More on the Problem of Local Discretion in Administering Voter ID Laws

Back in July I blogged about the problem with pollworker discretion when it comes to implementing Pennsylvania’s voter id law. Under the PA law, pollworkers are allowed to accept id’s which “substantially conform” to state requirements. I suggested this raises questions about due process and subconscious partisan tilt, and generally speaking that discretion at the local partisan level is really to be avoided if possible.  (In my view, this substantial discretion raises serious constitutional issues with Pa.’s voter id law wholly apart from other questions.)

Well this same issue has emerged in the South Carolina voter id trial in DC, in a fairly dramatic way.  From Pam Fessler’s must-read report:

Some interesting testimony Tuesday in the federal trial over South Carolina’s new voter ID law.

It came from the state’s election director, Marci Andino. She was explaining her plans for implementing the law if it gets approved by the court, and how poll workers would be instructed to handle a controversial provision involving something called “reasonable impediment.”

The provision would allow citizens without a valid photo ID to vote — but only if they sign an affidavit saying they had a “reasonable impediment” that kept them from getting the proper identification. The meaning of “reasonable impediment” is so vague in the law that opponents have complained that it’s basically meaningless.

But Andino said it could describe some physical or medical obstacle, and could include things such as a lack of transportation to get to a motor vehicle office or election office. She also said a voter could legitimately use the excuse that he or she didn’t have enough time to get a photo ID before the election.

The ballots cast by these individuals would be provisional, but Andino said they would eventually be counted — unless someone could show that an individual had lied.

Essentially, she said it was up to the voter to determine what was a “reasonable impediment” and that she was instructing poll managers to accept the voter’s explanation.

Members of the three-judge panel in U.S. District Court in Washington, D.C., appeared surprised

Considering there’s only a short time before the Nov. 6 election, does that mean every South Carolina voter without a photo ID would have a “reasonable impediment” getting one, asked U.S. Circuit Judge Brett Kavanaugh?

“Yes, that’s possible,” Andino replied.

Pressed by U.S. District Judge John Bates, Andino said that she didn’t think the law would disenfranchise anyone already legally allowed to vote.

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