Jeffrey Toobin doesn’t give the US Attorney General Eric Holder’s attempt to overturn North Carolina’s restrictive new election laws very good chances of success in his article in the Feb. 17 and 24 issue of The New Yorker:

… As Holder noted, African Americans tend to have less access to acceptable forms of photo identification than white citizens do. All of this, the Justice Department asserts, amounts to a violation of Section 2 [of the Voting Rights Act].

The courts may be skeptical of these claims, which are largely based on assumptions of what will happen when the laws take full effect. “Republicans are more likely to win low-turnout election. Democrats are more likely to win high-turnout elections — everybody knows that at this point,” [New York University law professor Samuel] Issacharaoff said. “And the laws in Texas and North Carolina are certainly aimed at reducing turnout. But if they reduce turnout for everyone, not just African Americans, it’s not clear whether that violates the Voting Rights Act.” The evidence regarding photo IDs appears ambiguous as well. “No one has good numbers yet on photo ID,” Heather Gerken said. “It may be that the impact is not as great as the general public think.” According to Michael Carvin, the Republican lawyer, Holder’s theory will not stand up. “North Carolina went from seventeen to ten days of early voting, and he says that’s against the law,” Carvin told me. “New York has zero days of early voting, and no one says their system violates the Voting Rights Act. The point is that blacks in North Carolina have exactly the same chance to vote as whites.”

More ominously, Toobin writes, Holder could prevail, and the case could wind up before the US Supreme Court, where it might give the Roberts court an opportunity to roll back significant gains of the civil rights movement.

Chief Justice Roberts has never publicly articulated his ultimate goals for civil-rights laws, but many lawyers who follow the court — especially Roberts’ ideological foes — have definite ideas about the direction in which he wants to take the law. They believe that Roberts wants to get rid of all “effects” tests — in affirmative action, in school integration, and in voting rights.

Toobin reports that Holder plans to step down before the end of the year. Win or lose, the legal challenge to voter ID will be a coda to a tenure at the Justice Department that has reflected a hodgepodge of priorities and has met with mixed results.

In five years as the nation’s top law-enforcement officer, Holder has engaged in few of the morally clear-cut struggles that helped define the Kennedy and Katzenbach eras; and he hasn’t enjoyed the victories that his predecessors could claim. He failed in his effort to bring the alleged masterminds of the 9/11 attacks from Guantanamo to New York for criminal trials. None of the principal figures in the financial collapse of 2008 have been prosecuted, much less convicted. But Holder has presided over an unprecedented series of prosecutions of alleged government leakers. These investigations include the seizure of the phone records of journalists, a practice he has agreed to reconsider. He has also engaged in a series of debilitating conflicts with Republicans in the House of Representatives, which culminated in a vote finding him in contempt of Congress, a first for any attorney general.

Meanwhile, the American Civil Liberties Union and the Southern Coalition for Social Justice are in federal court in Winston-Salem “asking a judge to order North Carolina lawmakers to release email and other communications related to the passage of North Carolina’s sweeping voter suppression law,” according to a press release yesterday from the ACLU.


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