First he was withholding information from Congress. Now U.S. Attorney General Eric Holder is giving misinformation to the public.
In his July 10 speech to the NAACP, Holder claimed that the requirement that you obtain a free photo ID to vote is the same as a poll tax: “Many of those without IDs would have to travel great distances to get them, and some would struggle to pay for the documents they might need to obtain them. We call those poll taxes.”
The problem with that dubious statement is that it is wrong under the law. Perhaps that’s why the Justice Department has made no such claim in the federal lawsuits in which it is fighting the voter ID laws of Texas and South Carolina. And yet Holder continues to perpetuate the incendiary error to the public, knowing that the poll-tax assertion is a racially charged one that should not be used lightly.
The 24th Amendment to the Constitution states that the right of citizens to vote shall not be denied or abridged “by reason of failure to pay any poll tax or other tax.” The claim that the costs and time involved in obtaining a free photo ID card for voting is a poll tax was raised in the first lawsuits filed against the Georgia and Indiana voter ID laws back in 2006.
Indiana’s law was upheld by the Supreme Court in Crawford v. Marion County (2008). In that case, the Seventh Circuit Court of Appeals held that the Indiana law was “not like a poll tax” at all. The Supreme Court agreed. In Common Cause of Georgia v. Billups (2006), the decision that upheld Georgia’s voter ID law that was affirmed by the Eleventh Circuit, a federal district court dismissed the poll tax claim as entirely inappropriate because the “imposition of tangential burdens” is not a poll tax and no different than the cost of time and transportation to register and vote.
Even the Ninth Circuit Court of Appeals—the most liberal appeals court in the country—did not buy the Holder poll tax claim when it reviewed Arizona’s voter ID law. In Gonzalez v. Arizona (2012), the Ninth Circuit held that even though “obtaining the free identification required under [Arizona law] may have a cost,” such immaterial costs are not a poll tax.
Unless Holder is wholly ignorant of the civil rights law his department is sworn to uphold, he knows that his poll tax claim is wrong as a matter of law and has been flatly rejected by federal courts up to and including the Supreme Court. So why would he make such a claim, with such race-bating overtones, to the NAACP this summer?
Attorneys general, because of their special and sensitive position, should concentrate on enforcing the law in an equal and fair manner, not use their office for crass political gain at the expense of the law. As Holder knows, lawyers—particularly government lawyers—have an absolute ethical obligation as officers of the court to draw to the court’s attention any authority that is contrary to the legal position they are asserting.
When the U.S. Attorney General is talking about a subject as serious as election integrity and the laws of a sovereign state that should be accorded respect, he has a similar ethical obligation to the American public to not play fast and loose with the facts and the law and to make legal claims that are flatly untrue.
Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department. He is the co-author (with John Fund) of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (Encounter Books, August 2012).