Analysis: 3-Judge Court Unanimously Preclears South Carolina Voter ID Law, But Delays Implementation Until 2013

You can find the opinion at this link.  Here’s Judge Kavanaugh’s summary paragraph:

In short, Act R54 allows citizens with non-photo voter registration cards to still vote without a photo ID so long as they state the reason for not having obtained one; it expands the list of qualifying photo IDs that may be used to vote; and it makes it far easier to obtain a qualifying photo ID than it was under pre-existing law. Therefore, we conclude that the new South Carolina law does not have a discriminatory retrogressive effect, as compared to the benchmark of South Carolina’s pre-existing law. We also conclude that Act R54 was not enacted for a discriminatory purpose. Act R54 as interpreted thus satisfies Section 5 of the Voting Rights Act, and we grant pre-clearance for South Carolina to implement Act R54 for future elections beginning with any elections in 2013. As explained below, however, given the short time left before the 2012 elections, and given the numerous steps necessary to properly implement the law – particularly the new “reasonable impediment” provision – and ensure that the law would not have discriminatory retrogressive effects on African-American voters in 2012,we do not grant pre-clearance for the 2012 elections.

Judge Kavanaugh’s careful analysis is persuasive, and is fully joined by both other judges [corrected].  Especially important was how much easier South Carolina’s i.d. requirement is to comply with than other states, especially the ability to get around the requirement by showing a “reasonable impediment.”  Judge Kollar-Kotelly emphasized how if South Carolina actually makes it harder to get the i.d. through new construction of the meaning of reasonable impediment, follow on section 5 lawsuits would be possible.

But perhaps the greatest significance of this ruling, apart from the fact that South Carolina is being treated differently from Texas based on the specific facts, is what Judge Bates, joined by Judge Kollar-Kotelly, said in a concurring opinion about the continued need for section 5 (Judge Bates recently upheld the constitutionality of section 5 in a case heading to the Supreme Court).  He said it illustrated how section 5 works as an important bargaining chip for minority voters:

First, to state the obvious, Act R54 as now pre-cleared is not the R54 enacted in May 2011. It is understandable that the Attorney General of the United States, and then the intervenor-defendants in this case, would raise serious concerns about South Carolina’s voter photo ID law as it then stood. But now, to the credit of South Carolina state officials, Act R54 as authoritatively interpreted does warrant pre-clearance. An evolutionary process has produced a law that accomplishes South Carolina’s important objectives while protecting every individual’s right to vote and a law that addresses the significant concerns raised about Act R54’s potential impact on a group that all agree is disproportionately African-American. As the Court’s opinion convincingly describes, South Carolina’s voter photo ID law, as interpreted, now compares very favorably with the laws of Indiana, Georgia and New Hampshire, each of which has passed legal muster through either federal court constitutional review or pre-clearance by the Attorney
General. The path to a sound South Carolina voter photo ID law has been different, given the essential role of the State’s interpretation of key provisions.

Which brings me to my second observation – one cannot doubt the vital function thatSection 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive. Several legislators have commented that they were seeking to structure a law that could be precleared. See Trial Tr. 104:18-21 (Aug. 28, 2012) (Harrell) (“I was very aware at the time that we were doing this that whatever we would have to do would have to be subject to the Voting Rights Act because that would be the basis for the Department of Justice preclearing the bill for us.”); id. at 105:15-18 (“[I] ask[ed] the staff who drafted the bill for me to please make sure that we are passing a bill that will withstand constitutional muster and get through DOJ or through this court.”); Trial Tr. 108:23-25 (Aug. 27, 2012) (Campsen) (agreeing that he was “interested in what voter ID legislation had been precleared” in drafting R54); id. at 148:10-15 (discussing
senators’ statement that “[t]he responsible thing to do was to fix [the bill] so that it would not fail in the courts or get tripped up by the Voting Rights Act”); Trial Tr. 141:9-12 (Aug. 28, 2012) (McConnell) (discussing his efforts on behalf of a bill that “had a better chance of getting preclearance”); id. at 182:18-20 (on the Senate floor “[t]here was discussion about” how “to craft a bill that would comply with the voting rights amendment”). The key ameliorative provisions were added during that legislative process and were shaped by the need for pre-clearance. And the evolving interpretations of these key provisions of Act R54, particularly the reasonable impediment provision, subsequently presented to this Court were driven by South Carolina officials’ efforts to satisfy the requirements of the Voting Rights Act.

Congress has recognized the importance of such a deterrent effect. See H.R. Rep. No.109-478, at 24 (2006) (finding that “Section 5 encourage[s] the legislature to ensure that any voting changes would not have a discriminatory effect on minority voters,” and “that the existence of Section 5 deterred covered jurisdictions from even attempting to enact discriminatory voting changes” (internal quotation marks omitted)); S. Rep. No. 109-295, at 11 (2006) (finding “some reason to believe that without the Voting Rights Act’s deterrent effect on potential misconduct” racial disparities in voting “might be considerably worse”). The Section 5 process here did not force South Carolina to jump through unnecessary hoops. Rather, the history of Act R54 demonstrates the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.

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