Reviving Jim Crow?

By David J. Becker
Monday, August 22, 2005

Any day now the Justice Department will render judgment on one of the single most discriminatory pieces of voting legislation of recent years: a Georgia state law requiring voters to present one of only six forms of photo identification before they can exercise their right to vote. Before enforcing this statute, Georgia must get Justice Department approval by proving that the law will not put minority voters in a worse position than they were in before the requirement was instituted.

The facts surrounding Georgia's voter identification requirement cannot be disputed. Virtually every black legislator opposes the legislation, and most black lawmakers staged a walkout to protest its passage. Every major civil rights and minority advocacy group, including the NAACP, and many legal scholars, oppose the restriction; several have submitted comments to the Justice Department for consideration.

Additionally, it is surprisingly difficult to obtain a photo ID in Georgia. Though the state has 159 counties, there are only 56 places in which residents can obtain a driver's license, and not one is within the city limits of Atlanta or within the six counties that have the highest percentage of blacks.

There is also considerable evidence that photo ID requirements have a disproportionately negative impact on blacks and other minorities. The Justice Department found as recently as a decade ago that blacks in Louisiana were four to five times less likely than whites to have photo IDs.

Studies in other states indicate similar disparities. Consequently, the Michigan attorney general deemed a less restrictive voter identification bill unconstitutional, and the Federal Election Commission reported that photo identification requirements impose an undue and potentially discriminatory burden on citizens exercising their right to vote. Indeed, the Justice Department rejected a less restrictive Louisiana law in 1994 and 1995.

The law's proponents claim that it will help protect against voter fraud, but there appears to be no evidence to support this claim. Georgians already have to show one of 17 forms of ID to prove that they are who they say they are when they vote. Georgia's chief elections official, Secretary of State Cathy Cox, has said that not one instance of voter fraud relating to impersonation at the polls has been documented during her tenure.

Furthermore, while purporting to combat fraud, the Georgia law expressly excludes absentee ballots from the ID requirement. While all the evidence indicates that minorities are far less likely to vote absentee than whites, absentee balloting is the only form of voting in which there is documented fraud in Georgia. The exclusion of absentee ballots from the identification requirement raises serious questions about whether the anti-fraud justification for the law is purely pretextual.

One thing is certain: If this law is approved, it will be more difficult for minorities to vote in Georgia -- the home of John Lewis and Martin Luther King Jr. -- than in any other state.

In addition, federal support for Georgia's restrictions would probably open the floodgates for similar discriminatory laws in other jurisdictions.

Indiana recently passed such a law, as has Wisconsin (though Wisconsin's Democratic governor vetoed the legislation), and it's likely that legislatures in Florida, Texas, South Carolina, South Dakota and other Republican-controlled states are watching to see what the Justice Department will do. We'll soon discover whether the Justice Department accepts its role as the last line of defense for minority voter rights or becomes the very instrument for the suppression of those rights.

The writer is a voting rights attorney and election consultant, and a former trial attorney in the Justice Department's Voting Section.

© 2005 The Washington Post Company