Where SCOTUS failed to uphold section four of the Voting Rights Act (VRA), the Department of Justice is taking up the slack. Attorney General Eric Holder announced that the DOJ filed suit on September 30, placing North Carolina under scrutiny for its recent passage of new voter ID laws in August. A lawsuit filed by DOJ is the first line of defense for the most vulnerable voter populations in the country. But a stronger measure to prevent further discriminatory practices would be congressional reform of pre-clearance criteria.
Section 4 of the VRA provided a measure known as pre-clearance, which provided a buffer to discrimination against minority and immigrant voters in districts known for tampering. Pre-clearance meant that states and designated counties had to obtain approval from the federal government for voter law changes. In June, the SCOTUS struck down most of Section 4 in a challenge to Congress to prove there was still a need for pre-clearance in the modern era. Criticism of the SCOTUS decision was strong, as many anticipated Southern states including North Carolina to pass restrictive voter ID laws. Even politicians and citizens in the Bronx, one of few Northern counties that were mandated for pre-clearance, reacted with disappointment to the SCOTUS decision.
Whereas Section 4 was a major provision of the VRA, Section 3 provides some level of checks and balances to a total system meltdown. The DOJ lawsuit seeks to force North Carolina to seek permission from the DOJ to change their voter laws under Section 3 of the VRA, but also provides a nudge to Congress to get serious on constructing modern standards for pre-clearance. Attorney General Holder said in the DOJ press conference announcing the suit: "We also recognize, however, that case-by-case litigation is no substitute for Congressional action on legislation to fill the void left by the Supreme Court’s decision. President Obama and I remain committed to working with leaders from across the political spectrum to ensure that modern voting protections are adequate to the challenges of the 21st century."
North Carolina joins Texas as the second state to be sued by the DOJ for new voter ID laws that are the fallout of the SCOTUS decision made in June. The filings by the DOJ are indicative of the need for Congress to re-evaluate pre-clearance criteria formerly used under Section 4 of the VRA and update them to modern standards. The precedent established by the outcome of both the North Carolina and Texas lawsuits will either provide an impetus or impediment for other states to vote in new laws.
With a Congress that struggles to move past deep political divides, the hope that new pre-clearance criteria will emerge is faint. Supporters of the new voter law in North Carolina claim that the laws are in lock-step with other provisions that require a government issued ID. The law also provides a measure for voting without government issued ID. The Justice Department maintains that the elimination of the provision for early voting disproportionately affects minority, senior, and student voters. Congressional action on pre-clearance would likely curtail criticisms of voter ID laws and force the constitutional question of the need for a re-instatement of Section 4 of the VRA.