The Supreme Court Speaks, Yet DOJ Won’t Listen

Justice Department is Violating Constitution’s “Equal Sovereignty” Doctrine in Fight Against Voter Integrity Measures, Says Legal Expert

Washington, D.C. – In a just-released National Policy Analysis paper analyzing the lawsuit filed by the state of South Carolina against the Department of Justice over its disapproval of South Carolina’s Voter ID law, National Center for Public Policy Research Adjunct Fellow Horace Cooper concludes “the Department of Justice is willfully ignoring Supreme Court precedent and will likely be overruled.”

This latest paper by Horace Cooper comes the same day a federal court will hear the case of Florida v. United States. Florida is seeking access to a federal database, as required by law, that will permit it to expunge dead voters from its voter rolls. The Obama Administration has been blocking access to the database, although federal law is clear that Florida is allowed to have it. Meanwhile, outside organizations including the NAACP have been claiming that it is illegal for Florida to reduce the number of days it offers “early voting” before election day, under its theory that black voters are affected more than other voters when “early voting” days are reduced.

Cooper has spoken out harshly about the DOJ’s position in the Florida case.

Last year South Carolina enacted R54, a bill that requires most of the State’s voters to present a government-issued photo ID in order to cast a ballot in-person at the polls. More than 30 states already require voters to present some form of identification when voting, and at least 15 make in-person voters show a valid photo-ID. But South Carolina is one of a dozen states subject to the requirements of Section 5 of the Voting Rights Act of 1965, a federal statute designed to address the State’s history of disenfranchising minority voters. And on December 23, 2011 the Department of Justice denied South Carolina the right to enforce its voter ID law.

“In objecting to the new photo-ID requirements the DOJ has stubbornly failed to account for relevant Supreme Court precedent in South Carolina’s case,” Cooper says.

“The Supreme Court’s 2008 decision in Crawford v. Marion County Election Board examined an Indiana voter ID law that is almost identical to the one enacted in South Carolina. In an opinion authored by liberal Justice John Paul Stevens, the Supreme Court upheld Voter ID, explaining that it is a neutral, nondiscriminatory regulation of voting procedure,” Cooper explains.

“Apparently, when the Supreme Court speaks, the Attorney General doesn’t feel obliged to listen,” says Cooper. “Even more concerning than the Justice Department’s willful ignorance, however, is the implication of the DOJ’s position. States like South Carolina could be denied its ‘equal sovereignty’ to exercise the same rights and authority as other states that aren’t covered by the Voting Rights Act,” Cooper argues. “If the Voting Rights Act really required such an outcome, the Voting Rights Act would likely be unconstitutional.”

Cooper, a legal commentator, is the author of the just-released “Voter ID: The Supreme Court Speaks, Yet DOJ Won’t Listen.”

Cooper’s paper, “Justice Department Plays Fast and Loose with Facts and Constitution in Challenging Texas Voter ID Law,” is also available online at In February, Cooper wrote another paper on Voter ID, “When the Dead Vote, the Living Suffer; Department of Justice is Wrong to Oppose Voter ID,” available online at

Cooper is a frequent radio and television guest on constitutional issues, including several key cases for which Supreme Court decisions are expected sometime today or next week. These include cases on constitutionality of various provisions of the Affordable Care Act (ObamaCare), the Arizona immigration case, and Knox v. SEIU, a case about the right of workers not to be forced to pay for the political advocacy of the unions to which they belong.

Horace Cooper is an adjunct fellow with the National Center for Public Policy Research, a member of the African-American leadership group Project 21 and a legal commentator. He taught constitutional law at George Mason University in Virginia and was a senior counsel to Rep. Dick Armey (R-TX), including during Armey’s service as U.S. House Majority Leader.

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