After initially misreporting and downplaying the damage done to the Voting Rights Act (VRA) by a recent Supreme Court decision, Fox News almost completely ignored the law until the Department of Justice (DOJ) indicated it will once again be enforced.
As was expected by election law experts, Attorney General Eric Holder has announced that the DOJ will once again enforce the VRA against Texas' recent changes to its election practices, which federal courts have already blocked as racially discriminatory. Because these previous injunctions were based on the “preclearance” powers of Sections 4 and 5 of the VRA -- now nullified by the Supreme Court's 5-4 ruling June 25 in Shelby County v. Holder that Section 4 was outdated -- the DOJ is bringing its new lawsuit under a different provision, Section 3.
Despite host Shannon Bream's promise to keep her panel “straight,” a segment on the July 25 edition of Fox News' America Live featuring conservative Washington Post columnist Marc Thiessen inaccurately explained the new VRA action and repeated long-debunked GOP talking points on voter ID.
Thiessen's claim that voter ID laws “don't disenfranchise anybody” because there are ID requirements for other government services that are not fundamental constitutional rights is not only a silly comparison, it's sloppy.
Food stamps, for example, can be accessed by “work or school ID, an ID for health benefits, an ID from another social services program such as TANF, wage stubs, a birth certificate, or a voter registration card. The SNAP/Food Stamp caseworker can also verify your identity by calling a 'collateral contact' who can confirm you who are [sic].” Furthermore, Thiessen's false talking points are recycled GOP material, identical to debunked arguments made by Fox News over a year ago, about which even extreme right-wing voter ID proponent J. Christian Adams warned: "[f]inally, don't fall into the silly and constitutional incorrect argument that you have to show ID to cash a check and get on a plane. Flimsy arguments like that are what the left wants from you... Cashing a check isn't found in the Constitution, and people who love the Constitution shouldn't equate a plane trip with the right to vote free from racial discrimination."
As for Bream, contrary to her assertion that the DOJ is doing something lawless because the Supreme Court “just decided this,” Shelby did not touch Section 3 of the VRA, the “bail-in” provision under which the DOJ is pursuing action against Texas.
Section 3 is the complement to the “bail-out” process of the VRA that gives the preclearance process the ability to adapt to the changing face of voter suppression from the Jim Crow laws outlawed in 1965 to the recent GOP attempts at restricting the franchise through redistricting and voter ID, among other tactics. Under this “bail-out” flexibility, jurisdictions that are required to submit election changes to the DOJ or a federal court under the preclearance process can be removed from the process by proving they no longer suppress the vote on the basis of race.
Conversely, under the “bail-in” mechanism of Section 3, if a federal court found state-level racial discrimination in a previously uncovered state, this offending jurisdiction could be required to subsequently preclear its election changes. This section still exists, as the same right-wing voter ID proponent who dismissed the false equivalency of Thiessen argued in congressional testimony last week:
Section 3 of the Voting Rights Act remains the law. This is the “opt-in” provision of the Voting Rights Act. A plaintiff, including the Attorney General, can ask a federal court to place a defendant under Section 5 oversight once a violation of the law has been established. What is most useful about Section 3 is that it would seem to satisfy Shelby's mandate that federal oversight of state or local elections be closely matched with the need. In other words, the oversight is congruent and proportional with the problem.
Section 5 preclearance obligations triggered through Section 3 would certainly pass Constitutional muster post-Shelby.
In correcting her impression of the new VRA lawsuit, Bream could also look at the testimony of the other Republican witness at that hearing, Hans von Spakovsky, who explained that "[i]f a jurisdiction has engaged in repeated discrimination and a court finds it is necessary to prevent future discrimination, Section 3 provides that the court can essentially place the jurisdiction into the equivalent of Section 5 coverage." This is exactly what the DOJ is pursuing in its new lawsuit against Texas.
Texas has a notorious historical record of voter suppression. As explained by Ari Berman, not only has Texas lost more Section 5 cases under the VRA than any other state, its tea party base has been quite clear that “the Republican Party doesn't want black people to vote if they're going to vote 9-to-1 for Democrats.” This type of unabashed voter suppression is what led a three-judge panel last year to issue the federal finding of intentional discrimination upon which the DOJ is attempt to bring Texas back under preclearance, pursuant to Section 3. The Republican-appointed appellate judge who wrote that opinion was blunt about the illegal racial discrimination behind Texas' recent redistricting, as reported by Talking Points Memo:
A redistricting plan signed by Texas Gov. Rick Perry (R) intentionally discriminated against Hispanic voters, a three-judge panel unanimously ruled Tuesday. The judges found that seats belonging to white incumbent members of Congress were protected under the plan while districts belonging to incumbent minorities were targeted for changes.
The court was “persuaded by the totality of the evidence that the plan was enacted with discriminatory intent,” according to the ruling. There was “sufficient evidence to conclude that the Congressional Plan was motivated, at least in part, by discriminatory intent,” the court found.
The three judges said they were overwhelmed with the amount of evidence showing the congressional redistricting plan was intentionally discriminatory, writing in a footnote that parties “have provided more evidence of discriminatory intent than we have space, or need, to address here.”
Beyond Bream's misreporting on the DOJ and its new VRA lawsuit against Texas' incorrigible voter suppression, the Fox News host also repeated some voter ID falsehoods of her own, despite the overwhelming evidence that in-person voter fraud is virtually non-existent. In support of her argument that voter ID proponents are concerned about “dead people” voting, Bream cited a personal conversation with Texas Attorney General Greg Abbott, who has “prosecuted and overseen hundreds of these cases in Texas. That's not a myth.”
According to PolitiFact, however, the actual number of prosecutions Abbott touts is 50, only 40 percent of which resulted in convictions. Of those 50, just two involved the type of fraud that voter ID purportedly stops, according to PolitiFact: “By our analysis, three-quarters of the cases involved election code violations classified as 'illegal voting' -- which includes acts such as voting more than once, impersonating a voter or voting despite ineligibility -- and 'method of returning marked ballot,' often meaning the defendant was accused of having someone else's ballot. Only two cases are described as 'voter impersonation' on the list.”
Finally, Bream invoked a 2008 opinion by former Justice John Paul Stevens to argue that Texas' voter ID law -- previously blocked by Section 5 -- was now innocuous. But Stevens' opinion was issued in reference to a state that was not covered by Section 5, and Bream ignored that the issue at hand is between voter ID laws that are constitutional and those that are not. Even under Section 5 review, the courts and the DOJ have precleared certain voter ID schemes. It is those schemes that are impermissibly discriminatory on the basis of race, such as the one in Texas, that are blocked. Indeed, in light of Stevens' recent rebuke of the conservative justices' gutting of the VRA in Shelby despite the ongoing and pernicious voter suppression extensively documented by Congress, Fox News should probably stop citing him for attacks on the VRA.
Fox News is trying to turn this new VRA lawsuit into another so-called lawless move by President Obama and Holder. As federal courts have repeatedly found, however, Texas has only itself to blame.