In voter ID case, South Carolina fights back against Obama administration

South Carolina’s attorney general is asking a three-judge panel in Washington to reverse a Justice Department decision blocking the state’s new voter ID law. Obama administration officials said the state law would discriminate against African-American voters.

In court papers filed on Wednesday, Washington lawyer Paul Clement and state Attorney General Alan Wilson requested that a three-judge panel be appointed to decide whether South Carolina’s voter ID law violates the Voting Rights Act of 1965.

The litigation sets up another election-year flashpoint between the Obama administration and state governments over the balance of federal-state power.

Among the suits: 

• An ongoing battle over newly drawn congressional districts in Texas.
• A US Supreme Court appeal involving a state immigration law in Arizona.
• The 26-state Supreme Court challenge to the president’s health-care reform law.

The same lawyer, former US Solicitor General Clement, is involved in all of these cases.

Fifteen states have enacted laws requiring voters to show photo ID prior to casting a ballot. South Carolina’s ID law was enacted last year. It requires prospective voters to present a driver’s license or some other form of government-issued photo identification before being permitted to cast a ballot. The measure requires the state to provide registered voters, upon request, with a Department of Motor Vehicles-issued photo ID free of charge.

Opponents of the measure say the new photo requirement would cause an inordinate hardship on minority voters and potentially erode the political clout of African-Americans in South Carolina.

Because South Carolina has a long history of racial discrimination in voting, it must submit any changes in its election laws to Washington for pre-clearance. The Voting Rights Act forbids states such as South Carolina from enacting any provision that would “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.”

What that means in plain English is that the state may not pass laws with either the purpose or the effect of undermining the right to vote on account of race, color, or membership in a language minority.

The photo ID issue is a familiar topic of debate between Republicans and Democrats. Republicans generally favor photo ID laws as an effective means to discourage voter fraud. Democrats generally oppose such measures because they say it can lead to disenfranchisement of certain potential voters who don’t have an acceptable government-issued photo ID.

On Dec. 23, the Justice Department announced that it would block implementation of South Carolina’s new photo ID law. Assistant Attorney General Thomas Perez said that roughly 240,000 registered voters in South Carolina lacked acceptable photo ID.

A Justice Department analysis found that 8.4 percent of white registered voters lacked acceptable ID, while 10 percent of non-white registered voters had no photo ID.

“In other words, according to the state’s data … minority registered voters were nearly 20 percent more likely to lack DMV-issued ID than white registered voters,” Mr. Perez said. He said that disparity – between 8.4 percent and 10 percent – proved that minority voters would be “effectively disenfranchised” by the new voter ID law.

”The absolute number of minority citizens whose exercise of the franchise could be adversely affected by the proposed requirements runs into the tens of thousands,” Perez said. “According to the state’s statistics, there are 81,938 minority citizens who are already registered to vote and who lack DMV-issued identification.”

In the complaint, Clement says the new law is not discriminatory and that it is no more than “a temporary inconvenience no greater than the inconvenience inherent in voting itself.”

But the complaint doesn’t stop there. Clement warns of “grave constitutional concerns” should the three-judge court affirm the Obama administration’s aggressive enforcement of the Voting Rights Act against South Carolina.

He notes that in 2008, the Supreme Court upheld an Indiana law requiring photo ID to vote. Unlike South Carolina, Indiana is not required to submit its laws to the Justice Department for pre-approval.

The high court, in a 6-to-3 decision, said that because Indiana issued free ID cards, the inconvenience of obtaining the card, gathering the necessary documents, and posing for a photo, did not qualify as a substantial burden on the right to vote.

Clement argues that the same standard applied by the high court to Indiana should apply to South Carolina as well. If not, he warned, the Obama administration would be open to a charge that it was violating South Carolina’s “right to equal sovereignty.”

In effect, Clement is accusing the Obama administration of discriminating against the state of South Carolina. That action, Clement says, “would bring into serious question the constitutionality of Section 5 of the Voting Rights Act.”

This statement in his brief is significant because several Supreme Court justices raised questions during a 2009 case about the constitutionality of treating states differently under Section 5 of the Voting Rights Act. Although they did not reach that issue in 2009, they suggested that they might examine it in a future case.