Aug. 27 (Bloomberg) -- Ten weeks before the U.S. presidential election, the Obama administration is wielding the Voting Rights Act against laws it claims will keep minorities from the polls. Today, the target in federal court in Washington is South Carolina’s photo identification rules.
The Justice Department, in a week-long trial, is asking three judges to reject South Carolina’s measure requiring residents to show federal or state-issued photo ID at polling stations, arguing the burdens imposed by the law will weigh more heavily on minority voters than on white ones.
South Carolina is among at least six states awaiting decisions on the legality of new voter identification requirements passed by Republican-controlled legislatures. Texas, whose law was blocked by the Justice Department, said it needs a federal court ruling by the end of the week. Pennsylvania, Mississippi and New Hampshire are waiting to see whether the department will oppose their laws. Wisconsin is appealing a state court judge’s ruling that declared its voter-ID law unconstitutional.
“It’ll be interesting to see how Texas and South Carolina play out with the clock ticking down and the difficult administrative problem of trying to get IDs into the hands of people who need them if the courts allow the laws to go forward,” Rick Hasen, an election law blogger and professor at the University of California, Irvine’s law school, said in an interview.
At issue are proposed changes in procedures that Republican lawmakers say are necessary to prevent fraud. Democrats and liberal activist groups argue the steps are aimed at limiting votes for President Barack Obama and other Democratic candidates for local and federal offices.
South Carolina is one of 16 jurisdictions with a history of voting rights violations that need either approval from the Justice Department or a special panel of federal judges in Washington to change election procedures under Section 5 of the Voting Rights Act of 1965.
South Carolina’s law requires residents to present one of five approved state or federal-issued photo IDs. It did away with a non-photo voter registration card in favor of one bearing the voter’s photo that would be issued free of charge to all residents.
South Carolina’s voter ID law, one of eight enacted last year, was the first to be rejected by the Obama administration under the Voting Rights Act. The state responded to the Justice Department’s refusal to clear the plan by filing a lawsuit in February.
“The evidence in the case establishes that South Carolina cannot meet its burden that these strict photo ID requirements will not have a retrogressive effect,” on minorities, Bradley Heard, a lawyer in the Justice Department’s civil rights division, told the judges today during opening remarks.
He said minorities are less likely to possess the required identification or the means to obtain it and therefore some won’t vote.
The department argues that South Carolina didn’t produce any evidence of in-person voter fraud in the state. Rather, legislators ignored information from election officials showing that of the 178,175 voters who lack state photos, about 36 percent, or 63,756, were non-white.
“Given that approximately 30 percent of South Carolina registered voters are non-white, this chart provided clear evidence of the likelihood of racially discriminatory impacts,” according to the department’s trial brief.
South Carolina claims that just 149,021 registered voters, less than 6 percent of the state’s 2.7 million registered voters, currently lack the required identification. Of those, about 57,000 are minorities, H. Christopher Bartolomucci, a lawyer for the state, told the judges today.
“The law affects many more white voters than minority voters,” said Bartolomucci, a partner at Bancroft Pllc in Washington.
The state said the department and the intervening groups ignore the law’s provision that would make photo identification cards available free of charge at motor vehicle offices and polling stations.
“Presenting photo ID is a common, if not daily, occurrence in this country,” the state said in an Aug. 21 filing by its legal team, which includes Paul Clement, former solicitor general in the administration of President George W. Bush.
“This very court has a ‘100 percent ID check’ policy,” the state said in its brief. “Voter ID laws do not burden the right to vote (or any other right) any more than courthouse ID checks burden the right of access to the courts.”
South Carolina said in a June 29 filing that if the court rules in its favor before Nov. 6, it will immediately enforce the identification requirements.
If the law isn’t approved by Sept. 15 -- unlikely given that closing arguments are scheduled for Sept. 24 -- then some of the law’s provisions, such as offering free ID documents at polling places, can’t be carried out for the November election.
For this year, citizens arriving at the polls without the required identification would fill out an affidavit and then cast a provisional ballot that would be valid unless election officials find the affidavit to be false, according to the filing.
George “Chip” Campsen III, a Republican state senator who sponsored the legislation, testified today that the issue of voter fraud was brought up by constituents after the 2008 election following media reports involving allegations of fraud by minority-activist group Acorn.
He said individuals in his state “expressed concern” about the electoral process or lack of confidence in it.
Groups that intervened in the case against South Carolina said the plan gives thousands of poll workers discretion to decide whether a vote will count.
“The trial will make clear that the state’s proposed photo identification measure will have a significant impact on its minority voters,” Ryan Haygood, director of the political participation group at the NAACP Legal Defense Fund, said in an e-mailed statement.
Haygood’s group represents two intervenors in the case, the South Carolina State Conference of the NAACP and a black college student.
The three judges who will decide the South Carolina case are U.S. Circuit Judge Brett Kavanaugh and U.S district judges John Bates and Colleen Kollar-Kotelly. Kavanaugh and Bates were appointed by President George W. Bush. Kollar-Kotelly was appointed by President Bill Clinton.
Bates, in September 2011, dismissed a direct challenge to the constitutionality of Section 5 of the Voting Rights Act brought by Shelby County, Alabama, and was upheld by the U.S. Appeals Court in Washington. The U.S. Supreme Court may decide in October whether to hear the county’s appeal of that decision.
South Carolina’s voter ID law is the second to go to trial in Washington this year. To ensure the law could be implemented by November, Texas, which sued to have its rules approved, told the court it needs a ruling before the end of the month.
“A lot that happens in the South Carolina case might be influenced by what the Texas case does, assuming it comes out before the election,” Hasen said.
The case is South Carolina v. U.S., 12-cv-00203, U.S. District Court, District of Columbia (Washington).
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