The Obama administration’s interventions last week in two major voting rights cases gave a big boost to efforts to challenge restrictive voting laws in two crucial swing states. But they did something else, too: They offered more evidence that Attorney General Eric Holder is determined to match his tough talk about the need to protect voting with action.
Indeed, when Holder steps down as the nation’s top law enforcement officer—which could happen as soon as this year—his commitment to ensuring access to the ballot for all eligible Americans could stand out as his most important achievement.
In his rhetoric, Holder has left little doubt that he sees the issue of voting rights as a defining moral question for the country, raising the topic again and again in speeches and interviews over the last few years .
“This comes down, in some ways, to a fundamental question of who we are—who we are as a people,” he told The New Yorker for a profile published in February. “The history of this nation has always been to try to expand the franchise. Whether it’s freed slaves, women, young people, we’ve always found ways to make it easier to vote…To turn our backs on that history is inconsistent with who we say we are as a nation.”
And for a man with a reputation as a cautious and soft-spoken bureaucrat, he’s often used surprisingly pointed language to call out Republicans for making voting harder.
“There are some who are coming from a good faith perspective,” Holder told msnbc in a January interview, referring to Republican supporters of voter ID laws. “But I think many are using it for partisan advantage,” in order to “depress the vote of particular groups of people.”
He’s even called Texas’s voter ID law a “poll tax,” deliberately linking it to the now unconstitutional Jim Crow tactics aimed at keeping blacks from voting.
The AG lowered the boom last Wednesday when it filed two separate friend-of-the-court briefs. One argued against Wisconsin’s voter ID law, already struck down by a federal judge and currently on appeal. The other, technically a "statement of interest," went after Ohio’s recent cuts to early voting, which also eliminated same-day registration. Civil rights groups are challenging both measures as racially discriminatory under the Voting Rights Act.
The interventions followed up on lawsuits brought by DoJ last year against Texas’s ID law, and North Carolina’s sweeping voting law. All four cases have used a part of the VRA, known as Section 2, that has rarely in the past been used to challenge major statewide voting laws—potentially expanding the boundaries of federal voting protections.
But in some ways last week’s interventions sent a particularly strong message.
Unlike the Texas and North Carolina actions, the briefs in the Midwestern cases weren’t responses to the Supreme Court’s ruling last June in Shelby County v. Holder. That decision removed the system of federal “pre-clearance” that had covered most of the south, and it put pressure on DoJ to use other parts of the Voting Rights Act to get involved. Ohio and Wisconsin were never required to get federal approval for election changes, and were unaffected by Shelby. So by weighing in, DoJ signaled a broader intention to protect access to the ballot wherever it was threatened across the country.
Holder also has pushed for a stronger version of legislation to restore the pre-clearance system, telling msnbc that the bill currently before Congress goes too easy on voter ID. And he’s even made a push to restore voting rights for some felons, teaming up with Sen. Rand Paul, the Kentucky Republican.
Holder hasn’t done everything voting rights advocates might want. Gerry Hebert, a former acting head of DoJ’s voting section and a leading voting rights lawyer, said he’d like to have seen the Justice Department get involved in some of the local-level cases in the south where minority voting rights have been rolled back since Shelby—he pointed to recent cases in Beaumont and Galveston, both in Texas.
“Frankly, DoJ is one of the few places that really has the resources to address this in a comprehensive way,” Hebert said. “Hopefully we’ll see some of that, but I’ve been disappointed we haven’t seen that up until now.”
Holder’s ultimate legacy on the issue will be determined by what happens in the major contests he’s taken on. If his Justice Department succeeds in stopping voter ID laws in Texas, North Carolina and Wisconsin, and restoring full early voting and same-day registration in North Carolina and Ohio, he may have played a pivotal role in stemming the tide of the worst assault on access to the ballot since Jim Crow. If he loses, his tenure could be seen as the time when control over voting moved decisively away from the federal government and back to the states—with some of the same consequences for minority voting rights that we’ve seen throughout our history.