“I am glad the DOJ ultimately recognized the importance of ensuring a secure elections process in Georgia and consented to the Section 5 approval of Georgia’s voter verification process," Kemp said in a statement. "As Georgia’s chief elections officer, my job is to ensure secure, fair and accessible elections for every Georgia citizen who is eligible to vote. Every ballot cast by a noncitizen erases a ballot cast by an eligible Georgia voter.”
But opponents of the system, many of whom had joined the lawsuit to fight the state's position, questioned the Justice Department's decision and were flummoxed by Attorney General Eric Holder's move.
The voter verification system has been tied up in federal court since 2008, when voting rights advocates sued on behalf of a Kennesaw State University student who had been flagged by the system even though he was a naturalized citizen and eligible to vote. The Justice Department has rejected it at least twice, calling it "seriously flawed" because it subjected minority voters to "additional, and more importantly, erroneous burdens on the right to register or vote."
Under Section 5 of the Voting Rights Act of 1965, states with a history of discrimination, including Georgia, must get changes in voting procedures "precleared" by the Justice Department or by the U.S. District Court in Washington.
The voter verification system was designed under the federal Help America Vote Act to check voter registration information against driver's license and Social Security databases. The Justice Department in 2008, then under Republican President George W. Bush, first questioned the system and said federal law required the state to verify a voter's identity, but not his or her citizenship.
Kemp spokesman Matt Carrothers said the state last week proposed changing the scope of the program. When the Justice Department first objected to the program in May 2009, the process applied to all first-time voter registration applicants and also anyone who made a change to his or her driver's license in one of five key areas, such as a change in name through marriage or when someone moves to another county.
Later in 2009, the state changed the system so that it only applied to first-time applicants who registered by mail and did not provide proper identification. The Justice Department also rejected that plan.
The system as approved is much broader. It includes all first-time voter registration applicants, including those who register by mail or in person at their county registrar. It does not, however, include voters already registered who make changes to their information.
"It was the pool that changed," Carrothers said. "Again, the process that has been granted preclearance by the DOJ is actually broader than that that was denied previously."
Spokesmen for the Justice Department did not return calls for comment or to explain why the system was granted preclearance.
Lawyers for two groups who joined the lawsuit would like that explanation.
"It came as something of a shock," said Laughlin McDonald, the voting rights project director for the American Civil Liberties Union.
Jerry Gonzalez, executive director of the Georgia Association of Latino Elected Officials, said the decision raises many questions.
"This is completely out of line for what the normal procedures are for preclearance," Gonzalez said. "There was no time for public comment or engaging of impacted communities in the preclearance effort."
State Rep. Tyrone Brooks, D-Atlanta, was also among those asking to intervene in the lawsuit and among those confused by the Justice Department's move.
"I am absolutely surprised that the U.S. Department of Justice, under a Democratic administration, a very smart attorney general, would preclear such a Draconian measure. We just think it's bad public policy."
But McDonald said it could be that the Justice Department decided to preclear the Georgia program to avoid a worse fate in court. The state's lawsuit said if the court found its system allowable under the Voting Rights Act, that it should also rule all of Section 5 unconstitutional. The Obama administration probably didn't want to take the chance of that happening, he said.
"That obviously was something that drove the decision," McDonald said. "The Department of Justice and others were concerned what this [Supreme Court] would do if it was given an opportunity to rehear a case like this."
But others, including Gov. Sonny Perdue, praised the decision.
“Georgia has worked diligently to uphold the sanctity of the ballot box," Perdue said in a statement. "To ensure honest and fair elections, we must provide access to all eligible voters and make certain that all who cast a vote are eligible. Today’s announcement is a victory for Georgia voters."