Bad Judge Draw for South Carolina in Voter ID Preclearance Case

Via Texas Redistricting comes the news that the panel is district court judges Collen Kollar-Kotelly, and John Bates and D.C. Circuit judge Brett Kavanaugh. This panel will decide whether the Department of Justice erred in not approving South Carolina’s voter identification law under section 5 of the Voting Rights Act.  DOJ concluded the law would worsen the position of minority voters because minority voters are less likely than whites to have government-issued id.  Among South Carolina’s arguments is that the court should read the preclearance requirement narrowly (making it easier to get things precleared) to avoid serious constitutional problems with a broadly-read section 5.  (The underlying claim is that section 5 violates states’ rights to choose their own election rules and is now an unconstitutional exercise of congressional power given no recent history of intentional discrimination by covered jurisdictions.)

A few reactions.  First, the brain power on this panel is unbelievable.  The quality of the DC judges is very high to begin with but this is a very smart panel.  Second, this draw is probably not great for South Carolina.  Judge Kollar-Kotelly was a tour de force in writing one of the mammoth opinions in the three-judge court case McConnell v. FEC upholding most of the McCain-Feingold campaign finance law.  The Ninth Circuit ended up following her decision.  She’s going to be skeptical of South Carolina’s arguments about the constitutional problems with section 5 of the VRA.  John Bates, a George W. Bush appointee, recently issued two opinions (Shelby County and the LaRoque (Kinston) case) rejecting constitutional challenges to section  of the Voting rights Act.  Judge Kavanaugh, while very conservative, has proven himself no activist when it comes to the election case; he rejected a recent argument to blow a hole in the McCain-Feingold law’s soft money provisions on grounds that it was for the Supreme Court, not the lower courts, to overturn earlier precedent.

But even if South Carolina faces long odds before the three-judge court, we all know the main action will be before the Supreme Court.  That’s why South Carolina already hired big gun Paul Clement to work on this case.

The next question will be whether South Carolina seeks to expedite consideration of this case so that it will have a chance to use its voter id law in the November elections.  I’ve explained in Slate how this could put the thorny issue before SCOTUS before the election (though that seems less likely as time ticks by).

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