What’s the Obama administration trying to do?
No, I’m not speculating about the president’s strategies for implementing his health care law or besting Congressional Republicans in budget battles. Today’s topic is closer to home: the decision by Attorney General Eric Holder to file a lawsuit alleging that North Carolina’s new election law violates the federal constitution and Voting Rights Act.
You might think the plan is to get the federal judiciary to strike down North Carolina’s new voter-ID requirement and other election changes. I doubt that Holder and his legal team have such an unrealistic goal. They know, even if liberal writers and activists in North Carolina don’t, that the U.S. Supreme Court has recently upheld voter ID. Under the prevailing understanding of federal law, such requirements are not the equivalent of poll taxes and do not constitute an infringement of the right to vote.
The lawsuit’s prospect aren’t much better on the other challenged provisions, including changes to early voting, voter registration, and out-of-precinct voting. There are no federally enforceable rights to vote early, register on the same day you vote, or cast a ballot in a precinct other than your own. If such rights existed, most of the country — including deep-blue states such as New York that have no early voting or same-day registration — would be guilty of voter suppression. No one, including the president and his attorney general, truly believes this.
Moreover, Eric Holder’s claims about North Carolina’s new law are uninformed. For example, it doesn’t reduce the opportunity to cast early ballots. Instead, it provides the same number of hours of early voting as before but does so during a 10-day window rather than a 17-day window. And to insist that voters go to the proper precinct to vote is not only in the interest of smooth elections administration but also in the interest of the relocated voters themselves, who would otherwise be blocked from voting in some district or local races that an out-of-precinct provisional ballot wouldn’t contain.
At best, the Obama administration may hope to beat North Carolina at the trial court, delaying implementation of the new law until the decision is reversed on appeal. I think it is more likely, however, that the goal isn’t legal at all. It’s electoral.
Democrats are worried about the 2014 midterm elections. Because President Obama is not on the ballot, the 2014 electorate may look more like 2010, when Democrats got “shellacked” (in the president’s own words), than like 2008 and 2012, when minority and young voters turned out in historic proportions. Under such a scenario, Republicans could well pick up congressional seats and, in North Carolina, protect most of their recent gains in legislative and local races.
By challenging North Carolina’s new election law, the Obama administration is trying to bestow two political gifts. First, the lawsuit furthers the party’s immediate narrative that Republicans are trying to turn the clock back on civil rights, a narrative designed to boost turnout among the Democratic base in 2014. Second, if that gambit fails and the GOP does well in 2014, Democrats will campaign in 2016 on the claim that Republicans actually succeeded in suppressing the vote! Either way, Holder’s actions are best interpreted as political theater, not as a serious attempt to protect voting rights that were never imperiled in the first place.
Both President Obama and Democrats closer to home have some cards to play for the 2014 cycle. I think this is among their weakest. Most North Carolinians, of all races and ages, endorse voter ID as a commonsense protection against voter fraud. Most independent studies show that neither it nor most of the other provisions at issue are likely to have a significant effect on voter turnout. The only exception, same-day registration during early voting, is exceedingly rare. The chance that a federal appeals court will find it mandatory under the Voting Rights Act is vanishingly small.
Republicans in Washington have drawn criticism for picking a federal budget fight they can’t win. On voter ID and election law, however, that’s exactly what the Obama administration and its allies have done.
Hood is president of the John Locke Foundation.