Friday, December 23, 2011

USDOJ Blocks South Carolina Voter Photo ID Law

The Justice Department on Friday rejected South Carolina's law requiring voters to show photo identification at the polls, saying it makes it harder for minorities to cast ballots. South Carolina's law, which is almost identical to Texas' voter photo ID law, was the first voter ID law to be refused by the Obama administration. The Justice Department must approve changes to South Carolina's election laws under the federal Voting Rights Act because of the state's past failure to protect the voting rights of blacks. Texas, also covered by the Voting Rights Act, may soon receive a similar letter in response to it's preclrearance request. (USDOJ's letter to SC at the bottom of this post)

Assistant Attorney General Thomas Perez said South Carolina's law didn't meet the burden under the 1965 Voting Rights Act, which outlawed discriminatory practices preventing blacks from voting. Perez said tens of thousands of minorities in South Carolina might not be able to cast ballots under South Carolina's law because they don't have the right photo ID.

South Carolina's new voter ID law requires people casting ballots to show poll workers a state-issued driver's license or ID card; a U.S. military ID or a U.S. passport.

South Carolina is among five states that passed laws this year requiring some form of ID at the polls, while such laws were already on the books in Indiana and Georgia, whose law received approval from President George W. Bush's Justice Department. Indiana's law, passed in 2005, was upheld by the U.S. Supreme Court in 2008. This USDOJ decision places the federal government squarely in opposition to the types of voter ID requirements that have swept through mostly Republican-controlled state legislatures.

“Put differently, although non-white voters comprised 30.4% of the state’s registered voters, they constituted 34.2% of registered voters who did not have the requisite DMV-issued identification to vote,” Assistant Attorney General Thomas E. Perez, who heads the Civil Rights Division, wrote in the letter to South Carolina. “Non-white voters were therefore disproportionally represented, to a significant degree, in the group of registered voters who, under the proposed law, would be rendered ineligible to go to the polls and participate in the election.”

Perez wrote that the number of minority citizens whose exercise of the francise could be adversely affected by the proposed requirements “runs in the tens of thousands.” He wrote that the state had “failed entirely to address the disparity between the proportions of white and non-white registered voters who lack DMV-issued identification.”

Because Justice Department lawyers reached the conclusion that South Carolina’s voter ID law would have the effect of suppressing minority voter turnout, they found it was unnecessary to examine whether that was the intent of the legislators who voted for the law. Cases based on intent to discriminate are usually more difficult to prove even though they don’t require the government to prove the effect was discriminatory.

The Texas Secretary of State filed the the state's request for preclearance in July, but the USDOJ determined in September that it needed more information. Specifically the USDOJ requested the racial breakdown and counties of residence of the estimated 605,576 registered voters who do not have a state-issued license or photo ID, and how many of them have Spanish surnames. It requested the same information for registered voters who do have valid IDs.

The Texas Secretary of State (TXSOS) had initially told the DOJ that 605,576 registered Texas voters do not appear to have a Texas driver’s license or personal ID card. The SOS report indicates that in 27 of Texas' 254 counties, at least 10 percent of the registered voters might be unable to cast ballots. In Presidio County in Southwest Texas as many as 25.9% of registered voters might not have the required photo ID, which will block as many as 1,313 out of the 5,066 registered voters in that county from casting ballots in any election.

The Texas Democratic Party followed up with its own letter and spreadsheet to the USDOJ showing that in at least 46 Texas counties, over half the voters who do not have one of the required photo ID's are Hispanic. The Texas Democratic Party and various organizations staunchly opposed SB14 on the grounds it will disenfranchise elderly and minority voters.

Although most Americans have government-issued photo ID, studies show that as many as 11-12% of eligible voters nationwide do not; the percentage is even higher for seniors, people of color, people with disabilities, low-income voters, and students. Last month, the Brennan Center for Justice issued a report on its research that shows as many as 11% of eligible voters nationwide do not hold a government issue photo ID. With 18.8 million voting age citizens in Texas, as counted by the 2010 U.S. census, as many as 2.1 million (11 percent) registered and unregistered voting age citizens in Texas possibly do not hold a Texas driver’s license, personal ID card or other government issued photo ID document.

South Carolina Attorney General Alan Wilson said he would fight the Justice Department in federal court. He said the U.S. Supreme Court upheld a similar law in Indiana several years ago. "Nothing in this act stops people from voting," Wilson said. The ball is now in Wilson's court;

If the state does nothing, the voter photo ID provisions of the law is nullified.

Alternatively, Wilson can advise the state to provide new data to the USDOJ (the state told USDOJ 55 days into the 60 day review period that the data they originally turned over was flawed) and ask for reconsideration. Or, Wilson can advise the state legislature to pass a different law with less restrictive identification requirements. Or, Wilson can appeal the decision through the courts. The Supreme Court upheld Indiana’s voter ID law in 2008, so the state may think it has a good chance to win on appeal, though the question of racial disparity wasn’t the focus of SCOTUS’s 2008 decision.

USDOJ officials are still reviewing Texas' ID law. The USDOJ likely will send a rejection letter to Texas in mid-January at the end of the current 60 day clock on its Texas preclearance decision. Since the laws and issues are so similar between TX and SC, the Tx letter is likely to say much the same thing as today's SC letter.

It is widely expected that South Carolina (and Texas) will take the USDOJ's preclearance rejection to the three judge court in DC, with direct appeal to the U.S. Supreme Court. It is also expected that South Carolina (and Texas) will argue that Section 5 of the Voting Rights Act is unconstitutional — an issue that has been simmering in other VRA cases.

South Carolina (and Texas) likely will seek expedited review of the USDOJ's rejection in the DC court as well as in the Supreme Court, on grounds that the states want to use their new voter photo ID laws in the 2012 election. That would put the VRA constitutionality question raised in the voter photo ID case before the Supreme Court at about the same time SCOTUS will be considering the constitutionality of the San Antonio court's redrawing of Texas' House, Senate and Congressional district maps. This would give the conservative activist Supreme Court Justices a chance to not only weaken section 5 of the Voting Rights Act as unconstitutional before the 2012 election, but to strike it down all together.

More on this story @ WaPo


Justice Department Letter to South Carolina Blocking Voter ID Law

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