The U.S. Justice Department wants a panel of judges in Washington to strike down a South Carolina voter identification law that the federal government said will hurt the ability of minorities to vote.
The special three-judge panel on September 24 heard closing argument in South Carolina’s suit against the Justice Department in U.S. District Court for the District of Columbia. The court is assessing whether South Carolina’s voter identification requirements run afoul of the Voting Rights Act in the law’s effect and in its purpose.
South Carolina’s fight with the Justice Department is the latest battle over voter identification initiatives around the country. A different panel in Washington recently ruled against a controversial voter identification measure in Texas. The panel in that case found the law’s effect discriminatory. The judges, however, did not rule on whether Texas had discriminatory intent in pushing for the change.
Attorney General Eric Holder Jr. has spoken around the country in recent months about the government’s fight to protect votingrights. At a speech on September 22 in Washington, Holder told the Congressional Black Caucus that DOJ “will not stand by and allow the votingrights of American citizens to be impinged by specious arguments and by those who seek naked political advantage.”
The Justice Department’s Matthew Colangelo told Monday’s panel — Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit and U.S. District Court Judges Colleen Kollar-Kotelly and John Bates — that the South Carolina law is particularly harmful to blacks. Minority voters in South Carolina are more likely than whites to not have an accepted form of identification required to cast a ballot, he said. Colangelo said there’s an 8.3 percent probability that a black voter doesn’t have the currently accepted photo identification.
A lawyer for South Carolina, H. Christopher Bartolomucci, said in court he ishopeful the panel will rule in time to implement the state’s voter identification law for the upcoming November election.
Bartolomucci said the law, which passed the Republican-led South Carolina legislature over objection from Democrats, is designed to combat voter fraud and to promote confidence in the electoral process. Bartolomucci, a Bancroft partner in Washington, said more than 95 percent of the state’s voters already have an accepted form of photo identification. “This is mainstream legislation,” Bartolomucci said about the state’s voter ID law.
Bartolomucci touted provisions in the law that he said work to the benefit of voters. Among them: the ability of a resident to cast a provisional ballot after signing an affidavit in which the person claims a “reasonable impediment” to obtaining photo identification. The law also mandates that the list of voters without identification cards be publicly available. The state will provide free photo identification card to voters.
In court, Bartolomucci described the “reasonable impediment” component of the law as the “ultimate backstop” to cut against any claim the law will adversely affect the ability of minorities to vote. Bates posed a hypothetical situation in which a would-be voter says on the affidavit that he or she did not “feel like” getting a photo identification card. That reason, Bartolomucci said, is insufficient to cast a provisional ballot.
Kollar-Kotelly questioned that position, however, noting that the “didn’t feel like it” reason from the would-be voter is true — at least from the voter’s perspective. Bartolomucci said the hypothetical discussion about “don’t feel like it” and “didn’t feel like it” reasons was at the fringe — an extreme, rare circumstance. He insisted that election officials will be trained to err on the side of the voter.
Kollar-Kotelly also questioned whether the state could have offered free identification cards at more locations in each county.
Kavanaugh and Colangelo got into a back-and-forth over whether a notary is required for the submission of a “reasonable impediment” affidavit. Kavanaugh insisted that the notary requirement was no longer a part of the case, based on trial testimony from South Carolina officials. The Justice Department, Colangelo said, was concerned about federal interpretation of state law. He said a ruling that the impediment affidavit does not require a notary raises federalism concerns.
Making a larger point, Colangelo argued that provisional ballots are not the same as machine-cast ballots. Paper ballots, the Justice Department lawyer said, can be lost or destroyed.
The court did not immediately rule. Colangelo expressed skepticism that South Carolina would be able to put its law into effect for the general election this fall. “There’s no set of circumstances that the law can be implemented for 2012,” he said.
Contact Mike Scarcella at firstname.lastname@example.org.