Federal Court: In South Carolina We Trust

A three-judge panel delays implementation of South Carolina's voter-ID law -- and shows a great deal of faith in local elections officials on voting-rights issues. 

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

Opponents of South Carolina's new voter-identification law rightly cheered Wednesday after a panel of three federal judges in Washington blocked the restrictive law's enforcement in the 2012 election. The ruling was the latest in a string of court orders by state and federal judges over the past few months -- a dozen or more, I've lost track -- which have stymied Republican efforts all over the country to suppress the votes of the poor, the ill, the elderly, and minorities. And it came from a panel comprised of two Republican appointees, to boot -- including the radically conservative Brett Kavanaugh, who authored the decision.

The decision is worthy also as a reminder of the still-vital role the Voting Rights Act plays in these cases-- no small matter today with the U.S. Supreme Court pondering whether to accept for review a new voting-rights case. U.S. District Judge John D. Bates, a George W. appointee, said so in his concurrence. He wrote: "One cannot doubt the vital function that Section 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."

But there is an awful lot not to like about the 41-page unanimous ruling, and no one on either side of this dispute should be fooled into thinking the matter is settled and won't come up again next election cycle. The court in United States v. Dubose virtually guaranteed future litigation here by granting local officials an extraordinary amount of trust and deference to enforce what's left of the new photo-ID law. Where you stand on this ruling depends entirely upon whether you think those elections officials are going to be as permissive in approving "provisional ballots" as they said they would be when they testified under oath.

THE RULING

The main purpose of the new law, remember, was to require registered voters and other people to obtain new forms of identification, state-issued photo-ID cards, if they wanted to keep or gain their right to cast a valid ballot. In the name of voter fraud, which no one at trial identified for the judges, and which the new law wouldn't have stopped anyway, the aim of the measure was to make it harder for registered South Carolina voters, but only certain kinds of registered South Carolina voters, to vote. Today, state residents face something far different. From the Court:

As we will explain, South Carolina's new law, Act R54, likewise does not require a photo ID to vote. Rather, under the expansive "reasonable impediment" provision in Act R54 -- as authoritatively interpreted by the responsible South Carolina officials, an interpretation on which we base our decision today -- voters with the non-photo voter registration card that sufficed to vote under preexisting law may still vote without a photo ID. Those voters simply must sign an affidavit at the polling place and list the reason that they have not obtained a photo ID.

That is, these voters may cast a provisional ballot, which by its nature is not a regular ballot. A provisional ballot is subject to challenge, and this election year there are reportedly legions of conservative poll watchers ready to challenge provisional ballots cast by minority voters. At the trial in this case, for example, the state's chief elections official, the very one upon whose testimony the judges would later rely in saving R54, testified candidly that such poll watchers could lawfully challenge the provisional ballot cast by every single person of color. Every single one. Are elections officials ready for this? Can they ever be?

It was their trial testimony, after all, which effectively saved the law. Never mind what R54's text said; never mind the odious legislative history behind the new law. These state officials came into court and pledged up one side and down the other that they would "liberally" apply the law. If a registered voter showed up without the new card, for example, South Carolina officials swore that the voter would be permitted to cast a provisional ballot so long as the voter swore that there was a "reasonable impediment" for not obtaining the card. And a "reasonable impediment," these election officials swore, would be evaluated broadly.

This was enough for the federal judges who presided over the trial. In a case brought under the Voting Rights Act, in a state with a long history of racial discrimination, in circumstances where a partisan election law was enacted over the protests of minority representatives, and where there was strong trial evidence of the disparate impact the law would have upon the dispossessed, the three judges on the panel were content to rely upon the representations made by local officials that they could handle the "reasonable impediment" standard in a way that wouldn't disenfranchise legitimate voters.

Here's the language to that effect in the ruling:

And at the close of trial, the South Carolina Attorney General submitted an additional memorandum to the Court addressing several issues about the reasonable impediment provision. The Court also heard testimony from the Executive Director of the State Election Commission, Marci Andino. Ms. Andino testified that she follows the interpretation of South Carolina law offered by the Attorney General of South Carolina. Ms. Andino also furnished specific assurances about how the reasonable impediment provision would be implemented.

The evidence shows that county boards and election officials, who will be implementing the law on the ground, adhere to guidance from the central State Election Commission. The Attorney General of South Carolina and Ms. Andino have emphasized that a driving principle both at the polling place and in South Carolina state law more generally is erring in favor of the voter.

