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A three-judge panel in Washington has ruled South Carolina’s controversial voter identification law doesn’t discriminate against minorities. The court, however, blocked the law for the 2012 election, noting the potential “chaos” of trying to implement the law in a short time. Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit, sitting with U.S. District Judges Colleen Kollar-Kotelly and John Bates, said in the October 10 ruling that the state law allows South Carolina residents to vote without a photo ID so long as the person states the reason for not having obtained one. “At first blush, one might have thought South Carolina had enacted a very strict photo ID law,” Kavanaugh, the opinion’s author, wrote. “Much of the initial rhetoric surrounding the law suggested as much. But that rhetoric was based on a misunderstanding of how the law would work.” The ruling is the latest in a series of challenges by states under a section of the Voting Rights Act that requires certain jurisdictions to get approval before implementing electoral changes. In August, a different three-judge panel refused to grant preclearance to the Texas state voter identification measure. Voter ID laws in Indiana, Georgia and New Hampshire passed legal muster, the court noted today. The U.S. Justice Department argued South Carolina’s voter identification measure would harm minorities, whom the government said are disproportionately more likely not to have a photo card. Government lawyers also argued that there was “no set of circumstances” that would allow the state to implement the law for the 2012 election. Part of South Carolina’s law, the three-judge panel said, includes the ability of a resident to explain his or her “reasonable impediment” that prevents obtaining a photo card. The voter is then allowed to cast a provisional ballot. Kavanaugh said “we know that at least some South Carolina legislators intended the reasonable impediment provision to be interpreted broadly so as to accommodate voters currently without photo IDs.” The word “provisional,” Kavanaugh said, is a bit of misnomer. “These ballots must be counted and will be counted, at least so long as the voter does not lie when he or she fills out and signs the reasonable impediment affidavit,” Kavanaugh said. “Counting the reasonable impediment ballots will not differ in substance from the counting of absentee ballots.” The law, Kavanaugh wrote in the decision today, “expands the list of qualifying photo IDs that may be used to vote; and it makes it far easier to obtain a qualifying photo ID than it was under pre-existing law.” South Carolina’s photo ID law “would fall on the less stringent end” if placed on a spectrum with the identification laws of other states, Kavanaugh said. “Put simply, Georgia’s voter ID law does not permit voters who lack qualifying photo IDs to vote at the polling place,” the judge said. Kavanaugh noted that Texas “has many counties that lack a place for voters to obtain qualifying photo IDs.” The court today said that even though the law will be pre-cleared for future elections, it cannot be implemented in the four weeks left for the 2012 elections. “With under four weeks left to go, the potential for chaos is obvious,” Kavanaugh wrote. “In that regard, we note that South Carolina officials—while gamely and admirably saying they will try to get the job done no matter what—have previously told the Court that this is far too late a date for the law to be properly implemented.” Kollar-Kotelly agreed with Kavanaugh’s opinion but wrote separately to “emphasize the importance” of the reasonable impediment provision. Many voters, the judge predicted, will rely on that provision in elections in the next several years. “[A]ny 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,” the judge said. Bates also agreed with the majority opinion. He wrote separately, however, to offer two observations. The law as it first appeared last year, the judge said, is not the law it is today. “An evolutionary process has produced a law that accomplishes South Carolina’s important objectives while protecting every individual’s right to [vote],” Bates said. Bates also said “one cannot doubt the vital function that Section 5 of the Voting Rights Act played here. Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive.” Contact Mike Scarcella at mscarcella@alm.com.

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