Sept. 24 (Bloomberg) -- South Carolina’s requirement that voters show photo identification in order to cast a ballot faced sharp questioning from federal judges who asked whether it could be enforced in the November general election.
A special panel of three federal judges in Washington heard arguments today on whether South Carolina’s measure requiring residents to show federal- or state-issued photo ID at polling stations significantly burdens minority voters in violation of the Voting Rights Act of 1965.
The judges, who must sign off on the measure, appeared skeptical that the state would have enough time to get the law in place for use on Nov. 6, noting that many state-imposed deadlines for implementation expired last year.
“Are you urging us to pre-clear it for 2012 assuming we can get an opinion out in a week or a little over a week?” U.S. District Judge John Bates asked a lawyer for the state during more than two hours of argument.
“We are, your honor,” H. Christopher Bartolomucci, a lawyer for South Carolina, told the judges. “Obviously, we’d be satisfied with a ruling of pre-clearance after this election.”
South Carolina is among at least four states awaiting decisions on the legality of new voter identification requirements passed by Republican-controlled legislatures.
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.
Last month, photo requirements in Texas were rejected by a different three-judge panel in Washington which said it “imposes strict, unforgiving burdens on the poor and racial minorities” in violation of Section 5. That ruling, which was referred to by the judges and parties during today’s argument, cited the distance -- up to 100 miles each way -- some voters had to travel along with fees for the required identification as harming minorities.
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 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 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.
A study by the department’s expert, Charles Stewart, found that black voters in South Carolina are more than twice as likely as white voters not to possess one of the acceptable forms of identification.
During today’s argument, Bartolomucci said South Carolina’s ID law differed from Texas in that photo identification cards would be available free of charge in at least two places per county.
Voters who can’t come up with the required information may cast a provisional ballot citing a so-called reasonable impediment, he said.
South Carolina said that if the court rules in its favor before Nov. 6, it will immediately enforce the identification requirements.
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 Bartolomucci.
“There is no set of circumstances where this could be implemented in the 2012 elections,” Matthew Colangelo, a Justice Department lawyer, told the judges in his closing argument.
He cited a court filing in April from Marci Andino, head of the State Election Commission, stating that she would need at least 90 days to train poll workers on how to enforce the law.
Garrard Beeney, a lawyer at Sullivan & Cromwell LLP who represents intervening groups challenging the law, told the judges that South Carolina’s requirements set up a system where 20,000 poll workers would decide whether to accept a ballot from a person citing a reasonable impediment.
“Under the benchmark system I push my finger on a machine and I’m not subject to challenge -- my vote is going to be counted,” Beeney said.
With the new law, “my vote is subject to challenge without me ever knowing about it,” he said.
“It’s a two-tier system that’s not equal or likely to lead to the same result,” Beeney said.
U.S. Circuit Judge Brett Kavanaugh asked Bartolomucci whether the law creates two classes of voters, which in turn sets up two distinct lines at the polls.
One line would include voters who have identification who would be allowed to cast a traditional ballot. The other line for those without identification would be disproportionately black, Kavanaugh said. Those voters would be casting provisional ballots and must take additional steps, such as swearing out an affidavit, said Kavanaugh, who was appointed to the bench by President George W. Bush.
Bates, also a Bush appointee, asked whether those voters swearing out an affidavit and casting provisional ballots would be questioned by poll managers about whether they’re intoxicated or on drugs, per South Carolina’s requirement for notaries publics.
The pool of people being asked ‘Are you drunk?’ would be disproportionately black, he said.
The third judge on the panel is U.S. District Judge Colleen Kollar-Kotelly, who was appointed by President Bill Clinton.
The case is South Carolina v. U.S., 12-cv-00203, U.S. District Court, District of Columbia (Washington).
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