[EL] South Carolina decision
Rick Hasen
rhasen at law.uci.edu
Wed Oct 10 11:20:57 PDT 2012
Analysis: 3-Judge Court Unanimously Preclears South Carolina Voter
ID Law, But Delays Implementation Until 2013
<http://electionlawblog.org/?p=41387>
Posted on October 10, 2012 11:19 am
<http://electionlawblog.org/?p=41387> by Rick Hasen
<http://electionlawblog.org/?author=3>
You can find the opinion at this link
<https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv0203-299>.
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 parties. 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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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
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