> 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).