on for decades to challenge voting restrictions. What made the ruling especially galling was the celebration that followed from Republicans in states, including Texas, who immediately vowed to proceed with voting restrictions that had been challenged under the now-undermined part of the VRA.
The alacrity with which Texas, North Carolina and other states have rushed to take advantage of the ruling seriously weakened the sober conservative argument, from Chief Justice John Roberts and others, that Southern states no longer needed to be singled out for special scrutiny because they had long since left their discriminatory ways behind. And it all but invited Attorney General Eric Holder to take this new step, to announce that his department would still do everything in its power to ensure fairness at the polls.
This will of course be decried as executive overreach and an assault on checks and balances, but the case for declaring it such would be much easier to make if Texas and other states hadn’t been so gleeful in their rush to capitalize on the ruling. Texas takes the cake for the speed of its response, but North Carolina surely takes the prize for sheer brazenness: The legislation making its way through Raleigh is so extreme that it earned even a tut-tut from arch-conservative Wall Street Journal columnist Stephen Moore. The legislation will not only add a strict Voter ID requirement by the polls, but reduce early voting days from 17 to 10 (early voting has been used disproportionately by African-Americans in the state), prohibit counties from extending polling hours in extraordinary circumstances, like unusually long lines, and eliminate provisional ballots for voters who show up at the wrong precinct, among other changes. A separate bill seeks to give a tax penalty to parents whose dependent children register to vote somewhere in the state other than where the parents reside, a nifty way to discourage voting by college students.
What impact would the changes have? My colleague Nate Cohn, who has generally warned against over-reaction on voter suppression measures, ran the numbers and found that the Voter ID provision alone could swing enough votes to win the state for Republicans in a close statewide election—and that’s not accounting for the early voting cutbacks and other changes. The New York Times has declared North Carolina “first in voter suppression,” a judgment quoted approvingly by election-law expert Rick Hasen, also not one prone to overstatement.
Holder is now, essentially, using the giddy brazenness of the voting-restriction push in these states to justify federal challenge even in the wake of the Supreme Court ruling. Under the “pre-clearance” provision in Sections 4 and 5 of the Voting Rights Act that was eviscerated by the ruling, a whole swath of states and municipalities, mostly in the South, had to submit voting law changes to the feds for approval as a matter of course. Holder is now threatening to use a different part of the Voting Rights Act, Section 3, which allows the federal government to demand pre-clearance rights by "bail-in." As the Times puts it, if “the department can show that given jurisdictions have committed constitutional violations, federal courts may impose federal oversight on those places in a piecemeal fashion.” In other words, if the states’ recent track record on voting rights is sufficiently egregious, they may still need federal approval.
That is not to say, though, that the Supreme Court ruling was not enormously consequential. It will be much harder for the federal government to press its case by the Section 3 route. And whether the DOJ decides to make the effort to move against states will depend even more on which party holds the White House. As South Carolina Governor Nikki Haley boasted when I saw her on the stump in Greenville with Mitt Romney in early 2012, whereas the Obama administration had challenged her state’s stringent new Voter ID law, “President Romney [will say] that’s our right.”
Alec MacGillis is a New Republic senior editor. Follow him @AlecMacGillis