More generally erring in favor of the voter. As legal standards go in cases under the Voting Rights Act, does that make you feel more or less comfortable that minority voting rights ultimately will be protected in South Carolina? Evidently, it didn't make the three-judge panel comfortable enough. Just one page later, the judges added a little more instruction to local officials:

As the responsible South Carolina officials have confirmed repeatedly, any reason asserted by the voter on the reasonable impediment affidavit for not having obtained a photo ID must be accepted - and his or her provisional ballot counted - unless the affidavit is "false." Thus, the reasonableness of the listed impediment is to be determined by the individual voter, not by a poll manager or county board. The reasonable impediment affidavit simply helps to ensure that voters with non-photo voter registration cards are who they say they are.

The purpose of this provision, by its plain text and as it has been administratively interpreted, is not to second-guess the reasons that those voters have not yet obtained photo IDs. So long as the reason given by the voter is not a lie, an individual voter may express any one of the many conceivable reasons why he or she has not obtained a photo ID.

And then they added some more:

As the South Carolina Attorney General determined, a voter may assert, for example, that he or she lacks a birth certificate, or has a disability, or does not have a car. (The example of voters who don't have a car is especially important because one of the main concerns during the legislative debates was whether citizens without cars would be required to obtain photo IDs. They are not.)

So too, a voter may assert any of the myriad other reasons for not procuring one of the required photo IDs, such as: I had to work, I was unemployed and looking for work, I didn't have transportation to the county office, I didn't have enough money to make the trip, I was taking care of my children, I was helping my family, I was busy with my charitable work, and so on.

Any reason that the voter subjectively deems reasonable will suffice, so long as it is not false. If the affidavit is challenged before the county board, the county board may not second-guess the reasonableness of the asserted reason, only its truthfulness.

And then, in a footnote, some more:

Although county boards generally cannot second-guess whether the reason given was a "reasonable impediment" that prevented the voter from obtaining a photo ID, statements simply denigrating the law - such as, "I don't want to" or "I hate this law" - need not be accepted. Nor need nonsensical statements such as, to borrow an absurd example given at trial, "The moon is made of green cheese, so I didn't get a photo ID." The ability of county boards to police the outermost boundaries of the expansive reasonable impediment provision in this commonsense way does not affect our evaluation of Act R54.

As the Florida three-judge court did, we assess the "reasonable" voter, not a voter who seeks to flout the law. Florida v. United States, 2012 WL 3538298, at *9 (D.D.C. 2012). That said, a county board's ability to police the outskirts of the reasonable impediment provision may not be used as a pretext for impermissible disenfranchisement or for backing away from the expansive understanding of the reasonable impediment provision articulated by the responsible South Carolina officials and adopted in this opinion.

Feel more comfortable now? No worries. For many more pages the three-judge panel explored the boundaries of what state officials could and could not do as they implement the law. And, for good measure, lest any of those officials, or Republican lawmakers, choose to ignore those boundaries, or seek to backtrack upon the promises they made during this case, U.S. District Judge Collen Kollar-Kotelly added this:

Thus, any narrowing of South Carolina's interpretation of the reasonable impediment provision from what the Court has accepted and required in its opinion must itself be pre-cleared, not just to comply with the procedural requirements of the Voting Rights Act, but also because such narrowing may have the real effect of disenfranchising a group that is likely to be disproportionately comprised of minority voters.

POSTSCRIPT

What a strange thing. A restrictive law affecting fundamental civil rights -- indeed, perhaps the most fundamental of all civil rights -- survives a federal court challenge only because state officials pledged to enforce it say that they will do so in a way the measure's backers never intended. How long can such a law stay on the books before serious mischief occurs? And since when does the scope of a law "evolve" the way this one has, sui generis during a trial, without also being formally revised, on the books before the legislature. Think South Carolina lawmakers will memorialize this ruling with a "liberal" amendment to R54? No chance.

It's quaint that three judges in Washington, based upon the trial record before them, would have so much confidence and faith in South Carolina's election officials. In my view, on the other hand, if the South Carolina voter-ID trial proved one thing it is that local officials have absolutely no chance whatsoever to evenly administer the new law. That they have neither the resources nor the training nor the political support to do so, now or next year or the year after that. And if there is one lesson about provisional ballots -- if there is one lesson to be learned from Florida -- it's that they breed partisan misconduct.

So, yes, I agree that this is another victory for supporters of voting rights and another blow to supporters of voter suppression. But it is not nearly the victory it should have been, based upon the language of the law and the testimony at trial. The judges may have saved the franchise for hundreds of thousands of people in South Carolina between now and November, but there is great potential for serious problems just around the bend. You think it was hard being a South Carolina election official before this law? Wait until now, when they are up to their armpits in provisional ballots with angry zealots barking at the door.