Federal lawsuits challenging voter ID requirements in Texas and North Carolina won't just disappear even if Justice Department lawyers who once argued against the laws under the Obama administration effectively switch sides to begin advocating for them under Trump's administration, civil rights lawyers say.
What President Donald Trump's Justice Department will do isn't yet know, but his comments on the campaign trail and since taking office suggest the agency will re-examine its strategy and may support the two states' toughest-in-the-nation requirements that voters show picture identification at the polls. The Barack Obama-led Justice Department launched high-profile legal challenges against those laws, arguing that the requirements were unnecessary and unconstitutional.
"The time and resources the federal government has spent on this case have truly been substantial," said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law, which is representing plaintiffs in the Texas voter ID case. "But if the federal government reverses course, we are fully prepared to move forward."
A court forced Texas to water down its law for the November election, but the case is continuing in U.S. District Court in Corpus Christi, Texas. North Carolina's 2013 voter ID law as struck down in July, but the state has asked the U.S. Supreme Court to review the appeals court's decision.
"There is a great concern over what DOJ is going to do and if they are going to retreat in these cases," said Gerry Hebert, a former Justice Department lawyer who represents plaintiffs in the Texas voter ID case. "I suspect a great deal of shenanigans from a Trump Justice Department, but we will bear the burden on our own if we have to."
Supporters say the laws help prevent voter fraud by making sure people who aren't eligible to vote, including people living in the country illegally, don't cast a ballot. Opponents say there is no evidence of massive voter fraud and that such laws disproportionally affect minorities and the poor who may faces challenges obtaining a government-issued photo ID.
Trump tweeted Wednesday that he plans to open an investigation into voter fraud that would focus on dead people who remained on the voter rolls, people registered in two or more states and "those who are illegal."
Depending on its results, Trump tweeted, "We will strengthen up voting procedures!" That could mean efforts to expand strict voter ID requirements. On the campaign trail, Trump had praised laws requiring ballot box photo identification.
Another signal that the new administration could abandon the voter ID cases came late last week. Just hours after Trump was sworn in as president, the Justice Department asked for a hearing in Texas set for this week to be delayed until next month. Department attorneys said in court filings that they needed more time to brief new leadership, but lawyers in the case say it could be a precursor to a new position from the federal government.
If the Justice Department were to align with Texas and North Carolina and defend their voter ID laws, it would be a setback for the legal challenges but "certainly not fatal," said Rick Hasen, an election law expert and professor at the University of California, Irvine School of Law.
"Certainly, it is advantageous for these lawyers to have not only the resources of the federal government, but the opinion of the federal government on their side," he said.
Kyle Duncan, a lawyer representing North Carolina in defending its voter ID law, said the state is hopeful that the Justice Department will change its position. The Obama administration's Justice Department filed its last brief in the case opposing North Carolina's motion one day before Trump took office.
"I think the Justice Department would be on solid ground if they changed their position," said Duncan. "My hope is they will do exactly that."
Irving Joyner, an attorney for the North Carolina NAACP, said lawyers already are anticipating a cold shoulder from the Trump administration.
"We don't have any faith that the new Justice Department is going to be a friend," said Joyner. "We are fully prepared to go forward on our own anyway."