During the legislative deliberations before passage of the Help America Vote Act (HAVA),
Senator Bond of Missouri asked the Department for its view as to whether, in those states
required to obtain preclearance under Section 5 of the Voting Rights Act, the implementation
of a voter identification requirement would automatically be deemed retrogressive by
the Attorney General and thus result in an objection.
In response, on February 26, 2002, the Department's Office of Legislative Affairs sent
Senator Bond a letter (see below). The letter confirmed that voter identification requirements
were not per se retrogressive, and so would not automatically result in an
objection from the Attorney General.
Note, however, that in its enacted form, the requirements of Sections 301-303 of HAVA,
including the identification requirements for new mail-in registrants, are mandatory
for federal elections in each state unless there is a state-specific exemption.
Sections 304-305 provide that Sections 301-303 are only "minimum requirements" and
that states have "discretion" in the "specific choices on the methods of complying"
with each of these requirements. Therefore, in general, covered jurisdictions
implementing voting changes pursuant to Sections 301-303 must submit those changes
for preclearance. See Young v. Fordice, 520 U.S. 273 (1997) (when
discretion is granted to state officials in the manner in which they implement federal
legislation, covered jurisdictions must comply with the preclearance provisions
of Section 5).
February 26, 2002 letter: (HTML) (PDF)
Updated 2008-07-25