Final day in court for South Carolina’s voter ID law

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David Demirbilek Contributor
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Closing arguments in the most recent legal battle over voter ID laws wrapped up Monday afternoon, with South Carolina arguing that the state’s identification requirement complies with federal law.

After months of trial proceedings, lawyers for South Carolina and the Department of Justice squared off for over two hours in front of a three-judge panel at the U.S. District Court for the District of Columbia.

Under the Voting Rights Act of 1965, states with histories of racial discrimination seeking to alter their voting practices must seek preclearance from either the Justice Department or federal district court in D.C.

Justice first denied preclearance to South Carolina’s voter ID law in December 2011, and the state subsequently took its case to court after a failed appeal in April.

Christopher Bartolomucci of Bancroft PLLC represented South Carolina in court. Former Bush Solicitor General Paul Clement, who argued the recent challenge to the Affordable Care Act at the Supreme Court, contributed to the state’s brief as a fellow partner at Bancroft.

Bartolomucci opened by stating that 95 percent of its citizens already possess the types of identification required in the state’s voter ID law. He admitted a small racial gap in minority photo ID possession among the remaining 5 percent.

A main feature of the state’s strategy was to frame its case by contrasting South Carolina’s voter ID law with that of Texas, rejected by the same court less than a month ago on the grounds it would disproportionately restrict minority voting.

Bartolomucci observed that South Carolina offers photo identification cards at no cost to voters. Texas provided for free photo ID cards but required at a cost other underlying documentation for the ID, a $22 birth certificate being the most inexpensive option.

Additionally, Texas lacked a location to acquire a free ID card in approximately one-third of all its counties, requiring some Texans to travel over 100 miles to the nearest registration site. South Carolina provides at least two locations per county.

Bartolomucci cited language in the recent Texas case that if a state properly addressed these two factors, its voter ID law would likely be allowed to stand.

He also pointed to extra safeguards included in the law to further ensure that minorities are not disenfranchised. These measures ranged from aggressive voter education programs to exceptions that will allow voting without photo ID in the case of a reasonable impairment.

When asked about discriminatory intent behind the law and how Democrats and minorities were often excluded in the drafting process, Bartolomucci replied that many of their ideas were included. He admitted that not all the Democrats’ proposals made it into the law, replying, “That’s politics.”

The Justice Department minimized the importance of these safeguards and focused more purely on the racial gap in minority photo ID possession.

Even in light of South Carolina’s attempts to mitigate this gap, Justice asserted that the state could not prove that it would erase the disproportionate effect its law would have on minorities.

Although all three judges actively questioned South Carolina, Judge Kollar-Kotelly, a Clinton appointee, was effectively silent after Justice Department lawyers took the podium. Judges Kavanaugh and Bates, both George W. Bush appointees, frequently interrupted the Justice lawyer Department with questions.

When the Justice Department pointed out that many minorities have not yet signed up for free photo IDs, Kavanaugh responded that the state’s law wasn’t in effect yet, so there is no reason for anyone lacking ID to register for one.

Possibly tipping his hat, Kavanaugh said that while South Carolina’s case was “ambiguous around the margins,” the state had effectively answered the court regarding “everything core” in the law.

Perhaps the biggest surprise occurred when Bartolomucci — without prompting from the judges — appeared to question the constitutionality of the Voting Rights Act.

“If Section 5 [of the Voting Rights Act] is indeed constitutional as applied to this law, the standard of proof cannot be an impossible burden,” Bartolomucci asserted.

The accusation that the Voting Rights Act imposes impossible burdens on states has been leveled before. When the same federal court rejected Texas’s voter ID law in August, The Daily Caller News Foundation heard the same critique of the law from Michael Carvin, a veteran voting rights lawyer and partner at the law firm Jones Day.

“Section 5 is plainly unconstitutional, because it places the impossible burden on covered jurisdictions to prove the un-provable even in order to protect the basic integrity of their own voting systems,” Carvin said.

The court will likely rule on the case in roughly a month.

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