Gerstein: “The two judges in the majority, U.S. District Court Judges Colleen Kollar-Kotelly and John Bates, took a harder line against South Carolina’s efforts to invoke attorney-client privilege to shield material prepared by staff attorneys in the state Senate as the voter ID measure was being drafted. The dissenter, D.C. Circuit Judge Brett Kavanaugh, would have allowed South Carolina to keep more of the information secret from the Justice Department and civil rights groups who have intervened in the case. Lawyers following the case could not immediately point to another time in this election cycle that the the two-district-judge-and-one-appeals-court-judge panels that hear such disputes divided in a ruling.”
A similar 2-1 recent divide occurred in the Shelby County case, on its way to the Supreme Court. Judge Williams dissenting opinion even mentioned the South Carolina case:
Judge Williams writes:
Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana? A glimpse at the charts shows that Indiana ranks “worse” than South Carolina and Texas in registration and voting rates, as well as in black elected officials (Figures I, II and III). As to federal observers, Indiana appears clearly “better”—it received none (Figure IV). As to successful § 2 suits South Carolina and Texas are “worse” than Indiana, but all three are below the top ten offenders, which include five uncovered states (Figure V). This distinction in evaluating the different states’ policies is rational?Despite a congressional record of over 15,000 pages and 22 hearings, Shelby County, 811 F. Supp. 2d at 496, there is little to suggest that § 4(b)’s coverage formula continues to capture jurisdictions with especially high levels of voter discrimination. To the extent that the answer is, as the district court suggested, that Congress wished to “continue to focus on those jurisdictions with the worst historical records of voting discrimination,” id. at 506, such an overwhelming focus on historical practices appears foreclosed by Northwest Austin’s requirement that current burdens be justified by current needs.
It goes without saying that racism persists, as evidenced by the odious examples offered by the majority, see Maj. Op. at 27-29. But without more evidence distinguishing current conditions in the covered jurisdictions from those in the uncovered ones, § 4(b)’s coverage formula appears to be as obsolete in practice as one would expect, in a dynamic society, for markers 34-to-59 years old. Accordingly, I dissent.