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In South Carolina, Shockingly Candid Talk About Voter Discrimination

The state's chief election official -- a bureaucrat, not a politician -- patiently and professionally proves how the new law could be used to not only keep residents from voting but systematically discard their votes.

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A South Carolina voter signs in during the Republican primary last January. (Reuters)

You know who is having a bad week? South Carolina Election Commission Executive Director Marci Andino. And it's not even her fault. She is not responsible for the restrictive voter identification law Republicans enacted in 2011, a discriminatory measure the Justice Department promptly blocked under the Voting Rights Act. She's not responsible for the policy behind the law, which is to burden poor people, minorities, and students in the name of halting voter fraud no one in the state can identify or prove.

Andino is not responsible for the lack of training for local officials who are supposed to oversee the new rules, because there are few such rules -- not yet, not even with just two months to go before the election. (South Carolina officials seem to have frozen the process of preparing for the new rules once the Feds interceded last December, the idea evidently being that it makes no sense to spend money preparing to implement a new law that may never see the light of day.)

And she's not responsible for the lack of resources available to re-register voters with new IDs -- there is today only one bus, in the whole state, devoted to traveling around to re-register voters. It's not her fault. None of it. And yet she had to testify this week, in federal court in Washington, in defense of the law. Her testimony on Tuesday and Wednesday bordered on the absurd at times. Not because Andino is a poor witness, not because she's a zealot, but for precisely the opposite reason.

Relentlessly, professionally, candidly, she has revealed to the world the utter lack of sense behind the new law -- the lack of foresight on the part of the legislators, the Tea Partyers, and the conservative radicals, who scrambled to enact the odious measure in the face of reasonable, bipartisan, biracial alternatives. Under cross-examination by Garrard Beeney, Andino has delivered a river of evidence proving that the state's minorities -- and its poor, and its ill -- will effectively be disenfranchised by the new law.

Here, for example, is the transcript from Wednesday morning's session of the federal court trial now underway before three (largely baffled) judges. Take a few moments to read for yourself how unprepared South Carolina is to ensure, come November, that registered voters -- men and women who have voted without incident before -- will have their votes counted this election season. Below is my favorite passage from the morning session -- but first here is a little bit of background for it.

On Wednesday morning, Beeney questioned Andino about the status of registered voters who come to vote on Election Day without the new form of photo identification required by the new law. Those registered voters may be permitted -- the emphasis is on the word "may" because local officials seem to have a great deal of discretion to make that call -- to cast a provisional ballot if they state they had a "reasonable impediment" to getting the new identification cards.

Those provisional ballots, in turn, may then be challenged (by anyone) on the basis that the provisional voter didn't have a "reasonable impediment" after all. The challenges are heard and resolved on the Friday following the election -- one day in advance of the "certification" of the election results that occurs on Saturday. Andino testified that South Carolina notifies provisional voters of this hearing by mail between Tuesday's election and Friday (which doesn't leave much time for the postman, does it?).

A provisional voter isn't told that his or her vote has been challenged. The provisional voter is simply told there will be a hearing. So if that voter wants to defend his or her "reasonable impediment" declaration, the voter has to go to the county seat on the Friday following the election to make sure that his or her vote will be counted. Of course, a lack of transportation, public or otherwise, is likely to have been one of the biggest reasons why that voter could not get his or her new identification in the first place.

Okay, that's the background. Now let's go to the transcript. The questions below are from U.S. District Judge Colleen Kollar-Kotelly, one of the three judges hearing the matter. The answers are from elections official Andino, First, there is this exchange between judge and witness:

Kollar-Kotelly: So you cast a provisional ballot and you get notice of this hearing. You don't know whether your reasonable impediment affidavit is challenged or not, but you're expected to check somehow to find out? How would you know whether it's worth showing up?

Andino: There's not a way in place that they would know.

Kollar-Kotelly: Okay. So you get the provisional ballot, you're told that there is a hearing and somebody could or could not come and challenge your -- you know. So if you want to make sure that it gets counted, maybe you should show up. Is that the theory?

Andino: Yeah, that's the current process with provisional ballots.

Kollar-Kotelly: Okay. Is that true of any provisional ballot?

Andino: Yes.

Kollar-Kotelly: Under the current law.

Andino: It is.

Kollar Kotelly: So if you get a provisional ballot, they give you a notice that they are going to have a hearing, and so if you want to make sure your vote counts, you'd show up at that as well, in essence?

Andino: Yes.

Kollar Kotelly: Okay.

Andino: But the voter is not required to be there.

Kollar Kotelly: But if somebody decides to knock it out, you're not there, right, so you have no way of responding?

Andino: Right

And then, shortly thereafter, there was this exchange between Beeney, the civil rights lawyer,  and Andino, the witness.

Beeney: Ms. Andino, just to follow up a little bit on some of the Court's questions. If my reasonable impediment is I have no transportation to the county seat, I have to get to the county seat to defend that, right?

Andino: Not unless it's challenged.

Beeney: Well, if it's challenged, the only way I can defend it is to get to the county seat, which might suggest to a county commissioner that a lack of transportation reasonable impediment is false, since you're standing in front of me trying to defend your ballot.

Andino: Yes.

Beeney: Now, again, just to follow up on a couple of the Court's questions. At the polls there are people representing the candidates, right?

Andino: Yes, we have poll watchers.

Beeney: And so if I was a poll watcher, I get to watch what goes on at the table, the check-in table where all this is happening, right?

Andino: Yes.

Beeney: And if I wanted to, for whatever reason I may have, I could write down the name of every African American who voted by reasonable impediment and show up on Friday and challenge every one of those if I wanted to, right?

Andino: Yes.

Beeney: And there's no way that our hypothetical African American voter who's getting challenged would have any idea in the world that that's what's happening, is that correct?

Andino: That's correct.

Kollar-Kotelly: So the poll watchers have access to the names?

Andino: The poll watchers are there to watch the process, and they can come over and look at the voter registration list and the poll list.

Got all that? Registered voters who cannot travel to get their new identification cards in the first place, and who, when voting, declare they could not do so, then have to try to travel to the county seat to defend their vote after receiving notice in the mail between Tuesday and Thursday that their votes may or may not be challenged. Judge Kollar-Kotelly's point about these restrictions being in place today is instructive -- there will be far more "provisional ballots" under the new law than there are now.

The new law practically begs partisan poll watchers to challenge every such provisional ballot so as to place the burden on the registered voter to twice prove his or her voting rights. And that's the whole point of the law. Many voters will have their "reasonable impediments" refused by untrained local election officials. And for those voters who somehow pass that discretionary test, there will be the provisional challenges later in the week, challenges structured so as to deny the voter a reasonable right to be heard.

This isn't about protecting against voter fraud. This is all about taking away the vote from minorities, the poor, and the ill -- taking it away from people who have voted without incident for decades. It's not Andino's fault. She's just the poor bureaucrat left to try to explain the inexplicable: how all of this could come to pass in the United States of America 50 years after passage of the Voting Rights Act.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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